Beyond Nuclear Files Federal Lawsuit Challenging High-Level Radioactive Waste Dump Targeted at Texas/New Mexico Border

The non-profit organization Beyond Nuclear filed suit in federal court today to prevent the U.S. Nuclear Regulatory Commission (NRC) from licensing a massive "consolidated interim storage facility" (CISF) for highly radioactive waste in Andrews County, west Texas.

In its Petition for Review filed in the U.S. Court of Appeals for the District of Columbia Circuit, Beyond Nuclear asked the Court to dismiss the NRC licensing proceeding for a permit to build and operate a CISF proposed by Interim Storage Partners (ISP), a business consortium. It plans to use the facility to store 40,000 metric tons of highly radioactive irradiated fuel generated by nuclear reactors across the U.S. (also euphemistically known as "used" or "spent" fuel), amounting to nearly half of the nation's current inventory.

The irradiated fuel would be housed on the surface of the land, on the site of an existing facility for storage and disposal of so-called "low-level radioactive waste" (LLRW). The LLRW facility is owned and operated by Waste Control Specialists (WCS). WCS and Orano (formerly Areva) comprise ISP. ISP's CISF is located about 0.37 miles from the New Mexico border, and very near the Ogallala Aquifer, an essential source of irrigation and drinking water across eight High Plains states.

The Beyond Nuclear petition charges that orders issued by the NRC in 2018 and 2020 violate federal law by contemplating that the U.S. government will become the owner of the irradiated fuel during transportation to and storage at the ISP facility. Under the Nuclear Waste Policy Act, the government is precluded from taking title to irradiated fuel unless and until a repository is licensed and operating. 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 2020 decision, in which the NRC rejected challenges to the license application, the NRC Commissioners admitted that the Nuclear Waste Policy Act would indeed be violated if title to irradiated fuel were transferred to the federal government so it could be stored at the ISP facility. But they refused to remove the proposed license provision which contemplates federal ownership of the irradiated fuel. Instead, they ruled that approving ISP's application would not directly involve NRC in a violation of federal law - according to the NRC, that violation would occur only if DOE acted on the approved license - and therefore they could approve it, despite the fact the provision is illegal. The NRC Commissioners also noted with approval that "ISP acknowledges that it hopes Congress will change the law to allow DOE to enter storage contracts prior to the availability of a repository" (December 17, 2020 order, page 5).

But the petition contends that the NRC may not approve license provisions that violate federal law in the hope the law will change. "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 ISP or the Department of Energy won't complete the illegal activity it authorized. The buck must stop with the NRC." Co-counsel Diane Curran stated, "Our claim is simple. The NRC is not above the law, nor does it stand apart from it."

In a separate case, filed in June 2020, Beyond Nuclear challenged a similar application, by Holtec International, to store up to 173,600 metric tons of irradiated fuel on another CISF site in southeastern New Mexico. The Holtec site lies just over 40 miles west from the ISP facility in Texas. Like ISP's license application, Holtec's application illegally assumes that the federal government will take title to the irradiated fuel during transportation and storage.

Background on the Nuclear Waste Policy Act. 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, versus the owners of facilities that generate irradiated fuel, with respect to storage and disposal of the highly radioactive wastes. 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 permanent geologic repository [42 U.S.C. SS 10131(a)(5)].

"Congress acted wisely when it 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," said Kevin Kamps, radioactive waste specialist for Beyond Nuclear. "It understood that irradiated fuel remains hazardous forevermore, 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." Certain radioactive isotopes in irradiated fuel remain dangerous for more than a million years, Kamps pointed out.

"Today, the NWPA remains the public's best protection against a so-called consolidated 'interim' storage facility becoming a de facto permanent, national, surface 'parking lot dump' for radioactive waste," Kamps said. "But if we ignore it or jettison the law, communities like west Texas and 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 Texas and New Mexico, shipping the waste to the ISP facility would also endanger 43 other states plus the District of Columbia, because it would entail hauling several thousands of high-risk, high-level radioactive waste shipments on their roads, rails, and/or waterways, posing risks of release of hazardous radioactivity all along the way.

"The communities near the nuclear plants that generated this dangerous high-level radioactive waste do not want it, and neither do we," said Rose Gardner of Eunice, New Mexico, whose home and business are just several miles from the ISP CISF site. She is a co-founder of the grassroots environmental justice organization Alliance for Environmental Strategies, and a member of Beyond Nuclear. "Every single one of the thousands of high-risk shipments of irradiated nuclear fuel would pass through my community, which is unacceptable," Gardner said.

Besides threatening public health, safety, and the environment, evading federal law to license the ISP facility would also impact the public financially. Transferring title and liability for irradiated fuel from the nuclear utilities that generated it to DOE would mean that federal taxpayers would have to pay many billions of dollars for so-called "interim" storage of the waste. That's on top of the many tens of billions of dollars that ratepayers and taxpayers have already paid to fund a permanent geologic repository that hasn't yet materialized.

While emphasizing the essential role of a repository to isolate irradiated fuel from the environment over the long term, Kamps said that the government should cancel the Yucca Mountain Project once and for all. "A deep geologic repository for permanent disposal should meet a long list of stringent criteria: scientific suitability, legality, environmental justice, consent-based siting, mitigation of transport risks, regional equity, intergenerational equity, and safeguards against nuclear weapons proliferation, including a ban on irradiated fuel reprocessing," Kamps said. "But the proposed Yucca Mountain dump, sited on land owned by the Western Shoshone in Nevada without their consent, 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 34 years."