The U. S. Dept. of Energy (DOE) attempted to initiate the license application phase of the proposed Yucca Mountain dump for highly radioactive waste by “certifying” over 5 million pages of documentation on June 30. But the State of Nevada (NV), supported by briefs filed by NIRS/WISE, Public Citizen and NV Nuclear Waste Task Force, challenged DOE’s rushed filings before a Nuclear Regulatory Commission (NRC) Atomic Safety Licensing Board (ASLB). NV’s lead attorney, Joe Egan, argued DOE’s documents are incomplete, impossible to access effectively, and not even posted to the official NRC “Licensing Support Network” (LSN) website (www.lsnnet.gov). ASLB ruled against DOE on August 31, concluding that “DOE did not meet its regulatory obligation to make all of its documentary material available and [thus we] grant the motion to strike DOE’s certification.” This compels DOE to make publicly available its documentation in full before NRC can docket its submission, representing another significant delay for the project.(1)
NRC regulations require DOE to certify “all” its documentation at least six months before it files a license application with ASLB. This serves as the “discovery” phase of the proceeding for those, such as NV, environmental groups, and others, to review DOE’s documents and prepare contentions against the proposed dump. Once DOE successfully certifies its complete document submission, parties intending to challenge DOE’s license application have 90 days to submit their own documents which they will rely on to support their contentions during the entire 3 to 4 year proceeding.
ASLB’s ruling means DOE cannot meet its “artificial or self-imposed” (2) deadline of filing its license application with NRC by the end of 2004. It also means that NV, NIRS/WISE, and others intending to file contentions do not have a submission deadline of Sept. 30, which would have been the case if ASLB hadn’t rejected DOE’s June 30 submission.
ASLB ruled DOE has not yet submitted all its Yucca documents to the LSN. In Feb., DOE reported that “DOE input to LSN is projected to contain approximately 30 million pages, comprising about 3 million documents.”(3) Given that DOE submitted only 1.2 million documents comprising about 5.6 million pages on June 30, what happened to the nearly 2 million additional documents comprising 25 million more pages?(4) During the course of oral arguments on July 27 th, chief ASLB Administrative Judge Thomas Moore asked the attorney representing DOE “what is it about the word ‘all’ that I’m missing?” His sarcastic tone indicated that it was DOE that was missing something.(5)
DOE withheld the text of countless documents it regards as “privileged.” As an example of key missing documents, Egan explained he searched DOE’s website for “alloy-22 corrosion” [waste burial container] as “one of the most critical topics in this proceeding.” The search yielded over 9,000 hits, but nearly 5,000 appeared as headers only, lacking text. DOE claimed they were “privileged,” not appropriate for public dissemination. ASLB reported that “[o] ur brief review of these 4,876 headers reveals that the documents are mostly technical reports, studies, minutes and data. It strains credulity to believe that any substantial number, much less all, of the 4,876 documents can fairly be withheld as legally privileged.”(6)
Egan had also entered the search term “party” into DOE’s website, which yielded the headers (but not text) of dozens of documents whose title contained the term ‘party,’ such as ‘bachelor party,’ ‘party for Debbie,’ ‘December 13 th party,’ Thanks for the party,’ ‘housewarming party,’ and ‘pool party’. All were marked “privileged.” This led him to ask “What is DOE doing on government time?” ASLB responded “It is hard to imagine that such documents qualify for any legal privilege.” It is also hard to imagine what those documents were doing in DOE’s Yucca application submission at all, when countless documents about critical issues are missing.(7)
ASLB also ruled that DOE’s withholding of broad categories of “archival” emails is unacceptable. Egan argued that “the word ‘archival’ is a term that DOE has contorted into Orwellian form.”(8) DOE categorizes e-mails as archival if the author is no longer at DOE, even if that person held a key position for many years. Concurring with NV’s argument, ASLB noted that “DOE did not review or produce relevant e-mails by even highly significant individuals if they are not current employees or contract personnel. For example, the e-mails of Lake Barrett, DOE’s former Program Manager, appear to be part of the four million unreviewed and unproduced documents.” Of those, DOE estimated that only 10%, a “very low percentage,” would be relevant. ASLB disagreed with DOE, ruling “[w]e cannot conclude that the conscious exclusion of 400,000 potentially relevant e-mails, including recent ones from key project personnel, meets the good faith standard. Such e-mails are often the source of unvarnished information that can be invaluable to the parties and decision-makers.”(9)
NV’s attorneys also challenged DOE’s posting merely to its own website rather than directly to the LSN by arguing that a fundamental principle of civil litigation and the discovery process is to not trust your adversary with their own documents. “We know what DOE does with documents,” Egan concluded.(5) ASLB concurred, ordering DOE to post all documents to the LSN, controlled by NRC, for safekeeping. Responding to DOE assurances that missing documents would be voluntarily produced in a timely manner, ASLB responded “[w]e are not inclined to rely on such voluntary promises, when DOE has already failed to comply with its legal obligations.”(10)
ASLB scolded DOE for having had 15 years to prepare its document submission, and yet rushing at “the eleventh hour” and bungling the job. “We cannot accept…the systematic non-production of tens of thousands of documents simply because DOE and its agents did not get their act together in time to meet DOE’s own self-imposed deadline.”(11) The question that must be asked is, if DOE cannot be trusted to organize its paperwork, how can it be trusted to manage Yucca and highly radioactive waste transport, storage, and disposal?
Egan summed up Nevada’s feelings about the DOE document submission saying, “This is almost a comedy for us.”
Chairman Moore of ASLB responded, “If it’s a comedy for you, it’s a tragedy for us.”(5)
The August 31 ASLB ruling can be viewed at www.state.nv.us/nucwaste/news2004/nrc/nrc040831aslb.pdf or at www.nrc.govunder Electronic Reading Room, ADAMS, accession number ML042440452.
- ASLB ruling, page 2.
- ASLB ruling, p.18.
- ASLB ruling, p.3.
- DOE press release, June 30, 2004, www.ocrwm.doe.gov/newsroom/documents/lsn_pr.pdf
- Kevin Kamps’ personal notes from oral arguments at NRC ASLB, July 27, 2004. See also “Transcript of High Level Waste Repository Pre-License Application Matters on 07/27/2004 in Rockville, MD,” at www.nrc.gov under Electronic Reading Room, ADAMS, accession number ML042110438.
- ASLB ruling, p.24.
- ASLB ruling, p.23.
- “Transcript of High Level Waste Repository Pre-License Application Matters on 07/27/2004 in Rockville, MD,” atwww.nrc.gov under Electronic Reading Room, ADAMS, accession number ML042110438, p.178.
- ASLB ruling, p.27.
- ASLB ruling, p.35.
- ASLB ruling, p.32.