IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 Case: Document: Page: 1 Date Filed: 04/12/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No In Re: State of Texas THE STATE OF NEVADA S MOTION FOR LEAVE TO INTERVENE AS A RESPONDENT ADAM PAUL LAXALT Attorney General of Nevada JOSEPH TARTAKOVSKY Deputy Solicitor General JORDAN T. SMITH CHARLES J. FITZPATRICK MARTIN G. MALSCH JOHN W. LAWRENCE EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC Assistant Solicitor General 7500 Rialto Blvd., Building 1, Suite 250 BELINDA SUWE Austin, TX Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street ROGER B. MOORE ANTONIO ROSSMANN Carson City, NV (775) Shattuck Ave. JSmith@ag.nv.gov Berkeley, CA ROSSMANN AND MOORE, LLP Counsel for Nevada Counsel for Nevada

2 Case: Document: Page: 2 Date Filed: 04/12/2017 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities, as described in Fifth Circuit Rule , have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. Petitioner State of Texas Counsel: Ken Paxton Jeffrey C. Mateer Brantley D. Starr Michael C. Toth Andrew D. Leonie David Austin R. Nimocks David J. Hacker Joel Stonedale Office of Special Litigation Attorney General of Texas P.O. Box (MC 009) Austin, Texas Robert J. Cynkar McSweeney, Cynkar & Kachouroff, PLLC Milkweed Drive Great Falls, Virginia Non-NRC Federal Respondents United States of America United States Department of Energy James Richard Rick Perry, in his official capacity as U.S. Secretary of Energy United States Department of the Treasury Steven T. Mnuchin, in his official capacity as U.S. Secretary of the Treasury Counsel: David S Gualtieri U.S. Department of Justice Washington, DC

3 Case: Document: Page: 3 Date Filed: 04/12/2017 NRC Federal Respondents United States Nuclear Regulatory Commission Kristine L. Svinicki, in her official capacity as Chairman of the U.S. NRC U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Thomas Moore, in his official capacity as U.S. NRC ASLB Judge Richard Wardwell, in his official capacity as U.S. NRC ASLB Judge Counsel: Charles Mullins U.S. Nuclear Regulatory Commission Washington, DC Proposed Intervenor State of Nevada Counsel: Adam Paul Laxalt Joseph Tartakovsky Jordan T. Smith Belinda Suwe Office of the Attorney General 100 North Carson Street Carson City, NV Charles J. Fitzpatrick Martin G. Malsch John W. Lawrence Egan, Fitzpatrick, Malsch & Lawrence, PLLC 7500 Rialto Blvd., Building 1, Suite 250 Austin, TX Antonio Rossmann Roger B. Moore Rossmann and Moore, LLP 2014 Shattuck Ave. Berkeley, CA

4 Case: Document: Page: 4 Date Filed: 04/12/2017 I. INTRODUCTION For over thirty years, the State of Nevada has steadfastly opposed any attempt to dump the Nation s nuclear waste within its borders. 1 It has persistently pursued and defended its sovereign interests in all available executive, legislative, and judicial forums. And when Yucca Mountain-related proceedings have commenced without its involvement, courts and administrative bodies have recognized Nevada s vital stake in the outcome and allowed the State to intervene. This case is no different. The State of Texas s Petition directly and adversely threatens the rights of Nevada and its citizens. Among its list of cascading remedies, Texas asks this Court to halt consent-based siting, order the Federal Respondents to request additional funds to complete the licensure process, and cut short the adjudicatory hearing to which Nevada is a party. If successful, the end result of Texas s Petition will be to short-circuit the legislative process currently pending in Congress, 2 hamper Nevada s ability to present its case at the licensing hearing, and rush a flawed project to 1 See, e.g. Assembly Joint Resolution No. 4 (1987) available at ionnumber=nelis_87r&documenttype=ajr&billno=4; Senate Joint Resolution No. 6 (2001) available at Assembly Joint Resolution 4 (2005) available at isysquery/9d1f7c0c ab-8e26-c55c71d319b5/4/doc/ajr4_r1.pdf#xml= WebApp/isysquery/9d1f7c0c ab-8e26-c55c71d319b5/4/hilite/ 2 Office of Management and Budget, America First: A Budget Blueprint to Make America Great Again at 19 (March 2017), available at sites/whitehouse.gov/files/omb/budget/fy2018/2018 _blueprint.pdf (proposing $120 million to resume Yucca Mountain related activities). 3

