YUCCA’S CROSSROADS

By Lisa Mascaro

Saturday, Dec. 1, 2007 | 6:59 a.m.

Judy Treichel has been here before - not this room, per se, but this moment in history. So have many of the other players in the Yucca Mountain saga that has been running for the past 20 years.

The Yucca Mountain project will reach a milestone Wednesday - the same one it hit in 2004, when the U.S. Energy Department's plans to build a nuclear waste repository about 90 miles outside of Las Vegas became seriously delayed.

At that time, a three-judge panel ruled the department had not made a good-faith effort to publicly disclose millions of pages of documents supporting the waste dump proposal.

It sounds like such a small hurdle compared with the engineering feat of converting Yucca Mountain into a high-tech dump to store nuclear waste for the next 1 million years. But that 2004 ruling became a critical setback that helped to stall the project until now.

The law governing Yucca Mountain's development requires the documents to be posted six months before the Energy Department embarks on its next major step - submitting its application next summer to the Nuclear Regulatory Commission to license the dump.

No documents, no license.

Now, we are at that crossroads again.

On Wednesday those same three administrative judges from Washington will convene in Las Vegas to determine whether the Energy Department has complied with the law.

The department says it has made publicly available 3.5 million documents - about 30 million pages of engineering reports, maps, drawings, e-mails, even scribbled notes from geologists in the field - supporting the dump proposal.

Joseph R. Egan, the attorney shepherding Nevada's fight against the project, said if the document collection is rejected again, as he believes it will be, "it would be a more serious blow than last time."

The stakes are even higher now. Congress has lost patience with the delays. When the Energy Department announced it would submit its license application to the Nuclear Regulatory Commission by June 2008, many saw that as an effort to ensure it is in the approval pipeline before the Bush administration leaves office. Bush supports nuclear energy and the Nevada dump site, but every Democratic candidate for president now opposes Yucca Mountain. Even the utility companies that have long championed the dump are looking at other, temporary waste solutions.

"They could really be in trouble because of a political point of view, a cost point of view, a congressional point of view," Egan said.

Treichel can't help but feel deja vu.

She remembers the summer day in 2004 when the Energy Department sent out a news release announcing the new Yucca Vista Web site for the online library of Yucca Mountain documents.

She pointed and clicked on the site, and couldn't find a thing.

The Web page looked more like an advertisement for time shares in Pahrump, she said, than the electronic database for millions of technical engineering and scientific documents about the project.

She complained.

Now, from her Las Vegas home that doubles as the headquarters for her nonprofit community group, the Nevada Nuclear Waste Task Force, Treichel said she doesn't see much improvement in the new library.

Sure, there are more documents. And the Web site is now managed by the neutral Nuclear Regulatory Commission instead of the Energy Department.

But Nevada's attorneys argue that critical documents remain missing.

And, Treichel says, good luck finding the document you're looking for - searches produce 300,000 hits or none.

"It's actually in some ways worse than their first attempt," said Egan, the state's lawyer. "At least in the first attempt, the bungling was obvious. This time they're trying to cover it up."

The hearing on Wednesday is an administrative law proceeding. On one side will be lawyers from the Energy Department and the Nuclear Energy Institute, the industry's main lobbying arm. On the other will be Nevada and Treichel.

Each side will argue its case before the panel in a Las Vegas hearing room the Nuclear Regulatory Commission built just to handle Yucca Mountain's legal battle.

The Energy Department knows the stakes for Wednesday's hearing.

Its lawyers insist the department has "fully complied" with the law's requirement to make the information accessible.

"Nevada's motion should be seen for what it is - a bid to delay the licensing proceeding for delay's sake," the Energy Department wrote in its legal filings.

The department acknowledges that some documents remain unavailable, but argues the panel should move forward with certifying the online library as complete.

"The limited amount of remaining material will promptly be made available ... when completed, and Nevada and all other potential participants will have an ample opportunity to review it," according to a department legal filing.

When the panel asked the Energy Department how many documents remained outstanding, the department said there are 79 missing "pieces" - but an untold numbers of pages.

Nevada argues one of those omissions is key - the Total System Performance Assessment, what one representative of the Nuclear Energy Institute calls "the mother of all codes." The document is a massive multivolume report explaining just how the repository will function over time.

Because nuclear waste is planned to be buried in canisters in the mountain for 1 million years, engineers have been struggling to figure out how to prevent water from seeping in through the rock. Water could corrode the canisters, which could allow deadly nuclear waste to seep into ground water used for agriculture in the Amargosa Valley.

The Energy Department declined to comment for this story.

But Steven P. Kraft, senior director of used fuel management at the Nuclear Energy Institute, said Nevada is misinterpreting the law and that the document can be added when it is ready.

The panel isn't expected to make a ruling on Wednesday.

Either side can appeal the decision to the full Nuclear Regulatory Commission. If the Energy Department's application is approved, the department can move forward with filing its license next year, as planned.

If it's denied, Yucca Mountain would again be set back.

The Nuclear Regulatory Commission has built in Las Vegas one of the nation's most technologically advanced courthouses, in order to handle the next several years of legal battles expected over Yucca Mountain.

Doors open Wednesday for its debut public function - a hearing on whether the Energy Department has sufficiently made its Yucca Mountain project documents available for public review.

The $6.3 million building near the airport might not look like much. But it is outfitted with technology that legal experts say is on the cutting edge of judicial proceedings in the United States.

This will be a paperless trial.

Virtually every document used in the court proceedings, including about 30 million pages of support material for the Yucca Mountain license application, will be digitized and accessed via computers.

When a witness is asked, for example, to mark the spot on a map to show where nuclear waste could spread to ground water, that annotation can be digitally captured and stored forever. If someone years later wants a printout, he can get it.

Lawyers, witnesses, even judges could participate in the hearings remotely, via video connections from across the country.

All the transcripts and video footage from the hearings will be available - and searchable - to the legal teams.

The public can watch many of the proceedings from home, as is being done Wednesday through an arrangement with Cox cable.

Professor Fred Lederer, director of the Center for Legal and Court Technology at the College of William & Mary law school in Virginia, said creating the courthouse is a responsible attempt by a public agency "to handle a case of enormous complexity."

His surveys show that time in court can be shaved by 30 percent - up to 50 percent for more complex cases - by doing away with the shuffling of paper documents.

Building the 200-seat facility outside the Washington Beltway, some say, protects the commission's neutral standing before Nevadans as it decides the fate of Yucca Mountain.

By this time next year, the Nuclear Regulatory Commission could begin hearing the legal battles over the Yucca Mountain site.

Administrative judges from the commission are expected to hear more than three years of legal challenges to the Energy Department's proposal for a waste dump. Nevada, which opposes the dump, is expected to file thousands of contentions.

As far as legal proceedings go, the nation has never seen anything quite like it.