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 OF AMICI CURIAE

DON’T WASTE MICHIGAN, ET AL.,

IN SUPPORT OF RESPONDENTS

Terry J. Lodge

316 North Michigan Street,

Suite 520

Toledo, OH 43604

Wallace L. Taylor

Counsel of Record

4403 First Avenue NE,

Suite 402

Cedar Rapids, IA 52402

(319) 366-2428

wtaylorlaw@aol.com

Counsel for Amici Curiae

120217

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

T H E N UC L E A R R E G U L A T OR Y

COMMISSION HAS NO AUTHORITY

U N DER T H E AT OM IC EN ERG Y

ACT TO LICENSE AN AWAY-FROMR E AC T OR S T OR AGE FACI L I T Y

FOR NUCLEAR WASTE . . . . . . . . . . . . . . . . . . 6

A. The Atomic Energy Act Does Not

Authorize Storage of Nuclear Waste

Away From the Nuclear Reactor,

Nor Even Mention It . . . . . . . . . . . . . . . . . . . 8

B. This Court Has Held That There Are

“Extraordinary Cases” Where An

Agency’s Authority Must Be Clearly

Stated By Congress . . . . . . . . . . . . . . . . . . . 10

C. The NRC’s Asserted Interpretation

of the Atomic Energy Act Is Not

Entitled To Deference . . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

II. BA S ED ON T H E S IGN I F ICA N T

N A T I O N W I D E I M PA C T O F

T R A NSP ORT I NG A N D ST ORI NG

THOUSANDS OF TONS OF HIGHLY

R A DIOAC T I V E WA ST E T O T WO

ST OR AGE FACILI T I E S W I T H I N

4 0 M ILES OF EACH O T HER ,

THIS CA SE PRESENTS A N

EXTRAORDINARY CASE WITH NO

CLEA R LICENSING AUTHORIT Y

GRANTED TO THE NRC . . . . . . . . . . . . . . . . 16

A. The Waste Will Be Transported

Across The Country From Various

Locations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. There Is No Assurance That The

Canisters In Which The Nuclear

Waste Would Be Transported And

Stored Are Safe . . . . . . . . . . . . . . . . . . . . . . 20

C. The Nuclear Waste Facilities Will Be

Located In Areas Subject To Risk

From Earthquakes . . . . . . . . . . . . . . . . . . . 25

D. Both Holtec A nd ISP Propose A

Policy Of Returning Damaged Or

Leaking Containers Of Spent Nuclear

Fuel To The Point Of Origin . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Bullcreek v. NRC,

359 F.3d 536 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . 13

Loper Bright Enterprises v. Raimondo,

144 S.Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . 5, 14, 15, 29

New York v. NRC,

681 F.3d 471 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . . 7

Texas v. NRC,

78 F.4th 827 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 13

West Virginia v. EPA,

142 S.Ct. 2587 (2022) . . . . . . . . . . . . 5, 10, 11, 13, 14, 29

STATUTES:

42 U.S.C. § 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 2133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

REGULATIONS:

10 C.F.R. § 72.122(h)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1

INTEREST OF AMICI CURIAE1

The Amici Curiae in this case are citizen organizations

who have members who live, work or recreate from within

a few hundred feet to a dozen or so miles from the railroad

routes over which more than 95% of the nuclear waste

from nuclear reactors would be transported to proposed

storage facilities. These organizations, on behalf of their

members, are concerned about the dangers associated

with transporting highly radioactive nuclear waste across

the country so near to where these members would be

exposed to significant radiation.

Don’t Waste Michigan (DWM) is a 40-year-old

grassroots association with members in southern and

central Michigan. DWM is located at 2213 Riverside

Drive NE, Grand Rapids, Michigan 48505. DWM has

opposed various incarnations of nuclear energy, from

commercial nuclear power plants to policy and practical

plans for disposal of radioactive waste, and engages in

public education and legal and administrative advocacy

in licensing proceedings.

DWM also supports measures to protect the health

and safety of its members and the Michigan public from

radiological injury.

During the height of the opposition in the 1990’s to

initiation of a low-level radioactive waste dump that was

being forced on Michigan by federal law as a host state,

Don’t Waste Michigan turned out rallies of 3,000 to 5,000

1. Pursuant to Rule 37.6, Amici affirm that no counsel

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

person other than Amici, their members, or their counsel made

a monetary contribution to fund its preparation or submission.

2

persons on regular basis. Many of these persons identified

themselves as Don’t Waste Michigan members.

Presently, DWM has more than 60 members statewide,

including many educators, and seeks in the present case

to intervene on behalf of seven (7) of its members.

Citizens’ Environmental Coalition was founded in

1970 around the time Love Canal in Western NY made

headlines related to the irresponsible management of

hazardous waste. Since that time CEC has actively

educated and mobilized New Yorkers around key threats

to members’ health, public health and the environment,

such as passage of hazardous waste legislation in New

York and the cleanup of the West Valley nuclear waste site

after the failed nuclear reprocessing experiment there.

CEC has organized to close New York’s aging nuclear

reactors. The group also supports sound and sustainable

energy alternatives such as efficiency and renewables, as

well as the use of safer chemicals and green chemistry.

