DOE's complaint against Nevada dismissed

WASHINGTON -- Nevada won a Yucca Mountain ruling at the Nuclear Regulatory Commission on Wednesday.

A three-judge panel voted 2-1 to dismiss a Department of Energy complaint that state officials were withholding documents from a licensing database for the proposed nuclear waste repository.

DOE lawyers said they found it hard to believe that after opposing the Yucca project for more than a decade the state produced fewer than 4,800 memos, studies, reports and other key documents for upcoming license hearings.

Administrative judges Alan Rosenthal and Thomas Moore ruled DOE presented no solid evidence to back the claim.

The Energy Department had posted 3 million documents to the database, called the Licensing Support Network. But the two judges said the rules for Nevada are different. The state may not identify key documents it needs to share until it decides what legal challenges it will file, and that has not yet occurred, they said.

Judge Alex Karlin dissented. He said state officials were being disingenuous and "legally incorrect" in how they interpreted the rules for document production.

The ruling all but completed one early segment of Yucca Mountain proceedings before the NRC. The judicial panel has been refereeing the development of the document database that must be in place before the Energy Department can file for a repository license.

Also Wednesday, the state lobbed another criticism at the Energy Department as part of its campaign opposing the Yucca project.

Bob Loux, director of the Nevada Agency for Nuclear Projects, said the state can find no evidence that DOE has a plan to remove nuclear waste from Yucca Mountain if necessary. Federal law requires Yucca to remain open for some period of years in case of emergencies or if it became advisable to pull material out for whatever reason.

Loux urged NRC chairman Dale Klein in a letter to make sure DOE explains how it will maintain the tunnel train that will carry waste canisters inside the mountain, and how it plans to monitor waste canisters for corrosion in the meantime.

DOE spokeswoman Gayle Fisher said there is a removal plan and it will be discussed in the department's upcoming license application. DOE officials have said they envision sealing the repository after 100-300 years.