Yucca Mountain News Clips
Friday, December 19, 2003
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Las Vegas SUN
December 19, 2003

State officials prepare for big Yucca hearing

By Suzanne Struglinski
<suzanne@lasvegassun.com>
Las Vegas SUN

WASHINGTON -- Nevada officials want three federal agencies to justify actions they feel violated federal nuclear waste law, overruled scientific evidence and unconstitutionally pitted 49 states against one, all in the name of building a nuclear waste storage site at Yucca Mountain.

Almost 20 years of opposition against the Yucca project will be boiled down to three hours of oral arguments in the U.S. Court of Appeals for the District of Columbia. The hearing is Jan. 14.

Washington attorneys Joe Egan, Martin Malsch and Charles Cooper and California-based attorney Antonio Rossmann will give oral arguments on Nevada's behalf in six legal challenges against the Energy Department's proposed nuclear waste storage site at Yucca Mountain, 90 miles northwest of Las Vegas.

The state is "confident" it will prevail in this "mother of all lawsuits," as described by Egan, of Washington law firm Egan, Fitzpatrick and Malsch. Egan spoke at a press briefing in Washington on Thursday. The attorneys expect a decision in the middle of next year.

"I think it is very likely that there could be appeals to the U.S. Supreme Court from these cases no matter how they come down," Egan said.

Egan said the state is "very happy" to be in this court because it has the most experience in complex administrative law and nuclear cases.

"And the only two times they've ever heard a Yucca Mountain case they had no problem taking DOE to the cleaners," Egan said.

The same court ruled that the Energy Department needed to be held liable for not taking the waste from the reactors in 1998 as originally planned, and recently sent the conflict-of-interest case pertaining to the department's law firm reviewing the Yucca Mountain project back to the district court.

A ruling in Nevada's favor in any of the cases could send the project back to the drawing board, delaying it for years or disqualifying it altogether.

The state has sued the Energy Department, the Nuclear Regulatory Commission and the Environmental Protection Agency alleging various violations of the Nuclear Waste Policy of 1982, the federal law that guides the Yucca project and other regulations.

Attorneys from the Justice Department will represent the agencies at the oral arguments.

"We are confident in our case because we followed the law passed by Congress and our science proves that Yucca Mountain is safe," Energy Department spokesman Joe Davis said.

But Nevada officials think otherwise.

Bob Loux, executive director of the Nevada Agency for Nuclear Projects, explained that the law clearly requires a geologic repository to store highly radioactive spent nuclear fuel. He said geologic is the key word since that sets Yucca apart from other possible sites in other states. The makeup of the rock and the overall mountain was supposed to keep the radiation inside.

Yucca Mountain not only fails the criteria needed to be the geologic repository, but the department changed criteria, which had been in place for 17 years, to include man-made or "engineered barriers" inside the mountain to contain the waste, Loux said.

"The Yucca Mountain site itself is virtually incapable of holding, in isolation, radioactive waste," Loux said.

The rock itself offers less than 1 percent of the site's overall performance, according to DOE's own standards, he said. All other protections are based on the containers holding the waste and barriers inside the mountain. Another set of standards exists for any other repository that would be built in the country.

Nevada sued the department, saying this violated the Nuclear Waste Policy Act of 1982, and then sued the Nuclear Regulatory Commission when it changed its licensing rules to fit the department's man-made barrier additions among other changes.

Egan will have 20 minutes to argue the state's case against the department's decision to change the rules as well as the president's and energy secretary's recommendation of the project handed down in February 2002 since. The state is arguing that those recommendations were based on the illegal rule changes.

Malsch will argue the NRC cases and will have 20 minutes to argue the NRC case.

By introducing man-made, or "engineered barriers," into the site, the department took away the unique geologic protection properties of the mountain and made it rely on material that could store it anywhere, not just at Yucca Mountain, Egan said.

"It's the pervasive thread that goes through every one of the lawsuits," Egan said.

