The Department of Energy is using the state's water to drill bore holes at the proposed Yucca Mountain nuclear waste site, a use the state engineer's office calls "unacceptable" and a state oversight agency calls "stealing."
State Engineer Tracy Taylor issued a cease-and-desist order on June 1 against the Energy Department. But he also gave the agency a reprieve on his own order while federal officials submit information he requested on the drilling program and the water use. He is expected to make a decision on re-entering the cease-and-desist order in a few days.
State Nuclear Project Agency Executive Director Bob Loux said the water was being used to operate drill rigs at Yucca Mountain in violation of a court-approved agreement.
The agreement allows DOE to use the state's water only for flushing toilets, fire suppression, dust control and similar activities but not for scientific investigation of the proposed high-level nuclear waste repository site, 100 miles northwest of Las Vegas.
"From our view, they've been stealing water for Yucca Mountain," Loux said by telephone from Carson City. "They created their own injury by going out there and drilling without the state engineer's permission."
Allen Benson, a spokesman for DOE's Office of Repository Development in Las Vegas, declined to comment on Loux's claim, saying the issue is "a potential matter for litigation."
Loux said his office learned about the situation shortly before the June 1 order.
Taylor's June 1 letter to Scott A. Wade, acting director of the Yucca Mountain Site Operations Office, reads: "I have been advised that the U.S. Department of Energy is currently engaged in a bore hole drilling project at the Yucca Mountain site in violation of the stipulation in effect. ... The use of water for such purposes is unacceptable."
Loux said the Department of Energy took an unknown amount of water from two wells near the site over many months. The bore hole work was expected to be completed in August, and that would require an additional amount of water, bringing the total that DOE used for drill rigs to 8 million gallons, Taylor said.
The water is used to cool and lubricate drill bits and in collecting samples from mud.
Loux said samples collected from the holes are needed for data about surface facilities where DOE plans to handle spent nuclear fuel assemblies and temporarily store some above ground to age them or cool them before entombing them inside the repository.
"They asked to use more water for drilling purposes," Loux said. "We asked for the information, and now that we have the information, we're going to review it."
Taylor said he never granted DOE permission to use the state's water for bore hole exploration. According to Loux, DOE claims the water is needed to operate rigs for drilling up to 80 bore holes to gather data needed for a license application that Yucca Mountain Project officials intend to submit to the Nuclear Regulatory Commission by June 2008.
Loux contends the data should have been collected during the site characterization process which ended on July 9, 2002, when Congress overrode then-Gov. Kenny Guinn's veto of the project, allowing DOE to proceed with the licensing process.
The Nuclear Waste Policy Act requires DOE to submit a license application within 90 days after the congressional approval, but DOE has missed several deadlines it had set.
In December 2002, the state and DOE entered into an agreement approved by U.S. District Judge Roger Hunt that allowed DOE to use a limited amount of water for showers, restroom facilities, dust suppression and emergencies such as fires.
In 2000, then-State Engineer Michael Turnipseed denied the department permanent rights to 140 million gallons per year of groundwater, saying it was not in the state's interest to allow the government to build and operate a nuclear waste repository at Yucca Mountain.
In 2003, DOE again sought permits for 140 million gallons per year. Turnipseed's successor, Hugh Ricci, denied that request on the same grounds.
In the meantime, DOE had stockpiled more than 1 million gallons of nonpotable water.
Hunt signed an order allowing DOE to refill and hold 290,000 gallons of potable water in four tanks. The water for drinking, showers, restroom facilities and emergency use is treated at the site.
Later, Hunt put a stay on the permanent water use case pending resolution of the federal EPA radiation safety standard and other potential litigation and legislative matters.
In April 2005, he wrote in court papers that "it is not necessarily a foregone conclusion" that the project would ultimately be approved and licensed. "If it is not, the (basis) for the water permits would no longer exist."
In 2005, with Hunt's approval, state and federal attorneys agreed the Department of Energy could continue using the state's water for safety and sanitary purposes but not for scientific investigations of the site or to build a repository.