Federal officials overseeing the Yucca Mountain nuclear waste project put themselves in a "legal no man's land" when they used Nevada's water to drill bore holes without permission and shouldn't be allowed to continue, state attorneys said in court papers filed Tuesday.
The Department of Energy "has been using water for at least a year in violation of the understanding the parties had. And now, incredibly, DOE continues to use Nevada's water for a purpose outside the agreement and unsupported in federal law," Nevada's Senior Deputy Attorney General Marta Adams said in an interview Tuesday.
"They have the audacity to seek emergency relief (from the courts) based on their own misdeeds," Adams said.
Documents the state filed in U.S. District Court in Las Vegas constitute Nevada's latest response to an attempt by the Justice Department to persuade Judge Roger Hunt to block a cease-and-desist order issued by the state.
A hearing is scheduled for Aug. 15 on the Justice Department's emergency motion on behalf of the Department of Energy which, despite the cease-and-desist order, has continued to use Nevada's water from wells near the site, 100 miles northwest of Las Vegas. The Energy Department needs the water to finish collecting rock samples needed for a license application the agency intends to submit to the Nuclear Regulatory Commission by June 2008.
"Merely because DOE finds itself in a legal no-man's-land of its own making does not justify the preemption of Nevada water law," wrote Senior Deputy Attorney General Michael Wolz, who represents State Engineer Tracy Taylor and Allen Biaggi, director of Nevada's Department of Conservation and Natural Resources.
Adams, who represents the Nevada Agency for Nuclear Projects, stated in her filing that "the public interest in holding public officials accountable for deliberate or reckless violations, and in respecting the sovereignty of the State of Nevada, outweighs the speculative harm to DOE associated with a possible delay in meeting a self-imposed and completely artificial schedule for filing a license application."
The Energy Department has claimed that it will suffer contractual damages in the range of $90,000 per day if the drilling project is curtailed, but Adams said that's no reason to allow the drilling to continue.
"In any event, DOE's monetary loss is predicated entirely on DOE's unilateral decision to hire drilling contractors for an unauthorized use of water for a purpose outside the parties' agreement," Adams wrote.
She concluded that the department is not entitled to a preliminary injunction to use Nevada's water for its bore hole drilling project.
Bob Loux, executive director of the Nevada Nuclear Projects Agency, states in an affidavit that the Energy Department engaged in "an effort to 'fly under the radar' by uniquely failing to communicate" with Nevada's counsel or directly with the state engineer.
Loux cites an internal Energy Department memo that describes the ongoing drilling program as "site characterization activities."
"If DOE were to lose its legal challenge and were not allowed to use ground water on the site, the department could truck in water, which would only delay, not terminate the project," the Feb. 17, 2005, internal memo notes.
Based on the federal nuclear waste law, the site characterization work for which the Energy Department is using the water, to cool and lubricate drill bits and to create mud for collecting soil-and-rock samples, ended five years ago, the state contends.
At that point, the department had 90 days to file a license application for construction of a nuclear waste repository and surface facilities at Yucca Mountain but failed to do so.
"DOE, because of its failure to comply with the NWPA (Nuclear Waste Policy Act) and specifically the congressional mandate to file a license application within 90 days, now finds itself in an unauthorized middle ground where it is neither in site characterization nor the construction stage," Wolz wrote.
"There is certainly no authority that would allow DOE to begin completely new studies such as its bore hole drilling program during this period," he wrote. "Nevada law cannot be deemed to have been preempted by federal law where there is no federal law requiring or even allowing the bore hole drilling program."
Keith Saxe, assistant chief of the Justice Department's Natural Resources Section, won't comment on the Yucca Mountain water issue.