FOR THE DISTRICT OF NEVADA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) hereby opposes Plaintiff s motion for preliminary injunction. 1

Transcription

1 1 1 1 FRANKIE SUE DEL PAPA Attorney General MARTA A. ADAMS Senior Deputy Attorney General Nevada State Bar # 0 North Carson Street Carson City, Nevada 01- Telephone: ( -1 Facsimile: ( -0 Attorneys for Nevada Agency for Nuclear Projects UNITED STATES OF AMERICA, v. Plaintiff, STATE OF NEVADA; NEVADA STATE DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES; R. MICHAEL TURNIPSEED, P.E., in his official capacity as Director, Department of Conservation and Natural Resources; and HUGH RICCI, P.E., in his official capacity as State Engineer for the State of Nevada, Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA -1- Case No. CV-S-00-0-RLH (LRL THE NEVADA AGENCY FOR NUCLEAR PROJECTS OPPOSITION TO PLAINTIFF S MOTION FOR PRELIMINARY INJUNCTION The Nevada Agency for Nuclear Projects (Nevada Agency, by and through the undersigned counsel, hereby opposes Plaintiff s motion for preliminary injunction. 1 Regardless of its liberal resort to hyperbole in stating its case, Plaintiff, United States of America (United States, on behalf of the United States Department of Energy (DOE, has utterly failed to demonstrate that it will likely suffer irreparable injury related to the expiration of certain of DOE s temporary water permits. These temporary permits have been utilized for site characterization purposes at Yucca Mountain, the site under consideration for development of the nation s first high-level nuclear waste repository. These temporary permits expired on April, 0, and DOE is attempting to make a case that it requires injunctive relief to prevent the State Engineer from issuing an order 1 Two separate agencies have participated in these proceedings on behalf of the State of Nevada, the Nevada Agency for Nuclear Projects and the Nevada State Engineer.

2 1 1 1 demanding curtailment of water use pursuant to these specific temporary permits. Incredibly, even as DOE makes its legal claims, other of its spokesmen have stated publicly that DOE has water in storage which will last several months. See below. Moreover, as acknowledged by the United States, DOE has yet another water permit, Permit No., which is not subject to the State Engineer s February 0 order and which is still under independent consideration by the State Engineer. See United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction at n.. On April, 0, the Governor of Nevada, on behalf of the State of Nevada, exercised his unequivocal statutory right to submit a Notice of Disapproval of the Presidential decision designating Yucca Mountain for development of a high-level nuclear waste repository. With the submittal of the Notice of Disapproval, the Yucca Mountain Project is presently unauthorized. Only if Congress passes new legislation overriding the Notice of Disapproval and if the President signs this new legislation, the Yucca Mountain Project may be revived. Until this eventuality happens, a matter of considerable speculation at this point, the project is legally dead. At present, no water is needed by DOE for purposes connected with the proposed repository. In addition, as set forth in Nevada Agency s pending motion to strike, incorporated herein by this reference, the United States is seeking to inappropriately expand the case pending before this Court to include its grievances related to a decision made by the Nevada State Engineer on February, 0. The United States has available remedies under state law and can appropriately pursue them in state district court, including seeking a stay of the State Engineer s decision pending judicial resolution on the merits. POINTS AND AUTHORITIES I. PROCEDURAL BACKGROUND OF THIS CASE. In July DOE filed five applications with the office of the State Engineer under provisions of state water law to permanently appropriate 0 acre-feet of groundwater in anticipation of a congressional decision authorizing the construction and operation of a proposed high-level nuclear waste repository at Yucca Mountain. In State Engineer s Ruling No. (Ruling, the State Engineer denied DOE s applications for permanent use because he determined that the purposes intended for the water, namely for construction and Application Nos.,,,, and. --

