Nevada wins fight over draft license application

Suzanne Struglinski

Friday, Sept. 23, 2005 | 9:30 a.m.

WASHINGTON -- Nevada has won its fight against the Energy Department's attempt to keep the Yucca Mountain project's draft license application out of its hands.

The Atomic Safety Licensing Board ruled Thursday that the department must turn over the 5,800-page draft when it finalizes it document collection in a Nuclear Regulatory Commission database.

"It's an absolute, overwhelming victory, both symbolically and for our team," said attorney Charles Fitzpatrick, partner of the Virginia firm that represents the state on Yucca issues.

Fitzpatrick acknowledged it is not the final version that the department will submit to the commission sometime next year, but it will be a tremendous help to the state to know what direction the Energy Department is taking. He said some areas within the application will change, but many components will not.

"Absent this decision, we would not have had any access to any draft," Fitzpatrick said. "It is not final, but it is a very valuable document. We will see a lot of what will go to the NRC."

Fitzpatrick said this also proves there are "obstacles in front of the juggernaut" because a fair and impartial licensing board will evaluate credible arguments in this case.

Rep. Shelley Berkley, D-Nev., said this serves as a reminder to the department that the state is watching and will challenge assertions that certain documents are off-limits.

"Getting this information has always been like pulling teeth, and DOE has a long track record of trying to hide unfavorable materials behind a veil of secrecy," Berkley said.

"They would prefer that Nevada be kept in the dark, and this is not the first time they have refused to hand over documents, nor will it be the last. While it may not seem like a giant victory, access to this data will help our fight to keep nuclear waste out of Nevada."

Last year Bechtel, the project's main contractor, delivered a draft license application for the license. The department intended to turn a final application into the commission by the end of last year, but several issues stood in its way.

Gov. Kenny Guinn demanded the draft from the department in February after it denied Freedom of Information Act requests by the state's attorney general to access it, but the Energy Department would still not turn it over.

Nevada wants the draft license application to learn more on the repository's exact design and specifically how it planned to meet the Environmental Protection Agency's radiation standard of 15 millirem per year for 10,000 years.

A federal court threw out the standard last year, but the agency proposed it again last month, along with a second tier that would limit exposure to 350 millirem per year up to 1 million years.

In July attorneys for the state and the Energy Department argued over the draft license application before Atomic Safety Licensing Board, an administrative court within the Nuclear Regulatory Commission.

Attorneys for the department argued that the draft Bechtel delivered last year was not a final document and is still in various stages of review. Department officials only took 'sneak previews' of the draft or asked for feedback, but no official review took place. This disqualified it as a document that would have to go into the database.

But Nevada lawyers insisted that once Bechtel finished the draft and department management began reviewing it last year, it qualifies under commission rules as a document that should be made public.

In a 57-page order handed down Thursday, Judges Thomas Moore, Alex Karlin and Alan Rosenthal said the draft met the criteria needed to be put into the Licensing Support Network, a database run by the commission to hold all documents related to the project. More than 90 people saw the draft in some form among other aspects that made it suitable to do public.

The department cannot turn in the application until six months after it declares its document collection is done. It tried to do this last year, but Nevada objected, saying it left out key documents. The board ruled in Nevada's favor.

The department said in a Sept. 1 monthly status report that it could finalize its documents by the end of the month, but that board's decision on the draft could change that goal.

The department could not specifically say how the decision would affect things on Thursday.

"Department lawyers are currently reviewing the document, and once the review is complete, the department will assess its options and go from there," said Energy Department spokesman Craig Stevens.

The commission staff was also reviewing the ruling, according to the press office.