Reply Briefs Filed in Federal Appeal against NRC Licensing of Nuclear Waste Dump in Texas

Reply Briefs Filed in Federal Appeal against

NRC Licensing of Nuclear Waste Dump in Texas

Briefs Detail How NRC’s Approval of a License for the Proposed Spent Fuel Storage Facility Violated Federal Laws; Supplemental Letter Also Alerts the Court to the Recent SCOTUS Ruling in West Virginia v. EPA, which Supports Beyond Nuclear’s Contention that NRC Overstepped Its Authority and Approval Should be Reversed 

The response briefs describe in detail how the NRC license approval violated various federal laws, Constitutional provisions, and judicial precedents, and argue the license should be rescinded.  With the filing of the response briefs yesterday, the briefing phase of the case is nearing its end. Final briefs are due August 10, at which point oral arguments could be scheduled.

VIOLATING THE NUCLEAR WASTE POLICY ACT

Beyond Nuclear’s reply brief contends that by issuing a license to ISP that would allow it to store federally-owned spent fuel in a CISF before a permanent repository has opened, NRC violates the Nuclear Waste Policy Act (NWPA) and usurps Congress’ sole authority to change the legislative framework for ensuring that spent fuel goes to a permanent repository and is not left indefinitely on the earth’s surface where it poses a far greater risk of severe environmental contamination.

Beyond Nuclear and other opponents of CISFs have long flagged that CISF licensing violates the NWPA, including in Beyond Nuclear’s opening brief in the lawsuit, filed in March 2022. At that time Natural Resources Defense Council (NRDC) also filed an amicus or Friend of the Court brief in the suit, surveying the history of the NWPA and other policies on radioactive waste that were contravened when the NRC issued a license to ISP.  In addition, Beyond Nuclear has published a series of factsheets, laying out its legal and technical arguments in opposition to CISFs, available here.

“No federal agency is above the law,” said Diane Curran of Harmon, Curran, Spielberg and Eisenberg, LLP.  She is one of two attorneys for Beyond Nuclear in the lawsuit, along with Mindy Goldstein, director of Emory University’s Turner Environmental Law Clinic in Atlanta, Georgia.  “Beyond Nuclear asks the D.C. Circuit Court of Appeals to strike down the license issued to ISP by the NRC because it ignored the unambiguous mandates of the Nuclear Waste Policy Act,” Curran said.

VIOLATING CONSTITUTIONAL SEPARATION OF POWERS

An amicus brief in the lawsuit filed by the Nuclear Energy Institute, a nuclear industry group, argues NRC CISF licensing is justified by the need to “kickstart progress on the spent fuel quagmire” caused by the cancellation of the Yucca Mountain repository and Congress’ failure to amend the Nuclear Waste Policy Act.  But as Beyond Nuclear’s response brief points out, NRC stepping in as a federal agency to prompt “progress” that Congress hasn’t chosen to make is unconstitutional, since it violates the separation of powers.

“Following [NEI’s] colorful imagery, if the Nuclear Waste Policy Act is a motorcycle stuck in the mud, only Congress can “kickstart” the legislative machinery to dislodge it, or, determine in what direction it should go,” the Beyond Nuclear response brief states. “Only Congress can decide whether to abandon one of its primary strategies for ensuring the completion of a federal repository: preventing private licensees from shifting spent fuel storage costs to the federal government before the opening of a repository.”

VIOLATING THE “MAJOR QUESTIONS” DOCTRINE

Beyond Nuclear’s reply brief follows a July 13 letter from Beyond Nuclear’s attorney Diane Curran, advising the U.S. Court of Appeals that the Supreme Court’s June 30th decision in West Virginia v. EPA demonstrates the NRC lacks statutory authority to issue the ISP license.

In West Virginia, the Court found that the Clean Power Plan violated the “major questions” doctrine, which forbids federal agencies from making consequential decisions that go beyond direct enforcement of existing law, unless Congress grants them specific authority to do so.  Beyond Nuclear contends that the Supreme Court’s reasoning calls for reversal of NRC’s decision to issue a license to ISP that contains a license condition that patently violates the federal Nuclear Waste Policy Act by allowing private storage of federally owned spent fuel.

VIOLATING NEPA

A separate Reply Brief jointly filed by Don’t Waste Michigan, et al., and Sierra Club cites multiple NRC violations of the National Environmental Policy Act (NEPA). NEPA requires an Environmental Impact Statement (EIS) for projects such as ISP.  The Petitioners argue that NRC didn’t meet NEPA requirements because its EIS was perfunctory and failed to adequately consider:

• the dangers of transporting nuclear waste to and from the CISF;
• earthquake risks at the site,  which is located in the Permian Basin very near fracking and oil and natural gas extraction operations;
• alternatives to the CISF, including Hardened On-Site Storage at nuclear power plants;
• impacts on threatened species;
• the risk of long-term, or even de facto permanent, nuclear waste storage at the surface;
• the risk of radiological impacts on the area’s ecology, geology, and groundwater, including the Ogallala Aquifer.

IGNORING NUCLEAR WASTE TRANSPORT DANGERS

In particular, NRC’s EIS treatment of transportation risks is woefully inadequate. The Petitioners are seeking a court order requiring NRC to re-do its Environmental Impact Statement for the ISP facility, so it adequately considers transportation dangers and the other issues listed above, and complies with NEPA requirements.

