State of Nevada Motion For Leave To Intervene

Case: 17-60191 Document: 00513950929 Page: 1 Date Filed: 04/12/2017
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 17-60191
In Re: State of Texas
THE STATE OF NEVADAS MOTION FOR LEAVE TO INTERVENE AS

A RESPONDENT
ADAM PAUL LAXALT CHARLES J. FITZPATRICK

Attorney General of Nevada MARTIN G. MALSCH
JOSEPH TARTAKOVSKY JOHN W. LAWRENCE
Deputy Solicitor General EGAN, FITZPATRICK, MALSCH &
JORDAN T. SMITH LAWRENCE, PLLC
Assistant Solicitor General 7500 Rialto Blvd., Building 1, Suite 250
BELINDA SUWE Austin, TX 78735
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL ANTONIO ROSSMANN
100 North Carson Street ROGER B. MOORE
Carson City, NV 89701 ROSSMANN AND MOORE, LLP
(775) 684-1100 2014 Shattuck Ave.
JSmith@ag.nv.gov Berkeley, CA 94704
Counsel for Nevada Counsel for Nevada

CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities, as described in Fifth Circuit 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
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 12548 (MC 009)
Austin, Texas 78711-2548
Robert J. Cynkar
McSweeney, Cynkar & Kachouroff, PLLC
10506 Milkweed Drive
Great Falls, Virginia 22066
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 20530
1
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 20555
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 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 Rossmann
Roger B. Moore
Rossmann and Moore, LLP
2014 Shattuck Ave.
Berkeley, CA 94704
2
I. INTRODUCTION
For over thirty years, the State of Nevada has steadfastly opposed any attempt
to dump the Nations 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 Nevadas vital stake
in the outcome and allowed the State to intervene. This case is no different.
The State of Texass Petition directlyand adverselythreatens 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 Texass Petition will be to
short-circuit the legislative process currently pending in Congress,2 hamper Nevadas
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
https://www.leg.state.nv.us/Session/64th1987/reports/HistoryLibraryNELIS.cfm?Sess
ionNumber=Nelis_87R&DocumentType=AJR&BillNo=4; Senate Joint Resolution No.
6 (2001) available at http://www.leg.state.nv.us/71st/bills/SJR/SJR6_EN.html;
Assembly Joint Resolution 4 (2005) available at http://search.leg.state.nv.us/
isysquery/9d1f7c0c-5156-41ab-8e26-c55c71d319b5/4/doc/ajr4_r1.pdf#xml=http://
WebApp/isysquery/9d1f7c0c-5156-41ab-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 https://www.whitehouse.gov/
sites/whitehouse.gov/files/omb/budget/fy2018/2018 _blueprint.pdf (proposing
$120 million to resume Yucca Mountain related activities).
3
completion at the direct expense of Nevadas 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 Nevadas 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. 10101 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 Energys (DOE) application to license the Yucca Mountain site.
73 Fed. Reg. 63029.
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 Nevadas intervention. However, Texas opposes Nevadas 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
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 DOEs motion on June 29, 2010. 71 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).
DOEs 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, 43335 (D.C. Cir. 2011) (Aiken
I). Nevada was allowed to intervene, see In re: Aiken Cty., No. 10-1050, Doc. No.
1239108 (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 43538.
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. 11-1271, Doc No. 1340095 (D.C. Cir.
Nov. 4, 2011) (Ordered that the State of Nevadas motion for leave to intervene be
eight parties, two governmental participants and 289 contentions. Nevada has
218 remaining contentions awaiting adjudication.
5
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. Circuits 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 2011. See S.3635, 111th Cong. (2010). As of February 2017, with just a little over
$1 million remaining, NRC has expended nearly all appropriated funds on statutorily-
mandated 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 Texass Petition

