By Dan Klepal
The Cincinnati Enquirer

CROSBY TOWNSHIP - Department of Energy officials, in a weekly report sent Tuesday to its employees at the Fernald nuclear cleanup site, said one option for resolving the dispute with the state of Nevada over disposal of radioactive waste is to break a promise and not provide Nevada officials with a 45-day notice before the shipments begin.

When asked by a reporter about the memo Tuesday, Department of Energy spokesman Gary Stegner said, "I wouldn't get too excited about that. We were just listing the universe of options available."

Minutes later, however, Stegner called the reporter back and said the memo contained a "typo." Instead of saying that the shipments might start "without 45-day notification," the memo should have said that the shipments might start with the proper notice.

Stegner said a corrected memo would be sent out today.

Officials with the Nevada Attorney General's office have threatened the Department of Energy with a federal lawsuit to stop the planned shipment of 153 million pounds of radioactive silo waste to the Nevada Test Site, outside of Las Vegas. They say the planned disposal there is illegal and unsafe.

That threat has left energy department officials scrambling because the shipments are scheduled to begin at the end of June and it has no other disposal site for the waste.

To appease Nevada officials, who demanded a response by April 30, Department of Energy lawyers said in a letter last month that they need more time to analyze the legal arguments Nevada has raised, and promised a 45-day notice before starting any shipments.

But Tuesday's memo to employees at Fernald says: "To maintain (the completion) schedule, and to be consistent with the commitment made by the Office of General Counsel (OGC) to give a notification 45 days prior to shipment, the notification must be made immediately. OGC has stated that they are unwilling to provide the notification until all issues are thoroughly and completely evaluated; this process may take several months.

"The immediate issue is for DOE to determine which option is preferred for Silo 3 operations: proceed with processing and shipping without 45-day notification, proceed with processing and store (the) material, or postpone waste processing and shipping."

Bill Taylor, the Department of Energy's second in command at Fernald and author of Tuesday's memo, said he couldn't violate the promise and order shipments to begin without the notice.

When asked if anyone could, Taylor said: "I suppose the guy who wrote the letter at OGC."

"We've taken a hit, no doubt about it," Taylor said. "There is no way for us to maintain our schedule with Silo 3 and provide Nevada with notification. But we are going to solve the issues brought up by the Nevada attorney general. We believe we can legally dispose of the waste in Nevada."

To do so, energy department officials face another potential crisis:

Rules governing the silos' cleanup state that the waste must be removed, processed and shipped in a continuous process without temporary storage at the Fernald site, other than to ensure that the trucks hauling the waste are full when they leave. The department would be violating those rules if crews begin removing the waste on schedule next month, then have a court order issued halting the shipments for any length of time.

Tuesday's memo also said officials are going to "develop recommended language for a legislative remedy," meaning it could ask Congress to change the rules governing disposal of nuclear waste.

Nevada Attorney General Brian Sandoval wrote a letter Tuesday to the Department of Energy's lawyers saying the waste should not be removed from the silos until a clear destination is found.

Marta Adams, senior assistant attorney general in Sandoval's office, said there is a lack of trust between Nevada and the Department of Energy. She said it is unclear what her office will do in response to Tuesday's memo. She said the idea of the Department of Energy appealing directly to Congress for a solution is also troubling, but not unexpected.

"That would be par for the course," Adams said. "When they can't make something fit within the rules of the game, they try to change the rules."

Fluor Fernald stands to earn a $250 million bonus if it completes the cleanup by June 2006. Taxpayers have been spending more than $1 million a day for a decade trying to make the Fernald site clean.

E-mail dklepal@enquirer.com