Thursday, May 19, 2005 | 10:01 a.m.
WASHINGTON -- Nevada's attorneys were to send a letter to the Energy Department today asking for a draft copy of the Yucca Mountain project's license application, even though they know it will be denied.
The department has denied several requests by the state for the draft before, but this rejection will allow additional evaluation by a panel of the Atomic Safety Licensing Board within the Nuclear Regulatory Commission.
The department claims it does not have to give the state a copy of the draft license application, or make it public, while the state argues it should be a public document and made available. The state believes the draft holds vital information, especially on the proposed nuclear waste repository's ability to hold it radiation.
At a hearing on Yucca Mountain project documents Wednesday, Judge Alan Rosenthal said it is important to have this matter issued quickly.
The board is evaluating how the state, the department and other interested parties have to put documents into a special database known as the Licensing Support Network. The database will be used during hearings as the board evaluates the department's license application to store nuclear waste at Yucca.
The department did not anticipate including the draft when it finalized its document collection, possibly later this year, and the state was likely to file a complaint, arguing that it should be included.
So the board, the state and the department agreed Wednesday to work out the issue even before the document collection is complete.
The state and the department will file briefs until the end of June on the issue.
Attorney Michael Shebelskie of the law firm Hunton & Williams, which represents the Energy Department, said if the board were to side with Nevada, the department would not have to produce the draft until it completes its collection.
Also at the hearing, the board said it has tentatively concluded that documents deemed confidential, archaeological or private will just simply be redacted and put into the database.
It is also leaning toward allowing some "employee concern" documents, or papers that outline complaints made by department employees or contractors about the project on the network.
The board described a process in which documents that contain no personal or private information, such as a name, Social Security number or address but are relevant to the Yucca project can be put in the database without redaction. But documents that contain personal information must be redacted and put into a separate database.
Those with access to the private database can only access the redacted documents under a special agreement that they cannot give them to anyone else.
Attorney Joe Egan, who represents Nevada, called this "an acceptable compromise."
The state wants to see what problems employees raised in order for the state to flesh out its arguments against the repository.
Kelly Faglioni of Hunton & Williams said a portion of 5,000 documents would fall into that category, but they could not be narrowed down further without a document-by-document search.
Egan said the board did not address rules for documents deemed protected under attorney-client privilege, deliberative process or work-product, the three-major classifications. Egan expects the judges will address them in their final decision, which is expected to come later this year.
Meanwhile, the board also ordered the department to file monthly updates of its estimated schedule for the Yucca Mountain project.
The department's attorneys will have to keep the board informed on when it will complete its document collection and turn in the license application.
Judge Thomas Moore, the board chairman, told the department's attorneys that he wants a realistic schedule and that it made no sense for the board to set deadlines if it was going to make them "sweat excessively."
"This board is not interested in the politics of this," Moore said. "It makes a huge difference in how many towels it's going to take to keep your forehead dry."
Moore said the licensing hearing for the project are also likely to go on for a "very long time ... contrary to what is politically correct to say."
The licensing process is limited to three years by federal law, with a one-year extension option that Congress would need to approve.
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