CEC is concerned about the current careless planning

to transport and store nuclear waste in conjunction

with severe deficiencies in our national transportation

infrastructure. The group works at the local, state and

national levels, primarily with administrative agencies and

other non-profit organizations, providing testimony and

written comments and has approximately 5000 members.

CEC is located at 422 Oakland Valley Rd., Cuddebackville,

NY 12729.

San Luis Obispo Mothers for Peace (SLOMFP) is a nonprofit organization based in California that historically has

exposed and opposed the dangers posed by Diablo Canyon

and other nuclear power reactors, nuclear weapons, and

radioactive waste. The organization promotes peace,

3

environmental and social justice, and renewable energy

and supports measures to protect its members’ health and

public health in general from radiological injury. SLOMFP

came together in 1969 to oppose the Vietnam War and

to advocate for peace and in the early 1970’s intervened

in the Atomic Energy Commission licensing proceeding

against the Diablo Canyon nuclear power plant. Currently

the organization has 1,400 supporters and about 50 formal

voting members. MFP has litigated the NRC’s failure

to comply with federal laws governing nuclear power

and radioactive waste management before the agency as

well as in the Ninth and the First U.S. Circuit Courts;

has raised various management issues at Diablo Canyon

before the California Public Utilities Commission; and

pursues educational outreach via social media, speaking

events, rallies, mailings, letter-writing campaigns, letters

to editors and opinion pieces in newspapers.

Citizens for Alternatives to Chemical Contamination

(CACC) is a grassroots environmental education and

advocacy organization headquartered in central Michigan

at 8735 Maple Grove Rd., Lake, MI 48632. CACC is

dedicated to the principles of social and environmental

justice, pollution prevention on behalf of preserving

public health and the health of CACC’s members, citizen

empowerment, and protection of the Great Lakes

ecosystem.

Nuclear Energy Information Service is a non-profit

organization committed to ending nuclear power in this

country and worldwide. Located at 3411 W Diversey

Avenue, #13 Chicago, IL 60647, with over 200 members,

NEIS educates, activates and organizes the public on

energy issues; builds and mobilizes grassroots power and

nonviolent opposition to nuclear power; and advocates

4

sustainable and ecologically sound energy alternatives.

Founded in 1981, NEIS has consistently opposed nuclear

power because of cost; resistance to effective regulation;

unacceptable and unnecessary safety and health risk; the

tremendous disasters it could cause and has caused; the

release of radionuclides into the environment by less than

diligent regulators; the environmental damage caused by

every step of the nuclear fuel chain; long-lived radioactive

wastes; and risks of a terrorist incident at a nuclear plant

or at radioactive waste storage sites, and along proposed

transportation routes.

The Sustainable Energy and Economic Development

(SEED) Coalition is a grassroots organization that has

2000 members, mainly in Texas, but some in New Mexico.

Located at 605 Carismatic Lane, Austin, Texas, 78748,

SEED Coalition advocates for clean air and clean energy,

has promoted solar and wind development in Texas, while

opposing coal plants and urging their retirement. SEED

Coalition seeks to protect the health and safety of its

members and the general public from radiological injury,

and to advance that aim, in the past has participated in

nuclear power plant licensing proceedings in opposition

to Comanche Peak 3 & 4 and South Texas Project 3 & 4.

SEED also historically opposed Waste Control Specialists’

low-level radioactive waste facility, raising concerns

including the proximity of groundwater to the pits in which

radioactive waste is being disposed.

Amici also include Leona Morgan. Ms. Morgan is a

Dine’ Navaho who lives in Albuquerque, New Mexico. A

main railroad line passes within 1 mile of her home and

place of employment. It is a main route from California

that passes through Arizona to Albuquerque. That route

5

will likely be used to transport cargoes of radioactive

wastes to the ISP and Holtec storage facilities. Ms.

Morgan is concerned for her personal safety and that of

others who live in her household from radiation exposure

in the event of a serious transport accident, sabotage or

a terrorist attack on a shipment, and believes that she

may be exposed to routine radiation emissions if SNF

casks become a normal cargo delivered to ISP by way of

Albuquerque and that she might experience more serious

radioactive exposures and suffer health consequences

and serious property damage in the event of an accident

involving breach of a canister of radioactive waste.

SUMMARY OF THE ARGUMENT

Int er i m St orage Pa r tners (ISP) a nd Holt ec

International (Holtec) have been licensed by the Nuclear

Regulatory Commission (NRC) to construct and operate

storage facilities to store highly radioactive nuclear waste

in Texas and New Mexico. The NRC has no statutory

authority to issue licenses for away-from-reactor

storage facilities. Pursuant to this Court’s decisions in

West Virginia v. EPA and Loper Bright Enterprises v.

Raimondo, no deference should be given to the NRC’s

decision to issue licenses to ISP and Holtec.

To paraphrase this Court’s language in West Virginia,

these are “extraordinary cases” in which the “history

and the breadth of the authority that [the agency] has

asserted,” and the “economic and political significance”

of that assertion, provide a “reason to hesitate before

concluding that Congress” meant to confer such authority.