3 operation of the proposed Yucca Mountain high-level nuclear waste repository, threaten to prove detrimental to the public interest. Following issuance of Ruling, the United States filed both a complaint in this Court and a protective notice of appeal in state district court in Tonopah. By order entered on September, 00, this Court dismissed the federal complaint, choosing to abstain from a review of Ruling on the grounds that the appeal constitutes a state water law matter capable of resolution in state court. The United States appealed this Court s dismissal to the United States Court of Appeals for the Ninth Circuit. Finding that the United States had set forth a not insubstantial claim of federal preemption, the Ninth Circuit reversed and remanded the case back to this Court for consideration of the federal question. See United States v. Morros, F.d (th Cir. 01. Now, in furtherance of the appellate court s remand, the Court has been directed to address the federal preemption claim allegedly created by the State Engineer s reliance on a provision of Nevada law. After initiating its appeal relative to Ruling, DOE began pursuing extensions of its temporary permits authorizing water use for Yucca Mountain site characterization. By letter dated November, 01, DOE requested extensions to its temporary water permits, ostensibly to continue //// Pursuant to his statutory directive, the State Engineer specifically determined that DOE intended the water for the construction and operation of the proposed high-level nuclear waste repository at Yucca Mountain. See Ruling at. The Nevada water code at NRS.0( provides, in pertinent part, that: [W]here there is no unappropriated water in the proposed source of supply, or where its proposed use or change conflicts with existing rights, or threatens to prove detrimental to the public interest, the state engineer shall reject the application and refuse to issue the requested permit. United States v. State Engineer, Case No., Fifth Judicial District Court, County of Nye, State of Nevada. By Order dated December, 01, the Ninth Circuit also denied the State of Nevada s Petition for Rehearing and suggestion for Rehearing En Banc filed jointly by the Nevada Agency and the State Engineer. In order to reach his public interest finding, the State Engineer considered the Nevada Legislature s passage of NRS.. NRS. provides that it is unlawful for any person or governmental entity to store high-level radioactive waste in Nevada. Permit Nos.,,,,, and. --

4 its industrial use of water for site characterization purposes. By the time the State Engineer responded to DOE s extension request for the temporary site characterization permits, the Secretary of Energy had notified the Governor of his intention to recommend the Yucca Mountain site to the President and had thus indicated that site characterization was complete. Based on DOE s own representations that site characterization at Yucca Mountain is complete, State Engineer Hugh Ricci denied the requested temporary extensions by letter dated February, 0. See Affidavit of Hugh Ricci at, attached hereto as Exhibit A and incorporated herein by this reference. The basis for the February 0 denial is that DOE is no longer pursuing site characterization activities for which the water was originally appropriated. 1 On or about March, 0, the United States filed a First Amended Complaint for Declaratory and Injunctive Relief, attempting to incorporate allegations relative to the State Engineer s February 0 denial of its temporary permits. On March, 0, Nevada Agency and the Nevada State Engineer filed Answers to the First Amended Complaint. In addition, Nevada Agency filed a Motion to Strike those new paragraphs pertaining to the State Engineer s February 0 temporary permit denial on the grounds that such matters pertain to issues beyond those remanded to this Court by the Ninth Circuit. On April, 0, pursuant to the Nuclear Waste Policy Act (NWPA, Governor Kenny Guinn submitted Nevada s official Notice of Disapproval of the proposed Yucca Mountain repository to Congress, thereby vetoing the site selection decision of the President. See Official Notice of Disapproval, Affidavit of Dr. Robert B. Dove, and receipts of the Official Notice of Disapproval attached cumulatively hereto as Exhibit B and incorporated herein by this reference; U.S.C. 01(b. Only if Congress passes a resolution overriding the Notice within the first 0 days of continuous session will the project be resurrected. U.S.C. 1(c. See Joint Resolution and April, 0, Statement of Senator Jeff Bingaman, attached hereto as Site characterization constitutes statutorily-defined preparatory activities preceding recommendation of the Yucca Mountain site for development of the proposed repository. U.S.C. 1. On February 1, 0, Secretary of Energy Spencer Abraham recommended the Yucca Mountain repository to the President. On February, 0, President George W. Bush recommended the repository to Congress. On January, 0, the Secretary of Energy gave a 0-day notice to the Governor of Nevada of his intent to recommend to the President approval of the Yucca Mountain site for the development of a high-level nuclear waste repository. 1 Consistent with the Secretary of Energy s notice of his intended recommendation of the Yucca Mountain site to the President by letter dated January, 0, and DOE s own Yucca Mountain Science and Engineering Report, site characterization activities are complete upon site recommendation. Because site characterization is complete, water is no longer necessary for that activity. --

