Friday, December 19, 2003
Copyright © Las Vegas Review-Journal

NUCLEAR WASTE: Lawyers preview arguments against dump

Lead attorney confident of winning at least one of half-dozen lawsuits

WASHINGTON -- Nevada officials and attorneys previewed legal arguments against the Yucca Mountain Project on Thursday, charging government agencies "pounded a square peg into a round hole" to justify burying nuclear waste in the state.

Joseph Egan, Nevada's lead attorney against the project, said he was confident of winning at least one of a half-dozen lawsuits that could kill or cripple plans for a waste repository 100 miles northwest of Las Vegas.

"I think this is the first time any court in the country is going to look at the fundamental legal merits of this project," Egan said at a news briefing.

A legal shutout for Nevada "won't happen, I will tell you that," Egan said.

A three-judge panel in the U.S. Court of Appeals for the District of Columbia Circuit has scheduled three hours on Jan. 14 to hear arguments in the lawsuits, which have been consolidated into three major cases.

Members of Nevada's legal team said they will tell the court that President Bush and three major federal agencies pushed forward with the Yucca Mountain Project in violation of a law Congress passed in 1982 that was supposed to guide their search for a nuclear waste disposal site.

Lawyers for the government contend otherwise, that Congress passed several follow-up laws that allowed the program to be redirected.

Nevada attorneys said they will argue the Department of Energy discarded repository site rules based on the 1982 Nuclear Waste Policy Act after scientists discovered Yucca Mountain's geology was too porous to keep radioactive particles from escaping into groundwater and threatening the health of Nevadans in nearby Amargosa Valley and beyond.

Instead, agencies adopted new standards that allow the site's geological features to be supplemented by safety protections afforded by specially constructed storage casks, titanium drip shields and other engineered barriers.

If that is the case, the Nevadans charge, nuclear waste could be stored practically anywhere.

"All the agencies abandoned geology and they had to pound a square peg into a round hole again and again and again," to justify the site, Egan said.

"Had the government been playing by the rules, clearly this would not be the site," said Bob Loux, executive director of Nevada's Agency for Nuclear Projects.

Loux estimated the state has spent $100 million fighting the Yucca Mountain Project, about 80 percent of it being federal grant money. Nevada is paying the Egan-headed legal team $4 million.

One of Nevada's lawsuits challenges the constitutionality of the Yucca Mountain Project. Prepared by Charles Cooper, a nationally recognized constitutional law attorney, the suit charges the 49 other states ganged up to force nuclear waste on Nevada without a constitutionally compelling reason.

Another lawsuit charges multiple defects in major DOE environmental studies.

A ruling against the government would stop the project in its tracks, Egan said.

A directive that the Energy Department go back and prove Yucca Mountain can meet tougher health and safety standards would have the same practical effect, he said, "because they can't get there from here."

Egan predicted the Yucca Mountain issue would probably end up before the Supreme Court no matter how the case comes out in the appeals court. He said rulings in the appeals court cases are expected by mid-2004.

Government officials say their development of the Yucca Mountain site has been proper and within the law.

Although Nevada is pinning key parts of its case on the 1982 law, DOE managers and nuclear industry attorneys argue Congress passed follow-up bills in 1987 and 1992 that redirected the program.

The 1987 law de-emphasized geology as a prime consideration for a repository once Yucca Mountain was singled out for detailed study, said Michael Bauser, associate general counsel for the Nuclear Energy Institute.

Additionally, in 1992 Congress ordered up a National Academy of Sciences study whose results set the framework for agencies to design new radiation and safety standards for the repository, according to Energy Secretary Spencer Abraham, who outlined the changes in his 2002 site recommendation.

The Energy Department also contends Nevada's arguments became moot when Congress passed legislation finalizing Yucca Mountain as the preferred site.

"If Congress didn't think we followed the law, they wouldn't have voted to allow us to move forward on Yucca Mountain," DOE spokesman Joe Davis said Thursday.