6

If ISP and Holtec are allowed to proceed, thousands of

tons of highly radioactive waste will be transported across

the country in containers with no assurance of safety. And

there is a danger of earthquakes at the proposed storage

sites. Therefore, the evidence before the agency and the

court below was that this case presents a major question,

the resolution of which must not be left to the discretion

of the agency.

ARGUMENT

I.

THE NUCLEAR REGULATORY COMMISSION

HAS NO AUTHORITY UNDER THE ATOMIC

ENERGY ACT TO LICENSE AN AWAY-FROMREACTOR STORAGE FACILITY FOR NUCLEAR

WASTE.

Nuclear waste is a problem with no good solution. As

the District of Columbia Circuit described it:

Even though it is no longer useful for nuclear

power, SNF [spent nuclear fuel] poses a

dangerous, long-term health and environmental

risk. It will remain dangerous “for time spans

seemingly beyond human comprehension.”

Nuclear Energy Inst., Inc. v. Envtl. Prot.

Agency, 373 F.3d 1251, 1258 (D.C. Cir. 2004)

(per curiam). Determining how to dispose of

the growing volume of SNF, which may reach

150,000 metric tons by the year 2050, is a

serious problem. See Blue Ribbon Commission,

supra, at 14. Yet despite years of “blue ribbon”

commissions, congressional hearings, agency

reports, and site investigations, the United

7

States has not yet developed a permanent

solution. That failure, declared the most recent

“blue ribbon” panel, is the “central flaw of the

U.S. nuclear waste management program to

date.” Id. at 27. Experts agree that the ultimate

solution will be a “geologic repository,” in which

SNF is stored deep within the earth, protected

by a combination of natural and engineered

barriers. Id. at ix, 29. Twenty years of work

on establishing such a repository at Yucca

Mountain was recently abandoned when the

Department of Energy decided to withdraw its

license application for the facility. Id. at 3. At

this time, there is not even a prospective site

for a repository, let alone progress toward the

actual construction of one.

Due to the government’s failure to establish

a final resting place for spent fuel, SNF is

currently stored on site at nuclear plants.

This type of storage, optimistically labeled

“temporary storage,” has been used for decades

longer than originally anticipated. The delay

has required plants to expand storage pools

and to pack SNF more densely within them.

The lack of progress on a permanent repository

has caused considerable uncertainty regarding

the environmental effects of temporary SNF

storage and the reasonableness of continuing

to license and relicense nuclear reactors.

New York v. Nuclear Regulatory Comm’n, 681 F.3d 471,

474 (D.C. Cir. 2012).

8

Holtec and ISP contemplate constructing and

operating what are euphemistically called “interim”

storage facilities, in New Mexico and Texas, respectively.

They would store 40,000 tons to over 170,000 tons of

radioactive waste, either above ground or only partially

underground. The proposed facility in New Mexico, if

built, would be the largest concentration of radioactive

material this side of the sun.

Although Holtec and ISP facilities are initially licensed

for 40 years, those licenses could be renewed for additional

20-year periods. So, if a permanent repository cannot be

developed, the Holtec and ISP facilities could become de

facto permanent repositories, without the physical barrier

protections of a permanent repository. The implications

of this scenario are significant. A surface or near-surface

nuclear waste repository would require management and

oversight in perpetuity, i.e, forever.

A.

The Atomic Energy Act Does Not Authorize

Storage of Nuclear Waste Away From the

Nuclear Reactor, Nor Even Mention It.

The licensing provision of the Atomic Energy Act, 42

U.S.C. § 2133, states:

The Commission is authorized to issue licenses

to persons applying therefor to transfer or

receive in interstate commerce, manufacture,

produce, transfer, acquire, possess, use, import

or export under the terms of an agreement for

cooperation arranged pursuant to section 123,

utilization or production facilities for industrial

or commercial purposes.

9

This section clearly limits the Commission’s licensing

authority to utilization and production facilities.

42 U.S.C. § 2014 defines “production facility” as

follows:

(1) any equipment or device determined by

rule of the Commission to be capable of the

production of special nuclear material in

such quantity as to be of significance to the

common defense and security, or in such

manner as to affect the health and safety of

the public; or (2) any important component

part especially designed for such equipment

or device as determined by the Commission.

Except with respect to the export of a uranium

enrichment production facility, such term as

used in Chapters 10 and 16 shall not include any

equipment or device (or important component

part especially designed for such equipment

or device) capable of separating the isotopes of

uranium or enriching uranium in the isotope

235.

The definition of “utilization facility,” pursuant to § 2014,

is:

(1) any equipment or devices, except an atomic

weapon, determined by rule of the Commission

to be capable of making use of special nuclear

material in such quantity as to be of significance

to the common defense and security, or in such

manner as to affect the health and safety of

the public, or peculiarly adapted for making

10

use of atomic energy in such quantity as to

be of significance to the common defense

and security, or in such manner as to affect

the health and safety of the public; or (2) any

important component part especially designed

for such equipment or device as determined by

the Commission.

Obviously, neither of these definitions includes a nuclear

waste storage facility.

In proceedings below, the Nuclear Regulatory

Commission has argued that it has some inherent

authority to regulate any issue regarding nuclear power.

But, as held by decisions of this Court and explained infra,

debatable inherence is not regulatory authority when it is

not clearly granted by statute.

