June, 04 2020, 12:00am EDT

For Immediate Release
Contact:
Diane Curran, Harmon, Curran, Spielberg + Eisenberg, LLP, (240) 393-9285, dcurran@harmoncurran.com
Mindy Goldstein, Director, Turner Environmental Law Clinic, Emory University School of Law, (404) 727-3432, mindy.goldstein@emory.edu
Kevin Kamps, Radioactive Waste Specialist, Beyond Nuclear, (240) 462-3216, kevin@beyondnuclear.org
Stephen Kent, KentCom LLC, (914) 589 5988, skent@kentcom.com
Beyond Nuclear Files Federal Lawsuit Challenging High-Level Radioactive Waste Dump for Entire Inventory of U.S. "Spent" Reactor Fuel
Petitioner charges the Nuclear Regulatory Commission knowingly violated U.S. Nuclear Waste Policy Act and up-ended settled law prohibiting transfer of ownership of spent fuel to the federal government until a permanent underground repository is ready to receive it.
WASHINGTON
Today the non-profit organization Beyond Nuclear filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit requesting review of an April 23, 2020 order and an October 29, 2018 order by the U.S. Nuclear Regulatory Commission (NRC), rejecting challenges to Holtec International/Eddy-Lea Energy Alliance's application to build a massive "consolidated interim storage facility" (CISF) for nuclear waste in southeastern New Mexico. Holtec proposes to store as much as 173,000 metric tons of highly radioactive irradiated or "spent" nuclear fuel - more than twice the amount of spent fuel currently stored at U.S. nuclear power reactors - in shallowly buried containers on the site.
But according to Beyond Nuclear's petition, the NRC's orders "violated the Nuclear Waste Policy Act and the Administrative Procedure Act by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility."
Since it contemplates that the federal government would become the owner of the spent fuel during transportation to and storage at its CISF, Holtec's license application should have been dismissed at the outset, Beyond Nuclear's appeal argues. Holtec has made no secret of the fact that it expects the federal government will take title to the waste, which would clear the way for it to be stored at its CISF, and this is indeed the point of building the facility. But that would directly violate the 1982 Nuclear Waste Policy Act (NWPA), which prohibits federal government ownership of spent fuel unless and until a permanent underground repository is up and running. No such repository has been licensed in the U.S. The U.S. Department of Energy's (DOE) most recent estimate for the opening of a geologic repository is the year 2048 at the earliest.
In its April 23 decision, in which the NRC rejected challenges to the license application, the four NRC Commissioners admitted that the NWPA would indeed be violated if title to spent fuel were transferred to the federal government so it could be stored at the Holtec facility. But they refused to remove the license provision in the application which contemplates federal ownership of the spent fuel. Instead, they ruled that approving Holtec's application in itself would not involve NRC in a violation of federal law, and that therefore they could go forward with approving the application, despite its illegal provision. According to the NRC's decision, "the license itself would not violate the NWPA by transferring the title to the fuel, nor would it authorize Holtec or [the U.S. Department of Energy] to enter into storage contracts." (page 7). The NRC Commissioners also noted with approval that "Holtec hopes that Congress will amend the law in the future." (page 7).
"This NRC decision flagrantly violates the federal Administrative Procedure Act (APA), which prohibits an agency from acting contrary to the law as issued by Congress and signed by the President," said Mindy Goldstein, an attorney for Beyond Nuclear. "The Commission lacks a legal or logical basis for its rationale that it may issue a license with an illegal provision, in the hopes that Holtec or the Department of Energy won't complete the illegal activity it authorized. The buck must stop with the NRC."
"Our claim is simple," said attorney Diane Curran, another member of Beyond Nuclear's legal team. "The NRC is not above the law, nor does it stand apart from it."
According to a 1996 D.C. Circuit Court ruling, the NWPA is Congress' "comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants" [Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996)]. The law establishes distinct roles for the federal government vs. the owners of facilities that generate spent fuel with respect to the storage and disposal of spent fuel. The "Federal Government has the responsibility to provide for the permanent disposal of ... spent nuclear fuel" but "the generators and owners of ... spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of ... spent fuel until such ... spent fuel is accepted by the Secretary of Energy" [42 U.S.C. SS 10131]. Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it has opened a repository [42 U.S.C. SS 10131(a)(5)].
