Amicus Curiae Brief — Nuclear Regulatory Commission, et al., Petitioners v. Texas, et al.

Nos. 23-1300, 23-1312

In the

Supreme Court of the United States

NUCLEAR REGULATORY COMMISSION, et al.,

Petitioners,

v.

TEXAS, et al.,

Respondents.

INTERIM STORAGE PARTNERS, LLC,

Petitioner,

v.

TEXAS, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

CITY OF FORT WORTH

IN SUPPORT OF RESPONDENTS

Laetitia Coleman Brown

Counsel of Record

Christopher B. Mosley

City of Fort Worth

100 Fort Worth Trail

Fort Worth, TX 76102

(817) 392-7600

laetitia.coleman@fortworthtexas.gov

Counsel for Amicus Curiae

335637

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Fort Worth is Concerned . . . . . . . . . . . . . . . . . . . .2

B. Fort Worth Citizenry Would be Affected by

the Transport of Spent Nuclear Fuel . . . . . . . . . 3

C. ISP’s Lack of Transparency with Respect

to Transportation Routes is Troubling . . . . . . . . 7

D. Fort Worth is Concerned that there has

not been an Adequate Calculation of the

Risk of Accidents and Exposure Levels . . . . . . . 9

E. Fort Worth is Troubled by the Specter

of a Terrorist Attack Related to the

Transport of Nuclear Waste . . . . . . . . . . . . . . . . 10

F.

F o r t Wo r t h i s C o n c e r n e d t h a t

Transportation of Spent Nuclear Fuel will

Cost Local Taxpayers . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . 12

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Idaho Conservation League v. Mumma,

956 F.2d 1508 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 12

Northwest Ecosystem Alliance v. Rey,

380 F.Supp. 2d 1175 (W.D. Wash. 2006) . . . . . . . . . . 12

Nuclear Energy Inst., Inc. v. EPA,

373 F.3d 1251 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . 3

San Luis Obispo Mothers for Peace v. NRC,

449 F.3d 1016 (9th Cir.2006) . . . . . . . . . . . . . . . . . . . . 10

State of New York v.

Nuclear Regulatory Comm’n,

681 F.3d 471 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . . 9

Federal Regulations

10 C.F.R. § 72.108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10 C.F.R. § 63.31(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

40 C.F.R. § 1502.21(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

1

STATEMENT OF INTEREST

The City of Fort Worth (“City) is a home-rule

municipality in the State of Texas. The City has an

immediate interest in this litigation because it is concerned

that spent nuclear fuel will be transported by rail through

Fort Worth to be stored at a facility in West Texas. Fort

Worth has a population of over 950,000, is the 12th largest

city in the United States and has an extensive rail system.

This brief meets the requirements of Rule 37.6.1

SUMMARY OF ARGUMENT

Fort Worth would be negatively affected if Interim

Storage Partner, LLC’s (ISP) permit is issued since

this would likely cause thousands of shipments of spent

nuclear fuel to travel through highly populated areas in

Fort Worth posing dangers to its citizens. Meaningful

evaluation of the environmental impact of transportation

of spent nuclear fuel is impossible because transportation

routes are not clearly defined. The regulatory agency is

compelled to assess reasonably foreseeable consequences

of its actions. In that regard, prior to issuance of the

permit, studies regarding storage options, shipment

restrictions, and population densities along transport

routes should be identified. Further, the agency should

consider adverse effects such as the possibility of terrorist

attacks—Fort Worth would be vulnerable to such attacks

1. Pursuant to Rule 37.6, amicus curiae states that no counsel

for any party authored this brief in whole or in part and that no

entity or person, aside from amicus curiae, its members, and its

counsel, made any monetary contribution toward the preparation

or submission of this brief.

2

if nuclear waste is being transported through it. Finally,

if the permit is issued and there is a radiological incident,

Fort Worth is concerned that it would be required to fund

remediation. In short, the City prays the Court rules for

respondents.