5 Exhibit C and incorporated herein by this reference. II. DOE CANNOT SHOW IRREPARABLE HARM. DOE attempts to show that because certain of its temporary water permits expired on April, 0, it will suffer irreparable injury. DOE argues that: Without water, DOE would be required to terminate activities associated with the Yucca Mountain Site. Termination would be required since the DOE would not be able to properly control fugitive emissions under its air permit, would not be able to provide the required potable water for health purposes and its worker agreements, could not assure adequate water for fire suppression/fire fighting, could not meet its requirements for reclamation of disturbed sites, and could not provide the required water to complete ongoing scientific and engineering work to carry out the NWPA. United States Memorandum in Support of Plaintiff s Motion For Preliminary Injunction at. The United States has the difficult burden of showing the following in order to justify the issuance of a preliminary injunction: (1 the moving party will suffer irreparable injury if injunctive relief is not granted, ( the moving party will probably prevail on the merits, ( in balancing the equities, the non-moving party will not be harmed more than the moving party is helped by the injunction, and ( granting the injunction is in the public interest. Stanley v. Garrett, 1 F.d, 1 (th Cir.. In the alternative, a court may grant a preliminary injunction if the moving party shows, either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. Id. An injunction should issue only in cases clearly warranting it and then only upon a convincing presentation of evidence. Sierra Club v. Hickel, F.d, (th Cir. 0. The facts supporting a motion for a preliminary injunction must be more than mere general assertions that are substantially controverted by opposing evidence. K- Ski Co. v. Head Ski Co., F.d, (th Cir.. In spite of its arguments, DOE cannot show a combination of possible irreparable injury and probable success on the merits. At this juncture, DOE does not have the authority to pursue Yucca Mountain activities. Further, DOE actually has water to address any non-yucca Mountain uses it may have. See Exhibit A, Affidavit of Hugh Ricci, P.E., State Engineer, at and. At this point the assertions made by Scott Wade do not substantially controvert the fact that Nevada has exercised its Notice of Disapproval of the proposed repository. United States Memorandum in Support --

6 1 1 1 of Plaintiff s Motion for Preliminary Injunction at Exhibit A. Although Scott Wade s declaration outlines certain tests which require water incident to Yucca Mountain activities, his declaration contains only general assertions which fail to delineate and quantify water requirements for the activities and a means to distinguish between Yucca Mountain activities authorized by the NWPA and those which are related to public health and safety authorized by other federal authorities. With respect to Yucca Mountain-related activities, DOE cannot show irreparable harm based on termination of activities for which it is no longer authorized. Even if DOE could show authority to continue with activities unrelated to its duties under the NWPA, it has indicated that it does have water. DOE spokesman Allen Benson has publicly announced that there is no need for water now and that water in storage will provide for several months worth of water use. We have no need to draw water for operations right now and we re going to abide by the law, said Yucca Mountain Project spokesman Allen Benson.... Benson said the stockpiled water, plus another 00,000 gallons stored in several other tanks is enough to last several months while scientists collect data from ongoing experiments and continue design work needed for a license to build and operate a repository. See Las Vegas Review Journal article, dated April, 0, attached hereto as Exhibit D and incorporated herein by this reference. A. The Yucca Mountain Project Is Legally Dead Upon Nevada s Submission of a Notice of Disapproval. On April, 0, the State of Nevada submitted its Notice of Disapproval and thereby exercised what has been described by the United States Department of Justice as Nevada s trump card in the statutory process to consider the development of a nuclear waste repository at Yucca Mountain. The NWPA expressly provides the authority for the State s exercise of the Notice of Disapproval. U.S.C. 1(b. Upon the submission by the President to the Congress of a recommendation of a site for a repository, the Governor is statutorily empowered to disapprove the site designation and submit to the Congress a Notice of Disapproval within 0 days after the Presidential recommendation to Congress. U.S.C. 1(b. On April, 0, within the required 0-day statutory window, Nevada Governor Kenny Guinn delivered Nevada s Notice of Disapproval to Congress. Delivery of the Notice of Disapproval effectively vetoes the project unless both houses of Congress, during the first period of 0 calendar days of continuous session after receipt of the --