In 2012, the Blue Ribbon Commission on Americas 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 COMMN ON AM.S NUCLEAR FUTURE, REPORT TO THE
SECRETARY OF ENERGY 4758 (2012). In 2013, DOE adopted this recommendation
for consent-based siting. U.S. DEPT OF ENERGY, STRATEGY FOR THE
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MANAGEMENT AND DISPOSAL OF USED NUCLEAR FUEL AND HIGH-LEVEL
RADIOACTIVE WASTE 1014 (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, 2017. 82 Fed.
Reg. 4333.5 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. Circuits Aiken II decision. See Pet. at 2528. Granting any
portion of Texass requested relief would have significant and damaging repercussions
for Nevada. Consequently, Nevada should be allowed to intervene.
III. ARGUMENT
Texas invokes this Courts original jurisdiction under 42 U.S.C. 10139(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, DOEs current
consent-based siting initiative expressly excludes the Yucca Mountain project.
7
review actions involving the NWPA. Pet. at 35. 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. Dept of Energy, 754 F.2d 550, 551
(5th Cir. 1985) (citing Intl Union, United Auto., Aerospace and Agric. Implement Workers v.
Scofield, 382 U.S. 205 (1965)). Nevada satisfies both considerations.
A. NWPAs Statutory Design Weighs in Favor of Nevadas 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. 10121(b); 42 U.S.C. 10131(a)(6); see also 42 U.S.C. 10121(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, Nevadas 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. 2.309(d).
8
These statutory and regulatory provisions memorialize Congresss 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 movants 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)).
...
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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 applicants 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
Commrs 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, 2017. 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, 2017.
Nevadas Motion for Leave to Intervene remains timely under this deadline, assuming
that their response constitutes a brief for this limited purpose.
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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, 13536 (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 DOEs 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 Nevadas 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
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.
534.020; see Georgia v. U.S. Army Corps of Engrs, 302 F.3d 1242, 125052 (11th Cir.
2002) (allowing the state of Florida to intervene to protect its interests in the interstate
flow of water).
Transporting nuclear waste across Nevadas 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 DOEs 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
As mentioned above, the NWPAs statutory scheme protects Nevadas right to
participate because of these very interests and other courts have acknowledged
Nevadas concerns and allowed it intervene in litigation involving Yucca. Nevada
respectfully requests that this Court do the same.
3. Nevadas 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
Texass 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 Texass
Petition threatens Nevadas 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 2527.7 If granted, this
order will hamper Nevadas 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 NRCs Rules of Practice. These changes too would
dramatically curtail Nevadas ability to protect its interests.
13
Florida to intervene where the resolution of Georgias lawsuit might adversely affect
Floridas future lawsuit.).
4. Nevadas 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. Dept of Agric., 275 F.3d 432, 437 (5th Cir. 2001).
Nevadas 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
Nevadas, will be a principled defender of its sister states interests. See Pet. at 14.
Likewise, the Federal Respondentssome of whom are on the opposing side in the
adjudicatory hearingcannot be expected to protect Nevadas rights. For example,
the Federal Respondents may have an incentive to agree to Texass 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.
...
...
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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 partys 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.
Natl Collegiate Athletic Assn, 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
Nevadas defenses embrace common questions of law and fact raised by, and in
response to, Texass Petition. Contrary to Texass argument, but drawing on the same
facts Texas alleges, Nevada asserts that consent-based siting does not violate the
15
NWPA and the parties are in compliance with the D.C. Circuits mandate from the
Aiken II decision (thus obviating any need for a redundant mandamus order from this
Court). Nevada further contends that neither Texass legal nor factual allegations
establish a basis for this Court to expedite the adjudicatory hearing to Nevadas
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 States 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.
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IV. CONCLUSION
Texass 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, 2017.
By: /s/ Jordan T. Smith

ADAM PAUL LAXALT CHARLES J. FITZPATRICK
Attorney General of Nevada MARTIN G. MALSCH
JOSEPH TARTAKOVSKY JOHN W. LAWRENCE
Deputy Solicitor General EGAN, FITZPATRICK, MALSCH &
JORDAN T. SMITH LAWRENCE, PLLC
Assistant Solicitor General 7500 Rialto Blvd., Building 1, Suite 250
BELINDA SUWE Austin, TX 78735
Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL ANTONIO ROSSMANN
100 North Carson Street ROGER B. MOORE
Carson City, NV 89701 ROSSMANN AND MOORE, LLP
(702) 486-3420 2014 Shattuck Ave.
JSmith@ag.nv.gov Berkeley, CA 94704
Counsel for Nevada Counsel for Nevada
17
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 2013.
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 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 Nevadas intervention. However, Texas
has indicated that it opposes Nevadas Motion and will file an opposition.
/s/ Jordan T. Smith
18
CERTIFICATE OF SERVICE
I hereby certify that on the 12th 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
Exhibit 1
Exhibit 1
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 Energys application to construct a geologic repository for high-level waste
at Yucca Mountain, NV. The NRC promptly began taking steps to comply with the courts
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 staffs Yucca Mountain review activities, in order to capture new
insights. The previous knowledge management reports were completed in 2011.
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 agencys existing internal
ADAMS library of LSN documents, and the knowledge management task described below.
In mid-August 2016, the LSN Library, which includes 3.692 million items, was made publicly
available via the NRC website (http://www.nrc.gov/reading-rm/lsn/index.html). The agency has
substantially completed the work needed to incorporate the documents and header corrections
necessary to address the anomalies identified in SECY-16-0091, Making Licensing Support
Network Documents Publicly Available, dated July 29, 2016 (available at
http://www.nrc.gov/docs/ML1621/ML16210A436.pdf). 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 agencys existing internal ADAMS library of LSN documents,
so the databases will be synchronized. The synchronization effort, in conjunction with the
Enclosure
-2-
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.
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-16-0122, Status of
Yucca Mountain Program Activities, dated October 19, 2016 (available at
http://www.nrc.gov/docs/ML16201A110).
-3-
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 courts 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 NRCs expenditure of
NWF funds since August 13, 2013.
Table 1 Status of NRC NWF Funds since the August 13, 2013, Court Decision
Cost February Cumulative
Yucca Mountain Licensing Activities
Estimate Expenditures Expenditures
Completion of the SER $8,310,000 $0 $8,364,877
Loading of Licensing Support Network
$350,000 $0 $277,670
documents into a nonpublic ADAMS library
Loading of Licensing Support Network
$1,100,000 $5,933 $1,113,969
documents into a public ADAMS library
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 $2,488 $478,282
Response to the August 30, 2013,
$0 $137,518
Commission order
Federal court litigation* $825,000 $0 $154,903
Support and advice in NRC proceedings $0 $35,535
Subtotal, other support costs chargeable to
$2,488 $806,238
NWF funds
Adjustments to close out contracts funded by
($28,629) ($13,761)
previous NWF appropriations**
Total $13,385,000 ($6,608) $12,177,548
*Includes a $59,000 expenditure in May 2014 for the agencys 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.
-4-
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
Stakeholder Communications and Interactions
No stakeholder communications or interactions occurred in February 2017.

