The licensing board, which is appointed by the regulatory commission, will discuss the potential risks posed if a military aircraft were to crash into the site. The confidential hearing will continue throughout much of the month, and a decision from the board is not expected until early 2005, said Dianne Nielson, executive director of the state Department of Environmental Quality.

From there, the board will make a recommendation on the approval or disapproval of PFS' application to the NRC. Depending on the recommendation, either the state or PFS could appeal the decision to the entire NRC and then, possibly, to federal court.

Wednesday's ruling is the second appellate loss the state has suffered this year. In February, a federal appeals court in Washington, D.C., shot down the state's argument that the NRC lacked jurisdiction to license private waste facilities under the federal Nuclear Waste Policy Act.

The state made the same argument before the 10th Circuit, which agreed with the D.C. court and cited its ruling in the Wednesday decision.

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E-mail: awelling@desnews.com