B. T his Cou r t Ha s Held T hat T here A re

“Extraordinary Cases” Where An Agency’s

Authority Must Be Clearly Stated By Congress.

This Court, in West Virginia v. EPA, 142 S.Ct. 2587,

2608 (2022), noted that:

there are “extraordinary cases” that call

for a different approach—cases in which the

“history and the breadth of the authority that

[the agency] has asserted,” and the “economic

and political significance” of that assertion,

provide a “reason to hesitate before concluding

that Congress” meant to confer such authority.

11

The West Virginia decision went on to say:

Extraordinary grants of regulatory authority

are rarely accomplished through “modest

words,” “vague terms,” or “subtle device[s].”

Whitman, 531 U.S. at 468, 121 S.Ct. 903. Nor

does Congress typically use oblique or elliptical

language to empower an agency to make a

“radical or fundamental change” to a statutory

scheme. MCI Telecommunications Corp. v.

American Telephone & Telegraph Co., 512 U.S.

218, 229, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

Agencies have only those powers given to them

by Congress, and “enabling legislation” is

generally not an “open book to which the agency

[may] add pages and change the plot line.” E.

Gellhorn & P. Verkuil, Controlling Chevron

Based Delegations, 20 Cardozo L. Rev. 989,

1011 (1999). We presume that “Congress intends

to make major policy decisions itself, not leave

those decisions to agencies.” United States

Telecom Assn. v. FCC, 855 F.3d 381, 419 (CADC

2017);West Virginia v. Envtl. Prot. Agency, 142

S.Ct. 2587, 213 L.Ed.2d 896 (2022) (Kavanaugh,

J., dissenting from denial of rehearing en banc).

Id. at 2609.

The NRC, ISP, and its Amici have argued that this

case is not “extraordinary,” as contemplated in the West

Virginia decision. They claim that the NRC has approved

away-from-reactor storage facilities in the past. 2 But

2. NRC Brief, p. 5-6.

12

eight of those facilities were licensed as federal facilities

pursuant to the Nuclear Waste Policy Act. Those facilities

are Big Rock Point, Fort St. Vrain, Haddam Neck,

Humbolt Bay, Maine Yankee, Rancho Seco, Trojan, and

Yankee Rowe. The licensing of those facilities is irrelevant

to the issue in this case, i.e., that the licensing of private,

non-federal, waste facilities is not authorized by the

Atomic Energy Act.

There are only two licensed private away-from-reactor

facilities, aside from the two at issue in this case. Those are

GE Morris and Private Fuel Storage. 3 The Morris facility

was never meant to be a storage facility. It was designed

to be a facility for reprocessing nuclear waste, but for

various technical reasons, it was never put into operation

as a reprocessing facility. It therefore became a waste

storage facility by default. It was being decommissioned

and its license was set to expire in 2022.4 It holds only

772 tons of nuclear waste, far less than the ISP or Holtec

facilities would manage. Clearly, the Morris facility does

not present the same issues as the ISP and Holtec facilities

that would hold tens of thousands of tons of radioactive

waste for 40 or more years.

Although the Private Fuel Storage facility was

licensed to hold 40,000 tons of waste, it has never been

placed in operation. Nor was the license ever challenged

as being beyond the authority of the NRC. As the Fifth

Circuit correctly observed in the decision below, the D.C.

3. Id.

4. https://w w w.nrc.gov/docs/ ML2119/ ML2119 0A 130.

pdf&ved=2ahUKEwi2ibaEtq-KAxVDGtAFHRnlF68QFnoEC

B4QAQ&usg=AOvVaw3st1lJKXXV49DNDtjCXK-l

13

Circuit, in Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004),

did not address the issue of the NRC’s authority under the

Atomic Energy Act. The issue in that case was whether the

Nuclear Waste Policy Act preempted or superseded the

Atomic Energy Act. The court and the parties assumed

for the sake of argument that the NRC had authority

under the AEA to license a private away-from-reactor

storage facility. So the NRC cannot credibly argue that the

Private Fuel Storage project demonstrates the agency’s

authority under the AEA to license an away-from-reactor

storage facility.

The Fifth Circuit, in the decision below, Texas v.

Nuclear Regulatory Commission, 78 F.4th 827 (5th Cir.

2023), discussed and evaluated all of the NRC’s attempts

to bring the licensing of an away-from-reactor storage

facility within the provisions of the Atomic Energy Act,

and the court correctly found those attempts meritless.

The Fifth Circuit’s decision is wholly consistent with this

Court’s holding in West Virginia, where Chief Justice

Roberts said:

Thus, in certain extraordinary cases, both

separation of powers principles and a practical

understanding of legislative intent make us

“reluctant to read into ambiguous statutory

text” the delegation claimed to be lurking there.

Utility Air, 573 U.S. at 324, 134 S.Ct. 2427. To

convince us otherwise, something more than a

merely plausible textual basis for the agency

action is necessary. The agency instead must

point to “clear congressional authorization” for

the power it claims. Ibid.

West Virginia, 142 S.Ct at 2609.

14

As detailed infra, the nuclear waste facilities proposed

by ISP and Holtec constitute precisely the type of

“extraordinary case” referred to in the West Virginia

decision.

C.

