Yucca Mountain News Clips
Thursday, May 8, 2003
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Las Vegas Review Journal
May 08, 2003
EDITORIAL: Yucca court filing
Extensive document restrained, lawyerly
In a 61-page brief opposing the Yucca Mountain nuclear repository and filed in Washington on Thursday, attorneys for the state of Nevada chose not to advance a broad 10th Amendment claim against such unconstitutional federal meddling.
The Nevada plaintiffs here meekly adopt the logic of the court's 1997 Printz decision, asserting " 'Because there is no constitutional text speaking to the precise question' raised here, `the answer to the (state's) challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of the (Supreme) Court.' "
But this is like pushing the elephant out of the way in order to better measure its tracks and thus get some idea of how big it is.
Knowing issues were bound to arise which they hadn't foreseen and thus couldn't specify, the founders wrote the 10th with amazing breadth, telling their posterity, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The default setting works against any expansive presumption of federal powers not specified ... see?
The whole Constitution is less than 5,000 words. You can read it in a few minutes -- you don't even have to be a lawyer. Can anyone find there any specific delegation of power for the federal government to designate sites within an individual state, where the residents of that state shall be required to accept noxious wastes from elsewhere?
No.
Yet Nevada here unnecessarily stipulates to the potentially dangerous premise that imposing a nuclear dump on a single state would have been fine if the original, neutral, purely geologic standards of the Nuclear Waste Policy Act had been followed. The Nevada filing spells this out quite chillingly: "If it turned out that Nevada was, applying the relevant set of general, neutral standards, a proper site for the waste repository -- or for an Air Force missile silo, or a federal prison -- well, then, Nevada would just have to live with it."
Wrong. The Constitution includes the specific method by which the federal government may take land within a state for military facilities and the like -- and it requires consent of lawmakers from the state in question.
The strongest direct precedent here would appear to be the 1992 Supreme Court case New York v. United States, in which Justice O'Connor wrote for the court, "We conclude that, while Congress has substantial power under the Constitution to encourage the states to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the states to do so. ..."
The problem with New York v. United States -- a problem duplicated in Nevada's filings this week -- is that, as Justice O'Connor noted back in June of '92 (in section 2B), "Petitioners ... do not dispute that, under the Supremacy Clause, Congress could, if it wished, pre-empt state radioactive waste regulation. Petitioners contend only that the Tenth Amendment limits the power of Congress to regulate in the way it has chosen."
This was an unfortunate stipulation in 1992, and it's an equally unfortunate omission from Nevada's filing in 2003, since it's not the 10th Amendment (as the court has erroneously held) but rather the so-called "supremacy clause" which is in fact "a truism."
The so-called "supremacy clause" does not say that any law enacted by the federal Congress shall be the supreme law of the land. As the court held as recently as 1999 (in Alden v. Maine), such supremacy is granted only to federal laws which are "in pursuance of ... the Constitution" -- a Constitution which grants to the Congress no power to dump waste inside a state.
Intriguingly, Nevada's filing holds open the possibility of a negotiated settlement. At page 57: The "federal government could attempt to overcome a state's objections to becoming the nation's nuclear waste dump by providing acceptable incentives to the state in return for its consent."
Does that constitute a solicitation?
Thursday's Nevada filing is not the rallying cry for the states to rise up and begin casting off the shackles of excessive and unconstitutional federal meddling which many had hoped for -- and which is long overdue.
Rather, it's a constrained, lawyerly filing which follows a standard pragmatic prescription: Argue for the most limited possible relief on the most limited possible grounds, maximizing the likelihood that a court reluctant to rein in federal usurpations at wholesale may be cajoled into granting the supplicant's limited request ... just this once.
Who knows? It may succeed. It ought to.
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Twin Cities Finance and Commerce
May 08, 2003
Minnesota jostling for better spot in line for Yucca Mountain
By David Knutson/St. Paul Legal Ledger
When the federal nuclear waste repository eventually opens at Yucca Mountain, Minnesota may be able to move ahead of other states waiting to store spent fuel at the site.
The Legislature is deciding on whether to grant Xcel Energy additional storage space for waste at its Prairie Island and Monticello plants.
At the time of a 1994 agreement limiting nuclear waste storage, Xcel officials believed the federal government would have a national repository established within four years.
A lack of funding as well as opposition from the state of Nevada has delayed the opening of Yucca Mountain.
Even when the federal site opens, state officials have noted that there is a priority list for storage. The oldest spent fuel material would have preference over newer material, according to an official with the Nuclear Energy Institute, an organization representing the nuclear power industry.
