Goodman's ban on nuke waste called unconstitutional

After studying the city of Las Vegas' proposed measure to keep high-level nuclear waste out of city limits, the district attorney's office declared the ordinance to be unconstitutional.

County Commission Chairman Bruce Woodbury asked the commission's counsel, Deputy District Attorney Mary-Anne Miller, to look into the measure shortly after Mayor Oscar Goodman proposed the ordinance earlier this month.

"I saw a memo floating around the county about it and whether it was a possibility," Woodbury said. "I thought before anyone here proposed it, we should get a legal opinion. I felt almost for sure it would be considered beyond our jurisdiction and unconstitutional."

And so did Goodman.

"I know what the law is, and I also know I don't want nuclear waste going through the city of Las Vegas," Goodman said.

Goodman's measure would make it a misdemeanor punishable by a fine of $1,000 to haul high-level nuclear waste within the city's boundaries. He said his proposal is backed by state Attorney General Frankie Sue Del Pappa.

If nothing else, Goodman said, the city measure would send a powerful message to supporters of the Yucca Mountain nuclear waste repository. The law would be a "symbolic gesture" similar to the Boston Tea Party, which protested taxation without representation.

"Hey, if they can do it there, I can do it here," Goodman said.

Miller's report says the proposed measure is preempted by the Atomic Energy Act of 1954, the Hazardous Materials Transportation Act of 1994 and the Nuclear Waste Policy Act.

"Because these federal laws regulate the safety aspects of both high-level and low-level radioactive wastes, of which transportation is a key safety aspect, state or local laws are limited to regulating non-radiological aspects of nuclear waste transportation," the report says.

Goodman's proposal doesn't mark the first time the local government has tried to write a law banning the transport of radioactive materials.

In 1989 the city was sued by Union Pacific Railroad after it adopted a measure requiring the railroad to apply for a hazardous waste transportation permit 60 days before it would transport the material. The ordinance also required the railroad to provide information it did not have.

The railroad could not comply with the both the city ordinance and federal laws.

"The court held that because the effect of the ordinance was to 'impermissibly delay or virtually stop the transportation of hazardous material into, through and within and out of Las Vegas,' the ordinance was on its face inconsistent with the (Hazardous Materials Transportation Act) and was therefore preempted," according to Miller's report.

On Friday Woodbury said the county will look at alternate methods to protect residents if the Yucca Mountain repository wins final federal approval.

Goodman said the council will go forward with its plan to consider the measure regardless of the district attorney's opinion.

"If they bring this stuff through our city streets, we'll have them arrested and prosecuted if this ordinance is passed," Goodman said.

archive