The NRC’s Asserted Interpretation of the

Atomic Energy Act Is Not Entitled To Deference.

In a further effort to justify licensing these nuclear

waste facilities, the NRC makes a scattershot reference

to several sections of the Atomic Energy Act, but cannot

point to any provision of the Act that specifically authorizes

the licensing of an away-from-reactor storage facility.5 The

NRC claims that because the AEA authorizes the NRC

to regulate source material, special nuclear material,

and byproduct material, which are components of spent

nuclear fuel, there is some inherent authority in the AEA

for the NRC to regulate the storage of spent nuclear fuel.

Also, the NRC points to judicial decisions allegedly

supporting the agency’s authority,6 but again, there is

no citation to any provision in the Atomic Energy Act.

Ultimately, the agency relies on what it claims is its

interpretation of the Atomic Energy Act.

This Court held last term, in Loper Bright v.

Raimondo, 144 S.Ct. 2244 (2024), that:

Courts must exercise their independent

judgment in deciding whether an agency has

acted within its statutory authority, as the APA

5. NRC Brief p. 2-3, 32.

6. Id. at p. 31.

15

requires. Careful attention to the judgment

of the Executive Branch may help inform

that inquiry. And when a particular statute

delegates authority to an agency consistent

with constitutional limits, courts must respect

the delegation, while ensuring that the agency

acts within it. But courts need not and under the

APA may not defer to an agency interpretation

of the law simply because a statute is ambiguous.

So this Court owes no deference to the NRC’s interpretation

of the Atomic Energy Act.

Furthermore, even without reliance on Loper Bright,

the routine canons of statutory construction yield the

same result. Under the canon of expressio unius est

exclusio alterius, the expression of specific items establish

legislative intent to exclude other similar items.7 In

other words, the AEA’s express naming of the NRC’s

authority to source material, special nuclear material,

and byproduct material works to exclude any authority

over spent nuclear fuel.

7. Antonin Scalia and Bryan Garner, Reading Law: The

Interpretation of Legal Texts, p. 107 (2011).

16

II. BASED ON THE SIGNIFICANT NATIONWIDE

IMPACT OF TRANSPORTING AND STORING

T H O U S A N D S O F T O N S O F H I G H LY

RADIOACTIVE WASTE TO TWO STORAGE

FACILITIES WITHIN 40 MILES OF EACH

OTHER , THIS CA SE PRESEN TS A N

EXTRAORDINARY CASE WITH NO CLEAR

LICENSING AUTHORITY GRANTED TO THE

NRC.

As noted above, radioactive waste, including spent

nuclear fuel, is dangerous for hundreds of thousands

of years. There are currently about 90,000 metric tons

of nuclear waste in the United States, with about 2,000

metric tons being produced each year.8 So, over the 40-year

licensing period for the ISP and Holtec storage facilities,

another 80,000 additional metric tons of waste would be

produced. Thus, the current inventory of nuclear waste

and the amount produced during the life of the storage

facilities are more than the two facilities are designed to

hold. No consideration was given to what happens under

that scenario.

In the administrative proceedings below, the NRC

was presented with numerous facts and explanations as

to why the impacts of ISP’s and Holtec’s proposals would

be devastating to people and the environment. But the

NRC minimized or ignored these impacts.

8. https://www.energy.gov/ne/articles/5-fast-facts-aboutspent-nuclear-fuel

17

A.

The Waste Will Be Transported Across The

Country From Various Locations.

Most, if not all, of the radioactive waste destined for

the storage facilities will come from the various nuclear

reactors located all over the country. The transportation

of the waste will be accomplished primarily by rail. The

majority of the reactors are located in the East, from

Maine down to South Carolina and Georgia. Other

reactors are in Illinois, Ohio, Iowa, Nebraska, Texas and

California. The likely routes for transporting the waste

from these reactors to the proposed ISP and Holtec sites

amount to, in the aggregate, hundreds of thousands, or

even millions of miles. The risk of transporting so much

radioactive waste over that many miles is significant.

A thorough analysis of transportation risks was set

forth in the record in a report by Dr. James David Ballard

submitted to the ASLB in the licensing proceeding.9 Dr.

Ballard first notes the geographic dispersion of the nuclear

reactors from which waste would be transported to the

storage facility. He states that a generic analysis fails to

account for the complexity of risks such a massive supply

infrastructure implies. He therefore concludes:

This lack of the ability to perceive systematic

risk complexity for a proposed interim storage

facility may well underestimate the impacts of

a radiological event involving these materials.

Thus, a programmatic Environmental Impact

Statement (EIS) should be initiated prior to

the proposed action and that addresses the

9. https://www.nrc.gov/docs/ML18317/ML18317A444.pdf

18

totality of the shipment infrastructure that

will supply this new storage. Failure to supply

a programmatic EIS (transportation EIS) prior

to the proposal storage phase (a separate EIS/

EA) has left [the storage facility] vulnerable to

liability in the event of a radiological emergency

at the storage site,but perhaps also while

in-transit wastes are moving towards that

destination. The ISP proposal is currently

insufficient to address the transportation issue

for waste movements to the proposed CISF on

any level.

Dr. Ballard goes on to explain why shipments of radioactive

waste would be attractive targets for terrorist groups or

others who would attack the shipments.

