Government challenges order halting water use at Yucca site

The other shoe dropped Wednesday in the squabble between the federal government and Nevada over using the state's water for drill rigs at the planned Yucca Mountain nuclear waste site.

Justice Department attorneys on behalf of the Department of Energy filed an emergency motion in U.S. District Court in Las Vegas seeking to block State Engineer Tracy Taylor's June 1 cease-and-desist order, which was reinstated Friday.

"The state engineer's application of Nevada water law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress with respect to DOE's ongoing work at the Yucca Mountain site," reads the court papers that were filed at the close of business Wednesday by Acting Assistant Attorney General Ronald Tenpas and Stephen Bartell, attorney for the Justice Department's Natural Resources Section in Washington, D.C.

The 45-page document concludes that the federal government is not trying to undermine Nevada's water permit process.

"However, in this particular instance, the state is using the water permit process to attempt to veto a federal project," reads the motion submitted to U.S. District Judge Roger Hunt. "Such action is contrary to law and, if allowed to continue, will not only stand as an obstacle to congressional intent, but will also place great hardship on the United States."

Bob Loux, executive director of the Nevada Nuclear Projects Agency, said nothing in the complaint was unexpected.

Loux said state attorneys will probably file an answer to the motion early next week that will be followed by a court hearing.

"We believe that DOE under federal law, after the site recommendation, is not allowed to collect any more data," Loux said, noting that the Department of Energy's Yucca Mountain Project officials understood "that collecting data is unreasonable."

The state engineer's cease-and-desist order had been on hold since June 12 until Friday, when the federal government rejected his demand that the water not be used to drill bore holes to extract soil-and-rock samples because the data-collection project is not in the state's interest.

The seismic or "geotechnical" information is needed for licensing surface facilities where the government plans to temporarily store the nation's spent nuclear fuel and radioactive defense waste to cool it and sort it before entombing it in the mountain, 100 miles northwest of Las Vegas.

"The drilling program has been developed to provide geotechnical information for building design and to provide additional data for confirmation of previously developed seismic response spectra," the Justice Department attorneys wrote.

They said the Department of Energy "has scheduled this work to be completed before November 2007."

DOE officials have deferred comment on the matter to Keith Saxe, assistant chief of the Justice Department's Natural Resources Section. He has refused to say whether drilling has been conducted at the site since Friday, when the state engineer's cease-and-desist order was back in place.

The water is needed to cool and lubricate drill bits and create mud for samples.

Nevada officials have contended that the site characterization process ended in 2002, when it was recommended to President Bush. Five months later, on July 23, 2002, Bush signed legislation overriding then-Gov. Kenny Guinn's veto of the project.

In December 2002, the state and the Department of Energy entered into an agreement approved by Hunt that allowed DOE officials to use a limited amount of water at the site for showers, restroom facilities, dust suppression and emergencies such as fires.

Taylor issued the cease-and-desist order after state officials learned that DOE workers were using Nevada's water for purposes outside of the court-approved agreement.