5 Case: Document: Page: 5 Date Filed: 04/12/2017 completion at the direct expense of Nevada s sovereign interests and the health, safety, and welfare of its citizens. Nevada should be allowed to intervene to protect its interests and to assist the Court in resolving the Petition. 3 II. STATEMENT OF FACTS A. A Brief History of Nevada s Intervention in Yucca Mountain Proceedings Nevada has been engaged in a long-running and wide-ranging battle over Yucca Mountain since 1987, when Congress amended the Nuclear Waste Policy Act of 1982, 42 U.S.C et seq., to specify the site as the sole location for a national repository for spent nuclear fuel and high-level radioactive waste. The most recent episode began in 2008 when the U.S. Nuclear Regulatory Commission ( NRC ) published a notice of hearing to initiate the adjudicatory hearing process on the Department of Energy s ( DOE ) application to license the Yucca Mountain site. 73 Fed. Reg Nevada was admitted as a party-intervenor in that proceeding on May 11, 2009 and it currently has 218 admitted contentions against the project pending before NRC. See 69 N.R.C. 367 (2009). Nevada intends to file additional contentions if, and when, the NRC adjudication resumes. See Id. 4 3 The non-nrc Federal Respondents and the NRC Federal Respondents do not oppose Nevada s intervention. However, Texas opposes Nevada s Motion. 4 On May 11, 2009, the Atomic Safety and Licensing Boards (ASLBs), or alternatively, the Construction Authorization Boards (CABs), designated to preside over party and contention admissibility, issued a Memorandum and Order admitting 4

6 Case: Document: Page: 6 Date Filed: 04/12/2017 Two years after the licensing proceeding started, DOE filed a motion with the ASLB to withdraw its pending Yucca Mountain license application with prejudice. 71 N.R.C. 609 (2010). The ASLB denied DOE s motion on June 29, N.R.C. 609 (2010). The next year, after stating that it found itself evenly divided on whether to take the affirmative action of overturning or upholding the June 29, 2010 decision of the ASLB, NRC suspended the licensing adjudicatory proceeding because a lack of appropriations made it impossible to complete the proceeding. 74 N.R.C. 368 (2011). DOE s attempt to withdraw its Yucca Mountain application and the decision to suspend the licensing process were subsequently challenged in a mandamus action in the D.C. Circuit. See In re Aiken Cty., 645 F.3d 428, (D.C. Cir. 2011) ( Aiken I ). Nevada was allowed to intervene, see In re: Aiken Cty., No , Doc. No (D.C. Cir. April 9, 2010), and the court dismissed the action for lack of jurisdiction and ripeness because DOE had not taken, or failed to take, any final or discrete agency action that could be challenged. Aiken I, 645 F.3d at Eventually, a follow-up mandamus action was filed contending that NRC was still neglecting to fulfill its statutory duties regarding Yucca. In re Aiken Cty., 725 F.3d 255, 267 (D.C. Cir. 2013) ( Aiken II ). Once again, Nevada was permitted to intervene and participate. In re: Aiken Cty, No , Doc No (D.C. Cir. Nov. 4, 2011) ( Ordered that the State of Nevada s motion for leave to intervene be eight parties, two governmental participants and 289 contentions. Nevada has 218 remaining contentions awaiting adjudication. 5

7 Case: Document: Page: 7 Date Filed: 04/12/2017 granted ). This time, the D.C. Circuit ordered NRC to continue with the licensing proceeding unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining. Aiken II, 725 F.3d at 267. NRC has been complying with the D.C. Circuit s order ever since. At the time of the Aiken I decision, NRC had at least $11.1 million in appropriated Yucca Mountain funds to continue consideration of the license application. Id. at 258. The last appropriation received by NRC for Yucca Mountain licensing was in federal fiscal year See S.3635, 111 th Cong. (2010). As of February 2017, with just a little over $1 million remaining, NRC has expended nearly all appropriated funds on statutorilymandated licensing activities, leaving an entirely insufficient amount to complete the licensing proceeding or even make any significant progress. U.S. Nuclear Regulatory Commission, Monthly Status Report Activities Related to Yucca Mountain Licensing Action Report for February 2017 (Mar. 2017) (Ex. 1). B. Consent-Based Siting and the Origins of Texas s Petition In 2012, the Blue Ribbon Commission on America s Nuclear Future, tasked with a comprehensive review of the policies for managing nuclear waste, reported that any future repository for spent nuclear fuel and high-level radioactive waste should be selected with the consent of the potentially affected state, tribal, and local governments. BLUE RIBBON COMM N ON AM. S NUCLEAR FUTURE, REPORT TO THE SECRETARY OF ENERGY (2012). In 2013, DOE adopted this recommendation for consent-based siting. U.S. DEP T OF ENERGY, STRATEGY FOR THE 6