A technical report by the Nuclear Waste Technical

R e v ie w Bo a r d , Pr e p a r i n g fo r Nu c l e a r Wa s t e

Transportation (2019)10, is also significant. That report

identifies 18 technical issues regarding transportation

of nuclear waste. The critical determination from that

report is as follows:

DOE has examined the trend in SNF dry

storage at nuclear power plant sites (Williams

2013). On average, during 2004-2013, the

nuclear utilities discharged SNF that has

higher burnups (approximately 45 Gwd/MTU)

than previously discharged SNF and, therefore,

10. https://www.nwtrb.gov/docs/defaultsource/reportnwtrb_

nuclearwastetransport_508.pdf&ved=2ahUKEB67Hx4s-KAxV

Eg4kEHcaeLsoQFnoECA4QAQ&usg=AOvVaw2RbIC1KMyUx

QKk1OwgN3xl

19

is thermally hotter and more radioactive. In

addition, the nuclear utilities are loading SNF

into larger dry-storage casks and canisters

to improve operational efficiency and reduce

cost. The largest of these canisters now holds

as many as 37 PWR assemblies or 89 BWR

assemblies. As a result, these larger casks and

canisters are hotter than earlier dry-storage

casks and canisters; therefore, they will take

longer to cool sufficiently to meet transportation

requirements.

DOE estimated that if SNF was repackaged

from large casks and canisters to smaller

standardized canisters (and using standard

assumptions about the operating lifetime of

the U.S. fleet of nuclear reactors), DOE could

remove SNF from all nuclear power plant

sites by approximately 2070. However, if no

repackaging occurs, some of the largest SNF

canisters storing the hottest SNF would not

be cool enough to meet the transportation

requi rements unti l approx imately 210 0

(Williams 2013).11

In other words, nuclear waste cannot be safely transported

to the storage facilities at any time during the period for

which the facilities are licensed.

Robert Alvarez, an expert on nuclear waste, reviewed

the NWTRB report and discussed the implications of the

report as they relate to the Holtec storage facility in New

11. Id. at p. 77.

20

Mexico. But his observations apply equally to the ISP

project. Mr. Alvarez offered four conclusions:12

• With about a third of the world’s spent power

reactor fuel (SNF), the magnitude of long-distance

transport of spent nuclear fuel and high-level radioactive

waste in the United States is unprecedented.

• Concerns surrounding the integrity of highburnup spent nuclear fuel in dry storage are not

resolved and may result in prolonged onsite storage

for several decades.

• There is a substantial lack of data regarding

potential damage of SNF during transport.

• Repackaging SNF for transport and disposal is

an important missing element that has a major impact

on the timing and implementation of a national SNF

transportation program.

The record is clear, therefore, that the impacts of

transportation of the nuclear waste are significant, even

conceivably catastrophic, and exemplify the extraordinary

case that this Court contemplated in West Virginia v.

EPA.

B. There Is No Assurance That The Canisters

In Which The Nuclear Waste Would Be

Transported And Stored Are Safe.

The NRC has claimed that there are no health and

safety issues, relying primarily on the pretense that the

12. https://www.nrc.gov/docs/ML18317/ML18317A443.pdf

21

canisters containing the radioactive waste are impervious

to breaches or leaks that would cause radiation exposure.

That assurance is not justified.

There is no indication that the canisters cannot fail,

especially if they must last for the 40-year license period,

the anticipated 60-year relicensing period, the 60-100-year

anticipated life of the storage facilities, or indefinitely if

no permanent repository is ever developed. The canisters

will be above ground, or partially above ground, subject

to weather and human activity.

According to Holtec and ISP, the cask systems that

will be used at the storage facilities are licensed for 20

years. The life of the CIS facility will be far longer than

20 years. Even the anticipated 60-year relicensing period

is longer than the licensing period for the containers. The

NRC has not addressed this issue nor the impacts of the

CIS facility operating beyond the licensing period for the

canisters. ISP, Holtec, and the NRC apparently assume

that the canisters will be relicensed to continue their

use. This clearly makes their relicensing a rubber stamp.

If it is not a rubber stamp, how will the integrity of the

canisters be assured for relicensing? There is no plan in

place to prevent or stop cracks and leaks, repair cracks,

or maintain and monitor the fuel and its containment in

order to prevent leaks, explosions or criticalities. This

was determined by the Nuclear Waste Technical Review

Board in a report, Geologic Repositories: Performance

Monitoring and Retrievability of Emplaced High-Level

Radioactive Waste and Spent Nuclear Fuel (May 2018).13

13. www.nwtrb.gov/our-work/reports/geologic-repositoriesperformance-monitoring-and-retrieveability-of-emplaced-highlevel-radioactive-waste-and-spent-nuclear-fuel.

22

High burnup fuel also creates issues with the integrity

of the canisters. Since 1999 the amount of high burnup fuel

being used in nuclear reactors has increased substantially.

Since 2012, all the fuel used in reactors has been high

burnup. High burnup fuel is dangerously unpredictable

and unstable in storage, even for a short term. High

burnup fuel is twice as radioactive and over twice as hot

as regular nuclear fuel. The cladding around high burnup

fuel rods becomes thinner and more brittle, inducing

cracking. This makes the storing and transportation of

containers loaded with high burnup fuel more likely to

leak radioactive material into the environment.

