Washington (Platts)--5Sep2013/500 pm EDT/2100 GMT

The state of Nevada might seek a rehearing of an August federal appeals court's 2-1 decision ordering the US Nuclear Regulatory Commission to restart the licensing proceeding for a nuclear waste repository at Yucca Mountain, according to a senior official in the Nevada attorney general's office.

Senior Deputy Attorney General Marta Adams said in an interview Thursday that the state will decide in a few weeks whether it will seek a rehearing. "Whenever you have a split decision, you have the prospect of swaying judges," she said.

The state, like NRC and other parties in the case, has until September 27 to request that the US Court of Appeals for the District of Columbia Circuit reconsider the case.

Nevada has long opposed the Department of Energy's plan to construct and operate a repository at Yucca Mountain. It has said the site, which has seismic faults and volcanoes nearby, cannot be used to safely dispose of nuclear waste.

The decision the DC Circuit issued August 13 said NRC was "flouting the law" by refusing to review DOE's application for a Yucca Mountain repository.

The Nuclear Waste Policy Act requires DOE to submit an application for a Yucca Mountain repository to NRC and gives the agency three years from when the application is docketed to issue a license decision. NRC formally accepted the application for review in 2008.

But NRC began an orderly shutdown of its Yucca licensing activities in 2010, the same year that DOE dismantled the program in part due to Nevada's opposition to the facility. NRC suspended all Yucca work in 2011 even though the DOE application was still at the agency. Then-NRC Chairman Gregory Jaczko attributed that action to the agency's lack of funds to complete that work.

Chief Judge Merrick Garland questioned in his dissenting opinion in the Yucca case whether NRC could make any "meaningful progress" on a licensing review with the $11.1 million in Yucca carryover funds available to it.

The court order would force NRC "to unpack and pack boxes," Adams said, paraphrasing a portion of Garland's opinion.

But Adams also said that she does not think the court's decision puts proponents of a Yucca Mountain repository "closer to a license." She noted that Congress has not funded the program and it "has a new direction now," referring to recommendations by a blue ribbon commission on nuclear waste that would, among other things, move the waste program out of DOE to a separate entity that would use a voluntary process to site one or more spent fuel storage facilities and one or more repositories.

Implementation of the recommendations would require legislative action by Congress. Legislation has been introduced in the Senate. But there is not a companion bill in the House of Representatives, which has supported a revival of the Yucca Mountain program.

--Elaine Hiruo, elaine.hiruo@platts.com --Edited by Keiron Greenhalgh, keiron.greenhalgh@platts.com

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