Tuesday, July 13, 2004
Copyright © Las Vegas Review-Journal

Yucca project work to proceed

Ruling on health standards on hold as appeals play out

WASHINGTON -- A one-paragraph court order issued as Nevadans were celebrating a federal appeals court ruling on the Yucca Mountain Project will allow work to continue on the nuclear waste repository, at least for the time being, attorneys said.

While Nevada officials were hailing Friday's decision as a potentially fatal blow to the project, the three-judge panel ordered its ruling on a key health regulation be withheld until seven days after the outcome of any appeal.

Attorneys and nuclear industry officials said this could delay the court's mandate for months or a year. A Nevada state official said delays, if any, would be much shorter.

In the view of some industry officials, the overlooked court order means a reprieve for the Energy Department. It allows work to continue toward licensing a Nevada repository while Yucca supporters angle for a more favorable ruling on appeal, or a rescue by allies in Congress.

"Everything is the same, nothing is different," said Steve Kraft, a Nuclear Energy Institute director. "It's hard for us to imagine how this project does not keep going forward until the process keeps playing out."

Marta Adams, a Nevada deputy attorney general, examined the order on Monday and said it appeared the judges had issued a "holding action" on their ruling.

"That does mitigate the immediate vacating of the rule," Adams said.

The U.S. Court of Appeals for the District of Columbia Circuit threw out a 10,000-year radiation standard for the repository, saying it was put in place in defiance of a National Academy of Sciences recommendation for a longer protective period.

The standard, which aimed to shield residents from harmful exposures to radioactive materials, was devised by the Environmental Protection Agency and incorporated by the Nuclear Regulatory Commission. Neither agency has commented on the ruling.

The decision said the EPA must either issue a revised standard consistent with the NAS findings or get Congress to give it authority to deviate from the recommendations.

Parties to the lawsuit have 45 days to request a rehearing, or to ask the court for an en banc review by all the judges in the circuit, attorneys said. Another option is for an appeal straight to the U.S. Supreme Court, although it was not clear how the order would come into play in that circumstance.

Adams said Nevada could file motions urging the judges to remove the hold on their ruling. She said any appeals by the government or the nuclear industry likely would be quickly dismissed.

"I don't think this has a whole lot of significance," Adams said. "Rehearings are rarely granted."

Adams added attorneys are continuing to digest the 100-page outcome of the complex litigation. Joe Egan, the state's lead nuclear waste lawyer, said Yucca supporters who are projecting a quick rebound in the courts or in Congress were engaged in "wishful thinking."

"I don't think the court left them much to appeal. There is no basis for a stay here, none at all," Egan said. "I don't think the licensing proceeding can appropriately proceed but I don't doubt DOE's facility to try to do that."

Beyond the legal issues, Egan said he doubted there will be much appetite in Congress to overturn a court ruling that invalidates health and safety science behind the government's effort to bury nuclear waste at a site 100 miles northwest of Las Vegas.

The Yucca project also has problems away from the courthouse. The program is facing a budget crisis in Congress and challenges to its management of millions of pages of backup documents for an online database. Attorneys for the state on Monday filed a motion with the Nuclear Regulatory Commission to have DOE's database certification declared invalid.

But an attorney not involved in the lawsuits said his reading suggested DOE could continue its work while appeals are in progress.

"They can probably proceed under the current ground rules until the current ground rules are invalidated. If there are appeals, that will keep the decision from going into effect," said the attorney, who spoke on the condition he not be identified because he is a party in other DOE litigation.

That was the same message that nuclear industry executives delivered Monday during a meeting on Capitol Hill with several lawmakers, staffers and Energy Department officials according to a Senate aide who received a report afterward.

NEI executive vice president Angelina Howard said the gathering was a get-together of the organization's executive board and Yucca Mountain was among several issues discussed.

Aides said the meeting was authorized by Senate Energy Committee chairman Pete Domenici, R-N.M., although it was not clear if he attended. Rep. John Shimkus, R-Ill., and Rep. Ralph Hall, R-Texas, the chairman of the House energy and air quality subcommittee, attended parts of the meeting.

The Senate aide said the officials appeared less worried about the court ruling than about a Domenici proposal to increase industry fees to make up a shortfall in next year's Yucca Mountain budget.

Nevada claimed a victory when the circuit court judges invalidated the 10,000-year radiation standard. In another section, the judges confirmed the state will be allowed to contest a wide variety of environmental issues during repository licensing.

But in what is being described overall as a mixed ruling, the Energy Department noted the judges upheld most other segments of the project, and dismissed the state's contention that the selection of the Yucca site was a violation of the U.S. Constitution.

The Energy Department had been anticipating an unfavorable ruling on the radiation standard and already was at work forming a response, a top manager told Yucca Mountain employees in an e-mail on Friday.

"We have been preparing to address this issue in the event that the court ruling upheld the challenge to the standard," said Margaret Chu, director of the Office of Civilian Radioactive Waste Management. "We are already consulting with the other appropriate agencies and we will be discussing options in the coming days."

Chu reported the court "ruled in our favor on all issues except one," and said the decision "is a reaffirmation of the very hard work done by all participants in the program."

DOE spokesman Allen Benson said he had no comment on the e-mail. He said Yucca employees were continuing work toward completing a license application to be filed later this year.