Thursday, May 5, 2005 | 9:09 a.m.
ROCKVILLE, Md. -- The Energy Department may wait longer than six months after it finalizes its Yucca Mountain project documents to file the license application, a lawyer told a three-judge panel Wednesday.
A longer wait combined with additional delays in finalizing the documents could push the opening of the proposed nuclear waste repository at Yucca further off schedule.
The department initially had been aiming to file the license application by the end of 2004, but a combination of financial, regulatory and other problems kept it from achieving its goal.
Attorney Michael Shebelskie of law firm Hunton & Williams, which represents the Energy Department, told a panel of the Atomic Safety Licensing Board that the department plans to finalize its documents "this summer" and has "high confidence" it will finish before August.
The three judges who make up the board oversee issues related to the database of documents known as the Licensing Support Network.
At a hearing Wednesday, the board examined details regarding submission of documents to the network by the Energy Department, Nevada and other parties interested in the Yucca Mountain project's licensing process.
Under Nuclear Regulatory Commission rules, the department needs to finalize a collection of documents it would put into the database at least six months before the commission could begin the review of the application.
Attorney Donald Irwin, also of Hunton & Williams, said it would be a minimum of six months, but possibly longer.
"It's not going to be years, but I can't promise six months," Irwin said. "Whether it will be a material amount, I don't know."
Irwin told the board the department is still waiting on matters that are out of the Nuclear Regulatory Commission's control. The Environmental Protection Agency needs set the project's radiation standard because in July 2004 a federal court threw out one set at 10,000 years.
Shebelskie said the board's decision as to how the department needs to treat certain documents, which was subject of the hearing, could also affect when it finalizes the documents.
If the department would finalize documents later than June 30, the commission could not accept the license at the end of this year.
At issue is the treatment of privileged documents, a legal label put on certain types of information.
Nevada and the department disagree on how the department should share "employee concern" documents, which outline when employees file complaints about certain parts of the project and what can be protected under attorney-client privilege, the normal way discussions between a lawyer and his or her client can be kept secret, among other details.
The outstanding issues only pertain to about 140,000 documents out of the estimated 3.6 million that will go into the database.
Washington attorney Joe Egan, who represents the state on Yucca issues, noted though that the percentage is not as important as what those documents contain. Nevada's lawyers expect to find useful information in the draft license application and documents outlining what concerns employees had over work on the Yucca Mountain project to use in the state's fight to stop the project.
But attorney Kelly Faglioni of Hunton & Williams said employee-concern documents are privileged because they contain personal information and those filing complaints are entitled to their privacy. She said releasing them even under a "protective order" that would limit who could see the documents, should be handled on a case-by-case basis and some information should be redacted.
The department is also trying to protect its draft license application under attorney-client privilege, saying that it was prepared in advance of upcoming litigation so it does not have to share it.
But Judge Thomas Moore said the draft is not just prepared for a hearing, but to get a license from the NRC. He said the technical staff may object to the application being compared to a complaint filed in a civil case.
Attorney Charles Fitzpatrick, who also represents Nevada, said the draft should be made available because it has been widely circulated already throughout the department and the most recent draft, finished last year, is not just a preliminary document. He said contractor Bechtel SAIC got a bonus for finishing a draft license application so it should be considered the closest thing to final version right now.
"That sucker made it all the way to the top," Fitzpatrick said.
Nevada has also filed Freedom of Information Act requests for the draft but has been denied access.
The judges asked for additional briefs by May 12 on suggestions for how to handle the documents. Another hearing will take place on May 18.
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