Federal lawyers defend water use

Contrary to Nevada's stance that the Department of Energy violated a court-approved agreement by using the state's water to drill bore holes at the Yucca Mountain nuclear waste site, Justice Department attorneys contend in court papers Monday that DOE did nothing wrong.

The 44-page document filed by Stephen Bartell and Ronald Tenpas, attorneys for the Justice Department's Environment and Natural Resources Division, sets the stage for a hearing Wednesday in U.S. District Court in Las Vegas on their emergency motion to block the state engineer's cease-and-desist order.

"State defendants assert that this case does not involve state regulation of federal activity, but rather state control over acquisition of state property rights which, as a consequence of federal as well as state policy, is exclusively governed by state law. (They) are wrong as to each of these contentions," Bartell and Tenpas wrote.

The lawyers further tried to debunk the state's position, citing the supremacy clause of the U.S. Constitution which they said prohibits state interference with DOE's water use on federal land.

Scientists at Yucca Mountain, 100 miles northwest of Las Vegas, have continued to use water from two nearby wells despite State Engineer Tracy Taylor's June 1 cease-and-desist order that was reinstated July 20 after he determined that it is not in Nevada's interest to allow the water to be used to drill bore holes.

The water is used to cool and lubricate drill bits and to create mud for collecting soil and rock samples from hundreds of feet below the surface where DOE wants to build hangar-size buildings above ground for handling and storing spent nuclear fuel before it is entombed in the mountain.

The "geotechnical" information about the potential for earthquakes and floods in the area is needed for a license application for building a repository that DOE plans to submit to the Nuclear Regulatory Commission by June 2008.

State attorneys have argued in court filings that the drilling program should have been completed by 2002 before then-Energy Secretary Spencer Abraham recommended the site to President Bush.

The Justice Department lawyers assert that activities related to bore hole drilling "lawfully occur 'between' the 'site characterization state' and the 'construction stage.' "

By failing to follow the court-approved agreement and ignoring Taylor's cease-and-desist order, state attorneys have said the Department of Energy and its counselors have come to the court with unclean hands that should disqualify them from receiving a preliminary injunction.

"The state's argument is baseless," the Justice Department attorneys wrote in Monday's filing.

"The correspondence between the parties reveals unmistakably that DOE followed the procedures it had agreed upon, gave ample notice of its planned water use to the state engineer and complied with all previous agreements," they wrote.