A June 2013 Department of Energy report states, “ . . .

cladding performance issues need to be addressed before

this fuel can be loaded into dry casks and transportation

systems,” and “burnup rates as low as 30 Gwd/MTU

can present performance issues including cladding

embrittlement under accident conditions as well as normal

operations.”14

According to the Nuclear Waste Technical Review

Board (NWTRB), the maximum oxide thickness for high

burnup fuel (60-65 Gwd/MTU) is 100 µ/m. NWTRB,

Evaluation of the Technical Basis for Extended Dry

Storage and Transportation of Used Nuclear Fuel

(December 2010). 15 According to the NWTRB, this

corresponds to a metal loss of 70 µ/m using conservative

assumptions. Since zirconium cladding is 600 µ/m, this

14. www.hsdl.org/?abstract&did=739345.

1 5 . h t t p s : // w w w. n w t r b . g o v /d o c s /d e f a u l t - s o u r c e /

reportssynopsisdrystorage.pdf%3Fsfvrsn%3D4&ved=2ahUKE

wiApN3R5s-KAxUr7skDHUIfBzoQFnoECBYQAQ&usg=AOv

Vaw0buvBH-0_Npapd4WZ0zW17

23

represents a thinning of the cladding wall of approximately

12%.

During reactor operation, there is friction wear

between the cladding and fuel pellets caused by vibrations.

If this wear is severe, a breach can occur. According to

NWTRB, this is the principal cause of cladding failure

of reactor fuel rods. Since high burnup fuel remains in

the reactor longer, the likelihood of cladding defects is

increased.

NRC regulation 10 C.F.R. § 72.122(h)(1) states that

spent fuel cladding must be protected during storage

against degradation that leads to gross ruptures in the

fuel, or the fuel must be otherwise confined such that

the degradation of the fuel during storage will not pose

operational safety problems with respect to its removal

from storage. Gross cladding defects are possible in all

phases of dry cask storage. A gross cladding defect is

a known or suspected cladding condition that results in

the fuel not meeting its design-basis criteria for dry cask

storage. Known or suspected failed fuel assemblies (rods)

and fuel rods with cladding defects greater than pin holes

and hairline cracks are prohibited.

Additionally, both individual fuel rods and fuel

assemblies should be intact to preclude fuel handling or

operational safety problems during loading and unloading

operations. It is the responsibility of the licensee to ensure

that fuel placed in dry storage meets the design-basis

conditions. This definition is applicable to all phases of

dry cask storage (from selection and inspection of the fuel

before loading until the fuel is unloaded from the cask or

the cask is placed in a permanent repository). Alternative

24

means, such as canning, will be required for dry cask

storage of fuel that does not meet design-basis conditions.

Robert Alvarez has discussed additional issues

concerning the storage of high burnup fuel.16 Among

other observations, Mr. Alvarez notes that once it is

used, high burnup significantly boosts the radioactivity in

spent fuel and its commensurate decay heat. Mr. Alvarez

confirms, as noted above, the fuel that high burnup fuel

may cause damage to the fuel cladding and that even the

NRC admits to the potential for the cladding of spent fuel

with burnups greater than 45 Gwd/MTU to be damaged

during the licensing period. Mr. Alvarez also notes that

ISP and Holtec recognize the concerns and uncertainties

regarding high burnup fuel because they claim that the

damaged fuel will be canned (i.e., contained) inside the

canister. Both ISP’s and Holtec’s license applications

claim that the two facilities will not accept high burnup

fuel considered to be damaged unless it is placed in a

more expensive double-shell canister. Robert Alvarez

maintains that consequently, the fuel will be stranded

for decades, since there is no imminent determination of

how to assess its long-term integrity. The Nuclear Waste

Technical Review Board recommends “that a validation

inspection program of both low and high-burnup fuels

be instituted after 15 and 30 years of storage,”17 but that

program does not exist.

16. https://www.nrc.gov/docs/ML18317/ML18317A443.pdf

17. https://w w w.govinfo.gov/content/pkg/GOVPUB-Y3_

N8 8 _ 2 -PURL -g po2 414 4 /pdf /GOV PU B-Y3 _N8 8 _ 2PURL gpo24144.pdf&ved=2ahUKEwjP-u7668AxXWAHkGHeK1I6IQ

FnoECC0QAQ&usg=AOvVaw1e6v9JoaZf_hBWr2iktLG8

25

Dr. Gordon Thompson has also provided opinions

about the safety of the canisters.18 Dr. Thompson notes

that a typical spent fuel container has a comparatively

large capacity for holding fuel assemblies and a thin wall.

He states that these containers were designed to minimize

licensees’ short-term expenditures on spent fuel storage.

They were not designed to maximize container lifetime; be

highly robust during transportation or storage; facilitate

monitoring of container integrity or the condition of spent

fuel inside a container; nor are they suitable for direct

emplacement in a repository.

The implications of a possible breach or leak in the

canisters is cause for serious concern.

C.

The Nuclear Waste Facilities Will Be Located

In Areas Subject To Risk From Earthquakes.