This also is the basis of the constitutional case, which claims the government has unfairly singled out Nevada to get this waste, when any other site using these engineered barriers would be just as suitable. Cooper of Washington firm Cooper and Kirk will also have 20 minutes to make the arguments in this case.

"It is not constitutional for 49 states to gang up one on." Egan said. "Our argument is that when geologic isolation at Yucca Mountain was found not to exist and was then abandoned in the rules that DOE applied to the repository that removed the only compelling, rational basis that made this a constitutional repository."

If the court ruled in favor of Nevada, this would declare the Yucca Mountain resolution signed by President Bush last July unconstitutional.

"We think that winning this case could very well end the repository project for all time in Nevada, at least at this site," Egan said.

Egan will have another 20 minutes to argue against the Final Environmental Impact Statement the department released in February 2002, claiming it ignored key environmental aspects such as the hazardous material in the engineered barriers that would be brought to the site, and did not adequately evaluate a "no-action alternative" of just leaving the waste at nuclear power plants.

Arguments against the EPA on its radiation standards will last an hour. Rossman, who is a state special deputy attorney general for Yucca Mountain cases, will argue on the radiation standards the agency set in 2001. The state says the agency "gerrymandered" the radiation limit boundary line. The oddly shaped boundary allows radiation limits to be measured at a point where it would already be diluted in "vast amounts of drinking water" in Amargosa Valley.

Geoff Fettus of the Natural Resources Defense Council will also argue the case on behalf of several environmental groups.

The Nuclear Energy Institute has also sued EPA on the standards, but associate general counsel Mike Bauser said its lawsuit takes issue with the separate groundwater standard the agency put in place for the site. Bauser said the Energy Policy Act of 1992 only requires an overall radiation standard.

Bauser said the 1982 nuclear waste law, its amendments in 1987 and the Energy Policy Act of 1992 taken together guide the project. He said the three laws "do not require that geology apply to an 'x' amount of retention" of the radiation inside the mountain. He said the laws provide for both the engineered and geologic barriers to contribute to the project's total performance "acting together as a system."

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Las Vegas Review-Journal
December 19, 2003

Nuclear Waste: Lawyers preview arguments against dump

Lead attorney confident of winning at least one of half-dozen lawsuits

By Steve Tetreault
Stephens Washington Bureau

WASHINGTON -- Nevada officials and attorneys previewed legal arguments against the Yucca Mountain Project on Thursday, charging government agencies "pounded a square peg into a round hole" to justify burying nuclear waste in the state.

Joseph Egan, Nevada's lead attorney against the project, said he was confident of winning at least one of a half-dozen lawsuits that could kill or cripple plans for a waste repository 100 miles northwest of Las Vegas.

"I think this is the first time any court in the country is going to look at the fundamental legal merits of this project," Egan said at a news briefing.

A legal shutout for Nevada "won't happen, I will tell you that," Egan said.

A three-judge panel in the U.S. Court of Appeals for the District of Columbia Circuit has scheduled three hours on Jan. 14 to hear arguments in the lawsuits, which have been consolidated into three major cases.

Members of Nevada's legal team said they will tell the court that President Bush and three major federal agencies pushed forward with the Yucca Mountain Project in violation of a law Congress passed in 1982 that was supposed to guide their search for a nuclear waste disposal site.

Lawyers for the government contend otherwise, that Congress passed several follow-up laws that allowed the program to be redirected.

Nevada attorneys said they will argue the Department of Energy discarded repository site rules based on the 1982 Nuclear Waste Policy Act after scientists discovered Yucca Mountain's geology was too porous to keep radioactive particles from escaping into groundwater and threatening the health of Nevadans in nearby Amargosa Valley and beyond.

Instead, agencies adopted new standards that allow the site's geological features to be supplemented by safety protections afforded by specially constructed storage casks, titanium drip shields and other engineered barriers.