8 Case: Document: Page: 8 Date Filed: 04/12/2017 MANAGEMENT AND DISPOSAL OF USED NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE (Jan. 2013). In January 2017, DOE issued a Draft Consent-Based Siting Process for Consolidated Storage and Disposal Facilities for Spent Fuel and High-Level Radioactive Waste, allowing public comment until April 14, Fed. Reg This process is not yet complete. In this original proceeding, Texas seeks (among other things) to: (1) declare Respondents in violation of the Nuclear Waste Policy Act ( NWPA or Act ) and enjoin DOE from conducting consent-based siting activities; (2) issue a writ of mandamus directing NRC and DOE to request funding to perform the adjudicatory hearings for the Yucca Mountain license; (3) unreasonably limit the adjudicatory hearing involving Nevada to less than twelve months; (4) retain jurisdiction over this matter in conflict with governing statutes and regulations; and (5) hold certain parties in contempt of the D.C. Circuit s Aiken II decision. See Pet. at Granting any portion of Texas s requested relief would have significant and damaging repercussions for Nevada. Consequently, Nevada should be allowed to intervene. III. ARGUMENT Texas invokes this Court s original jurisdiction under 42 U.S.C (a)(1), which vests in the Courts of Appeal original and exclusive jurisdiction over judicial 5 The practice of consent based siting has not been incorporated into any legislation or rule, but, rather, reflects the non-binding recommendations of the Blue Ribbon Commission and draft recommendations of DOE. Moreover, DOE s current consent-based siting initiative expressly excludes the Yucca Mountain project. 7

9 Case: Document: Page: 9 Date Filed: 04/12/2017 review actions involving the NWPA. Pet. at 3 5. Federal Rule of Appellate Procedure 15(d) controls intervention in proceedings such as this and, while the Rule does not set forth governing standards, this Court has utilized two considerations to assess requests to intervene in other NWPA actions: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant to [Federal Rule of Civil Procedure] 24. Texas v. U.S. Dep t of Energy, 754 F.2d 550, 551 (5th Cir. 1985) (citing Int l Union, United Auto., Aerospace and Agric. Implement Workers v. Scofield, 382 U.S. 205 (1965)). Nevada satisfies both considerations. A. NWPA s Statutory Design Weighs in Favor of Nevada s Intervention. The NWPA affords the involuntarily-designated host state broad rights of participation and consultation and decrees that state participation is essential in order to promote public confidence in the safety of disposal of such waste and spent fuel. 42 U.S.C (b); 42 U.S.C (a)(6); see also 42 U.S.C (a) ( [T]he Secretary shall notify the Governor and legislature of the State in which such repository is proposed to be located. ). Because of the importance of state participation, Nevada s views have been routinely solicited and its comments customarily considered throughout the site-characterization process, the site-approval process, the site-selection process, and the construction-authorization process. See NWPA 113(a) & (b), 114(a)(1)(H), 115(b), 116(a)-(c), 117 (a) & (b). Moreover, under the NRC Rules of Practice, Nevada is granted standing to intervene in the Yucca Mountain licensing proceeding. See 10 C.F.R (d). 8

10 Case: Document: Page: 10 Date Filed: 04/12/2017 These statutory and regulatory provisions memorialize Congress s view that Nevada has an indispensable role and unique interest in any proceeding related to Yucca Mountain. Nevada should be allowed to intervene to give effect to this congressional and statutory intent. Cf. Texas, 754 F.2d at 552 ( [T]he utilities only participation in the statutory scheme of the NWPA is in funding it, and while that role is important, it does not give the utilities such a special interest in every action taken by the DOE pursuant to the NWPA as to require their intervention. ). B. Nevada Should Be Allowed to Intervene as of Right. Federal Rule of Civil Procedure 24(a)(2) states that, on timely motion, the Court must permit anyone to intervene who claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant s ability to protect its interest, unless existing parties adequately represent that interest. The inquiry under Rule 24(a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application and intervention of right must be measured by a practical rather than technical yardstick. Entergy Gulf States La., L.L.C. v. E.P.A., 817 F.3d 198, 203 (5th Cir. 2016) (citing Edwards v. City of Hous., 78 F.3d 983, 999 (5th Cir. 1996)). The rule is to be liberally construed, with doubts resolved in favor of the proposed intervenor. Id. (citing In re Lease Oil Antitrust Litig., 570 F.3d 244, 248 (5th Cir. 2009)). 9

