Three-judge panel to rule on license application release

Suzanne Struglinski

Wednesday, July 13, 2005 | 9:37 a.m.

WASHINGTON -- A three-judge panel will decide if the Energy Department has to release the draft license application for the Yucca Mountain project after hearing largely semantic arguments made Tuesday.

Nevada wants the draft to learn more about the department's plans for the proposed nuclear waste repository at Yucca, 90 miles northwest of Las Vegas. The department does not believe the draft application qualifies as a document that has to be released.

Attorneys for the state and the Energy Department argued before Atomic Safety Licensing Board, an administrative court within the Nuclear Regulatory Commission. Nevada lawyers argued that once Bechtel, the project's main contractor, finished the draft and department management began reviewing it last year, it qualifies under commission rules as a document that should be made public.

But Attorney Michael Shebelskie of the law firm Hunton & Williams, which represents the Energy Department, argued that what Bechtel delivered was not a final document and is still in various stages of review. He said official review, which would qualify the document be made public under commission rules, did not take place. Instead, department officials just took "sneak previews" of the draft or were asked for feedback.

Attorney Charles Fitzpatrick, a partner of the Virginia firm that represents the state on Yucca issues, noted that the department was going to file its license application in December, but former Yucca chief Margaret Chu said in late November that the application would not be turned in on that schedule. Chu and other project officials had noted the application progress and their reviews of the draft prior to the department's announcement it would not meet its deadline.

"To suggest this was just a mere glance when a monumental tome was going to be delivered in December it not credible," Fitzpatrick said.

During the arguments, Fitzpatrick called the draft "the most desirable document."

Nevada wants the draft license application to see what final decision the department had prepared for the final version. Decisions on the repository's exact design, safety features and other issues would only be made in the application, so a draft would hold a least clues to where the department was going with the project.

"We want to know how they treated (the time) post 10,000 years," said attorney Joe Egan, Fitzpatrick's partner. "This was done at a time when post 10,000 years was not legally important."

Last year, a federal court said the Environmental Protection Agency has to redo the project's 10,000-year radiation protection standard. Bechtel, the project's main contractor, completed the draft application the state wants while the 10,000-year standard was still in place. The EPA estimates it will have a proposed new standard in September.