ML17173A887
| ML17173A887 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 06/22/2017 |
| From: | Ginsberg E, Rund J, Silberg J, Walsh T Ameren Missouri, Energy Northwest, Kansas City Power & Light, Kansas Electric Power Cooperative, Kansas Gas & Electric Co, Nuclear Energy Institute, Pillsbury, Winthrop, Shaw, Pittman, LLP, Tennessee Valley Authority, Union Electric Co, Westar Energy, Wolf Creek |
| To: | Mullins C NRC/OGC, US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 00514045402, 17-60191 | |
| Download: ML17173A887 (14) | |
Text
In the United States Court of Appeals for the Fifth Circuit NO. 17-60191 STATE OF TEXAS, Petitioner,
- v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF ENERGY; JAMES RICHARD RICK PERRY, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF ENERGY; UNITED STATES NUCLEAR REGULATORY COMMISSION; KRISTINE L. SVINICKI, IN HER OFFICIAL CAPACITY AS CHAIRMAN OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD; THOMAS MOORE, PAUL RYERSON, AND RICHARD WARDWELL, IN THEIR OFFICIAL CAPACITIES AS UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD JUDGES; UNITED STATES DEPARTMENT OF THE TREASURY; AND STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF THE TREASURY, Respondents.
Petition for Writ of Mandamus to the Nuclear Regulatory Commission RESPONSE OF THE NUCLEAR ENERGY INSTITUTE AND NUCLEAR UTILITIES IN SUPPORT OF NEVADAS COUNTERMOTION Ellen C. Ginsberg, Esq.
Jonathan M. Rund, Esq.
Nuclear Energy Institute 1201 F. St., NW Washington, DC 20004 202-739-8000 Jay E. Silberg, Esq.
Timothy J. V. Walsh, Esq.
Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 202-663-8063 jay.silberg@pillsburylaw.com Counsel for:
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ii June 22, 2017 Nuclear Energy Institute; Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.; Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren; Tennessee Valley Authority Case: 17-60191 Document: 00514045402 Page: 2 Date Filed: 06/22/2017
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities, as descried in the fourth sentence of Rule 28.2.1, 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 Counsel State of Texas Ken Paxton Jeffrey C. Mateer Brantley D. Starr Michael C. Toth David Austin R. Nimocks Andrew D. Leonie David J. Hacker Joel Stonedale Office of Special Litigation ATTORNEY GENERAL OF TEXAS P.O. Box 12548 (MC 009)
Austin, Texas 78711-2548 Robert J. Cynkar McSweeney, Cynkar &
Kachouroff, PPLC 10506 Milkweed Drive Great Falls, Virginia 22066 Case: 17-60191 Document: 00514045402 Page: 3 Date Filed: 06/22/2017
iv Respondents Counsel United States of America United States Department of Energy &
James Richard Rick Perry, in his Official capacity as United States Secretary of Energy United States Nuclear Regulatory Commission; Kristine L. Svinicki, in her official capacity as Chairman of the United states Nuclear Regulatory Commission; United States Nuclear Regulatory Commission Atomic Safety and Licensing Board; and Thomas Moore, Paul Ryerson, and Richard Wardwell, in their official capacities as United States Nuclear Regulatory Commission Atomic Safety and Licensing Board Judges United States Department of the Treasury & Steven T. Mnuchin, in his official capacity as United States Secretary of the Treasury.
David S. Gualtieri U.S. Department of Justice Washington, DC 20530 Stephen Skubel Jane Taylor U.S. Department of Energy Washington, DC 20585 Andrew Averbach Charles Mullins U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas Kearns Monica J. Molnar U.S. Department of Treasury Washington, DC 20220 Intervenors Counsel Nuclear Energy Institute Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy Kansas City Power & Light Company Kansas Electric Power Cooperative, Inc.
Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; Tennessee Valley Authority Jay E. Silberg Timothy J. V. Walsh Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 Case: 17-60191 Document: 00514045402 Page: 4 Date Filed: 06/22/2017
v State of Nevada Adam Paul Laxalt Joseph Tartakovsky Jordan T. Smith Belinda Suwe Office of the Attorney General 100 North Carson Street Carson City, NV 89701 Charles J. Fitzpatrick Martin G. Malsch John W. Lawrence Egan, Fitzpatrick, Malsch & Lawrence, PLLC 7500 Rialto Blvd., Building 1, Suite 250 Austin, TX 78735 Antonio Rossman Roger B. Moore Rossman and Morre, LLP 2014 Shattuck Ave.
Berkeley, CA 94704 Marta Adams Adams Natural Resource Consulting Services, LLC 1238 Buzzys Ranch Rd.
Carson City, NV 89701 Other Counsel All other U.S. utilities or corporations or other entities that own/operate or previously owned/operated nuclear electric generating stations.
Unknown Respectfully Submitted, s/Jay E. Silberg Counsel for Intervenors NEI & Nuclear Utilities Case: 17-60191 Document: 00514045402 Page: 5 Date Filed: 06/22/2017
1 I.
Introduction Pursuant to Fed. R. App. P. 27(a)(3), the Nuclear Energy Institute and the Nuclear Utilities (collectively, NEI) respond to the State of Nevadas June 12, 2017 Countermotion1 to dismiss the Original Petition filed by the State of Texas.
NEI intervened in this proceeding to oppose the two Texas prayers for relief seeking restitution and disgorgement of the Nuclear Waste Fund. Contrary to the 180-day jurisdictional limitation for actions brought under the Nuclear Waste Policy Act (NWPA or the Act), Texas does not cite any action or inaction within that period to support any of its claims. NEI therefore supports the Countermotion to the extent that it seeks dismissal of Texas prayers for restitution and disgorgement of the Fund on the ground that those requests are untimely.2 II.
Texas Prayers for Restitution and Disgorgement of the Nuclear Waste Fund Are Untimely NWPA section 119(a) gives the U.S. courts of appeals original and exclusive jurisdiction over any civil action concerning several categories of claims, including any final decision or action of the Department of Energy (DOE or the Department), the Nuclear Regulatory Commission (NRC or the 1 Nevadas Opposition to Texass Motion for a Declaratory Judgment and a Preliminary Injunction and Nevadas Opposed Countermotion to Dismiss (June 12, 2017)
(Countermotion).
2 NEI respectfully suggests that the Court need not reach the other grounds raised in Nevadas Countermotion.
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2 Commission), or the President, or the failure to take any action or make any decision under the NWPA.3 Section 119(b) requires such civil actions to be brought no later than 180 days after the date of the decision or action, or failure to decide or to act.4 As correctly noted by Nevada,5 the NWPA section 119(b) deadline is jurisdictional6 and failure to meet a jurisdictional deadline cannot be excused by a court.7 Here, Texas cites no decision or action, or failure to make a decision or to take action, in the 180 days preceding the Petitions filing that support its prayers for restitution and disgorgement. Consequently, the Court should dismiss these two prayers as untimely raised.
Texas claims that it has met the 180-day deadline because Respondents failures... are systematic and ongoing.8 But that interpretation of section 119(b) renders it meaningless. Under Texas rationale, anyone could manufacture a timeliness claim no matter how long ago the alleged act or decision, or failure to 3 42 U.S.C. § 10139(a)(1)(A)-(B).
4 42 U.S.C. § 10139(b).
5 Countermotion at 15.
6 Pub. Citizen v. NRC, 845 F.2d 1105, 1110 (D.C. Cir. 1988).
7 Dolan v. U.S., 560 U.S. 605, 610 (2010).
8 Petition at 4. See also Texass Reply in Support of its Motion for a Declaratory Judgment and a Preliminary Injunction (Prayers 1 & 2) Against the Department of Energy and the Secretary of Energy (June 16, 2017) at pp. 15-18 (arguing that DOE continues to miss [the 1998 deadline to accept spent nuclear fuel] each passing day and DOEs unlawful consent-based siting is based on a series of actions that continued at least through its January 2017 publication) (Texas June 16, 2017 Reply).
