Yucca Mountain News. Summer Nevada's case vs. Yucca delayed

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1 Yucca Mountain News Yucca Mountain News Summer 2003 Page 1 Summer 2003 Churchill County Oversight Program Publication Research on Yucca Mountain continues as scientists seek answers to questions that will arise before a license can be issued. In this issue: Nevada s case vs. Yucca delayed Transportation Routes Undecided Hearings open on Nuc Waste Water New Vocabulary word: Transuranic Pupfish could be player in battle for Yucca water Anything that allows the court to look more closely at documents and ask more questions is good. the only bad thing is that it may delay it." Joe Egan, with firm representing State of Nevada Nevada's case vs. Yucca delayed WASHINGTON -- A federal court has postponed the date of oral arguments for Nevada's consolidated court case against the Energy Department's Yucca Mountain project, and the delay could bode well for arguments against the site. Oral arguments had been scheduled for Oct. 3, but the U.S. Court of Appeals for the District of Columbia Circuit postponed the case Thursday and reclassified the case as "complex." The court designates only a few cases this way each year. The "complex" classification means the judges decided it is more than just a regular case, said Linda Jones, the court's operations manager. The clerk's office will now need to randomly select a new panel of three judges to hear the case and set a new date for the oral arguments. She did not know the new date or have a timeline as to when it might be set. Joe Egan, an attorney with Egan, Fitzpatrick and Malsch, the Washington-area law firm hired by the state to handle the legal challenges, called the change "very good." According to a court guidebook, once deemed "complex," cases may be allowed several hours of argument time as opposed to the usual 10 or 15 minutes allotted for regular cases. The parties will usually receive an order allocating the time two to three weeks before the date, the court said. The court will also expand the usual page or word limits on briefs. "Anything that allows the court to look more closely at documents and ask more questions is good for us,' Egan said. "The only bad thing is that it may delay it." Bob Loux, director of Nevada's Nuclear Project Office, agreed that while the postponement is disappointing at least "it means the judges are taking a serious look at this. It suggests they understand this is a serious issue." Energy Department officials could not be reached for comment. The court consolidated several cases brought by the state challenging various aspects of the Yucca Mountain project. Located about 90 miles northwest of Las Vegas, the site is the potential federal repository for 77,000 tons of nuclear waste. Congress and President Bush approved the storage site last year and the department an- (Continued on page 2)

2 Yucca Mountain News Summer 2003 Page 2 Nevada's case vs. Yucca delayed (Continued from page 1) ticipates submitting a license application to the Nuclear Regulatory Commission in December As part of its strong opposition to the site, Nevada has sued the department on the environmental impact statement, the recommendation and the guidelines used to determine the site's suitability to hold the waste. These cases have been lumped together with cha l- lenges against the Environmental Protection Agency's radiation standards for the site and the Nu- clear Regulatory Commission's rules for licensing it. A constitutional challenge against the site filed in January is also part of this case. Mike Bauser, NEI associate general counsel, took no position on the court's decision but said it is a response to documents filed earlier by all of the parties outlining the order they wanted the cases heard and how much time should be allotted for the arguments. Reprinted by permission Las Vegas Sun, by Suzanne Struglinski Senator John Ensign listens as Senator Harry Reid speaks during a Congressional hearing into alleged flaws in the Yucca Mountain project. Transportation Routes Undecided The Department of Energy (DOE) remains undecided on waste transportation routes and modes to Yucca Mountain. In the Final Environmental Impact Statement (FEIS) for the Yucca Mountain Project, DOE identified rail as the preferred mode of transportation to Yucca Mountain. Final rail routes have not been selected. However, not all waste can be transported to Yucca Mountain by rail. A certain number of truck shipments will be needed because several generator sites do not have rail access. If current routing decisions for existing waste shipments are any indication, DOE will be avoiding major urban areas and politically powerful states. Annually, DOE accepts hundreds of lowlevel waste shipments at the Nevada Test Site. Routing of such shipments has always been a contentious issue among western States resulting in many secondary highway routes being used instead the preferred interstate system. In a more recently example, negotiations over routes for shipments of transuranic waste to Carlsbad, New Mexico from NTS resulted in a new route through rural Nevada that adds nearly 700 miles to the shipment length. When considering the shipments are bound for Carlsbad, New (Continued on page 3)