7 1 1 1 Notice, pass resolutions overriding the Notice of Disapproval and thereby approving repository development. U.S.C. 1(c. The sequence of political events contained in the NWPA, including the State s exercise of its Notice of Disapproval, is not at issue. In fact, the United States has itself elucidated the NWPA statutory scheme involving the State s exercise of its Notice of Disapproval. In another pending Yucca Mountain case 1 involving a judicial review of the Yucca Mountain radiation standard established by the United States Environmental Protection Agency, the United States offers a concise explanation of the significance of the State s Notice of Disapproval: The decisions by DOE whether to recommend and by the President to approve [the Yucca Mountain repository] are steps in the political process established by the NWPA for which no explicit standard is mandated or required and for which judicial review is not available. Moreover, the Nuclear Waste Policy Act gives Nevada a trump card. Nevada has an absolute right under the statute to submit a notice of disapproval that effectively vetoes any site selection designation by the President, U.S.C. 1(b, and the State has given every indication that it will in fact exercise that veto. This Nevada veto, and not court action is the proper mechanism under the NWPA to provide a check against the specter of a bureaucratic steamroller that Nevada raises in its motion,... If Nevada exercises its veto, Yucca Mountain will only be selected as the site for a nuclear waste repository if both houses of Congress pass a resolution approving the site designation and it becomes law. Id. 1(c. It is only after enactment of such new legislation that DOE would even be able to apply to the NRC for authorization to begin construction of a repository. Other than pure speculation, there is no way to predict whether, or on what basis, Congress might enact such legislation overriding the State s veto. [Emphasis added.] Respondent United States Environmental Protection Agency Opposition to Nevada s Motion for Expedited Briefing and Stay Pending Review at, (filed November, 01. //// In its argument against the State of Nevada s motion for a stay, the federal government describes the exact factual scenario presented here. Now that the Notice of Disapproval has been submitted, Congress must pass new legislation in order for DOE to go to the next step in the NWPA process to enable it to submit a license application to the Nuclear Regulatory Commission (NRC. See Exhibit C, Statement of Senator Jeff Bingaman. Ironically, now that the United States is faced with supporting its claim of irreparable injury, its own 1 Nuclear Energy Institute, et al. v. United States Environmental Protection Agency, No and consolidated cases, United States Court of Appeals for the District of Columbia Circuit. --

8 1 1 1 words are particularly instructive and reveal the disingenuousness of the federal position. DOE does not need water to pursue the Yucca Mountain Project until Congress passes new legislation. A finding of irreparable injury cannot be based on an eventuality which may or may not happen. See National Wildlife Federation v. Burlington N. R.R., F.d 0, (th Cir.. In another pending Yucca Mountain case, 1 DOE itself has emphasized the import of Nevada s exercise of the Notice of Disapproval within the procedural context provided by the NWPA: After the Secretary has completed site characterization activities at the Yucca Mountain site and conducted public hearings, he must decide whether to recommend that the President approve the site as a nuclear waste repository. U.S.C. 1(a(1. If DOE recommends approval, the President must decide whether to recommend approval of the site to Congress. U.S.C. 1(a((A. If the President recommends approval of the site, such recommendation becomes an effective designation of the site as suitable for application for a construction authorization for a repository unless within 0 days after the President s recommendation, Nevada submits to Congress a notice of disapproval of the site designation. U.S.C. 1(b; see also U.S.C. 1. If Nevada submits a timely notice of disapproval to congress, designation of the Yucca Mountain Site shall be disapproved unless congress passes a resolution approving the site designation and the resolution becomes law. U.S.C. 1(c. If the site designation becomes effective, DOE must submit to the NRC [Nuclear Regulatory Commission] an application for construction authorization for a repository at the site. U.S.C. 1(b. The NRC must act on such an application within years, with the possibility of a 1-month extension. Id. 1(d. See DOE s Motion to Dismiss filed in State of Nevada v. U. S. Department of Energy, Case No. 01-, United States Court of Appeals for the District of Columbia Circuit, at - (emphasis added. Elsewhere attorneys for DOE have referred to Nevada s Notice of Disapproval as Nevada s unqualified right to veto the President s recommendation. DOE s Motion to Dismiss at. The government s points and authorities explain it as follows: The basic defect in Nevada s claim to standing is that Nevada has the unqualified right to veto the President s recommendation. U.S.C. 1(b. If Nevada exercises that right, the President s designation of Yucca Mountain as suitable for application for a construction authorization as a 1 State of Nevada, City of Las Vegas, Nevada, and Clark County v. United States Department of Energy and Spencer Abraham, Secretary, and President George W. Bush, Case No. 01-, United States Court of Appeals for the District of Columbia Circuit. State of Nevada, et al. v. United States Department of Energy, Case No. 0- (consolidated with No. 01-, United States Court of Appeals for the District of Columbia Circuit. --