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3 act or to decide, occurred.9 As the D.C. Circuit succinctly explained in Public Citizen, Our acceptance of petitioners argument would make a nullity of statutory deadlines. Almost any objection to an agency action can be dressed up as an agencys failure to act.10 This Court should judge the timeliness of Texas prayers for relief based on the two issues for review Texas explicitly presents in its Petition11 and find that Texas has raised both issues too late under section 119(b).
First, Texas claims that DOE violated the NWPA by engaging in consent-based repository activities at locations other than Yucca Mountain, when Congress identified Yucca Mountain as the sole repository.12 Texas could have challenged DOEs decision to initiate consent-based siting activities long ago. In January 2013, DOE published its Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste, wherein DOE proposed a phased, adaptive, and consent-based approach to siting a repository.13 In December 2015, when inviting the public to comment on the design of a consent-9 Pub. Citizen, 845 F.2d at 1108 (rejecting a similar claim of ongoing inaction under the NWPA).
10 Id.
11 Petition at 5.
12 Id.
13 Department of Energy, Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste (January 2013) at p. 1 (provided in the Texas Appendix at Exhibit 12, at p. 000244) (the Strategy).
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4 based process for nuclear waste storage and disposal facilities, DOE explicitly confirmed that it is implementing a consent-based siting process for the disposal of used nuclear fuel.14 Thus, Texas has known since January 2013, and in any event no later than December 2015, that DOE was implementing a consent-based siting process. The 180-day deadline set forth in section 119(b) for challenging the decision to undertake this process expired long before Texas filed its Petition.
Texas has pointed to no actions by DOE (or any of the other Respondents) within the 180-day period preceding the Texas Petition that could support the timeliness of Texas consent-based siting claim. The Departments publication in January 2017 of a draft report describing the consent-based siting process does not resuscitate Texas failure to file a timely challenge.15 The January 2017 report merely confirmed that the Department was, at that time, continuing to implement the consent-based siting process. As noted above, the decision to implement such a process was previously noticed in the Federal Register in December 201516and therefore known to Texas no later than December 2015. Nothing in the January 2017 report or the associated notice reopened DOEs initial decision to implement 14 Notice of Invitation for Public Comment (IPC), Invitation for Public Comment to Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities, 80 Fed. Reg. 79,872, 79,872. (Dec. 23, 2015) (emphasis added).
15 See Texas June 16, 2017 Reply at 18.
16 80 Fed. Reg. at 79,872.
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5 a consent-based siting process, the heart of Texas claim.17 In any event, DOE has apparently canceled its consent-based siting initiatives, which moots Texas concerns here. 18 Second, Texas alleges that DOE and NRC have violated the NWPA by failing to make a final decision to approve or disapprove the Yucca Mountain license application.19 But this issue is not a continuing failure to act by the NRC.
Rather, Texas just do[es] not like what the Commission did.20 Texas prayers for relief stem from the prior Administrations termination of the Yucca Mountain program, and the suspension of the NRC licensing proceeding on the construction authorization application for the proposed Yucca Mountain repository. Texas could have pursued this issue years ago. It has been over seven years since DOE moved to withdraw, with prejudice, the Yucca Mountain NRC license application.
17 American Iron & Steel Institute v. U.S. E.P.A., 886 F.2d 390, 397-98 (D.C. Cir.1989)
(rejecting petitioner attempt to circumvent a statutory deadline by claiming that an agency reopened a previously-decided issue by discussing that earlier decision in the context of seeking or responding to comments on another issue) 18 See https://www.energy.gov/ne/consent-based-siting, which is the nearly-blank website that previously housed information related to the prior Administrations consent-based siting initiatives, and which states Thank you for your interest in this topic. We are currently updating our website to reflect the Departments priorities under the leadership of President Trump and Secretary Perry.
