Judge Questions Sudden Rush on Yucca Drilling

Aug 17 - Las Vegas Review - Journal

By Keith Rogers

U.S. District Judge Roger Hunt pressed a Justice Department attorney Wednesday to explain why the Department of Energy after 20 years is suddenly rushing to drill bore holes to collect rock samples at the planned Yucca Mountain nuclear waste site.

Nevertheless, he urged the state and federal attorneys to try to reach a compromise while he weighs arguments on the Justice Department's motion to allow DOE to continue using the state's water for the project.

During the hearing, Hunt noted that the federal energy agency had ignored State Engineer Tracy Taylor's order to stop using Nevada's water without involving the court or attorneys for the parties, "which I find quite frankly is a little disingenuous."

Hunt's comment came midway through the four-hour hearing on the Justice Department's emergency motion to block Taylor's June 1 cease- and-desist order that Taylor had lifted temporarily on June 12.

Marta Adams, Nevada's senior deputy attorney general representing Nevada Agency for Nuclear Projects chief Bob Loux, said outside the courtroom that the state's attorneys would speak Tuesday with Justice Department trial attorney Stephen Bartell about a possible compromise.

In the courtroom, however, Adams' colleague, Senior Deputy Attorney General Michael Wolz told Hunt his client, the state engineer, already had allowed DOE 30 days to complete drilling work. "That was as far as we could go."

"I don't think it would be beneficial," Wolz said about a compromise discussion. "I don't want to waste anybody's time in what would be a futile exercise."

Taylor reinstated his cease-and-desist order on July 20 after deciding that DOE's need for some 4 million gallons of water to complete another phase of the drilling program is not a beneficial use in the state's interest.

Subcontractors for the Yucca Mountain Project are using the water to drill some 80 bore holes. That is up from DOE's original estimate that only 15 bore holes would be needed for "geotechnical" work to ensure that surface facilities where spent nuclear fuel assemblies would be handled and stored before entombing them in the mountain will be safe from earthquakes and floods.

The water is used to cool and lubricate drill bits and to make mud for collecting rock samples.

Taylor offered to let DOE use the water for 30 more days, but DOE officials rejected the time-limit condition on July 20 and proceeded to use the water without permission while Justice Department attorneys filed their emergency motion for a preliminary injunction.

Adams said, "We find that extremely egregious."

After the hearing, Taylor said he was pleased with the state's position in light of the judge's comments. "I think our case went well," he said.

Loux, a longtime critic of the Yucca Mountain Project, said whether a compromise can be worked out "remains to be seen."

"If they continue to drill, they have no incentive," Loux said. "I think it's pretty clear. He's not going to grant them a preliminary injunction. The cease-and-desist is in effect. Whether they honor that remains to be seen."

Hunt wondered why DOE needs 4 million gallons of non-potable water from two wells near Yucca Mountain, 100 miles northwest of Las Vegas, after the state agreed with the court's approval to let DOE use only 300,000 gallons.

Instead, he said, DOE acted on its own in the void of negotiations to help itself to the state's water in defiance of the state engineer's order.

Bartell tried to explain that if the water had been claimed by someone else "the United States could take the water if it offered just compensation."

Hunt said, "It seems to me that what you're arguing runs counter to what you did."

Hunt also wondered why bore holes are being drilled hundreds of feet deeper than previously planned and why DOE decided late in the game to add more surface facilities to the design.

"Was that known that you needed this information at the time of site characterization?" Hunt asked Bartell.

Bartell responded, saying, "There was no way the Department of Energy could have known where bore holes would be needed."

He acknowledged, though, that without the geotechnical data, DOE would be unable to meet the requirements of a license application to the Nuclear Regulatory Commission for constructing a repository at Yucca Mountain.

Hunt told Bartell he was "trying to find out if this was a surprise."

"It doesn't seem to me that anybody anticipated that that license application was going to require all that bore hole drilling," Hunt said. "While there was nothing done for several years, now there seems to be not only this rush, but multiplication of what needs to be done."

Hunter later asked, "Is the Department of Energy trying to stay busy? I'm trying to find out why the Department of Energy didn't make this determination a lot earlier instead of just springing it on me."

Bartell's answer: "It's not that the Department of Energy is rushing for no reason. The Department of Energy is on a strict deadline."