By Dan Klepal
The Cincinnati Enquirer

Radioactive waste in this silo - one of three at Fluor Fernald Inc. - was to be shipped to Nevada for burial. But Nevada officials have threatened legal action to halt the shipment, charging that the waste was falsely reclassified as "low-level" waste. The Associated Press/DAVID KOHL

CROSBY TWP. - Nevada's attorney general is threatening to sue the U.S. Department of Energy to keep radioactive waste from the Fernald silos out of the state's Nevada Test Site, a low-level nuclear-waste repository 65 miles northwest of Las Vegas.

Nevada Attorney General Brian Sandoval wrote a letter to the Department of Energy Tuesday saying the plan to dump the waste in his state violates federal and state law, and is contrary to the agency's rules regulating the disposal of nuclear waste. He threatens in the letter to file a federal lawsuit and seek a court injunction to stop the shipments before they can begin. The letter demands a response from the Department of Energy by April 30.

"In short, there appears to be no legal, regulatory, or scientific justification whatsoever for DOE's plan to dispose of massive quantities of Fernald's most hazardous and radioactive waste at NTS," Sandoval's letter says. "DOE's plan is reckless and unsafe, and it flagrantly violates the law."

Sandoval's action threatens further delay in the Fernald cleanup, which was found in an October audit to be $20 million over budget and months behind schedule. Any more delay in the removal or shipment of the silo waste threatens the government's ability to meet its June 2006 deadline for completing the entire cleanup. The first shipments of waste were to begin next month.

The Fernald plant, in northwest Hamilton County, is a cold-war relic at which uranium was extracted from ore for use in nuclear weapons. It helped the country win the arms race against the Soviet Union but left in its wake nuclear and other hazardous-material contamination that has taken more than a decade and $4 billion to clean up.

One of the last steps in the complicated and dangerous cleanup is the removal of about 153 million pounds of radioactive material from three concrete silos, which date to the 1950s.

Taxpayers are spending $320 million a year, or almost $1 million per day, cleaning up the site.

It is the second time in five months a state has balked at taking Fernald's waste. Initially, the silo waste was to be sent to a private landfill in Utah. But after months of public outcry against that plan in Utah, the facility declined in November to accept the waste.

That left the Department of Energy with its fall-back plan - sending the material to Nevada.

Department of Energy spokesman Joe Davis would not comment on Sandoval's letter. He said government lawyers are reviewing the letter and the plan, and would respond to the letter in writing.

Davis did say, though, that the agency would move forward with the plan to truck the waste to Nevada until a lawsuit is filed.

"Our philosophy is pretty simple: We're moving forward with closing these plants," Davis said. "If someone decides to file a lawsuit, that's beyond our control. We believe we can (legally) ship the material to the Nevada Test Site."

Davis would not say whether the waste would be removed from the silos on schedule if a suit should be filed.

Marta Adams, a senior deputy attorney general in Nevada and the person who would handle any lawsuit over the waste, said the Department of Energy reclassified the waste in the silos as less hazardous so it would not have to comply with federal and state regulations regarding the disposal of hazardous materials.

"The Nevada Test Site is not licensed or set up to receive this waste," Adams said. "They can't change that merely by a sleight-of-hand, and take the state out of the equation."

The waste "needs to be treated with the right kind of criteria so as to protect the public,'' she added. "They can't just call it 'low-level' because it's convenient."

Nevada has been battling with the Department of Energy for years over Yucca Mountain, the government's chosen site for the first long-term geologic repository for spent nuclear fuel and high-level radioactive waste.

Lisa Crawford, leader of a local citizens group that monitors progress at Fernald, said she thinks the politics of the Yucca Mountain fight led to Sandoval's letter.

"I think this is political backlash," she said. "DOE has pretty much thumbed their noses at the states, and I think the states are fighting back. But I'm just stunned. This is another setback, and they can take 2006 (deadline) and kick it out the window, because it's not going to happen now."

The project has encountered many setbacks over the years.

Cleaning the silos poses dangers to workers, nearby residents and the environment. Any spill during the removal, packaging or shipping of the waste would be an environmental catastrophe, potentially exposing many people to radiation.

Two previous efforts to clean up the silos were abandoned after more than $69 million in taxpayer dollars was spent because they were deemed not technically feasible or because the contractor gave up before doing the work.

Those failures led project manager Fluor Fernald to redesign the plan to remove the waste and ship it west, at a $400 million additional cost.

E-mail dklepal@enquirer.com