11 Case: Document: Page: 11 Date Filed: 04/12/2017 Accordingly, a proposed intervenor as of right must satisfy four requirements: (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant s interest must be inadequately represented by the existing parties. Texas, 754 F.2d at 552; see also Haspel & Davis Milling & Planting Co. v. Bd. of Levee Comm rs of the Orleans Levee Dist., 493 F.3d 570, 578 (5th Cir. 2007). As discussed below, Nevada meets all four requirements. 1. This Motion Is Timely. Federal Rule of Appellate Procedure 15(d) provides that a motion for leave to intervene in a judicial-review proceeding must be brought within 30 days of the filing of the petition. 6 Texas filed its Petition on March 14, Thus, the deadline to file a motion to intervene is April 13, 2017 and this motion meets that deadline. 2. Nevada Has a Protectable Interest in the Subject of this Action. As the unwilling target of the repository site, Nevada has a direct, substantial, and legally protectable interest in any action related to Yucca 6 Similarly, Fifth Circuit Rule 15.5 requires that a motion to intervene under Federal Rule of Appellate Procedure 15(d) be filed promptly after the petition for review of the agency is filed, but not later than 14 days prior to the due date of the brief of the party supported by the intervenor. The Federal Respondents have filed an unopposed motion to extend the time to file their response until May 30, Nevada s Motion for Leave to Intervene remains timely under this deadline, assuming that their response constitutes a brief for this limited purpose. 10

12 Case: Document: Page: 12 Date Filed: 04/12/2017 Mountain. See New Orleans Pub. Sew., Inc. v. United Gas Pipe Line, 732 F.2d 452, 464 (5th Cir. 1984). States are routinely allowed to intervene as a matter of right to protect their sovereign interests. See, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, (1967) (allowing the state of California to intervene to protect its interests in a competitive natural gas market). Since the inception of the proposed project, Nevada has consistently asserted its sovereignty and opposed DOE s efforts to site and license the repository at Yucca Mountain. As described in the Affidavit of Robert Halstead, Executive Director of the Nevada Agency for Nuclear Projects, Nevada has a strong interest in protecting the health and safety of its citizens from radiological injuries and in protecting its lands and groundwater from radioactive contamination. (Ex. 2 4). These concerns directly implicate Nevada s sovereign prerogatives. There are other injuries, too. For instance, the site will affect hundreds of miles of public lands around Yucca Mountain, deny[ing] their use for public roads, bridges, and other public infrastructure projects, conflict[ing] with current uses, and prevent[ing] future uses of these lands for military training activities, mining, ranching, farming, and a wide range of recreation activities. (Id. 5); see also Cascade Natural Gas Corp., 386 U.S. at 135 (finding California so situated geographically as to be adversely affected within the meaning of Rule 24 ) (emphasis added). The State is also the sovereign trustee of its groundwater. Under Nevada law, the groundwater that will be contaminated by the repository belongs to the public and 11

13 Case: Document: Page: 13 Date Filed: 04/12/2017 is subject to administration by the State of Nevada, through the State Engineer, as administrative head of the Nevada Division of Water Resources. NEV. REV. STAT ; see Georgia v. U.S. Army Corps of Eng rs, 302 F.3d 1242, (11th Cir. 2002) (allowing the state of Florida to intervene to protect its interests in the interstate flow of water). Transporting nuclear waste across Nevada s territory also poses substantial risks to the State. (Ex. 2. 6). Nuclear waste transportation will increase radiation exposure to workers and the general public and create the risk of severe accidents and radiological sabotage incidents. (Id.). There are enormous expenses associated with escorting and monitoring DOE s transportation activities. (Id. 8). Under current proposals, Nevada could be required to expend substantial resources improving its transportation infrastructure in order to maintain and rebuild roads and highways used for transportation of nuclear waste to Yucca Mountain. (Id). Further, Nevada faces a serious threat from the intense negative perception and stigma associated with transportation to Nevada and disposal of high-level radioactive waste and spent nuclear fuel in Nevada. These perceived risks and stigma impact could lead to losses of jobs, losses of property values, and losses of tax revenues. (Id. 9). Allowing the Union to force Nevada alone to unwillingly bear these injuries would be an unprecedented infringement of state sovereignty unlike any other that a single state has been made to suffer. 12