If that is the case, the Nevadans charge, nuclear waste could be stored practically anywhere.

"All the agencies abandoned geology and they had to pound a square peg into a round hole again and again and again," to justify the site, Egan said.

"Had the government been playing by the rules, clearly this would not be the site," said Bob Loux, executive director of Nevada's Agency for Nuclear Projects.

Loux estimated the state has spent $100 million fighting the Yucca Mountain Project, about 80 percent of it being federal grant money. Nevada is paying the Egan-headed legal team $4 million.

One of Nevada's lawsuits challenges the constitutionality of the Yucca Mountain Project. Prepared by Charles Cooper, a nationally recognized constitutional law attorney, the suit charges the 49 other states ganged up to force nuclear waste on Nevada without a constitutionally compelling reason.

Another lawsuit charges multiple defects in major DOE environmental studies.

A ruling against the government would stop the project in its tracks, Egan said.

A directive that the Energy Department go back and prove Yucca Mountain can meet tougher health and safety standards would have the same practical effect, he said, "because they can't get there from here."

Egan predicted the Yucca Mountain issue would probably end up before the Supreme Court no matter how the case comes out in the appeals court. He said rulings in the appeals court cases are expected by mid-2004.

Government officials say their development of the Yucca Mountain site has been proper and within the law.

Although Nevada is pinning key parts of its case on the 1982 law, DOE managers and nuclear industry attorneys argue Congress passed follow-up bills in 1987 and 1992 that redirected the program.

The 1987 law de-emphasized geology as a prime consideration for a repository once Yucca Mountain was singled out for detailed study, said Michael Bauser, associate general counsel for the Nuclear Energy Institute.

Additionally, in 1992 Congress ordered up a National Academy of Sciences study whose results set the framework for agencies to design new radiation and safety standards for the repository, according to Energy Secretary Spencer Abraham, who outlined the changes in his 2002 site recommendation.

The Energy Department also contends Nevada's arguments became moot when Congress passed legislation finalizing Yucca Mountain as the preferred site.

"If Congress didn't think we followed the law, they wouldn't have voted to allow us to move forward on Yucca Mountain," DOE spokesman Joe Davis said Thursday.

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Deseret News
December 19, 2003

4 Goshutes charged with fraud

Indicted include leader of Skull Valley Band

By Doug Smeath
Deseret Morning News

Four members of the Skull Valley Band of Goshutes — including its chairman — and the attorney representing a faction of the tribe have been charged with federal crimes, ranging from making fraudulent statements to committing theft and bank fraud.

A federal grand jury returned two separate indictments late Wednesday. One charges tribal chairman Leon D. Bear, 47, of two counts of theft from Indian tribal organizations, one count of theft concerning federally funded programs and three counts of fraud and false statements.

The other indictment names as defendants tribal members Marlinda Moon, 43, Wendover, Utah; Sammy Blackbear, 39, Salt Lake City; Miranda Wash, 36, Grantsville; and their attorney, Duncan Steadman, 57, South Jordan. They are charged with one count each of theft from an Indian tribal organization and five counts each of bank fraud and aiding and abetting.

None of the defendants nor any of their attorneys could be reached for comment Thursday.

It would be up to tribal members regarding whether Bear would remain chairman of the tribe during the court proceedings, said Nedra Darling spokeswoman for the Bureau of Indian Affairs.

The BIA would assist with an impeachment or election process only if they were asked by the tribe to do so, she said.

The indictment follows more than two years of investigation by the U.S. Department of Interior Office of Inspector General, the FBI, the IRS and the U.S. Attorney's Office of alleged corruption within the Goshute Tribe, said Paul Warner, U.S. attorney for Utah.

"This particular crime is very egregious; it's public corruption pure and simple," said Chip Burrus special agent with the FBI. "It's greed combined with an abuse of public trust. It undermines the integrity of the tribe."