19 Petition at 5.
20 Public Citizen, 845 F.2d at 1108.
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6 That motion was denied in June 2010 by the NRC Licensing Board.21 Over five years have elapsed since the Commission found itself evenly divided on the question of whether to uphold or reverse the Licensing Board decision on license application withdrawal, but then directed its staff to wrap up licensing activities due to budget limitations.22 More than five years ago the NRC Licensing Board suspend[ed] the proceeding on the [DOE] application for authorization to construct a repository at Yucca Mountain.23 And three years have elapsed since the D.C. Circuit directed the NRC to continuecontingent on fundingthe licensing process.24 Any concern Texas has with the NRCs failure to make a final decision on the Yucca Mountain license application should have been raised years ago.25 Texas present concern falls far outside the 180-day deadline prescribed by section 119(b).26 21 U.S. Department of Energy (High-Level Waste Repository), LBP-10-11, 71 N.R.C. 609, 617 (2010).
22 U.S. Department of Energy (High-Level Waste Repository), CLI-11-7, 74 N.R.C. 212, 212 (2011).
23 U.S. Department of Energy (High-Level Waste Repository), LBP-11-24, 74 N.R.C. 368 (2011).
24 In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013).
25 Under NWPA section 114(d), the Commission was required to issue a final decision approving or disapproving the issuance of a construction authorization not later than [48 months] after the date of the submission of such application, or in June 2012. 42 U.S.C. § 10134(d). Any claim that the Commission failed to act on the application contrary to this statutory obligation should have been raised no later than 180 days of June 2012.
26 In light of the clear untimeliness of Texas claims, the Court need not consider the other arguments raised by Nevada in its Countermotion. See Countermotion at 16-20 (arguing that Case: 17-60191 Document: 00514045402 Page: 11 Date Filed: 06/22/2017
7 III.
Conclusion For the foregoing reasons, the Court should dismiss as untimely Texas prayers for restitution and disgorgement of the Nuclear Waste Fund.
Respectfully Submitted, Ellen C. Ginsberg, Esq.
Jonathan M. Rund, Esq.
Nuclear Energy Institute 1201 F. St., NW Washington, DC 20004 202-739-8000 s/Jay E. Silberg Jay E. Silberg, Esq.
Timothy J. V. Walsh, Esq.
Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 202-663-8063 jay.silberg@pillsburylaw.com Counsel for:
Nuclear Energy Institute; Energy Northwest; Kansas Gas and Electric Company d/b/a Westar Energy; Kansas City Power & Light Company; Kansas Electric Power Cooperative, Inc.; Wolf Creek Nuclear Operating Corporation; Union Electric Company d/b/a Ameren Missouri; and Tennessee Valley Authority June 22, 2017 Texas claims involve non-justiciable political questions and that there is no reason to alter the status quo). Nevertheless, while Nevada argues that this Court has no jurisdiction to direct the Federal Respondents to submit a budget proposal to Congress that includes a request for funding for the Yucca Mountain program, id. at 16, this argument appears at odds with well-established case law holding that a federal court can direct an agency to submit a financial proposal to Congress. See Natl Assn of Regulatory Util. Commrs v. DOE, 736 F.3d 517, 521 (D.C. Cir. 2013) (the Secretary [of Energy] is ordered to submit to Congress a proposal to change the [Nuclear Waste Fund] fee to zero until such a time as either the Secretary chooses to comply with the Act as it is currently written, or until Congress enacts an alternative waste management plan).
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1 CERTIFICATE OF COMPLIANCE
- 1. This Response complies with the type-volume limitation of F. R. App.
P. 27(d)(2) and Fifth Circuit Rule 27.4 because it contains 1,672 words except for the items excluded from the word count pursuant to F. R. App. P. 32(f), as determined by the word-count function of Microsoft Word 2010.
- 2. 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 F. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 Times New Roman 14-point font text for the main body and 12-point font text for footnotes.
s/Jay E. Silberg Jay E. Silberg Counsel for NEI and the Nuclear Utilities Case: 17-60191 Document: 00514045402 Page: 13 Date Filed: 06/22/2017
1 CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of June, 2017 an electronic copy of the foregoing response was filed with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit using electronic mail, with the understanding that the Clerk will complete service of this response using the appellate CM/ECF system.
s/Jay E. Silberg Jay E. Silberg Counsel for NEI and the Nuclear Utilities Case: 17-60191 Document: 00514045402 Page: 14 Date Filed: 06/22/2017