Yucca Mountain Update -- A Publication of the State of Nevada Agency for Nuclear Projects

Volume 1 Issue  3 - January 9, 2003




- Nevada Files Constitutional Challenge to Yucca Waste Storage Proposal
- Renowned Nuclear Regulatory Attorney Joins Nevada's Legal Team

Nevada Files Constitutional Challenge to Yucca Waste Storage Proposal
Nevada Attorney General Brian Sandoval today announced the filing of a major Constitutional challenge by Nevada to the federal government’s Yucca Mountain nuclear waste repository proposal.  Nevada, along with Las Vegas and Clark County as joint petitioners, filed the case in the U.S. Court of Appeals for the D.C. Circuit in Washington.  The suit is derived from principles of federalism embedded in the Constitution and names as defendants the United States, the Energy Department, and the Secretary of Energy.


Nevada Attorney General Brian Sandoval“We’ve seen Congress change the rules more than once to breathe new life into this proposal, and that’s unfair to all Americans, not to mention the threat to our own state,” said Sandoval (right).  “The issue in this case is the right of a state not to be unduly burdened with respect to other states by the federal government.  In addition to the law, my foremost concern is the health and safety of Nevadans, and this proposed dump is neither safe nor scientifically sound.  We will exhaust every possible legal remedy in our effort to prevail, and this action further demonstrates our commitment to protect the citizens of our state.”


At the heart of the case is a proposition from the U.S. Constitution: if 49 states are to impose an undue burden on a single state against its will, a compelling objective basis to do so must be established.  Though the original 1982 statutory plan for nuclear waste disposal may have offered such a basis by selecting a site on the basis of its superior geology, the present proposal ignores those scientific principles for site assessment and thus imposes an indefensible burden upon Nevada according to law.  Indeed, by ignoring the requirement of geologic isolation for the repository mandated by the 1982 federal law, not only does the federal government offer no such compelling reason, but also demonstrates contempt for the very law it enacted.


The lawsuit also brings to light that, as the nuclear waste disposal laws are now implemented, the United States applies one set of standards to assess the suitability of Yucca, and a different, much stricter standard to assess the suitability of any other repository in any other state.  “It doesn’t take a Constitutional scholar to figure out that this is both unfair and absurd,” added Sandoval. 


Nevertheless, the state’s legal team does include noted Constitutional expertise: Charles J. Cooper, one of the nation’s leading Constitutional litigators, succeeded in overturning the line item veto in the Supreme Court, on behalf of New York.  His firm, Cooper and Kirk, has represented numerous states in large federal litigation and Constitutional matters.


Renowned Nuclear Regulatory Attorney Joins Nevada's Legal Team
Veteran nuclear regulatory attorney Martin G. Malsch, a former Acting General Counsel and Deputy General Counsel of the Nuclear Regulatory Commission and its first Inspector General, recently joined McLean, Va.-based Egan & Associates, PLLC as a partner.  The firm will be renamed Egan Fitzpatrick & Malsch upon his admission to the Virginia Bar.

“Marty is without question the most knowledgeable nuclear attorney in private practice today, and we’re delighted to have him back,” said Joe Egan, Chairman of Egan & Associates.  Malsch had worked for Egan as Senior Counsel from 1996 through 1999, and since that time served as Senior Counsel for LeBoeuf, Lamb, Greene and MacRae in Washington D.C.

Martin G. MalschMalsch (left), 60, a physicist by training, was NRC’s lead trial counsel in numerous contested nuclear power plant construction permit proceedings, as well as proceedings involving the Clinch River Breeder Reactor, the mixed-oxide fuel cycle, and high-level nuclear waste.  He drafted every significant Commission-level adjudicatory decision released by NRC from 1980 through 1991, and frequently participated in cases before the Courts of Appeals or the U.S. Supreme Court on NRC’s behalf, including in the three landmark cases of Vermont Yankee v. NRDC (environmental effects of the uranium fuel cycle), Metropolitan Edison v. PANE (the restart of Three Mile Island), and Florida Power v. Lorion (judicial review under the Atomic Energy Act).  He is the recipient of three Presidential awards for outstanding achievement and has frequently testified before Congress.

