Jun 4 - McClatchy-Tribune Regional News - Keith Rogers Las Vegas Review-Journal



Like the refrain from the Grateful Dead song, the only thing opposing lawyers could agree on is that the 23-year battle over Yucca Mountain has been "a long, strange trip."

At a hearing in Las Vegas on Thursday, they argued the merits of the Department of Energy's decision to abandon its effort to pursue a license for a nuclear waste repository at Yucca Mountain, 100 miles northwest of Las Vegas. Attorneys on both sides noted that the drawn-out case has been "unique."

They were heard by three administrative law judges sitting as the Construction Authorization Board, a licensing arm of the Nuclear Regulatory Commission. The board will have the first shot at making a precedent-setting decision on whether to grant DOE's request to withdraw its license application.

But any resolution of the matter, observers agreed, probably will evolve only through a lengthy appeals process.

 "This is a process to nowhere," said DOE Deputy General Counsel Sean Lev. "Is the Secretary (of Energy) forever bound to consider a license application for a repository he doesn't intend to build?"

In 2002, then Energy Secretary Spencer Abraham recommended the site as suitable for the nuclear waste repository. But current Secretary Steven Chu has said Yucca Mountain is not a workable option for waste disposal because of such factors as the difficulty of securing permanent water rights in the face of Nevada's opposition and the prospect for storing the waste above ground in dry casks for more than 100 years.

After being on opposite sides for most of the project's history, the DOE and Nevada both argued in favor of the DOE withdrawing the Yucca Mountain license application with prejudice so the agency can get on with considering other alternatives for disposing of the nation's used nuclear reactor fuel.

"It makes no sense to continue over the objection of the applicant that wants to withdraw the application," said Marty Malsch, the lead attorney representing Nevada. "There's a lot to be said about cutting losses now and not wasting taxpayers' money. All I can say is it's better late than never."

Malsch advised the panel: "No one has a right to license Yucca Mountain. No one has a right to send waste to Yucca Mountain. Yucca Mountain has not been proven safe."

The Construction Authorization Board expects to issue its decision by the end of June. The board's ruling can be appealed to the Nuclear Regulatory Commission, or the NRC can review the ruling on its own. Once the NRC issues its order, that can be appealed to the U.S. Court of Appeals in the District of Columbia .

Clark County's attorney, Alan Robbins, said the construction board's task is narrowly focused. "You grant the motion unless you determine there's no legal authority. It's not up to this board to say you must get a license."

It would be an "empty exercise," Robbins said, to proceed with the licensing if the DOE doesn't intend to build and operate a repository at Yucca Mountain.

But attorneys for the states of Washington and South Carolina, where highly radioactive waste awaits disposal, and the attorney for four rural Nevada counties who view the project as an economic panacea, said DOE does not have the authority to stop the licensing proceeding without a reason based on scientific merit.

They said the law requires the NRC to decide whether there are any show stoppers after the licensing panel reviews the application and makes its recommendation.

Former Nevada Gov. Robert List, who represents Churchill, Esmeralda, Lander and Mineral counties, said Chu "usurped the power of Congress" when he sought to withdraw the license application and establish a commission to study alternatives to Yucca Mountain.

Don Keskey, who represents the Prairie Island Indian Community where nuclear waste is being stored in Minnesota, said, "If you grant this motion to withdrawal the application, what is left of the Nuclear Waste Policy Act? There's one thing: the ability to collect (waste disposal) fees and the country is left for wreck with no nuclear waste program."

Yucca Mountain opponents noted that the DOE technically violated the Nuclear Waste Policy Act when it failed to submit the license application to nuclear regulators 90 days after Congress overrode then-Gov. Kenny Guinn's veto of the project in 2002.

It took six more years for the DOE to file the application with the NRC staff yet there is nothing in the law that spells out what was supposed to happen when DOE failed to comply with the 90-day deadline.

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