Because Minnesota is the only state with legal restrictions on the amount of dry cask storage, Mitch Singer, a spokesman for the NEI, said the industry has discussed helping Xcel Energy move ahead in line for storage to help the company comply with state law.
“If it came down to the … problems associated with Prairie Island, there is flexibility in the system that could allow a nuclear management company (to) make a deal for their place in the queue,’ Singer said. “There has been preliminary discussion on that depending on how it would come down.’
The Yucca Mountain site, which the U.S. Department of Energy says could be open by 2010, would hold up to 70,000 metric tons of spent nuclear fuel, Singer said.
Currently, there are approximately 44,000 metric tons of spent fuel from commercial sites in the United States and another 2,400 from DOE facilities such as U.S. naval reactors, he said.
“At this point in time, the mountain could take all the spent fuel generated to date, and all that would be associated with the rest of the license periods for all the plants,’ Singer said.
Brian O´Connell, director of the nuclear waste program office for the National Association of Regulatory Utility Commissioners, said he doesn´t believe the government will have Yucca Mountain open by 2010.
“Even if it were to begin operations, it´s a limited capacity for the first couple of years,’ O´Connell said.
The license application to the Nuclear Regulatory Commission will take some time to process, he added.
“That license application, which will be mind-boggling in its expanse and scope, will take at least three years to be reviewed,’ O´Connell said. “They´ve never done anything like it before. This is the first of its kind in the world. If I were doing prudent planning, like the utilities are, I´d plan on the need to have a cushion of some contingency in case the government doesn´t do what it says it will do.’
There also remains the problem of building a rail line to the site. The state of Nevada, which has fought the site in the courts, would most likely need to assist in building the rail line, he said.
But litigation, brought by the utility industry after the federal government failed to provide a site in 1998, is likely to pressure the DOE to try to meet the 2010 deadline. “It´s already been determined in court that the government is liable for those additional storage expenses,’ O´Connell said. “They will grow in magnitude if the Department of Energy doesn´t meet their next schedule. I suspect that´s why they are clinging to this almost impossible date of 2010.’
While no other state is facing legal restrictions on nuclear waste storage, he said, many are anxious to ship their spent fuel to the Yucca Mountain site. States such as Connecticut, Massachusetts and Maine have waste from plants that have already shut down, and they are eager to get rid of it
“Since 9/11 there´s the additional angst over how secure these sites are,’ O´Connell said. “Those states are particularly edgy over the situation. All it is for them is cost, and a lot of states get into a very harsh anti-federal government stance on this.’
Linda Sikkema, a program principal with the National Conference on State Legislatures, said five separate lawsuits brought against the Yucca Mountain project by the state of Nevada were recently condensed into two lawsuits by a court.
Sikkema added that critics of having only one federal depository say it doesn´t address future storage needs.
“Many people say there is no national nuclear waste strategy out there,’ she said. “They appear to be looking long-term, but the fear is they are actually too shortsighted.’
Singer said the DOE estimates it will have a final license application for the Yucca Mountain site filed by December of next year. Other states aren´t facing the same storage questions as Minnesota, he noted, because no other state has a legal restriction on dry cask storage.
In the next few years, numerous nuclear plants around the country are expected to extend their licenses for another 20 years.
Without state approval for additional dry cask storage capacity, Xcel Energy has said it will be forced to shut down its Prairie Island and Monticello nuclear plants. A 1994 agreement reached by lawmakers allowed for limited storage capacity as well as commitments from the company to develop alternative energy sources such as wind energy.
House and Senate bills would grant additional storage capacity to Xcel Energy, but with different conditions relating to renewable energy requirements.
Gov. Tim Pawlenty recently announced his ideas regarding the state´s energy policies. Pawlenty said the state should set goals for increasing its renewable energy resources and that it must plan for future energy sources beyond nuclear power.
Xcel Energy officials have told lawmakers closure would result in higher electricity bills for Xcel customers as well as greater reliance on coal-burning sources of energy, which have an impact on air quality.
Environmentalists have argued that granting the company additional storage would make the state increasingly reliant on nuclear power rather than seeking sounder alternatives.
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Pahrump Valley Times
May 07, 2003
Recent problems prompt Las Vegas field hearing on YMP
By Steve Tetreault, Stephens Washington Bureau
Nevada's senators on Mon-day announced a May 28 Senate hearing in Las Vegas that will explore recent reports of problems within the Yucca Mountain Project.
Aides said the senators had not yet determined who will be invited to testify. Possibilities include officials from the Energy Department and the Nuclear Regulatory Commission, project whistleblowers and outside experts.
