The Energy Department’s controversial plan to build a nuclear waste dump in Nevada was trumped by Western water law Tuesday, when a federal judge rejected the agency’s demand for 8 million gallons of water that state officials have refused to release.
Energy officials have said they need the water to drill test holes at Yucca Mountain, the site 90 miles north of Las Vegas where the government wants to store 70 metric tons of high-level nuclear waste from across the United States.
President Bush and Congress approved the site in 2002, but legal and political setbacks have stalled the project – and raised questions about when and even if the dump will open.
In a stinging rebuke Tuesday, U.S. District Judge Roger Hunt denied an injunction sought by the Energy Department against Nevada, saying the department had made contradictory arguments that had no merit and were not supported by federal law.
“The validity of western states’ groundwater rights and the right to regulate water in the public interest is not a right to be taken lightly, nor is it a right that can cavalierly be ignored or violated by a federal agency,” Hunt said in his 24-page opinion.
Hunt said energy officials had acted with “arrogance” and possibly had misled Bush in 2002 when they said Yucca Mountain was suitable to store radioactive waste.
Energy spokesman Allen Benson said the department would make no immediate comment.
“It was a very strongly worded opinion,” said Joe Egan, a nuclear-energy attorney representing Nevada. “The judge has very strongly telegraphed that DOE has no case whatsoever.”
Without access to millions of gallons of state-controlled water, the Energy Department’s only option might be to truck in water over long distances, placing another burden on the project and starting another activity that could be blocked by state officials.
The water fight between federal and state officials has been raging since the project’s outset, when the state engineer first denied water permits to build Yucca Mountain. The engineer recently denied permits for significantly more water, as the federal government increased the number of bore holes it said it needed from about 15 to more than 80.
Hunt said agency officials had waffled on why they needed to drill an extensive series of bore holes.
Nevada officials contend the government’s increased drilling is part of the “site characterization” – a step critical to assessing whether radioactive waste can be stored safely.
If so, the federal government is in trouble. All site characterization was supposed have been completed in 2002, when Energy officials said Yucca Mountain had met its criteria as a suitable site.
If the drilling program is essential to understanding the site and eventually getting a license, then “it would appear that the DOE misled Congress and the president,” Hunt said.
Energy officials deny the drilling is part of site characterization, but Hunt wrote: “Its own documents contradict that argument.”