Nuke lobbyists plan to appeal Yucca decision

Suzanne Struglinski

Monday, Aug. 23, 2004 | 9:43 a.m.

WASHINGTON -- The Nuclear Energy Institute plans to ask a federal appeals court to reconsider the Yucca Mountain legal decision handed down more than a month ago.

The institute, the lobbying arm of the nuclear industry, plans to file papers with the U.S. District Court of Appeals for the District of Columbia this afternoon asking for a rehearing of part of the case.

The motion is expected to question the court's ruling earlier this year, in which the judges told the Environmental Protection Agency to set new radiation standards for Yucca Mountain.

If the motion is filed today, the court's ruling is expected to be stayed and won't be enforced until the motion is considered.

Details about the Nuclear Energy Institute's request will not be available until Tuesday.

The institute, Nevada, any of the environmental groups that brought legal challenges, the Nuclear Regulatory Commission and the Justice Department had until today to ask the court to reconsider any of the legal challenges against the site.

Nevada will not request a rehearing, even though it lost several cases with the court's decision, Nevada Deputy Attorney General Marta Adams said. The last day to appeal to the Supreme Court is Oct. 7 and the state is still evaluating what to do next, Adams said. The state's decision will depend on what the court decides to do with the rehearing request, she said.

But, she added, rehearings are rarely granted.

"They are seeking to delay the inevitable," Adams said. "This will go back to the EPA. At some point we have to be practical.

It was not certain Friday what the Justice Department, which represents the Energy Department and the Environmental Protection Agency, would do, spokesman Charles Miller said. The Nuclear Regulatory Commission's legal department could not be reached for comment.

On July 9, the court threw out the 10,000-year radiation standard for the nuclear waste storage site planned at Yucca, 90 miles northwest of Las Vegas. The court found the EPA did not follow a law that required it to use a recommendation by the National Academy of Sciences when it set the radiation standard. The court said either Congress will have to change the law to allow the 10,000-year standard or the EPA will have to develop a new standard.

But technically the 10,000-year standard is still in place until seven days after the court denies a petition to rehear the case or if none of the parties file for a rehearing, said Mike Bauser, the Nuclear Energy Institute's associate general counsel. He said the Energy Department should continue to work on the license application until the court's decision becomes final.

The department intends to submit the project's license application to the commission in December.

Adams said the federal court issued a separate but "totally standard" ruling with its decision to hold its order.

The request for rehearing will leave the EPA standard in place until the court decides whether or not it will grant the rehearing.

If the court agrees to rehear the case, the standard would remain in place until the case is reconsidered, Bauser said.

If the court does not agree to rehear the case or decides again that the standard needs to be thrown out, it would be void a week later unless the court stays the decision to allow the ruling to be taken to the Supreme Court, Bauser said.