December 6, 2007
DOE's Yucca Mountain Application Reviewed

Photo by Dave Maxwell Washington D.C. aattorney Barry Newman explaining the DOE Yucca Mountain License application.

By Dave Maxwell

On December 3, Lincoln County Commissioners heard a long presentation from Washington D.C. attorney Barry Newman, regarding the legal aspects of the Yucca Mountain, Nuclear Regulatory Commission, Department of Energy license applications to build the Yucca Mountain nuclear waste repository and rail line.

He said the basic point he was presenting to Commissioners, "Was to lay out the timeline for NRC licensing proceedings assuming the milestones the DOE and the NRC have set out for themselves are met. If those milestones are met, the time for making decisions on whether or not and how to participate in those proceedings will be approaching during the coming year.”

The same presentation was given at the December 4 meeting of the Joint City/County Impact Alleviation Committee (JCCIAC) in Caliente.

The ultimate issues the county is going to have to face as DOE moves ahead with their plan to build the Yucca Mountain site and the rail corridor Newman said are:

• What are the potential impacts that will be of significant concern to the County, in terms of transportation issues?
• What impacts may affect the County arising from the repository itself?

He said once those impacts and significant issues are identified, the County will have to decide whether they are significant enough to warrant direct participation in the DOE’s licensing application because the County feels that the DOE has completely overlooked important issues concerning issues related to Lincoln County.

In the event the County deems some of these issues significant enough, Newman stated, “What will be the most effective and cost-effective ways for Lincoln County to participate?”

In his lengthy PowerPoint presentation, Newman explained what the NCR licensing process is, identified timelines for decision making, actions and how to identify options for participation.

The Department of Energy intends to file a license application with the Nuclear Regulatory Commission (NRC) by June 2008. However, Newman said the State of Nevada has moved to block the certification for application, “Claiming that certification is invalid because many of the documents that the DOE tends to rely on to make its case for a license, have not yet been completed and therefore should not be part of the Licensing Support Network (LSN),” he said. That motion was presented to the NRC on December 5, 2007.

Newman said if the State of Nevada wins the motion, “It means that the Department’s LSN certification becomes null and void. It will not be able to file that application for at least six months.”

Some of the studies in question are not expected to be completed until March 2008. Then the question becomes: Will the NRC grant the application to the Department of Energy before the required studies are completed?

In continuing with his detailed presentation, Newman used the assumption that the LSN certification would be granted and what the County needs to do to prepare if it wants to participate in the licensing application in the coming year.

The County, he said, could participate if there are certain contentions the County feels have not been addressed adequately by the DOE or they simply “missed the boat, or are critically deficient on a series of issues.”

Should Lincoln County decide they do want to participate and file a contention, Newman said the County will have to know by that time “the issues it wants to raise and how it is going to support its position. You will have to have your ducks in order,” he said, “and a lot of the ground work for participating in a proceeding will have to be done over the course of the next year.”

The Nuclear Regulatory Commission requires that a final decision on the DOE application be made by June 2011 or 2012.

The National Environmental Policy Act (NEPA), involving environmental impact studies, is also a part of the NRC licensing process, Newman said. It is within this framework he explained, “that normally any argument that any party might have that the DOE impact statement was inadequate for any reason, could present it as a contention to the NRC in the licensing proceeding, because the NRC itself would have to independently determine the adequacy of the environmental reviews.” However, he added, the NCR and Nuclear Waste Policy Act (NWPA) current regulations “attempt to severely limit the NCR’s own authority and ability to review NEPA environmental impact statement issues in the licensing proceedings.”

At present the NCR is taking the position that the railroad corridor and/or alignment impacts are entirely outside the scope of NCR licensing. And assuming the NCR is correct, Newman said, “with respect to the transportation issues and the site repository issues, that when the final EIS for the rail line and Caliente Corridor is issued this summer (’08), it would mean that challenges to the Environmental Impact Statements would have to be brought in a lawsuit against the Department of Energy in the 9th Circuit Court of Appeals in San Francisco or the D.C. Circuit in Washington within 180 days after the environmental statements are issued.”

In other words, as Newman put it, the Department of Energy is likely to take the position that “if you have a problem with our EIS rail alignment, you sue us in a United State Court of Appeals within 180 after the licensing decision, and that’s the only recourse you have.” He said the NCR also takes that position.

County Commissioners have indicated they do have some concerns and disagreements with the transportation impact statements being released by the DOE. However, it is possible the DOE will adopt the changes that are asked for without needing to go to court.

Newman spelled out before the Commissioners what options there would be for participating in the licensing proceeding.

In concluding his presentation, Newman said the County will have to begin in a very concentrated way to:

• identify the nature of the impacts on the county. ̶ determine what the records say.
• determine whether the issues are relevant to the licensing proceeding and whether its worth it to try to raise those issues in the proceedings.
• determine which of the issues will require expert assistance.
• hire the experts to draft the contentions that will likely be due in late 2008 or early 2009.
• determine if they want to pursue the issues themselves or piggyback on lawsuits that may be filed by other parties.

Newman told the Commission that it is his understanding that the Department of Energy has what it needs to file a high quality application by June 2008 regardless of what Congress does, short of making a law to eliminate Yucca Mountain.