14 Case: Document: Page: 14 Date Filed: 04/12/2017 As mentioned above, the NWPA s statutory scheme protects Nevada s right to participate because of these very interests and other courts have acknowledged Nevada s concerns and allowed it intervene in litigation involving Yucca. Nevada respectfully requests that this Court do the same. 3. Nevada s Interest May Be Impaired by this Proceeding. Nevada, as the involuntarily-designated host state of the proposed repository and a party to the NRC adjudicatory proceeding, will be irreparably harmed by Texas s list of requested relief. Texas concedes that a state has direct authority with respect to nuclear waste with its sovereign boundaries. Pet. at 14. But Texas s Petition threatens Nevada s same authority. Texas seeks an order directing NRC to obtain funding and ram the adjudicatory hearings through the ASLB in twelve months or less. Pet. at If granted, this order will hamper Nevada s ability to litigate its contentions and objections to the repository by imposing burdensome deadlines for the completion of discovery, filing of testimony, and commencement and completion of the requisite evidentiary hearings. (Ex. 2 10). This Court should not consider truncating the adjudicatory proceeding without hearing from Nevada. See Georgia, 302 F.3d at 1256 (allowing 7 It should be noted that a twelve-month deadline could not be met without substantial changes to the NRC s Rules of Practice. These changes too would dramatically curtail Nevada s ability to protect its interests. 13

15 Case: Document: Page: 15 Date Filed: 04/12/2017 Florida to intervene where the resolution of Georgia s lawsuit might adversely affect Florida s future lawsuit. ). 4. Nevada s Interest is Not Adequately Represented by the Existing Parties. While the burden is on the applicant to show that the existing representation is inadequate, the burden is minimal and will be met by showing that representation may be inadequate. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 539 (1972); Supreme Beef Processors, Inc. v. U.S. Dep t of Agric., 275 F.3d 432, 437 (5th Cir. 2001). Nevada s interests will not be adequately represented absent its intervention. Nevada alone is positioned to fully represent its sovereign interests and the welfare of its residents. It is unlikely that Texas, by invoking its sovereignty only to curtail Nevada s, will be a principled defender of its sister state s interests. See Pet. at 14. Likewise, the Federal Respondents some of whom are on the opposing side in the adjudicatory hearing cannot be expected to protect Nevada s rights. For example, the Federal Respondents may have an incentive to agree to Texas s prayer to shorten the licensing process to minimize costs and deprive Nevada of a fair opportunity to present its contentions and objections. Nevada is singularly positioned to present arguments about the impact of the Petition on the looming adjudicatory hearing and how it would affect the health, safety, environment, and economy of the State. 14

16 Case: Document: Page: 16 Date Filed: 04/12/2017 C. Alternatively, Nevada Should Be Allowed to Intervene Permissively. Under Federal Rule of Civil procedure 24(b), the court may permit anyone to intervene who, on timely motion, is given a conditional right to intervene by a federal statute; or has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1). A state may also permissively intervene where a party s defense is based on a statute administered by a state officer or agency. See Fed. R. Civ. P. 24(b)(2) (allowing a state governmental officer or agency to intervene); see also Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006). In acting on a request for permissive intervention the district court may consider, among other factors, whether the intervenors interests are adequately represented by other parties and whether intervention will unduly delay the proceedings or prejudice existing parties. Kneeland v. Nat l Collegiate Athletic Ass n, 806 F.2d 1285, 1289 (5th Cir. 1987) (internal citation omitted). Here, permissive intervention is amply justified. Nevada has already explained that (1) it has been granted statutory and regulatory rights to intervene in administrative proceedings related to Yucca Mountain, (2) demonstrated that it will not be adequately represented by existing parties, and (3) established that its present request to intervene is timely and will not cause prejudice. It is also apparent that Nevada s defenses embrace common questions of law and fact raised by, and in response to, Texas s Petition. Contrary to Texas s argument, but drawing on the same facts Texas alleges, Nevada asserts that consent-based siting does not violate the 15

