The state of Texas on Monday objected to Nevada’s attempt to intervene in the lawsuit demanding that the federal government move ahead with licensing and building the Yucca Mountain nuclear waste repository.
“Texas’s Petition seeks equitable remedies for decades of federal inaction on growing, above-ground stockpiles of nuclear waste. By contrast, Nevada’s intervention seeks to reinvigorate a policy debate on whether Yucca Mountain should be the nation’s sole nuclear repository. In sports vernacular, Texas is playing football; but Nevada wants to play baseball,” the Texas Attorney General’s Office said in a filing with the Fifth Circuit Court of Appeals.
The Texas AG in March sued the Energy and Treasury departments and Nuclear Regulatory Commission, along with the head of each agency and the members of the NRC’s Atomic Safety and Licensing Board. The Lone Star State had many demands, primarily that the federal government abandon the Obama administration’s plan for consent-based siting of nuclear waste storage and resume NRC licensing for the Yucca Mountain site in Nevada.
Failure to do so violates the 1982 Nuclear Waste Policy Act’s mandate that DOE build a permanent home for U.S. defense and commercial waste, as well as the 1987 congressional amendment that designated Yucca Mountain as that location, according to Texas.
The state and federal governments are in mediation in hopes of resolving the lawsuit, with a second session scheduled for May 15. Meanwhile, Nevada, the Nuclear Energy Institute, and a number of utilities have asked the court for authorization to intervene in the case, which would allow them to file legal briefs on behalf of the U.S. government.
Nevada has long opposed being forced to host tens of thousands of tons of nuclear waste from other states, and has made its displeasure known with indications that the Trump administration intended to revive Yucca Mountain. In its motion to intervene filed earlier this month, the Nevada Attorney General’s Office said state residents would be harmed if Texas’ case succeeds. The lawsuit would “hamper Nevada’s ability to present its case at the [NRC] 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.
Texas’ lawyers, though, said their case is about upholding the rule of law, no matter where Congress selected to place the nation’s nuclear waste: “Texas’s Petition would be the same if Congress chose Space Mountain as the nation’s sole nuclear waste repository.” Nevada should take its case against Yucca Mountain to Capitol Hill, Texas said.
In a separate filing last week, Texas also said the combined request from the Nuclear Energy Institute and seven utilities to intervene in the lawsuit was premature and should be frozen or dismissed without prejudice, meaning it could be refiled at a later date.
NEI, the lobbying arm of the nuclear industry, objected only to two specific requests in the original lawsuit: restitution for Texas from the Nuclear Waste Fund and disgorgement of the fund.
The fund contains money provided by nuclear utilities nationwide that would be used to build the nuclear waste repository. Texas said the fund is worth up to nearly $43 billion, of which state ratepayers have contributed $815 million, which accrued another $709 million in interest. However, the state did not say how much restitution it is seeking or what disgorgement would entail.
The Nuclear Energy Institute and utilities, in seeking to intervene, said Texas would harmfully deplete the account if it gets its way. The state responded on April 19 that the court has other options for fulfilling Texas’ major goal of advancing development of Yucca Mountain before resorting to ordering restitution or disgorgement from the Nuclear Waste Fund.
“NEI’s motion to intervene is untimely,” according to the state motion. “Ordinarily, the timeliness of an intervention is assessed as to whether the application is too late. Here, intervention is too early.”
Unsurprisingly, NEI and the utilities disagreed in a response filed Thursday: “Texas’ argument rings hollow. Texas chose to include restitution and disgorgement among its prayers for relief. Because Texas has put restitution and disgorgement from the Fund on the table, it cannot now complain that Movants seek to protect their interests in the Fund.”
Nevada as of deadline Friday had not responded to Texas’ motion against its intervention.