9 1 1 1 repository will not be effective unless Congress passes a resolution of repository-siting approval and the resolution becomes law. U.S.C. 1(b and (c.... [Emphasis added.] Thus, as articulated by DOE in its own words, since Nevada has submitted a timely Notice of Disapproval, the Yucca Mountain site is disapproved. Despite its arguments to the contrary, the United States cannot demonstrate either a likelihood of success on the merits or the possibility of irreparable injury where, as here, there is no authority for it to continue with a project that has been disapproved. Los Angeles Memorial Coliseum Comm n v. National Football League, F.d, (th Cir. 0. B. DOE Has Adequate State Law Remedies Relative to the State Engineer s February, 0, Decision. NRS.0 provides for judicial review of State Engineer decisions. Because Nevada water law and all proceedings subject to it are considered special in character, procedures contained in the water code are exclusive. Jahn v. Sixth Judicial District Court ex rel. Humboldt County, Nev., P.d (. NRS.0( provides for the posting of a bond when a stay is desired. Clearly, to the extent DOE seeks to stay the State Engineer from acting until the merits of its case are heard, the Nevada water code prescribes an avenue to appeal the State Engineer s decision and to obtain a stay. To preserve its options during the pendency of its appeal of the State Engineer s decision, NRS.0 contains a provision for a stay to allow DOE to preserve the status quo. It is important to emphasize that the United States attempt to insert into this proceeding its grievances concerning the February, 0, denial of extensions of its temporary water permits is inappropriate and undermines the state statutory scheme for judicial review of all State Engineer decisions. Unlike the remanded issue before the Court concerning the permanent water applications denied in Ruling, the basis for the State Engineer s February 0 denial bears no relationship to a provision of state law arguably preempted by federal law. The State Engineer s February 0 denial turns on his understanding of the purposes for which DOE intends to use the water and his understanding of DOE s activities as described to him by DOE itself. By seeking to interject issues related to its temporary permits, the United States is again trying to short circuit the state appeal process simply because it does not like the decision that the State Engineer reached. In fact, this Court s review of DOE s actions to date reveals a repeated pattern of federal circumvention of state processes when the State Engineer renders a decision the United States finds unfavorable. As this Court noted --

10 1 1 1 before, once a State Engineer s decision is reached, it is subject to judicial review pursuant to state law. NRS.0. With respect to the February 0 denial of the temporary extensions, the State Engineer acted in reliance on the fact that the Secretary of Energy recommended development of the repository, a fact that supports the State Engineer s conclusion that site characterization is complete. Regardless of the government s dissatisfaction with this recent decision, the basis of it does not rest on a provision of state law in conflict with federal law. C. DOE Has Water in Storage Sufficient to Provide Its Water Requirements. On April, 0, DOE spokesman Allen Benson stated that DOE has sufficient water in storage to accommodate its alleged water needs for several months. Exhibit D. In addition, according to its own memorandum in support of its motion for a preliminary injunction, DOE states that it has sufficient water in storage to meet its historical water needs for days. United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction at. Despite its inconsistencies, whether it is days or several months worth of water, the situation hardly translates into an immediate and irreparable injury. In addition, DOE has another permit, Permit No.. See Exhibit A, Affidavit of Hugh Ricci, P.E., at and. On April, 0, DOE filed a Proof of Beneficial Use with the Office of the State Engineer indicating an actual use of water from this well of. acre-feet. Id. //// //// III. DOE CANNOT SHOW LIKELY SUCCESS ON THE MERITS. A. DOE Inappropriately Advances Its Federal Preemption Argument in Connection With Its Motion for Preliminary Injunction. The United States has consistently sought to mix apples and oranges in the case before this Court. The question before this Court on remand from the Ninth Circuit is whether Ruling denying DOE s permanent water right applications is preempted by the NWPA. The issues raised in the United States Motion for Preliminary Injunction go to the State Engineer s understanding of DOE s own process as described by DOE itself. In other words, the issues related to the temporary permits, subject to the State Engineer s February, 0, decision, are not connected to the federal preemption issue before the Court. --

