Nevada’s case vs. Yucca delayed

Suzanne Struglinski

Friday, Aug. 15, 2003 | 11:05 a.m.

WASHINGTON -- A federal court has postponed the date of oral arguments for Nevada's consolidated court case against the Energy Department's Yucca Mountain project, and the delay could bode well for arguments against the site.

Oral arguments had been scheduled for Oct. 3, but the U.S. Court of Appeals for the District of Columbia Circuit postponed the case Thursday and reclassified the case as "complex." The court designates only a few cases this way each year.

The "complex" classification means the judges decided it is more than just a regular case, said Linda Jones, the court's operations manager. The clerk's office will now need to randomly select a new panel of three judges to hear the case and set a new date for the oral arguments. She did not know the new date or have a timeline as to when it might be set.

Joe Egan, an attorney with Egan, Fitzpatrick and Malsch, the Washington-area law firm hired by the state to handle the legal challenges, called the change "very good."

According to a court guidebook, once deemed "complex," cases may be allowed several hours of argument time as opposed to the usual 10 or 15 minutes allotted for regular cases. The parties will usually receive an order allocating the time two to three weeks before the date, the court said. The court will also expand the usual page or word limits on briefs.

"Anything that allows the court to look more closely at documents and ask more questions is good for us,' Egan said. "The only bad thing is that it may delay it."

Bob Loux, director of Nevada's Nuclear Project Office, agreed that while the postponement is disappointing at least "it means the judges are taking a serious look at this. It suggests they understand this is a serious issue."

Energy Department officials could not be reached for comment.

The court consolidated several cases brought by the state challenging various aspects of the Yucca Mountain project. Located about 90 miles northwest of Las Vegas, the site is the potential federal repository for 77,000 tons of nuclear waste. Congress and President Bush approved the storage site last year and the department anticipates submitting a license application to the Nuclear Regulatory Commission in December 2004.

As part of its strong opposition to the site, Nevada has sued the department on the environmental impact statement, the recommendation and the guidelines used to determine the site's suitability to hold the waste. These cases have been lumped together with challenges against the Environmental Protection Agency's radiation standards for the site and the Nuclear Regulatory Commission's rules for licensing the it. A constitutional challenge against the site filed in January is also part of this case.

The Nuclear Energy Institute has its own case against the EPA and is an intervenor on several of the other cases. These are also part of the "complex" case.

Mike Bauser, NEI associate general counsel, took no position on the court's decision but said it is a response to documents filed earlier by the all of the parties outlining the order they wanted the cases heard and how much time should be allotted for the arguments.