3 Yucca Mountain News Summer 2003 Page 3 Transportation Routes Undecided (Continued from page 2) Mexico the new route (U.S. 6 through Tonopah, Ely and Wendover), is no subtle increase in shipment miles. The original route negotiated among the states required transuranic waste to travel some 1,130 miles to Carlsbad, New Mexico. This minor adjustment only increases the total shipment miles by nearly 60 percent. Prior to this recent routing dispute, transuranic waste shipments were to leave NTS on U.S. 95 connecting to California Highway 127 south to Baker California then east. This route would avoid shipping wastes directly through the Las Vegas Valley. California, which said that its state Route 127 had limited emergency response and was not designed for heavy trucks, has agreed to allow about half the Not all waste can be transported to Yucca Mountain by rail. tainted material to be shipped along the Death Valley route to Baker. The remaining shipments would have to find another route. Presumably that route is through north central Nevada. Yucca Mountain present a much more complicated transportation program with more dangerous material to move and significantly more shipments af- fecting most areas of the U.S. The political wrangling over transuranic shipments illustrates the difficulty for Yucca Mountain transportation planners will have making the decisions about route and mode selection. It comes as no surprise that DOE has not identified final modes or routes to Yucca Mountain.

4 Yucca Mountain News Summer 2003 Page 4 Hearings open on nuke waste water The state attorney general's office said today allowing underground water to be used in the development and operation of a high-level nuclear dump at Yucca Mountain will "drastically undermine future beneficial uses of water" in Nevada. Senior Deputy Attorney General Marta Adams told state Engineer Huge Ricci this morning, as hearings on permanent water rights for the project began, that he should consider evidence that wastewater from Yucca would contaminate the underground supply in the Amargosa Valley. That is detrimental to the public interest, he said. But Brent Kolvet, a lawyer for the U.S. Energy Department, said the issue is limited to whether there is enough water available for Yucca Mountain and if the pumping of that water will affect other water users. Kolvet said the state has already conceded there is enough water for the project. He said other evidence of possible contamination should not be considered by Ricci. That is the jurisdiction of other agencies, he said. The hearing started with Adams presenting her case, asking Ricci to reject the application for 430 acre feet of water a year sought by the Energy Department. Hearing officer Susan Joseph Taylor, who is conducting the proceeding, criticized both sides for their pre-hearing briefs. She said they both failed to address the question of what's in the public interest. She called the arguments "shallow" and said the briefs failed to say whether the state engineer must "consider everything under the planet" when ruling on an application. She asked, "Is the state engineer supposed to be an expert on all things?" The hearing is expected to last two days and a decision probably won't be made for several months. The State Engineer's Office already denied the application once. But the 9th U.S. Circuit Court of Appeals overturned the decision. Reprinted by permission Las Vegas Sun, by Cy Ryan Yucca use of underground water could damage Nevada The state Attorney General's Office said Thursday that allowing a nuclear waste repository at Yucca Mountain to use underground water would result in environmental damage to Nevada. But Brent Kolvet, an attorney representing the U.S. Department of Energy, said its application to pump 430 acre-feet of water a year for development and operations of the dump meets all of the requirements in state law. Kolvet said his department believes state Engineer Hugh Ricci was obligated to grant the permit. Ricci took the arguments and will rule later. He said he had no estimate when he will make a decision. Former State Engineer Mike Turnipseed originally denied the applications of the Energy Department but the 9th U.S. Circuit Court of Appeals overturned the ruling and sent it back for further hearings. Senior Deputy Attorney General Marta Adams, representing the Nevada Office of Nuclear Projects, said in her final argument Thursday: "We have ample evidence in the record to show the socioeconomic interests of the state will be jeopardized if this project is allowed to go ahead." Adams said the water that would be used at Yucca Mountain would lead to contamination of the underground water supply. Kolvet argued the same arguments presented by Adams were rejected by the federal appeals court. In addition to stopping the approval of the water permits, the state has filed several lawsuits in the U.S. Court of Appeals in Washington D.C. to block the construction of the project. Hearings were set for October but they were cancelled and no new dates have been set.