“NRC has segmented off the transportation risk issue from the ISP Environmental Impact Statement, a blatant violation of the National Environmental Policy Act,” said Terry Lodge, legal counsel for Don’t Waste Michigan, et al. “The Region of Influence for routine, incident-free shipments is a half-mile on both sides of transport routes, due to hazardous gamma and neutron radiation emissions, while for accidents and attacks that breach the container, it is 50 miles on both sides of the route, due to hazardous radioactive releases,” Lodge said.

“NRC has concealed road, rail, and waterway routes to be used to transport over 3,000 shipments of highly radioactive waste from nuclear power plants across the nation to Texas,” said Michael Keegan, co-chair of Don’t Waste Michigan.  “These shipments are mobile X-ray machines that cannot be turned off as they pass through countless communities, past millions of Americans. They amount to ‘Mobile Chernobyls’ and potential dirty bombs on wheels.  Shipments by barge on the Great Lakes and Hudson River must be excluded,” Keegan said.

Although the transport routes for the waste haven’t been revealed, rail lines converging on Fort Worth, Texas make it predictable a very large number of highly radioactive waste shipments would pass through it. In fact, this is corroborated by maps of likely transport routes generated with DOE computer modeling. On March 28, 2022, the City of Fort Worth filed a Friend of the Court brief in the lawsuit, objecting to the doubled risks the City would face from rail shipments of waste passing through it not once, but twice: once on the way to the ISP CISF, and again when/if the waste leaves ISP to go to a geologic repository.

ISP and NRC insist on calling the Texas facility an “interim” storage facility, reflecting an assumption that a geologic repository at Yucca Mountain, Nevada will someday open, and the wastes will be sent there for permanent disposal. But that’s highly doubtful. The State of Nevada has successfully fought off the dump for 35 years, and the Western Shoshone Indian Nation, to which the land belongs per treaty rights, has never consented to the repository.

In a comprehensive letter to U.S. Transportation Secretary Pete Buttigieg on February 25, 2022, Beyond Nuclear described in detail the serious risks involved in shipping nuclear waste to CISFs, and the inadequacy of current equipment, infrastructure, research, and policy to defuse those risks.  The shipments would be vulnerable to risk of serious accidents and even terrorist attacks.  At Secretary Buttigieg’s 2021 confirmation hearing, Senator Jackie Rosen of Nevada said, “This is a major transportation crisis waiting to happen, putting major metropolitan areas in 44 states, their freeways and their railways at risk along with millions of Americans.” Buttigieg answered, “I share the concerns that you’ve raised, not just from the Nevada perspective but all across the route.” A reply to Beyond Nuclear’s February letter from the DOT Office of the Secretary is still pending.

Meanwhile, the States of Texas and New Mexico are also opposing the ISP CISF, and are fighting its licensing in the courts. Texas has appealed NRC’s license approval at the 5th Circuit Court of Appeals in New Orleans. New Mexico has appealed at the 10th Circuit Court of Appeals in Denver. Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners have also appealed against the CISFs in both the D.C. and 5th Circuits.

In January 2023, NRC is expected to approve another license for Holtec International’s CISF targeted at southeastern New Mexico, some 40 miles from ISP.  The Holtec CISF would be more than four times the size of the ISP project, with capacity to store 173,600 metric tons of nuclear waste.   The same parties to the lawsuit against the ISP license have also filed federal appeals against Holtec in the D.C., 5th, and 10th Circuit Courts of Appeals. When NRC approves the Holtec CISF license, it would likely prompt the D.C. Circuit Court to regard the Holtec case, which it has long held in abeyance, as ripe for active consideration.

NOTE TO EDITORS AND PRODUCERS — The documents mentioned in this release and all Beyond Nuclear’s legal documents associated with this Petitioners Reply Brief filing are available upon request, as are the briefs and documents filed by Don’t Waste Michigan, et al. and Sierra Club. For copies of the documents, or for further information or interviews, please contact Kevin Kamps at Beyond Nuclear, (240) 462-3216, [email protected].

About Don’t Waste Michigan, et al.

Don’t Waste Michigan, et al. is a national grassroots environmental coalition which includes six additional groups and one individual: Citizens’ Environmental Coalition (NY); Citizens for Alternatives to Chemical Contamination (MI); Nuclear Energy Information Service (IL); Public Citizen, Inc. (DC, TX); San Luis Obispo Mothers for Peace (CA); Sustainable Energy and Economic Development Coalition (TX); and Leona Morgan (NM). Expert witnesses serving this Sierra Club and Don’t Waste Michigan, et al., coalition include: Robert Alvarez of Institute for Policy Studies (DC); Dr. James David Ballard, a retired California State University, Northridge professor (see his report on the safety and security risks from the ISP project here); Dr. Marvin Resnikoff of Radioactive Waste Management Associates (VT); and Dr. Gordon Thompson of Institute for Resource and Security Studies (MA).

About Sierra Club

Sierra Club is the nation’s largest grassroots environmental organization with over 700,000 members. Sierra Club supports sustainable energy alternatives (renewable energy and energy efficiency) that do not harm the environment. Sierra Club opposes nuclear power because its fuel cycle from uranium mining to spent radioactive fuel poses grave dangers to public health and the environment. In addition, reliance on nuclear power unjustifiably delays beneficial transition to clean and renewable energy sources. Storage and disposal of spent radioactive fuel from nuclear reactors is a problem that has no good solution. Sierra Club believes that CISFs pose unnecessary dangers and risks that must be avoided, and that all alternatives to CISFs should be evaluated and seriously considered.

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