Briefs Filed in Federal Appeal Against NRC Licensing of Interim Storage Partners Radioactive Waste Dump in Texas

Beyond Nuclear, Don’t Waste Michigan et al. (a seven-group national grassroots environmental coalition), and Sierra Club filed initial briefs at the U.S. Court of Appeals for the District of Columbia Circuit on March 18, 2022, challenging the U.S. Nuclear Regulatory Commission’s approval, last September, of a construction and operating license for the Interim Storage Partners, LLC (ISP) irradiated nuclear fuel and highly radioactive waste consolidated interim storage facility (CISF) at Waste Control Specialists, LLC (WCS) in Andrews County, Texas. ISP plans to store up to 40,000 metric tons of commercial irradiated nuclear fuel, and highly radioactive Greater-Than-Class-C waste, nearly half the total amount that currently exists in the U.S.

Beyond Nuclear’s brief focused on NRC violations of the Nuclear Waste Policy Act of 1982 (NWPA), and associated violations of the Administrative Procedure Act (APA). Specifically, the NWPA prohibits the U.S. Department of Energy (DOE) from taking title to commercial irradiated nuclear fuel (often euphemistically called spent or used nuclear fuel) at an interim storage site, unless and until a permanent geologic repository is licensed and operating. Despite this legal prohibition, ISP’s license allows for storage of DOE owned waste.

“No federal agency is above the law,” said Mindy Goldstein, director of Emory University’s Turner Environmental Law Clinic in Atlanta, GA, and an attorney for Beyond Nuclear. “On Friday, we filed a brief with the D.C. Circuit Court of Appeals, asking the court to strike down a license issued by the Nuclear Regulatory Commission because it ignored the unambiguous mandates of the Nuclear Waste Policy Act.”

Diane Curran of Harmon, Curran, Spielberg and Eisenberg, LLP of Washington, D.C. also serves as an attorney for Beyond Nuclear. Beyond Nuclear has published a series of factsheets, laying out its legal and technical arguments in opposition to CISFs.

Don’t Waste Michigan et al., and Sierra Club, filed a joint initial brief. In addition to the violations of the NWPA and APA, this environmental coalition has raised a large number of challenges alleging NRC violations of the National Environmental Policy Act (NEPA), including inadequate consideration of: transportation risks to and from the CISF; earthquake risks at the CISF due to very nearby oil and natural gas extraction in the Permian Basin; alternatives to the CISF, including Hardened On-Site Storage at nuclear power plants; impacts on threatened species; the risk of extremely long-term, or even de facto permanent, surface storage at the CISF;  and the risk of radiological impacts on the area’s ecology, geology, and groundwater, including the adjacent or even underlying Ogallala Aquifer. This coalition of environmental groups seeks the court to order NRC to re-do the ISP Environmental Impact Statement so that it complies with the legal requirements of NEPA.

Wally Taylor of Cedar Rapids, IA serves as legal counsel for Sierra Club. Terry Lodge of Toledo, OH serves as legal counsel for Don’t Waste Michigan et al.

“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 amount to 'Mobile Chernobyls' as potential dirty bombs on wheels.  Shipments by barge on the Great Lakes and Hudson River must be excluded. These are for certain mobile X-ray machines that can not be turned off as they pass through countless communities past millions of Americans,” Keegan said.

The States of Texas and New Mexico also oppose the ISP CISF. Texas has appealed NRC’s license approval at the 5th Circuit Court of Appeals in New Orleans, while New Mexico has appealed at the 10th Circuit Court of Appeals in Denver. Initial briefs were filed in those cases on February 7 and March 10, 2022, respectively. Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners have appealed against the ISP CISF in both the D.C. and 5th Circuits.

The same parties opposing the CISF in Texas also oppose Holtec International’s CISF targeted at southeastern New Mexico, just over 40 miles from ISP. NRC will likely approve Holtec’s 173,600 metric ton CISF license by mid-2022. The opposing parties have already filed federal appeals against Holtec's CISF in the D.C., 5th, and 10th Circuit Courts of Appeals. NRC’s approval of the Holtec CISF license would likely prompt the D.C. Circuit Court to regard the case, which has been held in abeyance, as then ripe for active consideration, as well.