PETITION FOR JUDICIAL REVIEW

 


 

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASE NO. ______________

 

STATE OF NEVADA, ex rel., ROBERT R.

LOUX, DIRECTOR OF THE NEVADA
AGENCY FOR NUCLEAR PROJECTS
NUCLEAR WASTE PROJECT OFFICE,

PETITION FOR
JUDICIAL REVIEW
  
Petitioner,U.S. Department of Energy
v.Final Agency Decision
Dated 9-9-98

BILL RICHARDSON, SECRETARY OF
THE UNITED STATES DEPARTMENT OF
ENERGY,

Respondent.
_________________________________/

 

 

FRANKIE SUE DEL PAPA
Attorney General

 

 
MARTA ADAMS
Senior Deputy Attorney General
Nevada Bar No. 001564
100 North Carson Street
Carson City, Nevada 89701
(702)687-5866
Attorneys for Petitioner

 


 

PETITION FOR JUDICIAL REVIEW

Petitioner State of Nevada alleges:

JURISDICTION

1.1 The jurisdiction of the Court is set forth in Sec. 119(a)(1) A and B of the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. 10139, which provides that the United States Courts of Appeals shall have original and exclusive jurisdiction over any civil action alleging the failure of the Secretary of Energy to take any action under Subtitle A of title I of the NWPA, as amended, 42 U.S.C. Section 10101 et seq. The State of Nevada, ex rel., Robert R. Loux, Director of the Nevada Agency for Nuclear Projects, Nuclear Waste Project Office hereby petitions the Court for review of a final decision made by Bill Richardson, Secretary of the United States Department of Energy (alternatively referred to hereafter as "Secretary," "Respondent," or "DOE") made through his general counsel, denying the State of Nevada $691,835.00 in funds for purposes of participating in activities expressly provided for in Sections 116 and 117 of the NWPA, 42 U.S.C. 10136, 10137, for the period May, 1992 through September, 1995. The Secretary’s final decision denying these funds is contained in a letter dated September 9, 1998 and is attached hereto as Exhibit "A" and incorporated herein by this reference.

PARTIES

2.1 The Petitioner State of Nevada is a member state of the United States. On February 2, 1983, the Governor and Legislature of the State of Nevada were notified pursuant to Section 116(a) of the NWPA that a repository for the disposal and storage of high-level radioactive waste and spent nuclear fuel may be located at Yucca Mountain in southeastern Nevada. Said notifi-cation created substantial rights under the NWPA in Nevada to participate in each phase of the proposed siting process.

2.2 On December 22, 1987, Congress enacted the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203. Title V of the Act contains the Nuclear Waste Policy Amendments Act of 1987 ("NWPAA") which designated Yucca Mountain, Nevada as the sole site to be characterized by DOE as a high-level nuclear waste repository. From December 22, 1987 until the present, DOE has conducted and is continuing to conduct site characterization of the Yucca Mountain site pursuant to Section 113 of the NWPA, 42 U.S.C. 10133.

2.3 Pursuant to the NWPA, as amended, the State of Nevada has oversight and monitoring responsibility for DOE’s program to characterize the Yucca Mountain site and for the construction of a high-level radioactive waste repository pursuant to the statutory scheme set forth in the NWPA. See, e.g., State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529 (9th Cir. 1985)

2.4 Robert R. Loux on whose relation this Petition is brought is the Director of the Nevada Agency for Nuclear Projects, Nuclear Waste Project Office (alternatively referred to hereafter as "NWPO," "Petitioner," or "Nevada.") Robert R. Loux is charged with the duty of implementing and coordinating Nevada’s oversight and monitoring responsibilities under the NWPA.

2.5 Bill Richardson, Respondent herein, is the Secretary of the United States Department of Energy. Bill Richardson is charged with certain responsibilities and duties under the NWPA, including, among other things, the duty to make expenditures from the Nuclear Waste Fund for purposes of radioactive waste disposal activities, including site characterization. See, Section 302 of the NWPA, 42 U.S.C. 10222.

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BACKGROUND

3.1 Pursuant to Section 116(c) of the NWPA, Secretary Richardson is required to make grants to Nevada for the purpose of participating in activities required by Section 116 and 117 of the NWPA, 42 U.S.C. 10136, 10137.

3.2 Section 116(c) of the NWPA provides that:

(1)(A) The Secretary shall make grants to the State of Nevada and any affected unit of local government for the purpose of participating in activities required by this section and section 117 [42 U.S.C. 10137]or authorized by written agreement entered into pursuant to section 117(c) [42 U.S.C. 10137(c)]. Any salary or travel expense that would ordinarily be incurred by such State or affected unit of local government, may not be considered eligible for funding under this paragraph.