The charges speak to the controversy engulfing the 120-member tribe, whose reservation is 75 miles southwest of Salt Lake City, over the question of nuclear waste storage on tribal lands, though the indictment does not directly relate to that debate.

In 1997, Bear signed a lease agreement with Private Fuel Storage, a consortium of utility companies seeking to store nuclear waste temporarily on the reservation. A faction opposed to that storage has been wrestling for tribal control ever since.

The tribe's proposal calls for temporary storage on the Goshutes' property for up to 44,000 tons of depleted nuclear fuel, until it is sent to a permanent repository, now planned for Yucca Mountain in Nevada.

But the plan has faced political opposition, and Gov. Olene Walker recently said she would continue her predecessor Mike Leavitt's battle against it.

The Skull Valley Band was also split on the issue, and a splinter group opposed to the storage held an election naming Moon chairwoman, Blackbear vice chairman and Wash secretary. The election was held despite the fact that the U.S. Bureau of Indian Affairs recognized Bear as tribal chairman in October 2001.

Melodie Rydalch, spokeswoman for the U.S. Attorney's Office for Utah, said this is where the indictments' connection to fuel storage begins and ends.

"(The mention of PFS) is basically in there as the motivation for why they started down the road with the . . . unrecognized election and that sort of stuff," she said.

The election illustrated the divides within the tribe, not just on the nuclear issue but in general. Dissatisfied Goshutes have hurled charges of bribery and corruption at what they have referred to in press releases as the "illegitimate Bear regime."

The election, the indictment alleges, was done "in an effort to take control of tribal funds and tribal activities."

Indeed, Steadman notarized a certification of tribal election saying Moon, Wash and Blackbear were the legitmate leaders of the tribe, the indictment states. The indictment accuses the three Goshutes and Steadman of using that certification to access some tribal bank accounts and open new ones, to which they allegedly transferred other tribal money.

Federal prosecutors say the foursome used the document to secure a $45,800 check from Zions Bank, which they deposited into a Wells Fargo Bank account and used "for unauthorized purposes." The indictment claims Steadman received about $11,000 of that money.

The foursome also stand accused of using the certification to try to access the tribe's Brighton Bank account, but were turned away by a bank manager who told them a court order was needed. They later used a court order from the "First Federal District Court, Western Region," which is not a government-sanctioned judicial body, to open new Brighton accounts and transfer $384,959.47 from others, the indictment states.

Prosecutors also accused them of withdrawing $250,000 from the tribe's Bank One account.

In the other indictment, Bear is accused of paying himself off with tribal money through various schemes.

The first scheme portrayed in the document involves the Tapai Project Office, a South Salt Lake economic-development arm of the Skull Valley Band. Bear was the office's director, a job that brought him a $2,500-per-month salary. As director, he was a signatory on the office's bank account.

The indictment accuses hime of stealing or misapplying $154,651.91 from December 1998 to February 1999, accounting for the two charges of theft from Indian tribal organizations.

Another scheme the indictment alleges involved Bear paying himself two travel stipends for each official trip he went on between February 1999 and August 2001. Others who traveled with him on those trips only received one stipend per trip, the indictment claims.

He is also accused of paying himself for being tribal secretary at a time when someone else was serving as secretary.

The three fraud charges stem from allegations that Bear filed his 1999, 2000 and 2001 individual income tax return forms claiming to be unemployed and to have received little or no income each of those years. The charges state that he actually received between $61,902 and $67,167 from the tribe each of those years.

Rydalch said court appearances will now be scheduled for the defendants. She said none will be arrested but each will be issued a summons.

E-mail: dsmeath@desnews.com

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Las Vegas SUN
December 18, 2003

Nevada's legal team outlines arguments against Yucca Mountain

By Erica Werner
Associated Press

WASHINGTON (AP) - Nevada's legal team will tell a federal appeals court that the government is trying to store nuclear waste at Yucca Mountain even though the site doesn't meet the original legal requirements for a dump, attorneys said Thursday.

