Nevada files new constitutional challenge to Yucca Mountain plan

LAS VEGAS -- Nevada filed a new constitutional challenge Thursday to the federal government's plan to bury the nation's nuclear waste 90 miles from Las Vegas.

State Attorney General Brian Sandoval said Nevada's sixth federal lawsuit against the Yucca Mountain project hinges on state sovereignty and whether the government can force Nevada to accept a dump it neither wants nor needs.

"At issue ... is the right of a state not to be singled out and unduly burdened, with respect to other states, by the federal government," Sandoval said.

Allen Benson, spokesman for the Energy Department's Office of Repository Development in Las Vegas, downplayed the suit, filed in the U.S. Court of Appeals in Washington, D.C.

"It's beginning to feel like another day, another Yucca Mountain lawsuit," Benson said.

The lawsuit accuses the federal government of "arbitrarily and discriminatorily" changing site selection rules after scientists found that geology alone could not prevent radioactivity from seeping from the Yucca Mountain site.

Additional measures developed during 20 years of study include encasing spent nuclear fuel in containers made of a special metal alloy and placing them in mined tunnels 1,000 feet below the mountain surface.

The 14-page lawsuit filed on behalf of the state of Nevada, Clark County and Las Vegas names the Energy Department, Energy Secretary Spencer Abraham and the United States of America as defendants.

It asks a judge to declare approval for the Yucca project unconstitutional and to halt all development and licensing work.

Already pending in U.S. court are challenges of the site selection guidelines and the process leading to federal approval for the Yucca Mountain site, plus a challenge of the Environmental Protection Agency's radiation standards for the project.

Benson said the new lawsuit resembled one the state filed almost 15 years ago.

That suit came after Congress in 1987 named Yucca Mountain the only site to study for a nuclear-waste repository.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled against the state in September 1990, saying it would not block the Energy Department from studying the site.

Marta Adams, Nevada senior deputy attorney general, said the new case is different because the government has now made its selection.

The state's top lawyers in the federal cases -- Joseph Egan of McLean, Va., and Charles Cooper, of Washington -- said they hoped the new case would reach the U.S. Supreme Court.

Sandoval said Gov. Kenny Guinn has pledged full support for the legal challenge, even though the state faces a $704.6 million deficit over the next two years.

"The state can afford this," said Sandoval, who was sworn in Monday as the state's top law enforcer. "The state cannot afford not to go forward with this."

Bob Loux, director of Nevada's Agency for Nuclear Projects, the state's anti-Yucca Mountain office, said the state has $2.6 million to spend on the legal battle and Guinn might ask the Legislature for as much as $5 million more.

President Bush and Congress last year overrode Nevada's opposition and Guinn's veto to approve the Energy Department plan to entomb 77,000 tons of radioactive waste beneath the ancient volcanic ridge at the western edge of the Nevada Test Site. Scientists have said the site will remain radioactive for more than 10,000 years.

Benson said the new case won't slow the Energy Department's plan to apply in 2004 for a license to open the repository in 2010.


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