Federal agencies and Texas have entered into mediation over the state’s lawsuit demanding that the United States advance a permanent solution to storage of U.S. nuclear waste at Yucca Mountain in Nevada.
Meanwhile, the state of Nevada, a nuclear industry organization, and several utilities also want a say in the lawsuit, opposing some or all of Texas’ aims.
The Texas Attorney General’s Office last month sued Energy Secretary (and former Texas governor) Rick Perry, Nuclear Regulatory Commission Chair Kristine Svinicki, Treasury Secretary Steven Mnuchin, and their respective agencies. The state broadly is asking the Fifth Circuit Court of Appeals to order the government to halt the Obama administration’s program of consent-based siting of nuclear waste and instead proceed with licensing of Yucca Mountain as the ultimate repository for U.S. defense and commercial nuclear waste – as demanded by Congress in its 1987 amendment to the 1982 Nuclear Waste Policy Act.
An initial mediation session between the parties to the lawsuit occurred on April 4, and a follow-up is scheduled for May 15; in between the state and federal lawyers on May 1 are scheduled to file position statements with the circuit mediator, attorneys for the U.S. Department of Justice and Nuclear Regulatory Commission said in a motion filed Monday asking for an extension to file their response to the Texas lawsuit.
Mediation could “result in eliminating, shaping, or narrowing” some of the issues raised in the lawsuit, according to the extension request. The parties aren’t saying what that might entail: The NRC said Wednesday it cannot discuss matters in litigation or mediation, while the Department of Justice and Texas Attorney General’s Office did not respond to requests for comment.
The NRC and DOJ cited the ongoing mediation, as well as the complexity of the lawsuit and need for coordination among multiple federal agencies, in asking the court to give them until May 30 to respond to Texas’ writ of mandamus. “The Federal Respondents (not including NRC) note particularly that additional time is required in light of the ongoing transition to the Trump Administration in order to allow sufficient time for newly-appointed officials at DOJ, DOE, and Treasury to review and approve their response before it can be filed,” according to the motion.
Judge Patrick Higginbotham on Wednesday approved pushing the response deadline to May 30.
The Obama administration in 2009 canceled development of the geologic repository at Yucca Mountain, calling the project unworkable because the federal government did not have the proper land or water rights to proceed and faced intense opposition in Nevada. That left nuclear utilities in Texas and across the nation again without a final destination for spent fuel now stranded at their power plants.
The Trump administration has signaled it will reverse its predecessor’s decision, requesting $120 million for fiscal 2018 to resume licensing activities for Yucca Mountain and advance interim storage of nuclear waste. Texas Associate Deputy Attorney General Austin Nimocks told RadWaste Monitor in March that this funding request does not resolve the state’s concerns regarding federal violation of the Nuclear Waste Policy Act.
Intervention Requests
The Nevada Attorney General’s Office this week rejected Texas’ reasoning, on Wednesday asking the Fifth Circuit Court of Appeals for authorization to intervene as a respondent in the lawsuit.
“The state of Texas’ Petition directly – and adversely – threatens the rights of Nevada and its citizens” by halting consent-based siting, demanding funding for Yucca licensing, and curtailing legislative efforts in the current Congress to resolve the nuclear waste impasse, Nevada Attorney General Adam Paul Laxalt and lawyers in his office wrote in the motion.
The lawsuit would “hamper Nevada’s ability to present its case at the licensing hearing, and rush a flawed project to completion at the direct expense of Nevada’s sovereign interests and the health, safety, and welfare of its citizens,” the motion says. “Nevada should be allowed to intervene to protect its interests and to assist the Court in resolving the Petition.”
The Nevada request landed less than a week after a motion from the Nuclear Energy Institute and several utilities also seeking to intervene in the lawsuit on behalf of the federal agencies.
The nuclear industry organization and the companies expressed no opposition to Texas’ overall aim of reviving the Yucca Mountain storage site. But they took exception to two of the 24 specific “prayers for relief” included in the lawsuit: “an order providing Petitioner with restitution from the Nuclear Waste Fund” and “an order disgorging the Nuclear Waste Fund.”
The concern is that taking any money from the fund means less money for building the nuclear waste repository, said Jonathan Rund, NEI associate general counsel. That could undermine work on the site, potentially extending the amount of time that utilities must store spent fuel on-site at their nuclear plants while they wait for the Department of Energy to meets its legal mandate to find a permanent solution to the waste problem.
Under the Nuclear Waste Policy Act, nuclear utilities paid more than $30 billion into the fund, which is to be used to pay for construction of a final repository for U.S. nuclear waste. Texas has four nuclear power reactors operated by two companies.
Including investment income and interest, the fund is worth up to $42.7 billion, of which Texas ratepayers contributed $815 million that has earned $709 million in interest, the state said in its lawsuit.
Rund said it was not clear how much Texas is seeking in restitution or what exactly is the intent of its disgorgement request. Both matters would generally involve a claim of a breach of contract, but Texas is not a contractual party for utilities’ payments into the Nuclear Waste Fund, which were suspended in 2014.
It was not immediately known when the court might rule on the motions to intervene, which would allow Nevada, NEI, and the utilities to file legal briefs in support of the federal agencies.
Texas has indicated its intent to oppose the intervention motions.