Exhibit 2
Exhibit 2

State of Nevada Motion For Leave To Intervene

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State of Nevada Motion For Leave To Intervene

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Case: 17-60191 Document: 00513950929 Page: 1 Date Filed: 04/12/2017

IN THE UNITED STATES COURT OF APPEALS

In Re: State of Texas

THE STATE OF NEVADAS MOTION FOR LEAVE TO INTERVENE AS

ADAM PAUL LAXALT CHARLES J. FITZPATRICK

Counsel for Nevada Counsel for Nevada

CERTIFICATE OF INTERESTED PERSONS

may evaluate possible disqualification or recusal.

NRC Federal Respondents

forums. And when Yucca Mountain-related proceedings have commenced without

The State of Texass Petition directlyand adverselythreatens the rights of

to halt consent-based siting, order the Federal Respondents to request additional

short-circuit the legislative process currently pending in Congress,2 hamper Nevadas

interests and to assist the Court in resolving the Petition.3

II. STATEMENT OF FACTS

A. A Brief History of Nevadas Intervention in Yucca Mountain

(NRC) published a notice of hearing to initiate the adjudicatory hearing process on

73 Fed. Reg. 63029.

Nevada was admitted as a party-intervenor in that proceeding on May 11, 2009

when, the NRC adjudication resumes. See Id.4

appropriations made it impossible to complete the proceeding. 74 N.R.C. 368 (2011).

suspend the licensing process were subsequently challenged in a mandamus action in

appropriated funds remaining. Aiken II, 725 F.3d at 267.

mandated licensing activities, leaving an entirely insufficient amount to complete the

Report for February 2017 (Mar. 2017) (Ex. 1).

B. Consent-Based Siting and the Origins of Texass Petition

governments. BLUE RIBBON COMMN ON AM.S NUCLEAR FUTURE, REPORT TO THE

SECRETARY OF ENERGY 4758 (2012). In 2013, DOE adopted this recommendation

for consent-based siting. U.S. DEPT OF ENERGY, STRATEGY FOR THE

MANAGEMENT AND DISPOSAL OF USED NUCLEAR FUEL AND HIGH-LEVEL

Reg. 4333.5 This process is not yet complete.

for Nevada. Consequently, Nevada should be allowed to intervene.

Texas invokes this Courts original jurisdiction under 42 U.S.C. 10139(a)(1),

Scofield, 382 U.S. 205 (1965)). Nevada satisfies both considerations.

A. NWPAs Statutory Design Weighs in Favor of Nevadas Intervention.

participation and consultation and decrees that state participation is essential in

fuel. 42 U.S.C. 10121(b); 42 U.S.C. 10131(a)(6); see also 42 U.S.C. 10121(a)

repository is proposed to be located.). Because of the importance of state

customarily considered throughout the site-characterization process, the site-approval

process, the site-selection process, and the construction-authorization process. See

Yucca Mountain licensing proceeding. See 10 C.F.R. 2.309(d).

These statutory and regulatory provisions memorialize Congresss view that

Yucca Mountain. Nevada should be allowed to intervene to give effect to this

by the DOE pursuant to the NWPA as to require their intervention.).

B. Nevada Should Be Allowed to Intervene as of Right.

circumstances surrounding each application and intervention of right must be

570 F.3d 244, 248 (5th Cir. 2009)).

Accordingly, a proposed intervenor as of right must satisfy four requirements:

(1) the application for intervention must be timely;

below, Nevada meets all four requirements.

1. This Motion Is Timely.

intervene in a judicial-review proceeding must be brought within 30 days of the filing

2. Nevada Has a Protectable Interest in the Subject of this Action.

substantial, and legally protectable interest in any action related to Yucca

interests in a competitive natural gas market).

Mountain. As described in the Affidavit of Robert Halstead, Executive Director of

135 (finding California so situated geographically as to be adversely affected within

the meaning of Rule 24) (emphasis added).

is subject to administration by the State of Nevada, through the State Engineer, as

Transporting nuclear waste across Nevadas territory also poses substantial

and radiological sabotage incidents. (Id.). There are enormous expenses

Under current proposals, Nevada could be required to expend substantial resources

highways used for transportation of nuclear waste to Yucca Mountain. (Id).