“This is a man who literally wrote NRC’s rules of practice,” Egan said, “and many of NRC’s other rules and regulations.  He is very highly regarded within the agency, and throughout the nuclear industry and the environmental community.” 

Malsch will continue working on waste disposal and decommissioning matters and litigation, and will be joining Egan’s team assisting the State of Nevada as lead counsel in several lawsuits challenging the federal government’s Yucca Mountain nuclear waste repository. 

Ironically, Malsch was a member of a 1999 team assembled to bid to represent the Energy Department in licensing Yucca Mountain, with Malsch designated as lead regulatory attorney.  DOE’s evaluators ranked the team as “perfect,” giving it 1000 out of 1000 points.  But the contract went to competitor Winston and Strawn, which was later forced to withdraw for conflict-of-interest reasons. 

“With Marty,” Egan said, “we’re re-creating the thousand-point team to work for Nevada against DOE.  He’ll be helping us, too, in our lawsuit against NRC’s Yucca licensing rule.  NRC went astray with Yucca the day Marty walked out the door.  Now, we hope to set things straight.”

Outrage of
the Week

The U.S. Nuclear Regulatory Commission this week ruled that risks of terrorism or sabotage cannot be considered in licensing proceedings for nuclear power reactors because, according to the NRC, the risk is too speculative.  NRC said that discussion of terrorism in licensing hearing would provide too much information to potential terrorists and “unduly alarm the public.”


While NRC did not specifically include terrorism risks related to the transportation of spent nuclear fuel and high-level radioactive waste in this finding, it must be assumed that NRC will also exclude such risks when deciding whether to license the shipping containers required to transport this extremely dangerous material.


If the public wasn’t “alarmed” already about the very real threat of terrorist attacks against nuclear installations and nuclear waste shipments, they rightly should be after NRC’s ruling.  The logic behind the NRC decision is both mind boggling and contradictory.  On the one hand, NRC declares that terrorism threats are so insignificant (i.e., speculative) that they need not be considered when deciding whether and where to locate nuclear reactors.  However, the threat is so great that it can’t be raised, let alone discussed, in a public licensing proceeding lest would-be terrorists obtain too much information (needed, ostensibly, for them to then go out and perpetrate an attack that is merely “speculative”). 


As a result of Congress’ action last summer, the nation could be subjected to tens of thousands of shipments of spent nuclear fuel and highly radioactive waste destined for Yucca Mountain beginning in the next decade (if Nevada is unsuccessful in its legal challenges).  The NRC’s decision means the shipping containers that will be the first and only line of defense against massive radiation exposures for millions of people along transportation routes throughout the country will not have to be shown capable of withstanding assaults by armor piercing weapons and other munitions available to terrorists in order to be licensed.


Coming on the heels of increased national concern about terrorist activities in the wake of September 11th, and at a time when other parts of the federal government are increasing their vigilance with respect to all things associated with potential terrorist threats, NRC’s ruling is not only wrong, but it is almost criminally irresponsible.  An entire new cabinet agency, the Department of Homeland Security, has been created for the specific purpose of considering and addressing a whole range of terrorist threats.  Alerts of one sort or another are an almost daily occurrence.  And even the commercial nuclear power industry, a proverbial ostrich when it comes to acknowledging any possibility of risk from commercial nuclear power reactors, has initiated studies of the effects of aircraft crashes into power plants and shipping containers. 


Yet, unbelievably, the NRC, supposedly the public’s nuclear safety watchdog, has decided that such risks are just too speculative to be taken seriously. 



 We welcome comments and story ideas for this newsletter. 
For media information, please contact Tom Bradley,
Brown & Partners,
at (702) 967-2222 or via
e-mail at

For a text-only version of this newsletter, please contact tbradley@brown-partners.com

To subscribe to or unsubscribe from this newsletter, please
e-mail nwpo@nuc.state.nv.us.
Do not reply to this e-mail.