The Nevada Lawsuits

Court of Appeals for the D. C. Circuit, Washington

State of Nevada, Clark County and Las Vegas v. United States of America, Department of Energy, Energy Secretary Abraham

The legal brief filed by Nevada's legal team on January 9, 2003 challenges the federal government's Yucca Mountain Project on constitutional grounds. The full text is available on the State of Nevada web site at:

http://www.state.nv.us/nucwaste/legal/nl03-1009_030109.pdf 

+Nevada v. EPA

Challenges the primary radiological protection standards for Yucca Mountain set by EPA in 10 CFR Part 197 as being arbitrary and unlawful. Argues that the 10,000-year regulatory time period is contrary to the recommendation of the National Academy of Sciences, which is one million years. The NAS recommendation was required by the Energy Policy Act of 1992 to be adopted by EPA. Also, argues that EPA grossly gerrymandered the site boundary for measuring doses to the public so radionuclides could first be diluted in regional groundwater prior to measurement.

+Nevada v. NRC

Challenges the Yucca Mountain repository licensing rule set by NRC in 10 CFR Part 63. Claims that the rule departs from the Nuclear Waste Policy Act by (a) allowing the project to be licensed even though geology is not the primary isolation barrier; (b) allows the project to be licensed without DOE ever having to propound an affirmative safety case to the repository; and (c) fails to establish disqualifying criteria for the repository and its isolation barriers.

+*Nevada v. DOE (the "Guidelines Case")

Challenges the Yucca Mountain site suitability rules set by DOE in 10 CFR Part 963. Argues that DOE changed the siting rules at the 11th hour because it could not meet the original suitability rules in Part 960. The new rule allows the "site" to be declared suitable on the basis solely of engineered barriers. The rule fails to require that the primary isolation barrier is geologic, as is mandated by the Nuclear Waste Policy Act. Also, argues the DOE failed to report to Congress and Nevada when it discovered in 1998-99 that the site was geologically unfit.

*Nevada v. President Bush and Secretary Abraham

Challenges the Yucca Mountain site recommendations made by the President and the Secretary, claiming that they relied on the unlawful rules of DOE and failed to follow procedures specified in the Nuclear Waste Policy Act.

*Nevada v. DOE ("NEPA Case")

Challenges many aspects of DOE's Final Environmental Impact Statement for Yucca Mountain as being in violation of the National Environmental Policy Act and closely related provisions of the Nuclear Waste Policy Act. Among other things, argues that DOE's repository design, which includes an above-ground storage facility, is contrary to statutory provisions saying that any such facility cannot be located in Nevada. Also argues that the EIS was released with no Record of Decision, a statutory requirement that has apparently never before been violated.

+On November 7, 2002, A federal appeals court agreed to hear these lawsuits together rather than spread out over a period of months. The court also agreed to have the same three-judge panel weigh all three cases rather than assign the lawsuits to different judicial teams. The three lawsuits will remain separate but will be argued on the same day or during the same week.

*These three cases were consolidated into the Nevada v. DOE "Guidelines" case.

Federal District Court in Las Vegas and State District Court in Tonopah

United States v. State Engineer

5th Judicial District Court, Nye County, No. 15722

Filed by the United States on behalf of DOE following the State Engineer's denial of its applications for permanent water rights as a protective measure while the United States pursues its constitutional claims in federal court. Case is essentially stayed.

United States v. State of Nevada

U. S. District Court, No. CV-S-00-0168-DWH-LRL

Challenges the Nevada State Engineer's Decision that DOE is not entitled to permanent water rights to construct and operate the repository based on the Engineer's finding that the proposed use threatens to be detrimental to the public interest. Nevada takes the position that the water for construction and operation is not needed at least until the project is licensed. Under the Nuclear Waste Policy Act, site characterization is necessarily over once the President approves the project. Since construction may begin only after receipt of an NRC license, Nevada claims that DOE is entitled to no further water for project activities or further site characterization.

Future Actions

Petition for Rulemaking with NRC

Soon to be filed by Nevada, this petition will request that NRC amend its repository licensing rules to demand (1) that NRC assures that geology is the primary isolation barrier; (2) that DOE must propound an affirmative safety case for the repository; and (3) that DOE must demonstrate the absence of technical disqualifying features of the site.

Possible Future Actions

• Legal challenge to NRC's proposed slackening of its seismic qualification rules for above-ground storage facilities at Yucca Mountain