The attorneys will represent Nevada during a Jan. 14 hearing that will cover the six lawsuits the state filed against the federal government from 2000 to 2002. The suits have been consolidated in a case to be heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia.

Nevada has failed over two decades in the political arena to stop the dump from being built 90 miles northwest of Las Vegas.

Attorneys told a media briefing Thursday that the courts might represent their best chance of keeping 77,000 tons of the nation's most radioactive waste out of Nevada, where it would be buried for 10,000 years.

"I think that this is the first time that any court in this country is really going to look at the fundamental legal merits of this project," said Joe Egan, Nevada's lead attorney in the case.

"We didn't just throw something at the ceiling to see what will stick. We had a lot more things we could've done. We picked what we thought we had a chance of winning and filed that," he said.

Egan and other attorneys outlined a series of arguments that accuse the government of learning, after it began studying Yucca Mountain, that the desert site couldn't satisfy Congress's original mandate of "geological isolation." Instead studies demonstrated that the site would be at risk of dangerous seepage, they said.

Rather than abandon the site, the Department of Energy illegally changed the rules and declared the site suitable, the attorneys said.

They also accused the Department of Energy of improperly evaluating the environmental impacts of the project.

The attorneys said Energy Secretary Spencer Abraham failed to disqualify Yucca Mountain when it was found unsuitable and unlawfully recommended it to President Bush. They claimed the Environmental Protection Agency and the Nuclear Regulatory Commission broke the law in developing licensing rules and standards for the project.

They also said the U.S. Constitution bars 49 states from imposing their will on a single, politically isolated state without a compelling reason.

Department of Energy spokesman Joe Davis disputed the allegations. He said Yucca Mountain would be safe and the department has followed the law. Nevada's lawsuits "are simply misguided," he said.

"In the end, if the science doesn't meet the standards, it's not going to be built. In the end, we believe the science will meet the standards," Davis said.

Congress and Bush approved sending nuclear waste to Yucca Mountain last year, but the Department of Energy does not expect to open the site until 2010 at the earliest. Nevada politicians of both parties have been united against the project but have failed to stop it.

The Department of Energy must still apply for a license from the Nuclear Regulatory Commission, which it aims to do in December 2004. Egan said that if Nevada loses the legal battle, which he expects to end in the Supreme Court, the state's next fight will be to oppose the license application.

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KSL-TV
December 18, 2003

Goshute Tribal Leaders Indicted for Theft of Tribal Funds

John Hollenhorst

Federal agencies today announced criminal charges against members of the Skull Valley Band of Goshute Indians.

Curiously, the suspects are on both sides of a bitter dispute over nuclear waste that has torn the tribe apart.

The alleged corruption apparently took root in the Goshute's fierce internal warfare, partly fueled by millions of dollars from nuclear utility companies.

The tiny, remote reservation was targeted for nuclear waste years ago.

A group of nuclear utility companies arranged a lease with tribal chairman Leon Bear to store high-level spent fuel from nuclear power plants.

Goshute dissidents have accused Chairman Bear of lining his own pockets....and distributing nuclear waste money only to those who support the plan.

Now federal officials have accused Bear of stealing tribal funds and lying about it on his tax forms. Roughly 200,000 dollars is in dispute.

The investigation started more than three years ago on the reservation, which is formally recognized as a sovereign nation.

Paul Warner/U.S. Attorney: "But when it comes to public corruption, obviously nobody gets a king's ex."

Chip Burris/F.B.I.: "What we're talking about here is corruption. Pure and simple. Greed combined with an abuse of public trust. In this case, the Goshute tribe's trust."

But several of Bear's critics also were indicted. Two years ago, dissidents including Sammy Blackbear, tried to take over. They withdrew about 45,000 dollars from Goshute accounts. The indictment says some of that was taken for personal use.

We spoke with one tribal member today who said the Goshutes used to get along. But the radiation "money was enormous", he says, "and greed took over at the end."

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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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