Gibbons lets Yucca Mountain project use state’s water for another month

A decision by the state engineer, with the backing of Gov. Jim Gibbons, to let the U.S. Department of Energy use the state's water for another month to explore the planned Yucca Mountain nuclear waste site amounts to surrendering in Nevada's decades-long fight against the project, Sen. Harry Reid said Tuesday.

"They have capitulated to the people who want to put nuclear waste in Nevada," Reid, D-Nev., said by telephone from Washington, D.C.

"This is capitulating to the Department of Energy and the proponents of nuclear waste in Nevada. I am terribly disappointed," Reid, the Senate majority leader, said. "This is a bad day for Nevada."

A letter from State Engineer Tracy Taylor dated Monday gives the Department of Energy another 30 days to use Nevada's water for drilling bore holes near the mountain.

That is enough time for DOE scientists to collect samples for data needed for a license from the Nuclear Regulatory Commission to build a repository and surface facilities for handling and cooling spent nuclear fuel assemblies before entombing them in the mountain, 100 miles northwest of Las Vegas.

Yucca Mountain Project officials intend to submit a license application to the commission by June 2008, triggering a review process that will last a few years.

Taylor had issued a cease-and-desist order to the Energy Department on June 1 and then lifted it June 12 while he reviewed information from the federal agency.

Since then, he has allowed DOE to use water from two wells near Yucca Mountain to cool and lubricate drill bits and collect core samples from mud. Such use of the water is not allowed under a court-approved agreement that stipulates DOE is only supposed to use the state's water for flushing toilets, fire suppression and dust control.

Taylor was on vacation Tuesday and unavailable for comment.

In a statement, Reid said Taylor's decision "is the biggest gift the DOE has received since I've been in Washington, and I am shocked that it was delivered by the administration of a former Nevada congressman," who is the state's Republican governor.

"The letter ... lays out every reason the DOE should cease and desist. Yet, at the same time, the state gave the DOE the green light to move forward on this project, while the entire Nevada congressional delegation continues to fight to prevent Nevada from becoming the nation's nuclear dumping ground," Reid said in the statement.

Gibbons was surprised by Reid's comments and told the Review-Journal, "No one has a stronger record of opposing Yucca Mountain than I do as a congressman and now as governor. We all have worked to stop this project."

Asked why he backs Taylor's decision to offer DOE a chance to continue using Nevada's water for 30 more days, Gibbons said, "If the state engineer felt he should legally turn it off today, I would support that 100 percent."

The sternly worded letter from Taylor to Scott Wade, acting director of the Yucca Mountain Site Operations Office, says, "DOE's actions in proceeding with its bore hole drilling project without a permit or agreement appear to have been deliberate. ... Because site characterization ended in 2002, the DOE has no authority to continue with site investigation.

"For these reasons .... I find that the DOE's use of water for the bore hole drilling project is not in the public interest," Taylor wrote.

Nevertheless, Taylor agreed to let DOE continue using the state's water for that purpose for 30 days, citing DOE's potential "waste of significant financial resources" for completing the first two phases of the drilling program.

He noted that Gibbons has signed into law a bill that in January 2009 will allow for a $10,000-per-day penalty for each violation of the state's water law.

The letter gives Wade until Friday to respond.

Allen Benson, a Department of Energy spokesman for the Yucca Mountain Project in Las Vegas, wouldn't comment on the state engineer's letter, citing potential litigation.

Late Tuesday, Gibbons released a statement saying DOE's "unauthorized use of water for drilling" is more evidence that the agency is rushing to complete the project.

"This is yet another red flag that raises concerns about the ongoing efforts at Yucca Mountain and the DOE's desire to expedite a project that has been deemed 'broken' by Energy Secretary Samuel Bodman himself," Gibbons said.

Gibbons acknowledged that he is considering replacements for members of the Nuclear Projects Commission, whose terms are expiring.

He has replaced long-time Yucca Mountain opponent Michon Mackedon with Nye County Commissioner Joni Eastley, who represents an area where there has been some support for the project.

"We've got a number of people we're reviewing," Gibbons said, declining to name his candidates.

"We plan to fill those positions with people who feel the way the state of Nevada feels, that Yucca Mountain is bad for the state and bad for the country," he said.

The state's water rights have been a key weapon in legal battles to prevent the federal effort to license and build a repository at Yucca Mountain.

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 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 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 later 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, Hunt 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."

That same year, 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.