Texas sues feds — including Rick Perry — for failing to license nuclear waste facility

^{*Editor's note: This story has been updated throughout}

Texas is trying to take the federal government to task for failing to find a permanent disposal site for thousands of metric tons of radioactive waste piling up at nuclear reactor sites across the country.

In a lawsuit filed Tuesday night, Texas Attorney General Ken Paxton accuses U.S. agencies of violating federal law by failing to license a nuclear waste repository in Nevada — a plan delayed for decades amid a highly politicized fight.

Paxton’s petition asks the U.S. Court of Appeals for the 5th Circuit to force the Nuclear Regulatory Committee to cast an up-or-down vote on the Yucca Mountain plan. It also seeks to prevent the federal Department of Energy from spending billions of dollars in fees collected from utilities on efforts to find another disposal site before such a vote.

“For decades, the federal government has ignored our growing problem of nuclear waste,” Paxton said in a statement Wednesday. “The NRC’s inaction on licensing Yucca Mountain subjects the public and the environment to potential dangerous risks from radioactive waste. We do not intend to sit quietly anymore.”

Paxton filed the lawsuit just two weeks after former Texas Gov. Rick Perry was sworn in as the agency’s leader. And it comes as Texas’ only radioactive waste site — run by Waste Control Specialists in Andrews County — is asking the NRC to let it temporarily store the nation’s spent nuclear fuel.

About 78,000 metric tons of spent uranium rods are stored at operating or closed reactor sites throughout the country, with 2,610 metric tons in Texas. Those sites, mostly meant to be temporary, are filling up.

Though the nuclear energy industry insists that temporary waste disposal — either in pools or sealed in dry casks of metal or concrete — is safe and environmentally sound, it has long agreed that sealing the waste in geologic formations deep underground boosts protection against terrorist attacks and natural disasters, such as the earthquake and tsunami that rocked Japan’s Fukushima Daiichi nuclear power station in 2011.

For more than 20 years, Washington saw  Yucca Mountain as the solution, and the federal government spent tens of millions of dollars preparing it to accept the waste. But Nevada’s congressional delegation — led by now-retired U.S. Sen. Harry Reid, a Democrat — has thwarted the project. And, facing significant political pressure, President Barack Obama’s administration abandoned the Yucca Mountain plans by failing to fund an NRC review. 

“The NRC was never able to carry out its task to determine whether that site was safe," said Dale Klein, associate vice chancellor for research at the University of Texas System and a former NRC chairman under George W. Bush and Obama. “It was really frustrating that we were not able to do our job because of political reasons.”

Since 1983, utility ratepayers across the country chipped in billions of dollars to fund a waste repository — including $815 million collected from Texans. With interest, Texans have contributed $1.5 billion to the fund, managed by the Department of Energy. 

A 2013 federal appeals court ruling halted the collections, and the fund now has an unspent balance of $40 billion, according to Paxton’s lawsuit, which opens with a comment from Perry during his confirmation hearing as energy secretary:

“My hope of this committee and administration is that we, finally after 35 years of kicking the can for whatever reason, we can start ... moving to temporary or permanent siting of this nuclear waste.”

A Perry spokesman did not immediately respond to an emailed request for comment.

During Perry’s tenure as governor, Texas became home to one of the nation’s few facilities that accept low-level nuclear waste. Since 2012, Waste Control Specialists, a company formerly owned by the late Dallas billionaire and Republican donor Harold Simmons, has disposed of contaminated tools, building materials and protective clothing, among other items, from shuttered reactors and hospitals.

That site in Andrews County grew rapidly during Perry’s final years in office. Over the objection of environmental groups, the company is seeking a license to temporarily store spent reactor fuel — high-level nuclear waste.

If Paxton’s suit does not force President Donald Trump’s administration to restart the Yucca Mountain plans, some observers say the federal government might more closely eye the Andrews County site — a move that would require Congress to change that 1987 law naming Yucca Mountain as the nation’s repository.

Asked whether Paxton’s lawsuit had anything to do with Waste Control Specialists’ expansion plans, Kayleigh Lovvorn, his spokeswoman, said her office had no comment.

Chuck McDonald, a spokesman for Waste Control Specialists, said the company had not yet read the lawsuit, “therefore, we don’t know if it will have an impact on our project or not.”

But he added: “WCS has always been supportive of a permanent repository, and we believe a consolidated interim storage facility is needed as part of an integrated waste management system in the U.S.”

Karen Hadden, executive director of the Sustainable Energy and Economic Development Coalition, a group fighting the Andrews County site’s expansion, agreed with Paxton’s criticism of the Yucca Mountain process — “a waste of money,” she said. But Hadden worries that the lawsuit could force the government to permit a site ill-equipped to protect public health and safety.

“It’s really important that we get a permanent repository in place that will isolate this waste so we don’t have cancer effects or deaths from contamination today or into the future,” Hadden said. “My concern is that [Paxton] has another Texas permanent disposal site in mind.”

Disclosure: The Harold Simmons Foundation and the University of Texas at Austin have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.