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The federal government, already a defendant in multiple lawsuits by nuclear utilities over its failure to dispose of spent nuclear fuel, is now the target of another federal suit, this time by Nevada, over its proposal to put the radioactive waste in that state. The Nevada state government recently went into the U.S. Court of Appeals for the D.C. Circuit with a petition challenging the final guidelines issued by the Department of Energy (DOE) for choosing Yucca Mountain in Nevada as the waste site. The suit takes on new urgency with the Jan. 10 announcement by DOE Secretary Spencer Abraham that he will recommend to President Bush within 30 days that construction begin at Yucca Mountain. Nevada has tapped Joseph R. Egan of Egan & Associates of McLean, Va. — an expert in nuclear and energy law — as a special deputy attorney general to handle the new litigation and he has brought on board veteran federal litigators Charles J. Cooper of Washington, D.C.’s Cooper & Kirk and William H. Briggs Jr. of D.C.’s Ross, Dixon & Bell. Egan’s petition in the D.C. Circuit attacks the Energy Department guidelines, which became effective Dec. 14, 2001, as contrary to federal law and beyond the agency’s jurisdiction. He has asked the circuit court to order the revision of the guidelines. Congress chose Yucca Mountain more than 14 years ago as a potential nuclear dumpsite under the 1982 Nuclear Waste Policy Act. Nevada contends that the 1982 law, by its explicit terms and legislative history, mandates deep geologic isolation — not man-made or engineered barriers or containers — as the primary form of containment for the high-level nuclear waste. But the new guidelines permit the Energy Department to rely primarily on engineered waste packages, not on geologic considerations, said Cooper. The department made an end run around the 1982 law, according to Egan and Cooper, because it found, after many years of analysis, that Yucca Mountain is not suitable for the permanent geologic isolation of nuclear waste. The site’s geologic characteristics, they said, can’t serve primarily to isolate the waste from the general environment for thousands of years and won’t meet health and safety standards issued by the Environmental Protection Agency. Abraham, in his announcement, said that the desert site is “scientifically sound and suitable” and would meet “compelling national interests” by enabling the government to protect a centralized location for waste now being stored onsite at utilities around the country. But Cooper insisted, “We know that particular location will not qualify given the criteria prescribed in the act.” The federal government sued Nevada last year after the state refused to issue water permits for the Yucca Mountain repository. The state granted water rights to the federal government for studying whether the desert location was a suitable site. It withheld the permits, it said, because of safety concerns and because Congress approved the site only for study. Last October, the 9th U.S. Circuit Court of Appeals held that a federal, not a state, court should hear the suit. The litigation by the nuclear utilities is in the U.S. Court of Federal Claims. They are seeking billions of dollars in damages for the government’s breach of contracts with them to begin moving the radioactive waste in 1998. “I think it is going to be resolved,” said Cooper about the siting problem. “I think it has to be and there are good and very honorable people devoting themselves to resolving it.” Egan added, “I don’t think there ever will be an ounce of waste put into the ground at Yucca Mountain, maybe on the ground but not in the ground.” HELP WANTED When Congress adjourned for the holidays, so did the National Labor Relations Board, in a fashion. It lost its quorum of three sitting members on the same day when the recess appointment of member Dennis P. Walsh expired. Walsh had served since Dec. 30, 2000. Without a quorum, the remaining two members, Chairman Peter J. Hurtgen and Wilma B. Liebman, announced they do not plan to issue decisions but will work on pending cases. The board, anticipating the loss of its quorum, issued an order temporarily delegating to General Counsel Arthur F. Rosenfeld “full authority on all court litigation matters that would otherwise require Board authorization,” including seeking injunctive relief in court. The same thing happened to the board in 1993, and a similar delegation of authority was made to the general counsel. But that board regained its quorum shortly after Congress reconvened in 1994. The current board may not be so lucky. Appointees may get caught in the dispute between Senate Democrats and Republicans over Bush nominee Eugene Scalia as Labor Department solicitor.

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