ARGUMENT

A. Fort Worth is Concerned

The permit that is the subject of this litigation is for

ISP’s controversial storage facility in West Texas. The

facility would store spent nuclear fuel and reactor-related

Greater-Than-Class C radioactive waste from nuclear

power plants across the U.S. Upon information and belief,

it would have the capacity to store 40,000 metric tons of

irradiated fuel.

Construction of ISP’s facility would trigger thousands

of shipments of spent nuclear fuel and reactor-related

Greater-Than-Class C through 44 states through Texas.

Transportation of this waste poses dangers to populations

along transportation routes, as well as to transportation

infrastructure itself. This is of great concern to Fort

Worth as the toxic material would likely travel through

Fort Worth.

Spent nuclear fuel is a deadly radiotoxic material

and each transport cask will contain considerably more

radioactivity than was dispersed by the Hiroshima

nuclear bomb. 2 Spent nuclear fuel “poses a dangerous,

2. https://www.nrc.gov/docs/ML2030/ML20308A728.pdf,

page 2.

3

long-term health and environmental risk. It will remain

dangerous ‘for time spans seemingly beyond human

comprehension.’” Nuclear Energy Inst., Inc. v. EPA,

373 F.3d 1251, 1258 (D.C. Cir. 2004) (per curiam). Fort

Worth is concerned for its citizenry of risk of exposure to

spent nuclear fuel from being stuck in traffic proximate

to rail loads, leakage from transport vehicles, downwind

exposure from defective transport cars, and the possible

radioactive contamination of water sources caused by

accidents. Further, Cesium-137, an isotope in the spent

nuclear fuel, could volatilize and escape with the smoke

if there is a fire or surface radioactive contamination on a

transport cask or vehicle. Radionuclides could be inhaled

by emergency responders or the public which could result

in damage to the heart or thyroid. 3

B. Fort Worth Citizenry Would be Affected by the

Transport of Spent Nuclear Fuel

Fort Worth is known for its unique combination of

cowboys and culture. Famous for its stock show and rodeo

and as the place “where the West begins”, it also is home to

some of the finest art museums in the world: the Kimbell,

Amon-Carter, and Modern. In 2020, Fort Worth had a

population of 958,692 and is now the 12th largest city in

the United States. Fort Worth is also one of the fastest

growing cities in the country.4 Fort Worth is a vibrant,

thriving, modern city that embraces its history.

3. Id.

4. https://worldpopulationreview.com/us-cities/fort-worthtx-population.

4

Pertinent to this appeal, Fort Worth is a national

railroad hub. Fort Worth is the home to Tower 55, the

crossing of double-track Union Pacific and single-track

Burlington Northern Sante Fe Railways. Mainline freight

operates on both lines, including unit and intermodal

trains. Passenger trains include Trinity Rail Express,

commuter trains from Dallas to Fort Worth’s Intermodal

Transportation Center, and the Texas & Pacific Passenger

Terminal. Amtrak’s Texas Eagle and Heartland Flyer

also stop at the Fort Worth Intermodal Transportation

Center. Burlington Northern Sante Fe and Union Pacific

local switchers serve nearby customers. The approximate

daily train frequency for Burlington Northern Sante Fe

is 30 freights, 50 for Union Pacific, 30 trains on weekdays

and 18 on Saturday for the Trinity Rail Express, and

Amtrak runs 4 trains. Major interstate highways cross

near Tower 55. 5

5. https://www.trains.com/trn/railroads/hotspots/fort-worthtexas-tower-55/.

5

The map below shows the rail system in Fort Worth.6

6. Map created by Natalie Watkins, Sr. IT Programmer/

Analyst, City of Fort Worth.

6

The shading on the map depicts a ½ mile area

on both sides of the rail throughout the City. In the

“Final Environmental Impact Statement for a Geologic

Repository for the Disposal of Spent Nuclear Fuel and

High-Level Radioactive Waste at Yucca Mountain, Nye

County, Nevada, Volume I” (February 2002), the U.S.

Department of Energy pronounced that the “region

of influence for public health and safety along existing

transportation routes is 800 meters (0.5 mile) from the

centerline of the transportation rights-of-way and from

the boundary of rail yards for incident-free (non-accident)

conditions. The region of influence was extended to 80

kilometers (50 miles) to address potential human health

and safety impacts from accident scenarios.” §§ 3.2.1, p.