5 Yucca Mountain News Summer 2003 Page 5 Pupfish could be player in battle for Yucca water The tiny pupfish, an endangered species found at Devil's Hole in the Amargosa Valley, may play a part in whether the federal government gets water rights for the proposed nuclear repository at Yucca Mountain. The U.S. Department of Energy wants to drill wells and pump water there for the repository. But state Engineer Hugh Ricci expressed concern Wednesday for the fate of the pupfish if the drilling goes forward. "There is a possible impact on Devil's Hole," Ricci said at the opening of the hearing on the application. "I've got a tough decision to make." At least one of the wells is being drilled within 15 to 20 miles of the location of the pupfish. Ricci wanted to know why the National Park Service, which has authority over the area, didn't file a protest against the water applications of the Energy Department. Charles Pettee, chief of water rights for the National Park Service, said the Energy Department has pledged to monitor any adverse impact on Devil's Hole and will have a mitigation plan. He said because the Energy Department has made those promises, the park service decided not to protest the water application. But Ricci and other members of the state engineer's staff noted that the Park Service has protested other applications for wells in that area. But Pettee said the park service did not treat the Energy Department's application any different from others. Pettee said there were lots of people using water in that area but they were not monitoring the impact on Devil's Hole, as the Department of Energy has proposed. In 2000, the National Park Service opposed plans for Yucca Mountain, saying that groundwater contaminated with radioactivity could flow 22 miles downhill from Yucca and affect the endangered species in Death Valley. The Devil's Hole pupfish live on a water-covered shelf in a remote volcanic rock. The hearing continues today. Ricci said it would probably be several months before any decision is made. Reprinted by permission from Las Vegas Sun, by Cy Ryan

6 Yucca Mountain News Summer 2003 Page 6 New Vocabulary word: Transuranic Here's a word you can add to your vocabulary: transuranic. You'll be able to use it in everyday conversations, such as "Did you know they're planning transuranic shipments through Tonopah?" Sounds a lot better than "nuclear waste," doesn't it? No matter what you call it, a plan to truck nuclear waste an extra 700 miles through rural Nevada on its way from the Nevada Test Site to the Waste Isolation Pilot Plant in Carlsbad, N.M., carries a whiff of the absurd. Start with the fact much of the waste stored at the Test Site originated with the Lawrence Livermore National Laboratory outside Oakland. Then with California's insistence the waste not move along Route 127 through Death Valley. And finally with Clark County's reluctance to allow the shipments to go through Las Vegas. Thus the "compromise" in which the waste travels 1,800 miles -- through Tonopah, Ely and Wendover -- en route to New Mexico. The folks in White Pine County didn't think it was humorous. "We find it absurd that the (Department of Energy) would consider this," said one. The real issue, however, was best summed up by U.S. Sen. Harry Reid, D-Nev. "If they're having all this trouble with transportation of low-level waste, what in the world is going to happen to high-level nuclear waste?" he wondered. Reid was referring, of course, to the thousands of shipments of nuclear waste from all over the nation to the proposed repository at Yucca Mountain. The Energy Department is pushing ahead with designation of Yucca Mountain, with no discernible transportation plan in place. Nevada doesn't want nuclear waste. We suspect no one is going to want shipments going through their hometown, either. Who's working on an alternative? Nobody. We've come up with our own word: Transmoronic. Nevada Appeal Editorial Board This newsletter is a publication of the Churchill County Repository Planning and Oversight Program. Churchill County is one of ten affected units of local government (AULG) involved in the proposed Yucca Mountain Repository. Funding provided to Churchill County is paid by users of electricity generated by nuclear power plants, under a general contract with nuclear generating utilities. The federal government collects a fee of one mill (one-tenth of a cent) per kilowatt-hour from utility companies for nuclear generated electricity. The money goes into the Nuclear Waste fund which is used to fund all program related activities. For more information on Churchill County s program contact Churchill County Nuclear Waste Oversight Program at 85 North Taylor, Fallon, NV 89406, (775) Additional information on the repository program can be obtained from the U.S. Department of Energy. Yucca Mountain, Site Characterization Project Office at (702) or contact them at or the Nevada Agency for Nuclear Project, Nuclear Waste Project Office, Capital Complex, Carson City, Nevada 89570, (775) or visit them at their web site at nucwaste