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Yucca Mountain Legal Mess Worsens

Moapa Valley Progress of Overton, Nevada

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According to the executive director of the Nevada Agency for Nuclear Projects, Bruce Breslow, last week saw some unexpected and interesting new developments in the ongoing litigation process related to the Yucca Mountain License application.

"The matter is becoming increasingly complicated," said Breslow.

Nevada had been in the middle of the Yucca Mountain License Application hearing process when on March 3, 2010, the Department of Energy (DOE) made a motion to withdraw the license with prejudice.

"When that happened, it took many people and entities by surprise," said Breslow.

As a result of the DOE motion to withdraw, the states of Washington and South Carolina, as well as Aiken County S.C., a native American tribe from Michigan, and three gentleman from Hanford, Wa., each filed motions to oppose the DOE motion to withdraw the license for Yucca.

All motions were made to the Nuclear Regulatory Commission's (NRC) Atomic Safety and Construction Authorization Board (CAB) before which the licensing hearings were being held.

At approximately the same time, the state of South Carolina, Aiken County and the plaintiffs from Hanford filed lawsuits against the DOE in federal court in order to stop the license withdrawal from taking place. Those lawsuits are scheduled to be heard in the the U.S. District Court of Appeals in Washington D.C.

But parties to the matter were again surprised when the NRC's CAB this Tuesday issued an order stating, among other things, that they would suspend the entire process and withhold decisions on the five new petitions to intervene as well as the DOE's motion to withdraw, pending further developments in the U.S. Court of Appeals.

Yesterday, two parties asked the Court of Appeals for an "expedited schedule," and the court asked for comments from Nevada on that issue by Monday at 4 p.m.

At the same time, a letter was sent to the Court of Appeals by the DOE and legal counsel for the Nuclear Regulatory Commission informing the Court that the DOE will appeal the latest order from the CAB to the full Nuclear Regulatory Commission on Monday.

"We do not know what the DOE will say in their appeal," said Breslow. "But since the CAB "punted" on the hearing, the DOE may ask the NRC to overturn the CAB and continue to the process. Or the NRC could interject itself into the process and consider the interventions and the DOE's original motion to withdraw with prejudice."

The NRC informed the appeals court that the CAB order was only "an interlocutory order of an administrative hearing tribunal within the NRC and does not necessarily reflect the views of the NRC Commission itself."

"The NRC Commission is the final decision maker in the administrative process," said Breslow. "Nevada will file comments with the U. S. Court of Appeals on Monday as requested."

In another new development on Friday, the National Association of Regulatory Utility Commissioners (NARUC) filed a late motion to join the federal appeals court lawsuits. Whether or not they are admitted, since they filed late, will be up to the appeals court, said Breslow.

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Original Publication Date: April 14, 2010

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