Sen. Harry Reid (D-Nev.) said the hearing is being put together following reports over the past weeks of new and also lingering quality assurance problems within the Yucca program.
"This hearing will give us the opportunity to find out, for the record, whether or not the scientific studies at the site are credible," Reid said in a statement. "More and more evidence clearly indicates that that is not the case."
A DOE spokesman de-clined comment Monday night.
In order to qualify for an NRC license, DOE must provide detailed backup documenting the scientific processes, software forma-tion and computer modeling that supports Yucca Mountain, 20 miles from the communities of Beatty and Amargosa Valley, for nu-clear waste burial.
Reports from auditors and other officials have indicated that such quality assurance has been a program struggle for years.
In March, the Energy Department called on its program contractor Bechtel SAIC to correct the processing of certain procedures after auditors found flaws in how employees were carrying out the task.
One of the auditors said members of his team were reassigned after reporting the problems. Another auditor who was fired in 2001 successfully challenged his dismissal as be-ing politically motivated.
Last week, Bechtel officials disclosed they would be rechecking documenta-tion of computer models developed over the past four years after a review suggested that problems with data management were being repeated de-spite corrective efforts.
Also last week, an NRC official responsible for monitoring the Yucca pro-gram issued a warning that DOE was failing to build a strong case for the repository because of persistent management failings.
"There is no room for error when it comes to Yucca Mountain," Sen. John En-sign (R-Nev.) said. "We must take a serious look at allegations of flawed science, and this hearing will provide the opportunity for us to question those who have seen problems first hand."
The hearing will be held by the Senate's energy and water subcommittee, where Reid is the ranking Democratic member.
Subcommittee chairman Sen. Pete Domenici (R-N.M.) has signed off on the hearing, but it is doubtful anyone besides the Nevada senators will attend, Reid aides said.
©Pahrump Valley Times 2003
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Pahrump Valley Times
May 07, 2003
State calls repository unconstitutional
By Steve Tetreault, Stephens Washington Bureau
Battle Against Yucca Mountain
WASHINGTON, D.C. - Nevada is pursuing a legal case that the government's effort to single out the state for nuclear waste disposal is flawed in violation of the U.S. Constitution.
Rather than adhere to limits on federal authority, the Bush administration and Congress applied "raw political power" and usurped Nevada's sovereignty when Yucca Moun-tain was designated for nuclear waste burial through a resolution passed last year, the state contends.
"If there are any such limits, if Congress' power is this regard is not absolute, then the resolution challenged here surely exceeds them," Nevada argued.
A Nevada nuclear waste legal team outlined the state's constitutional case against the Yucca Moun-tain Project in a 61-page brief filed on Thursday in Washington.
Singling out Yucca Moun-tain was like the govern-ment reestablishing the military draft but only conscripting Nevadans into service, the state said.
"The congressional action is tantamount to a political mugging by 49 states against Nevada," attorney general Brian Sandoval said in a statement.
The brief was filed in the U.S. Circuit Court of Ap-peals for the District of Columbia. A government response is due early next month.
Attorneys said the chal-lenge will likely be argued before a three-judge panel in September, around the same time as three other consolidated cases Nevada has pressed against the Yucca project.
In its brief, Nevada ar-gued the federal government violated state right protections outlined in the Tenth Amendment and the Constitution's fundamental principles on sovereignty and federalism.
"Congress may establish a national nuclear waste repository but it may not run roughshod over Ne-vada's sovereign dignity in the process," the state ar-gued.
Like its other lawsuits, the constitutional challenge involves Nevada's argument that the government changed its repository site rules after concluding that Yucca Mountain's rock structure would fail the test. Research showed cracks would carry water through the repository and enable radioactive particles to seep into groundwater.
Instead, new rules al-lowed significant protection from titanium drip shields and special alloy canisters to count in calculating the mountain's effectiveness.
The change removed any semblance the government would judge the Nevada site by constitutionally acceptable "neutral" criteria, the state charged.
Consequently, the Yucca Mountain resolution Congress passed last July "is a perfect illustration of an arbitrary law that singles out a state in a way that leaves it politically isolated and powerless."
To force a single state to bear a burden for the nation, the government must have a "rational, neutral reason," Nevada's attorneys said.
But in the case of Yucca Mountain, the state said, 49 states get rid of their nuclear waste "while Nevada gets metal drums and wish-ful thinking."
©Pahrump Valley Times 2003
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State of Nevada
Agency for Nuclear Projects
www.state.nv.us/nucwaste/
nwpo@nuc.state.nv.us
775-687-3744
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http://www.nucwatch.com/maps/
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