Texas has filed a lawsuit in federal court to stop the Department of Energy (DOE) from spending tax dollars on consent-based siting activity, and to force the Nuclear Regulatory Commission (NRC) and other relevant federal agencies to complete licensing proceedings for the Yucca Mountain nuclear waste permanent repository.

The lawsuit filed with the U.S. Court of Appeals for the Fifth Circuit on March 15 by Texas Attorney General Ken Paxton says that the federal government has failed to comply with the Nuclear Waste Policy Act (NWPA) of 1982.

It calls attention to two issues. One urges the court to examine whether the DOE, NRC, the NRC’s Atomic Safety and Licensing Board, and the Department of Treasury are violating NWPA by engaging in consent-based repository siting activities at locations other than Yucca Mountain, when Congress identified Yucca Mountain as the sole repository. It also asks the court to examine whether the federal agencies violated NWPA by failing to make a final decision to approve or disapprove the Yucca Mountain license application.

“In dereliction of the Act, the federal Executive Branch collected over $40 billion for nuclear waste storage, but has yet to complete or even license a repository. To be clear, this case is not about the process taking longer than expected,” the petition says. “It’s about the Executive dragging its feet through every stage of the process, and halting the project despite a congressional mandate to move forward.”

The petition notes that nuclear power plants generate about a fifth of U.S. power and “nearly 60% of the nation’s carbon-free power.” While Congress “tried to speed things along by mandating that the DOE pursue Yucca Mountain, Nevada as the sole site for permanent waste storage,” the “DOE formed the Blue Ribbon Commission on America’s Nuclear Future and began a completely different ‘consent-based siting’ approach to building a repository,” it says.

In a press release, the Texas attorney general’s office called the Blue Ribbon Commission “unlawful.”

“For decades, the federal government has ignored our growing problem of nuclear waste,” Paxton said in the same release. “We do not intend to sit quietly anymore.”

If the federal agencies are “unable (or unwilling) to complete their obligations under the 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,” the petition says.

The Right Thing to Do

The petition was filed as the Trump administration released a budget proposal that seeks to boost Energy Department spending to revive Yucca Mountain. The fiscal 2018 budget plan for the Energy Department includes $120 million to restart licensing for the repository. “These investments would accelerate progress on fulfilling the federal government’s obligations to address nuclear waste, enhance national security, and reduce future taxpayer burden,” a summary of the budget proposal says.

For some states and industry, the measure is long overdue.

Texas’ lawsuit may have the backing of the National Association of Regulatory Utility Commissioners (NARUC), a group that represents state public service commissions who regulate utilities in all 50 states and the District of Columbia.

“The federal government has collected billions of dollars from ratepayers for nuclear waste disposal,” said NARUC Executive Director Greg R. White in a March 15 statement. “It is past time for Congress to appropriate the funds to complete review of the Yucca Mountain license application as required by law. If this lawsuit ratchets up pressure for the DOE to focus on complying with the law, or for Congress to appropriate the funds already collected, then it is the right thing to do.”

The industry group Nuclear Energy Institute (NEI) also wants a quick resolution to the long drawn out spent fuel saga. NEI President and CEO Maria Korsnick told POWER on March 9 that the U.S. nuclear industry was optimistic this Congress would tackle the nuclear waste issue.

Kicking the Nuclear Cask Down the Road

Congress directed the DOE to build and operate a repository for used nuclear fuel and other high-level radioactive waste in 1982, when it passed the NWPA. In 1987, it amended that law, directing the DOE to exclusively study the Yucca Mountain site as a potential repository for geologic disposal of used nuclear fuel. After two decades of study, the DOE delivered its license application for the facility (by truckload) to the NRC in 2008.

But, reflecting the Obama administration’s opposition to the politically contentious repository—which was spearheaded by now-retired Sen. Harry Reid (D-Nev.)—the DOE in 2010 withdrew its June 2008–submitted application to license the facility from the NRC and moved to terminate the project. The NRC’s Atomic Safety and Licensing Board initially denied the motion, but under the direction of the commission, suspended the proceeding until there were sufficient funds (more than the then-unspent $11 million remaining in its Nuclear Waste Fund) to make “meaningful progress.”

Then, in a landmark decision, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in August 2013 ruled that the NRC was legally required to comply with the NWPA, a law which provides the NRC “shall consider” the DOE’s license application to store nuclear waste at Yucca Mountain.

In 2015, the NRC published the final volumes of its safety evaluation report, which is the agency’s technical review of the safety of the repository. In May 2016, it released its final supplement to the DOE’s environmental impact statement on the proposed repository, ultimately establishing that Yucca Mountain would be safe and environmentally sound for the one-million-year period of waste isolation as laid out in the agency’s rules.

Spent nuclear fuel continues to pile up: 77,000 metric tons as of September 2016 were scattered all across the country in spent fuel pools and dry casks at reactor sites. The DOE’s failure to remove used fuel from reactor sites in 1998 also resulted in a $5 billion court-awarded damage settlement in September 2015 to compensate power companies for storing used fuel onsite. According to the NEI, damages could exceed $29 billion by 2022 and up to $500 million annually thereafter.

The Consent-Based Approach

Under the Obama administration, meanwhile, the DOE began work to design a “consent-based process” to establish an integrated waste management system to transport, store, and dispose of commercial spent nuclear fuel and high-level radioactive waste.

The DOE’s plans are rooted in its 2013-issued “Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste.” It calls for the DOE to work with communities, tribal governments, and states across the country that express interest in hosting federal consolidated interim storage facilities and disposal facilities.

In October, former Energy Secretary Ernest Moniz urged action on spent nuclear fuel storage, saying that if Congress acted to give the DOE the authority, and whether or not it was a public or private effort, “we could [have] a pilot facility running in not much more than five years.”


Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)