"When Congress passed the Nuclear Waste Policy Act and refused to allow nuclear reactor licensees to transfer ownership of their irradiated reactor fuel to the DOE until a permanent repository was up and running, it acted wisely," said Kevin Kamps, radioactive waste specialist for Beyond Nuclear. "It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment. Today, the NWPA remains the public's best protection against a so-called 'interim' storage facility becoming a de facto permanent, national, surface dump for radioactive waste. But if we ignore it or jettison the law, communities like southeastern New Mexico can be railroaded by the nuclear industry and its friends in government, and forced to accept mountains of forever deadly high-level radioactive waste other states are eager to offload."
In addition to impacting New Mexico, shipping the waste to the CISF site would also endanger 43 other states plus the District of Columbia, because it would entail hauling 10,000 high risk, high-level radioactive waste shipments on their roads, rails, and waterways, posing risks of radioactive release all along the way.
Besides threatening public health and safety, evading federal law to license CISF facilities would also impact the public financially. Transferring title and liability for spent fuel from the nuclear utilities that generated it to DOE would mean that federal taxpayers would have to pay for its so-called "interim" storage, to the tune of many billions of dollars. That's on top of the many billions ratepayers and taxpayers have already paid to fund a permanent geologic repository that hasn't yet materialized.
But that's not to say that Yucca Mountain would be an acceptable alternative to CISF. "A deep geologic repository for permanent disposal should meet a long list of stringent criteria: legality, environmental justice, consent-based siting, scientific suitability, mitigation of transport risks, regional equity, intergenerational equity, and safeguards against nuclear weapons proliferation, including a ban on spent fuel reprocessing," Kamps said. "But the Yucca Mountain dump, which is targeted at land owned by the Western Shoshone in Nevada, fails to meet any of those standards. That's why a coalition of more than a thousand environmental, environmental justice, and public interest organizations, representing all 50 states, has opposed it for 33 years."
Kamps noted that the U.S. Court of Appeals for the District of Columbia Circuit has upheld the NWPA before, including in the matter of inadequate standards for Yucca Mountain. In its landmark 2004 decision in Nuclear Energy Institute v. Environmental Protection Agency, it wrote, "Having the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment, nuclear waste has vexed scientists, Congress, and regulatory agencies for the last half-century." The Court found the U.S. Environmental Protection Agency's insufficient 10,000-year standard for Yucca Mountain violated the NWPA's requirement that the National Academy of Sciences' recommendations must be followed, and ordered the EPA back to the drawing board. In 2008, the EPA issued a revised standard, acknowledging a million-year hazard associated with irradiated nuclear fuel and high-level radioactive waste. Even that standard falls short, Kamps said, because certain radioactive isotopes in spent fuel remain dangerous for much longer than that. Iodine-129, for example, is hazardous for 157 million years.
NOTE TO EDITORS AND PRODUCERS: Sources quoted in this release are available for comment. For a copy of the petition filed today, to arrange interviews or for other information, please contact Stephen Kent, skent@kentcom.com, 914-589-5988
Beyond Nuclear aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abandon both to safeguard our future. Beyond Nuclear advocates for an energy future that is sustainable, benign and democratic.
(301) 270-2209LATEST NEWS
Analysis Shows How GOP Attack on SNAP Could Cut Food Assistance 'From Millions' in Low-Income Households
"With economic uncertainty and the risk of recession rising, now is a particularly bad time for Congress to pursue these harmful changes," according to the Center on Budget and Policy Priorities.
Apr 30, 2025
As congressional Republicans mull potentially imposing stricter work requirements for adults who rely on federal nutrition aid as part of a push to pass a GOP-backed reconciliation bill, an analysis from the progressive think tank the Center on Budget and Policy Priorities released Wednesday states that such a move could take away food "from millions of people in low-income households" who are having a hard time finding steady employment or face hurdles to finding work.
The analysis is based on a proposal regarding the Supplemental Nutrition Assistance Program (SNAP) from House Agriculture Committee member Rep. Dusty Johnson (R-S.D.), which, if enacted, the group estimates would translate into an estimated 6 million people being at risk of losing their food assistance.
"In total, nearly 11 million people—about 1 in 4 SNAP participants, including more than 4 million children and more than half a million adults aged 65 or older and adults with disabilities—live in households that would be at risk of losing at least some of their food assistance" under Johnson's proposed rules, according to the analysis.
