New Energy Secretary Rick Perry this week found himself on the pointy end of a lawsuit from the state he once led, which is demanding that the federal government halt all work on consent-based siting of U.S. nuclear waste and instead complete licensing of the Yucca Mountain geologic repository.
The lawsuit filed late Tuesday by the Texas Attorney General’s Office in the Fifth Circuit U.S. Court of Appeals claims the Department of Energy and other agencies are in breach of federal law and prior court decisions demanding advancement of Yucca Mountain. It landed just two days before the White House proposed funding to resume licensing activities for the Nevada waste storage site.
“Petitioner respectfully requests equitable relief prohibiting DOE from conducting any other consent-based siting activity and ordering Respondents to finish the Yucca licensure proceedings,” the lawsuit states. “Ultimately, if Respondents are unable (or unwilling) to complete their obligations, under the [1982 Nuclear Waste Policy] Act, or fail to approve the license for Yucca Mountain, the Court should exercise its equitable powers to correct the problem and help bring an appropriate end to a growingly unacceptable circumstance.”
Among the long list of defendants in the lawsuit are Perry, Texas governor from 2000 to 2015; Nuclear Regulatory Commission Chairwoman Kristine Svinicki; Treasury Secretary Steven Mnuchin; and their respective agencies.
The Nuclear Waste Policy Act required that the federal government by Jan. 31, 1998, build a permanent repository to which it would ship the growing amounts of spent nuclear fuel and high-level radioactive waste stored around the country. Congress in 1987 mandated Yucca Mountain as that site, and preliminary work began on the underground repository. However, the Obama administration in 2009 canceled the project and subsequently established a process under which willing communities would become home to separate storage facilities for defense and commercial waste.
Roughly 75,000 metric tons of spent fuel are now stored on-site at about 100 U.S. nuclear reactors. Close to 2,610 metric tons of that is in Texas, the state said. Electric utilities pay into the Nuclear Waste Fund that enable construction of the facility that will store all this waste; the fund has a present estimated market value of $39.8 billion to $42.7 billion, of which Texas has contributed $1.5 billion via payments and interest, the lawsuit says.
The Department of Energy in 2010 sought to withdraw its Yucca license application from the NRC, which first rejected the request but later suspended the proceeding after Congress halted appropriations for the work. The D.C. Circuit Court of Appeals in August 2013 directed the NRC to reopen the review with already-appropriate funds; while the adjudicatory proceeding has not restarted, the regulator has issued a safety evaluation report and supplement to DOE’s environmental impact statement on Yucca Mountain, and has uploaded tens of thousands of Yucca-related documents onto its public website.
“All these actions were taken on specific direction by the Commission in response to the appeals court writ of mandamus,” NRC spokesman David McIntyre said by email Wednesday. “The effect has been to position the NRC to support and resume the adjudicators hearing as effectively and efficiently as possible should Congress appropriate funds and direct the Department of Energy and the NRC to resume the process.”
The Texas lawsuit charges the NRC with intentionally keeping the adjudication process “in abeyance” while DOE progresses with a “new, unauthorized alternative consent-based siting process for a permanent repository other than Yucca.” Both represent violations of the Nuclear Waste Policy Act, according to the AG’s Office.
The NRC said it could not comment directly on the lawsuit. DOE referred questions on the matter to the Department of Justice, which said it was aware of the lawsuit but otherwise declined to comment.
On Thursday, the White House issued the broad outlines of its budget proposal for fiscal 2018. That includes $120 million for resumption of Yucca Mountain licensing and for a “robust interim storage program” that would consolidate nuclear waste storage until the permanent site is ready.
State Associate Deputy Attorney General Austin Nimocks indicated Thursday that the administration spending plan would not make the lawsuit moot. “We’re interested in the end result,” he said by telephone. “One simple act by the federal government does not a permanent repository make.”
Interim storage is already part of the Department of Energy’s plan for nuclear waste. Just days before President Donald Trump’s inauguration, DOE in January issued a draft version of its consent-based siting initiative, laying out a decades-long timeline for establishing and operating pilot, interim, and permanent storage of spent nuclear fuel and high-level waste (the latter encompassing about 90 million gallons of liquids, sludges, and solids largely resulting from defense nuclear operations).
The department’s consent-based siting timeline envisions opening interim facilities within a few years from now to consolidate spent fuel storage – Waste Control Specialists has already filed for an NRC license for a facility in West Texas, while Holtec International is due to file its application by the end of this month for its own site in southeastern New Mexico.
One or more permanent repositories would open by 2048 under the Obama plan, though presumably that aspect would be replaced by a revived Yucca Mountain.
The Austin American-Stateman reported Thursday that Texas Attorney General Ken Paxton has in the last five years received no less than $15,000 in campaign contributions from Waste Control Specialists’ political action committee. The late Harold Simmons, onetime WCS owner, also contributed $1.25 million to Perry’s failed 2012 presidential bid.
Waste Control Specialists spokesman Chuck McDonald on Thursday said the company is not a party to the lawsuit and did not encourage the case. Management does not know how it originated, he added. Nimocks emphasized that the focus on the lawsuit is not on interim storage, but on the permanent repository in Nevada.
Texas has requested 24 measures of relief from the appeals court in the lawsuit, including:
- A declaratory judgment that DOE and the secretary of energy breached the Nuclear Waste Policy Act by abandoning Yucca Mountain in favor of consent-based siting (in fairness, this would be Perry’s predecessors during the Obama administration).
- Preliminary and permanent injunctions against further consent-based siting operations unless the Nuclear Waste Policy Act is amended to authorize them.
- Multiple writs of mandamus ordering the NRC, its Atomic Safety and Licensing Board, and DOE to resume and complete the Yucca Mountain licensing process, with funding via the Nuclear Waste Fund and Congress as needed.
- Orders holding the energy secretary, NRC chairwoman, ASLB judges, and treasury secretary in civil contempt for noncompliance with the Nuclear Waste Policy Act and court mandates.