(B) The Secretary shall make grants to the State of Nevada and any affected unit of local govern-ment for purposes of enabling such State or affected unit of local government--

(i) to review activities taken under this subtitle with respect to the Yucca Mountain site for purposes of determining any potential economic, social, public health and safety, and environmen-tal impacts of a repository on such State, or affected unit of local government and its residents;

(ii) to develop a request for impact assistance under paragraph (2);

 

(iii) to engage in any monitoring, testing, or evaluation activities with respect to site characterization programs with regard to such site;

(iv) to provide information to Nevada residents regarding any activities of such State, the Secretary, or the Commission with respect to such site: and

(v) to request information from, and make comments and recommendations to, the Secretary regarding any activities taken under this subtitle with respect to such site.

(emphasis added.)

3.2 From Fiscal Year ("FY") 1990 to FY 1995, Congress appropriated funds for oversight by Nevada. In general, Congress allowed Nevada approximately $5 million for oversight activities annually.

3.3 In January, 1995, the Secretary released $6 million dollars which had been appropriated by Congress in 1990 to permit the State of Nevada to conduct appropriate activities pursuant to the NWPA. DOE and Nevada, acting through the NWPO, agreed that DOE would hold the funds in an account that the State of Nevada could draw upon as needed.

3.4 In 1995, Nevada requested $5.5 million dollars in over-sight funds from DOE for FY 1996. Congress failed to include grants for Nevada in its FY 1996 appropriations. The Secretary adopted Congress’ position and denied Nevada’s request for oversight funds for FY 1996.

3.5 In September, 1996, Nevada filed a petition for judicial review of the Secretary’s denial of funds for FY 1996. In State of Nevada v. U.S. Department of Energy, 133 F.3d 1201 (9th Cir. l998), this Court denied Nevada’s petition for review of the Secretary’s decision. Thereafter, the State of Nevada filed a Petition for Rehearing with Suggestion for Rehearing En Banc in this matter. A decision on the Petition for Rehearing is pending.

3.6 In August, 1995, Representative Joe Barton, Chairman of the Congressional Subcommittee on Oversight and Investigations, Committee on Commerce requested that the General Accounting Office ("GAO") conduct an audit of Nevada’s use of grant funds, expressing concern that Nevada may have violated statutory restrictions against lobbying, litigation and certain multistate activities.

3.7 Notwithstanding Nevada’s objections, in March, 1996, GAO issued its report to Chairman Barton entitled "Nevada’s Use of Nuclear Waste Grant Funds." The report concluded that Nevada had inappropriately used federal grant funds "to advance, on a national stage, its message of opposition to a repository at Yucca Mountain." GAO’s Report is attached hereto as Exhibit "B" and incorporated herein by this reference.

3.8 DOE contracted with an independent auditor to verify the GAO findings relative to Nevada’s expenditures of nuclear waste grant funds. KPMG Peat Marwick performed an examination of Nevada’s use of nuclear waste funds between May 1992 and September 1995 and in February, 1998, issued its report (hereafter "KPMG Peat Marwick Report") entitled "Evaluation Pursuant to Agreed-Upon Procedures Over Nevada’s Use of Nuclear Waste Funds Between May 1992 and September 1995." The report and transmittal letter are attached hereto as Exhibit "C" and are incorporated herein by this reference.

3.9 The KPMG Peat Marwick Report found, inter alia, that "Nevada used $691,835 in Federal funds for unallowable expenses: $192,252 were unallowable under the Nuclear Waste Policy Act spending restrictions, and $493.583 were unallowable payments due to insufficient documentation to support the payments."

3.10 By letter dated August 6, 1998, DOE transmitted to Robert R. Loux, Nuclear Waste Project Office for the first time "Guidelines for Audit of Fiscal Year (FY) 1990 - 1995 Federal Nuclear Waste Funds." The Guidelines are attached hereto as Exhibit "D" and are incorporated herein by this reference.

3.11 By letter dated August 26, 1998, Robert R. Loux, on behalf of Nevada, responded to DOE’s Guidelines concerning the NWPO’s expenditures for the period May, 1992 - September 1995. The letter is attached hereto as Exhibit "E" and is incorporated herein by this reference.

3.12 By letter dated September 9, 1998, Respondent DOE, through its General Counsel, transmitted the Secretary’s final decision that DOE will "take steps to reallocate the $691,835 presently frozen in the account that the Department had maintained for the State as a means of recouping the funds Peat Marwick concluded were not shown to have been spent for statu-torily authorized purposes." See, Exhibit "A."