3-119.

This ½ mile is a critical, vital part of Fort Worth;

in some ways this is Fort Worth’s heart. Within this ½

mile one will find such important things as: portions of

downtown including the Fort Worth Convention Center,

Water Gardens, the Federal Courthouse, and the Bass

Performance Hall. The ½ mile also encompasses the

Botanic Garden, Trinity Park, and Colonial Country Club.

Because this “region of influence” is heavily populated

and active, the City is concerned about spent nuclear fuel

transports and its effects. The map clearly shows many

hospitals and schools within the ½ mile of rail. Of course,

if there was a disaster, it would be catastrophic for Fort

Worth.

7

C. ISP’s Lack of Transparency with Respect to

Transportation Routes is Troubling

ISP proposes to transport dangerous nuclear waste

via rail throughout the country. Under federal regulations,

a proposed nuclear waste storage facility “must be

evaluated with respect to the potential impact on the

environment of the transportation of spent fuel, high-level

radioactive waste, or reactor-related [Greater-Than-Class

C] waste within the region.” 10 C.F.R. § 72.108. However,

evaluation of the environmental impact of transportation

of spent nuclear fuel to the West Texas facility would be

impossible because transportation routes are not clearly

defined.

ISP’s shows numerous nuclear reactor sites from which

it expects nuclear waste will be shipped to the storage site

in West Texas.7 However, ISP’s application is lacking in

meaningful information in regard to the transportation

route from these sites. Failing to identify routes denies

communities, such as Fort Worth, meaningful notice that

they will have trains carrying nuclear waste passing

through and affecting the citizenry. What’s more, it is

likely that Fort Worth’s downtown and other heavily

populated areas will be affected.

7. https://www.nrc.gov/docs/ML2030/ML20308A728.pdf,

Page 22, 30-31.

8

ISP only mapped three of the routes in their

application as shown below:8

While ISP lacks transparency with respect to

transportation routes, it is clear from these maps that Fort

Worth will be affected. The Fort Worth citizenry should

have access to transport route information so that the

public will know about the possible exposure to radioactive

waste. The City should have the right to petition for routes

that are less dense.

Clearly from its submissions, ISP explicitly expects

to receive spent nuclear fuel from decommissioned sites.9

Again, entire communities affected by the transport of

waste from these sites are left in the dark. With respect

to Fort Worth, because it is a railway hub, it will likely

be affected by the transport from these additional sites

8. Id., page 20.

9. Id.

9

which will result in additional exposure to its citizenry.

D. Fort Worth is Concerned that there has not been

an Adequate Calculation of the Risk of Accidents

and Exposure Levels

An agency conducting a National Environmental

Policy Act process must examine both the probability of a

given harm occurring and the consequences of that harm

if it does occur. “Only if the harm in question is so “remote

and speculative” as to reduce the effective probability of

its occurrence to zero may the agency dispense with the

consequences portion of the analysis.” State of New York

v. Nuclear Regulatory Comm’n, 681 F.3d 471, 482 (D.C.

Cir. 2012). Under the regulations, an agency must assess

the “reasonably foreseeable significant adverse effects”

of its action, including “impacts that have catastrophic

consequences, even if their probability of occurrence

is low.” See 40 C.F.R. § 1502.21(d). There is a risk of

radiologic harm from an accident caused by shipments of

spent nuclear fuel being transported to the consolidated

interim storage facility.

Fort Worth believes that at a minimum, the following

should be studied: Spent Nuclear Fuel storage options

(shouldn’t the waste be stored near the facility until there

is a permanent solution so that waste is moved only once?),

common sense shipment restrictions, temperature of

casks, the duration of casks, the necessity of emergency

cooling equipment, the necessity of certain fire suppression

equipment, and an analysis of population densities.

10

E. Fort Worth is Troubled by the Specter of a Terrorist

Attack Related to the Transport of Nuclear Waste

Under the applicable regulations, an agency must

assess significant adverse effects such as terrorist attacks.