17 Case: Document: Page: 17 Date Filed: 04/12/2017 NWPA and the parties are in compliance with the D.C. Circuit s mandate from the Aiken II decision (thus obviating any need for a redundant mandamus order from this Court). Nevada further contends that neither Texas s legal nor factual allegations establish a basis for this Court to expedite the adjudicatory hearing to Nevada s extreme detriment. And finally, as shown in the Affidavit of Robert Halstead, Nevada has state officers charged with carrying out the duties and responsibilities imposed on the State by the NWPA and the State s defense may implicate those statutes. (Ex. 2 1); see Fed. R. Civ. P. 24(b)(2). Therefore, at minimum, Nevada should be allowed to permissively intervene in this original action. 16

18 Case: Document: Page: 18 Date Filed: 04/12/2017 IV. CONCLUSION Texas s Petition directly injures Nevada as the target state of the proposed Yucca Mountain repository. Nevada has a vital interest in the subject of this Petition and will be directly and materially affected by the outcome. Intervention is the only method through which Nevada can adequately preserve its ability to participate effectively in the NRC adjudicatory proceeding, while protecting its citizens and its sovereign right to control what takes place within its borders. For these reasons, Nevada respectfully requests that it be permitted to intervene in this proceeding. Respectfully submitted, Dated: April 12, By: /s/ Jordan T. Smith ADAM PAUL LAXALT Attorney General of Nevada JOSEPH TARTAKOVSKY Deputy Solicitor General JORDAN T. SMITH CHARLES J. FITZPATRICK MARTIN G. MALSCH JOHN W. LAWRENCE EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC Assistant Solicitor General 7500 Rialto Blvd., Building 1, Suite 250 BELINDA SUWE Austin, TX Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street ROGER B. MOORE ANTONIO ROSSMANN Carson City, NV (702) Shattuck Ave. JSmith@ag.nv.gov Berkeley, CA ROSSMANN AND MOORE, LLP Counsel for Nevada Counsel for Nevada 17

19 Case: Document: Page: 19 Date Filed: 04/12/2017 CERTIFICATE OF COMPLIANCE 1. This Motion complies with the type-volume limitation of Federal Rule of Appellate Procedure 27(d)(2) and Fifth Circuit Rule 27.4 because it contains 3,499 words, except for the items excluded from the work count pursuant to Federal Rule of Appellate Procedure 32(f), as determined by the word-count function on Microsoft Word This Motion complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and Fifth Circuit Rule 32.1 and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in proportionally spaced typeface using Microsoft Word 2013 Garamond 14- point font. 3. I hereby certify that, in accordance with Fifth Circuit Rule 27.4, I contacted all other parties regarding this motion. Counsel for the NRC and the non- NRC Federal Respondents do not oppose Nevada s intervention. However, Texas has indicated that it opposes Nevada s Motion and will file an opposition. /s/ Jordan T. Smith 18

20 Case: Document: Page: 20 Date Filed: 04/12/2017 CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of April, 2017 an electronic copy of the foregoing motion was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system, and that service will be accomplished by the appellate CM/ECF system. /s/ Allison Johnson 19

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22 Case: Document: Page: 22 Date Filed: 04/12/2017 U.S. Nuclear Regulatory Commission Monthly Status Report Activities Related to the Yucca Mountain Licensing Action Report for February 2017 Background On August 13, 2013, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in the case In re Aiken County directing the U.S. Nuclear Regulatory Commission (NRC) to promptly continue with the legally mandated licensing process for the U.S. Department of Energy s application to construct a geologic repository for high-level waste at Yucca Mountain, NV. The NRC promptly began taking steps to comply with the court s direction following the issuance of the decision. On November 18, 2013, the Commission approved a memorandum and order that set a course of action for the Yucca Mountain licensing process that is consistent with the Appeals Court decision and with the resources available. The Commission also issued a related staff requirements memorandum on November 18, 2013, which, among other things, directed the NRC staff to complete and issue the Safety Evaluation Report (SER) associated with the construction authorization application. On February 3, 2015, the Commission directed the staff to develop an environmental impact statement supplement and undertake certain SER wrap-up activities, including records retention and the development of a lessons-learned report. The Commission also approved a path forward for making Licensing Support Network (LSN) documents publicly available in the Agencywide Documents Access and Management System (ADAMS). On November 8, 2016, the Commission directed the staff to update the collection of knowledge management reports on the staff s Yucca Mountain review activities, in order to capture new insights. The previous knowledge management reports were completed in Table 1 provides a breakdown of estimates and expenditures for all of the Commission-directed activities. Accomplishments and Ongoing Work All of the activities directed by the Commission to date are complete, with the exception of administrative work to synchronize the public LSN Library and the agency s existing internal ADAMS library of LSN documents, and the knowledge management task described below. In mid-august 2016, the LSN Library, which includes million items, was made publicly available via the NRC website ( The agency has substantially completed the work needed to incorporate the documents and header corrections necessary to address the anomalies identified in SECY , Making Licensing Support Network Documents Publicly Available, dated July 29, 2016 (available at However, in late February the City of Caliente, Nevada, provided previously requested, missing documents. These will be incorporated into the public LSN Library in March. In addition, the recent additions to the public LSN Library will be placed into the agency s existing internal ADAMS library of LSN documents, so the databases will be synchronized. The synchronization effort, in conjunction with the Enclosure