11 1 1 1 The United States relies on Nevada v. Watkins, 1 F.d (th Cir. 0, in support of its contention that it will succeed on the merits. United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction at. Contrary to its arguments, however, is the fact that Watkins addressed State interference with site characterization while site characterization was occurring. Now, after April, 0, there is certainly no site characterization occurring at the Yucca Mountain site and no federal purpose being frustrated. As DOE points out, by enacting the NWPA, Congress sought to define the relationship between the Federal Government and the State governments with respect to the disposal of high-level nuclear waste. United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction at 1, citing U.S.C. (b(. Part of the comprehensive program contained in the NWPA is provision for the State s Notice of Disapproval which, in DOE s own words, effectively disapproves the site. Clearly, given the legislative scenario supplied by the NWPA, there is no reasonable likelihood that DOE will prevail on the merits, particularly given the changeable political environment within which its authority rests. B. The State Engineer s Denial of the Temporary Permit Extensions Is Based on Changed DOE Circumstances. By letter dated February, 0, State Engineer Hugh Ricci informed DOE representative Scott Wade that certain circumstances had occurred affecting his consideration of DOE s request for extensions of certain of its temporary permits. Specifically, the State Engineer referred to an earlier State Engineer Ruling, No. 0, which relied on DOE s plan for conducting site characterization at Yucca Mountain. See February, 0, letter attached as Exhibit H to the United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction. Before issuance of the temporary site characterization permits, former State Engineer R. Michael Turnipseed determined that DOE s use of water at Yucca Mountain related to site characterization, a discrete statutory activity described in the NWPA. U.S.C. 1. Further, in his February 0 letter, State Engineer Hugh Ricci cites to DOE s Yucca Mountain Science and Engineering Report at sections 1., 1., and 1. for his determination that after the Secretary of Energy recommended the site for development, site characterization is complete. Based on his understanding that site characterization has ended, the State Engineer denied the requested extensions. Although DOE implies that the State Engineer was somehow duplicitous in his decision to deny the --

12 1 1 1 requested extension, the State Engineer s decision can only be understood within its factual context. When the Secretary notified the Governor of his decision to recommend Yucca Mountain for development, the purpose for the temporary water permits no longer existed. Unlike the remanded issue before the Court related to the State Engineer s reliance on an expression of the public interest contained in state law (Ruling, the temporary denial is consistent with the State Engineer s authority under NRS chapters and. More importantly, if the State Engineer s decision is arbitrary, capricious, or an abuse of discretion, remedies for rectifying it exist under the appeal provisions of the water law. NRS.0. C. The Balance of Hardships Favors the State of Nevada. The United States takes the incredible position that an injunction in this case favors the national interest of addressing the problems associated with accumulated high-level nuclear waste and spent nuclear fuel stockpiled at reactor sites in our country. See United States Memorandum in Support of Plaintiff s Motion for Preliminary Injunction at. What is omitted from its arguments, however, is how this purpose translates into irreparable harm sufficient to support this Court s imposition of injunctive relief. The United States applied for water under Nevada s water law. When it received an //// //// adverse decision, rather than appealing it pursuant to the very provisions it initiated in the first place, the government chose to invoke its constitutional claims of federal preemption. Under the NWPA, it is clear that at this point in the history of the Yucca Mountain Project, there is no federal authority to continue. IV. CONCLUSION. With Nevada s submittal of its Notice of Disapproval, the proposed repository at Yucca Mountain is legally dead and no water use connected with the Yucca Mountain Project is authorized. Because of this, DOE is not faced with irreparable injury. DOE has represented to the Court that it has water to continue activities for another days beyond April, 0, and it has a water right for which it has proved beneficial use. Whether Congress will enact new legislation within 0 days overriding Nevada s Notice of Disapproval is unknown at this point. Only if Congress passes new legislation will DOE be authorized to continue activities related to licensing the proposed repository. -1-

13 DATED this day of April, 0. FRANKIE SUE DEL PAPA Attorney General By: MARTA A. ADAMS Nevada State Bar # Senior Deputy Attorney General 0 North Carson Street Carson City, Nevada 01- ( -1 Attorneys for Nevada Agency for Nuclear Projects c:\documents and settings\pcuser\files\adams \doe water apps\usdc 00-\opp to mot prelim inj.doc