See 40 C.F.R. § 1502.21(d) (requiring an agency to assess

“reasonably foreseeable significant adverse effects”

including “impacts that have catastrophic consequences,

even if their probability of occurrence is low”). In San Luis

Obispo Mothers for Peace, the Ninth Circuit held that it

was unreasonable for the Nuclear Regulatory Commission

to categorically dismiss the possibility of terrorist

attack as too remote and highly speculative to warrant

consideration. San Luis Obispo Mothers for Peace v. NRC,

449 F.3d 1016, 1032 (9th Cir.2006). Specifically, the Ninth

Circuit found that NRC’s historical actions to combat

terrorist threats could not be reconciled with its position

that terrorist attacks are too remote and speculative. Id. at

1030-31 & n.8 (finding inconsistencies with NRC’s position

that terrorist attacks are too remote and speculative and

the agency’s post 9/11 security procedures requiring

security plans to protect against a “design basis threat”

for radiological) (citing Nuclear Regulatory Commission:

Oversight of Security at Commercial Nuclear Power

Plants Needs to Be Strengthened, GAO-030752 (2003)

at 6).

Fort Worth is vulnerable to terrorist attack without

trains filled with spent nuclear fuel running through it. It

is the home of Lockheed Martin, an American aerospace,

arms, defense, information security, and technology

corporation with worldwide interests. It is also home

to Alliance Airport and Dallas-Fort Worth Airport,

11

according to Wikipedia, the world’s fourth busiest airport

by passenger traffic. But Fort Worth would be much more

vulnerable to attack with trains carrying spent nuclear

fuel running through it. Indeed, the trains themselves

are vulnerable to terrorist attack. A deliberate attempt to

trigger a catastrophe could result in grave consequences,

of course. The potential for disaster is too great and

the cost is too high: Fort Worth asserts that it is simply

unwise to transport spent nuclear fuel through its city

limits on rail.

F. Fort Worth is Concerned that Transportation of

Spent Nuclear Fuel will Cost Local Taxpayers

The Nuclear Regulatory Commission should consider

the cost to local taxpayers before issuing a permit. The

risks of wear and tear and geologic instability, adverse

impacts on regional industries’ use of the transportation

infrastructure and inevitable need for infrastructure

improvement costs, and substantial funding needed for

training, equipment and providing first responder, fire and

emergency services in the event of a radiological incident

should all be taken into account. The administrative

process, and the appeal from that process, should seek to

protect cities like Fort Worth that are going to be affected

most by an accident or incident. Under such foreseeable

circumstances, Fort Worth and other cities should not be

left to shoulder the costs of a disaster.

12

CONCLUSION AND PRAYER

T he City is concer ned that ever y a spect of

transporting highly dangerous material should be

considered carefully. An environmental impact statement

must contain a reasonably thorough discussion of the

significant probability of environmental consequences

and must discuss the environmental impacts, including

transportation impacts, of the proposed action—which

requires the Department of Energy to take a hard look at

the potential environmental consequences of the proposed

action. See Northwest Ecosystem Alliance v. Rey, 380

F. Supp. 2d 1175, 1185 (W.D. Wash. 2006); and Idaho

Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th

Cir. 1992). 10 C.F.R. § 63.31(c) provides that a construction

authorization will not issue until the Nuclear Regulatory

Commission weighs the environmental, economic,

technical, and other benefits against environmental costs,

and considers available alternatives contained in the

Environmental Impact Statement.

In this regard, Fort Worth is concerned about the

lack of designation of transportation routes, the risk of

accidents during transport, costs to Fort Worth that

have not been identified and are not funded. Fort Worth

is also concerned with the risk of canister failure during

transport, the risk of accidents during transport, and the

general uncertainty regarding canister performance and

lifespan. In short, Fort Worth does not want nuclear waste

transported through it.

13

The City of Fort Worth prays the Court rule for

Respondents.

Respectfully submitted,

Laetitia Coleman Brown

Counsel of Record

Christopher B. Mosley

City of Fort Worth

100 Fort Worth Trail

Fort Worth, TX 76102

(817) 392-7600

laetitia.coleman@fortworthtexas.gov

Counsel for Amicus Curiae

January 2025