23 Case: Document: Page: 23 Date Filed: 04/12/2017 document reconciliation activities, may raise total spending on the project by $60,000 $100,000 more than the $1.1 million originally estimated in 2014 for implementing the LSN Library project. -2- Also during the month of February, the staff continued updating the collection of knowledge management reports. These reports will cover technical topics in preclosure and postclosure safety assessments, and climate and hydrology, as discussed in SECY , Status of Yucca Mountain Program Activities, dated October 19, 2016 (available at

24 Case: Document: Page: 24 Date Filed: 04/12/ Nuclear Waste Fund Expenditures During the month of February 2017, the NRC expended $22,021 of Nuclear Waste Fund (NWF) funds on its actions in direct response to the court s decision. Also in February 2017, the NRC reclassified $28,629 of prior year expenditures to a non-nwf contract for a net reduction in expenditures of $6,608 for the month. Cumulative expenditures since the August 13, 2013, U.S. Court of Appeals decision are $12,177,548. The August 13, 2013, balance of $13,549,315 of unexpended NWF funding, less the cumulative expenditures of $12,177,548, results in a remaining unexpended balance of $1,371,767. Total unobligated NWF funds remaining as of February 28, 2017, are $760,343. Table 1 provides further details on the NRC s expenditure of NWF funds since August 13, Table 1 Status of NRC NWF Funds since the August 13, 2013, Court Decision Yucca Mountain Licensing Activities Cost Estimate February Expenditures Cumulative Expenditures Completion of the SER $8,310,000 $0 $8,364,877 Loading of Licensing Support Network documents into a nonpublic ADAMS library $350,000 $0 $277,670 Loading of Licensing Support Network documents into a public ADAMS library $1,100,000 $5,933 $1,113,969 Development of the EIS supplement $2,000,000 $0 $1,550,427 SER wrap-up activities $100,000 $221 $53,548 Knowledge management reports $700,000 $13,379 $24,580 Program planning and support Response to the August 30, 2013, Commission order $2,488 $478,282 $0 $137,518 Federal court litigation* $825,000 $0 $154,903 Support and advice in NRC proceedings $0 $35,535 Subtotal, other support costs chargeable to NWF funds Adjustments to close out contracts funded by previous NWF appropriations** $2,488 $806,238 ($28,629) ($13,761) Total $13,385,000 ($6,608) $12,177,548 *Includes a $59,000 expenditure in May 2014 for the agency s agreement to settle the Equal Access to Justice Act claim of one of the Aiken County petitioners. On October 23, 2014, the Court of Appeals for the District of Columbia Circuit denied the motion from other parties requesting reimbursement for attorneys fees. **Recognition during February 2017 of the reclassification of $28,629 of prior year expenditures from a NWF contract to a non-nwf contract. The unexpended NWF balance of $1,371,767 includes $611,424 of unexpended obligations. These unexpended obligations are primarily on contracts with the Center for Nuclear Waste Regulatory Analyses and on contracts related to the loading of LSN documents into public ADAMS.

25 Case: Document: Page: 25 Date Filed: 04/12/2017 Figure 1 shows the cumulative projected and actual expenditures. Projected expenditures include cost estimates shown in Table 1. The actual cumulative expenditures reflect costs through February 28, 2017, as given in Table 1. Figure 1. Nuclear Waste Fund Tracking -4- Stakeholder Communications and Interactions No stakeholder communications or interactions occurred in February 2017.

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