Per CBPP, current SNAP rules mandate that most adults ages 18-54 without children may receive food benefits for only three months in a three-year period unless they prove they are participating in a 20-hour-per-week work program or prove they have a qualifying exemption.
Under Johnson's proposal, work requirements would apply to adults ages 18-65, and they would also be expanded to adults who have children over the age of seven. Per CBPP, Johnson's proposal would also "virtually eliminate" the ability of states to waive the three-month time limit in response to local labor market conditions, like in cases where there are insufficient jobs
According to CBPP, its report is based on analysis of "the number of participants meeting the age and other characteristics of the populations that would be newly subject to the work requirement under U.S. Department of Agriculture 2022 SNAP Household Characteristics data," as well as the number of participants potentially subject to work requirements in areas that are typically subject to the waivers mentioned above.
The House Agriculture Committee, which oversees SNAP—formerly known as food stamps—has been tasked with finding $230 billion in cuts as part of a House budget reconciliation plan. To come up with that amount, the committee would need to enact steep cuts to SNAP.
According to CBPP, most SNAP recipients who can work are already working, or are temporarily in between jobs. Per the report, U.S. Department of Agriculture data undercount the SNAP households who are working because the numbers come from SNAP's "Quality Control" sample, which gives point-in-time data about a household in a given month.
This snapshot does "not indicate whether a household had earnings before or after the sample month, nor do they show how long a household participates in SNAP."
What's more, "with economic uncertainty and the risk of recession rising, now is a particularly bad time for Congress to pursue these harmful changes," according to the authors of the analysis.
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SOS: Migrants Awaiting Deportation Use Their Bodies to Cry for Help
The 31 men were nearly deported earlier this month before the U.S. Supreme Court ordered the Trump administration to return them to a detention facility in Texas.
Apr 30, 2025
Ten days after a U.S. Supreme Court order forced buses carrying dozens of Venezuelan migrants to an airport in Texas to immediately turn around and return them to Bluebonnet Detention Facility in the small city of Anson, 31 of the men formed the letters SOS by standing in the detention center's dirt yard.
As Reutersreported, the families of several of the men have denied that they are members of the Venezuelan Tren de Aragua gang, contrary to the Trump administration's claims.
Immigration enforcement agents have detained and expelled numerous people with no criminal records, basing accusations that they're members of Tren de Aragua and MS-13 solely on the fact that they have tattoos in some cases.
After the reprieve from the Supreme Court earlier this month, with the justices ordering the government "not to remove any member of the putative class of detainees from the United States until further order of this court," the migrants still face potential deportation to El Salvador's notorious Terrorism Confinement Center under the Alien Enemies Act.
Reuters flew a drone over Bluebonnet in recent days to capture images of the migrants, after being denied access to the facility. One flight captured the men forming the letters—the internationally used distress signal.
Reuters spoke to one of the men, 19-year-old Jeferson Escalona, after identifying him with the drone images.
He was detained by Immigration and Customs Enforcement in January and initially sent to the U.S. migrant detention center at Guantánamo Bay before being transferred to Bluebonnet. A Department of Homeland Security official said, without providing evidence, that he was a "self-admitted" member of Tren de Aragua, but Escalona vehemently denied the claim and told Reuters he had trained to be a police officer in Venezuela before coming to the United States.
"They're making false accusations about me. I don't belong to any gang," he told Reuters, adding that he has asked to return to his home country but has been denied.
"I fear for my life here," he told the outlet. "I want to go to Venezuela."
Earlier this month in a separate decision, the Supreme Court ruled that migrants being deported under the Alien Enemies Act must be provided with due process to challenge their removal.
"Remember," said Aaron Reichlin-Melnick of the American Immigration Council, "the Trump administration refuses to give these men a chance to day in court, despite the Supreme Court telling them that they must give people a chance to take their case in front of a judge!"
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US Supreme Court Could OK Religious Public Charter School in Oklahoma
"Allowing taxpayer dollars to fund religious charter schools would put both public education and religious freedom at risk," warned one teachers union leader.
Apr 30, 2025
The U.S. Supreme Court on Wednesday heard arguments over what could become the country's first taxpayer-funded religious charter school—and opponents of the St. Isidore of Seville Catholic Virtual School renewed their warnings about the proposal.
Faith leaders, parents, and educators celebrated last June, when the Oklahoma Supreme Court ruled against establishing St. Isidore. The test case for all such schools has now advanced to the country's highest court, which has a right-wing supermajority.
