ROCKVILLE, Md. — The Energy Department's 2010 target date to put highly radioactive waste into Yucca Mountain likely will not be met because of federal regulations, a Nuclear Regulatory commissioner told an advisory panel.

"It isn't a worry, it's almost a fact," Commissioner Edward McGaffigan said at a meeting of the Advisory Committee on Nuclear Waste. "2010 is just about impossible."

The Energy Department plans to submit its application to the Nuclear Regulatory Commission to open a high-level nuclear waste dump at Yucca Mountain, 90 miles northwest of Las Vegas, in December 2004.

The NRC has the final say on whether a dump opens. McGaffigan is one of five commissioners. His term ends in June 2005.

Reading directly from NRC regulations, McGaffigan pointed out the any change the department would make after submitting its license application could push the whole licensing process back to square one, restarting the three-year time frame for the commission to evaluate it.

"DOE has to have its act together the day it applies," McGaffigan said. "For the commission to complete work in three to four years, we need a very high quality and stable license application."

The Energy Department has said it could add items once the application has been submitted. Department spokesman Joe Davis had said in the past week that the agency is flexible on some of the design options expected with the license application.

But McGaffigan said the rules are not flexible.

"This is a naive notion of the DOE officials," McGaffigan told the committee Thursday. "Our process does not allow for an, 'Oops we changed our minds.' "

Changes to the repository's design would call for an additional hearing, which could add years to the process.

"At the most senior levels of DOE, at this time, it isn't clear they know this," he said.

If the Energy Department gets authorization to build the facility, it can start construction but could not accept waste until a second approval by the commission.

"I don't know how rapidly they can construct," McGaffigan said "We don't do hearings faster than three years."

McGaffigan said the waste acceptance date, should the site be approved, would be more toward "2015."

He also noted that Energy Department is still without formal counsel on the project.

Washington attorney Joe Egan, who will represent Nevada at federal court cases in January, said this is what the state has been arguing all along.

Egan said one of the claims under the National Environmental Policy Act case is that the agency has been using a "we'll get to this one day" rationale for items the state believes should have been addressed in the final environmental impact statement.

Energy Department officials couldn't be reached.