Nevada hits NRC with suit over 1990 ruling

Benjamin Grove

Friday, Sept. 2, 2005 | 10:56 a.m.

WASHINGTON -- Nevada has filed yet another lawsuit aimed at thwarting Yucca Mountain.

The state on Thursday sued the Nuclear Regulatory Commission, charging that an obscure NRC rule illegally prejudges the proposed Yucca Mountain nuclear waste repository.

In a 1990 rule, the NRC formally recognized the national waste plan in its so-called "waste confidence" rule. It states that a geologic repository will be available by 2025.

To avoid the appearance of NRC bias toward Yucca, the 15-year-old NRC rule stated that if Yucca failed to obtain a license by 2000 that there would be plenty of time for the nation to license and construct another repository.

But now there's no time to develop any waste site except Yucca, Attorney General Brian Sandoval said.

"Today the only way NRC can meet its requirement that a repository will be available by 2025 is to presume it will give Yucca a license," Sandoval said. "For an ostensibly impartial regulator to make that prejudgment is simply unlawful. Frankly, it's also appalling public policy."

The agency will judge the Energy Department's license application to build Yucca Mountain, but faces a conflict of interest because it oversees the licensing and re-licensing of nuclear facilities, Nevada's lawyers say.

Nuclear plants must explain a long-term waste plan, which, in line with what Congress has deemed to be a national waste plan, is the permanent storage of waste in a geological repository.

The problem, Nevada attorneys say, is the NRC can't approve the plant licenses without approving Yucca Mountain.

The state first formally objected to the NRC rule in a petition it filed March 1, arguing that the agency should change its rule by stripping out the 2025 requirement. The NRC rejected the petition last month. Sandoval said that was the first time the NRC had rejected a rule-making petition without publishing it in the Federal Register and seeking public comment.

"They're bending over backwards to ram this project forward, and we're confident the court will see through it," Sandoval said.

NRC spokesman David McIntyre said he could not comment because the NRC had not reviewed the lawsuit.

But in rejecting Nevada's petition in an Aug. 10 letter to the state, the NRC stated that "reasonable assurance exists that at least one mined geologic repository will be available by 2025."

The NRC asserted that the agency "remains committed to a fair and comprehensive adjudication" and that the commitment is not jeopardized by the 2025 rule.

The letter even noted that there is still the "potential" that the NRC could deny a license to Yucca. The letter states that the NRC will not reconsider the 2025 rule unless the NRC rejects Yucca or unless the Energy Department abandons Yucca.