Both nuclear waste facilities will be located in areas

subject to periodic earthquakes. Several earthquakes

with a magnitude of 3 or greater have occurred in the

area since 1975. There is a published study conducted

by scientists at the University of Texas and Southern

Methodist University showing the increased incidence

of earthquakes induced by fossil fuel extraction in the

Permian Basin, location of the Holtec and ISP sites.

Stanford University researchers have documented the

existence of prior earthquakes in southeast New Mexico

where the Holtec facility would be located. This study

confirms the existence of numerous faults in the area in

and around the proposed Holtec site.

18. https://www.nrc.gov/docs/ML18317/ML18317A445.pdf

26

Fasken Oil and Ranch Ltd and the PBLRO Coalition,

Respondents in this action, submitted these scoping

comments on the Draft Environmental Impact Statement

for the Holtec project:19

The proposed site sits on top of and adjacent to

oil and gas minerals to be dev feloped by means

of fracture stimulation techniques. Currently,

drilling techniques used to extract minerals in

the Permian Basin involve drilling horizontally

into deep underground formations up to

two miles beneath the earth’s surface. High

pressure fluids are pumped into the wells, in

some cases exceeding twelve thousand pounds

per square inch. This pressure is powerful

enough to fracture the surrounding rock thus

releasing the oil and gas. The pressure creates

fissures and cracks beneath the surface. And, at

this time, there are oil and gas operators testing

a new technique of simultaneously drilling and

fracturing up to 49 horizontal wellbores in a

single section of land. Either the traditional or

new and unproven drilling technique, involving

more than 20,000,000 bbls of water and sand,

could conceivably be utilized to inject into and

withdraw from the rock formation beneath

and surrounding the Holtec site. Hydraulic

fracturing beneath and around Holtec should

give the NRC pause and is sufficient reason

not to proceed.

19. https://nuclearactive.org/wp-content/uploads/2019/08/

Holtec-Answer-to-Fasken-Oil-8-26-19.pdf

27

Clearly, it is extremely concerning and significant

that highly radioactive material would be stored where

subsurface fracturing for oil and gas make it vulnerable

to earthquakes.

D.

Both Holtec And ISP Propose A Policy Of

Returning Damaged Or Leaking Containers

Of Spent Nuclear Fuel To The Point Of Origin.

As proposed by Holtec and ISP, 160,000 tons or more

of radioactive waste would be transported from all over

the country to the storage facilities in canisters filled with

the waste at the reactor sites. Holtec and ISP further

propose a “start clean/stay clean” policy to return to the

originating reactor site any canisters that are leaking

or damaged. The problem with “start clean/stay clean”

is that arriving and potentially dangerous canisters

would be dispatched back to their point of origin with no

attempt to make them any safer than when they arrived

at the storage facilities. Neither Holtec nor ISP would

maintain any technological means of removing broken or

damaged fuel from the transport capsules on the spot.

Instead, they would knowingly subject people and the

physical environment along the transportation routes

to an additional risk of radiation exposure from casks

or canisters with identified problems that could cause

dangerous leakage.

The significance of transporting the waste across the

country was discussed above in sections A and B. The

risk is even greater if the canisters being transported

are known to be defective or leaking and the transport

mileage is doubled by returning the spent fuel to its

point of origin. The Amici do not believe the NRC has

28

ever before approved a license for a project with such a

significant inherent risk.

An alternative to transporting the defective or

leaking canisters back to the place of origin is known

as a dry transfer system (DTS). A DTS is an enclosed,

largely robotic system that would mechanically unload a

canister of spent fuel and transfer it into a new canister.

DTS technology is expensive. There literally is no active

such mechanism in existence at any nuclear reactor site

in North America. Likely because of the expense, neither

ISP nor Holtec plan to have DTS capability at their

proposed storage facilities for at least the first 100 years

of operations. Apparently the reasoning of the NRC and

the private facility operators is that it is better to multiply

the dangers of spent fuel return shipments than rationally

provide a means to ensure public safety and protect the

physical environment.

The “start clean/stay clean” policy also belies the truth

about transport containers for spent fuel. The NRC, ISP,

and Holtec cannot credibly assert that certification of the

canisters means they are safe. If they were, and would

never leak, that policy would not be necessary.

29

CONCLUSION

The facts and issues in this case come within the

ambit of this Court’s decisions in West Virginia v. EPA

and Loper Bright Enterprises v. Raimondo. Designating

and licensing two unique facilities that are expected to

provide stable temporary storage for perhaps centuries

of the largest concentrations of highly radioactive

irradiated nuclear waste on earth is a “major question”

which deserves the full attention of the Supreme Court.

The demonstrated ad hoc nature of the licensing pathway

created by the Nuclear Regulatory Commission supplies

the basis for the Court to step in and determine exactly

what room there is in federal law for to build and operate

such facilities. Therefore, the decision of the Fifth Circuit

below should be affirmed.

Respectfully submitted,

Terry J. Lodge

316 North Michigan Street,

Suite 520

Toledo, OH 43604

Wallace L. Taylor

Counsel of Record

4403 First Avenue NE,

Suite 402

Cedar Rapids, IA 52402

(319) 366-2428

wtaylorlaw@aol.com

Counsel for Amici Curiae