Reporting on over two hours of arguments Wednesday, Law Dork's Chris Geidner wrote that "the religious supremacy movement from the right's majority on the U.S. Supreme Court—with its outside helpers—appeared likely to... OK the first religious charter school in the country."
"Justices Clarence Thomas, Sam Alito, and Brett Kavanaugh appeared eager to do so, and Justice Neil Gorsuch's past writing in a related case signaled his alignment with the move, at least in principle," Geidner detailed. "Chief Justice John Roberts—the key vote then since Justice Amy Coney Barrett has recused herself from the case—appeared to be open to the idea as well."
Other legal reporters also concluded that Roberts appears to be the "key vote," given that the three liberals—Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—all "expressed significant reservations" about allowing a religious charter school.
It appears very likely that the Supreme Court will force Oklahoma to approve and fund a Catholic charter school that reserves the right to indoctrinate students in Catholicism, force them to attend mass, and discriminate against non-Catholics. The three liberals sound increasingly exasperated.
— Mark Joseph Stern ( @mjsdc.bsky.social) April 30, 2025 at 11:52 AM
According toThe Associated Press:
If Roberts sides with the liberals, the court would be tied 4-4, an outcome that would leave the state court decision in place, but would leave the issue unresolved nationally.
If he joins his conservative colleagues, on the other hand, the court could find that the taxpayer-funded school is in line with a string of high court decisions that have allowed public funds to flow to religious entities. Those rulings were based on a different part of the First Amendment that protects religious freedom.
Roberts wrote the last three of those decisions. He acknowledged at one point that the court had previously ruled that states "couldn't exclude religious participants," suggesting support for St. Isidore.
But he also said the state's involvement in this case is "much more comprehensive" than in the earlier ones, a point that could lead him in the other direction.
American Federation of Teachers president Randi Weingarten said in a statement after the arguments that "we respect religious education and the Founders' intention in separating church and state."
"Public schools, including public charter schools, are funded by taxpayer dollars because they are dedicated to helping all—not just some—children have a shot at success," the union leader said. "They are the bedrock of our democracy, and states have long worked to ensure that they remain secular, open, and accessible to all. They are not, and never have been, Sunday schools."
"The petitioners are seeking to change that," Weingarten warned. "Religious schools should be able to operate in the U.S., but they are not public schools, and they shouldn't be able to get the benefits and the funding yet ignore the obligations and responsibilities."
"Our hope is that the justices will uphold the Supreme Court of Oklahoma's decision, correctly siding with religious pluralism over sectarianism," she concluded. "A reversal would be a devastating blow to public education and the 90% of young people who rely on it. We must preserve and nurture the roots of our democracy, not tear up its very foundations."
The country's other leading teachers union also opposes the establishment of the Oklahoma school. National Education Association president Becky Pringle said in a statement this week that "every student—no matter where they live, what they look like, or their religion—deserves access to a fully funded neighborhood public school that gives them a sense of belonging and prepares them with the lessons and life skills they need."
"Allowing taxpayer dollars to fund religious charter schools would put both public education and religious freedom at risk," Pringle asserted, "opening the door to more privatization that undermines our public education system."
Proud to join @faithfulamerica.bsky.social outside of SCOTUS ahead of oral arguments in the OK religious charter school case, which challenges whether public funds can be used to support religious charter schools. As religious Americans, we say the separation of church and state is good for both!
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— Interfaith Alliance (@interfaithalliance.org) April 30, 2025 at 10:12 AM
Chris Yarrell, an attorney at the Center for Law and Education, similarly warned in a Common Dreams opinion piece earlier this month that "if the court sides with St. Isidore, the ripple effects could be seismic, triggering a wave of religious charter school applications and fundamentally altering the landscape of public education."
In addition to fighting for a taxpayer-funded religious school, Christian nationalists in Oklahoma want to put Bibles in public school classrooms—an effort the state Supreme Court has temporarily impeded.
The court last month blocked Oklahoma's superintendent of public instruction, Ryan Walters, and education department from spending taxpayer dollars on Bibles and Bible-infused instructional materials.
“This victory is an important step toward protecting the religious freedom of every student and parent in Oklahoma," legal groups supporting plaintiffs who challenged the policy
said at the time. "Walters has been abusing his power, and the court checked those abuses today. Our diverse coalition of families and clergy remains united against Walters' extremism and in favor of a core First Amendment principle: the separation of church and state."
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