3.13 The State of Nevada has suffered and continues to suffer irreparable injury caused by the deprivation of federal funds needed for it to implement the purposes set forth in Section 116(c) of the NWPA. The NWPO is presently being maintained by state funds, a circumstance held by this Court to be the obligation of the generators of spent fuel and high-level radioactive waste through expenditures from the Nuclear Waste Fund. See, State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529 (9th Cir. 1985).

NWPO’S EXPENDITURE OF FUNDS IS CONSISTENT WITH THE NWPA

4.1 Section 116(b) of the NWPA [42 U.S.C. 10136] provides for State participation in repository siting decisions and that the State "shall have the authority to submit a Notice of Disapproval to the Congress" containing "a statement of reasons explaining why such governor or legislature disapproved the recommended repository site involved."

4.2 To prepare a statement of reasons as required by Section 116(b) of the NWPA, the State of Nevada is entitled to broad latitude under the NWPA to conduct activities beyond its other responsibilities for oversight, monitoring, review, impact assessment, and public information. See, Nevada v. Herrington, 777 F.2d 529 (9th Cir. 1985).

4.3 DOE’s attempt to limit the activities the NWPO can engage in violates Section 116(b) of the NWPA which provides that the State of Nevada be allowed to develop a statement of reasons in support of its Notice of Disapproval at the appropriate time.

4.4 The Secretary’s declaration that activities were unallowable because they were conducted outside Nevada are inconsistent with Nevada’s right to prepare a statement of reasons which must include, among other things, the economic impact a repository would have on Nevada’s tourism industry.

THE "AFTER THE FACT" GUIDELINES UNLAWFULLY RESTRICT THE USE OF FUNDS FOR THE PERIOD IN QUESTION

5.1 Before June, 1998 when the NWPO received the KPMG Peat Marwick report, DOE had not provided any guidance document containing DOE’s interpretation of spending restrictions applicable to the NWPO’s use of funds under the NWPA.

5.2 The actual DOE Guidelines were not received by the NWPO until August, 1998. See, Exhibit "E."

5.3 DOE should be estopped from implementing the Guidelines issued after the fact when the expenditures themselves occurred during the period May 1992 until September 1995.

5.4 DOE’s seizure of $691,835 of the $6 million dollars appropriated to the State of Nevada by the Congress in 1990 under the requirements of the Guidelines is unlawful, an unlawful abuse of discretion and invalidates the basis for DOE’s refusal to make a grant to Nevada for FY 1996. See, State of Nevada v. Depart-ment of Energy, 133 F.3d 1201 (9th Cir. 1998).

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PRAYER FOR RELIEF

Petitioner State of Nevada contends that the action of the Secretary in withholding the $691,835 is arbitrary, capricious and violates Section 116 of the NWPA. The Secretary’s action in denying the funds frustrates the clear intent of Congress that the State of Nevada be afforded a full opportunity to participate both in the site characterization process and in the preparation of a Notice of Disapproval with a statement of reasons. Unless and until the Secretary’s actions are declared null and void, and the funding is restored to Nevada, Nevada will suffer from a continuing inability to adequately participate in the site characterization process envisioned by the NWPA.

WHEREFORE, the State of Nevada prays that relief will be granted by the Court as follows:

1. That the action of the Secretary in seeking recoupment of federal funds allegedly misspent during the period May 1992 until September 1995 by seizure be declared unlawful, void and of no effect whatsoever;

2. That the DOE Guidelines transmitted by DOE to Peat Marwick be declared unlawful under the NWPA, void and of no effect whatsoever;

3. That the Respondent, Secretary Richardson, be directed by mandate of this Court to release the $691,835 to the State of Nevada as set forth in the NWPA for the purpose of participating in activities required by Sections 116 of the NWPA.

Dated this ____ day of _____________________, 1998.

FRANKIE SUE DEL PAPA

Attorney General

By_________________________________

MARTA ADAMS

Senior Deputy Attorney General

Nevada Bar No. 001564

100 North Carson Street

Carson City, Nevada 89701

(702)687-5866

CERTIFICATE OF COMPLIANCE

I certify that the Petition for Judicial Review is in compliance with Ninth Circuit Rule 32(3)(4).

Dated this ____ day of October, 1998.

FRANKIE SUE DEL PAPA

Attorney General

By_________________________________

MARTA ADAMS

Senior Deputy Attorney General

 



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