State of Texas’ Claims Time Barred by 1982 Nuclear Waste Policy Act

On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al. The Court of Appeals held that the petition for mandamus filed by the State of Texas essentially seeking to compel the Nuclear Regulatory Commission (NRC) to establish a schedule for the operation of the Yucca Mountain, NV nuclear waste depository was untimely filed. The depository is very controversial in Nevada, and as a consequence, none of the many deadlines established by Congress have been met. As a result, considerable amounts of nuclear waste are held in Texas which the State of Texas argues should be transferred to Yucca Mountain, NV. However, the Court of Appeals notes that the 1982 Nuclear Waste Policy Act includes a “timeliness requirement,” which provides that any complaint must be filed in court no later than 180 days after the date the administrative decision, action, or failure to act, occurred. Therefore, the State of Texas finds itself in the posture of complaining about NRC actions that “came and went years ago,” and its resort to a continuing violations argument was, under these circumstances, unavailing.