Updates on various federal appeals court cases opposing CISFs in TX and NM

There are three major federal appeals court cases (often involving a consolidation of the opposition of multiple parties) against the so-called "private" consolidated interim storage facilities (CISFs) targeted at Texas (by Interim Storage Partners, LLC) and New Mexico (by Holtec International).

The single largest consolidation of cases is in the U.S. Court of Appeals for the District of Columbia Circuit, often called "the second highest court in the land," just under the U.S. Supreme Court. There, Beyond Nuclear, Don't Waste Michigan et al. (a seven-group, national, grassroots environmental coalition), and Sierra Club have each filed appeals against both the ISP and Holtec CISFs. So too has Fasken Land and Mineral, Ltd., and Permian Basin Land and Royalty Owners Association. ISP was already approved for construction and operation by NRC on 9/13/21, so that appeals case is first; but NRC is expected to approve Holtec later this year as well, so that case will pick up then. The court had ordered major filings of briefs to be due on 1/20/22. However, shortly before that deadline, the court suspended it. The court has not yet notified the parties of a rescheduling, but the court's order could come at any time. All parties opposed to ISP stand ready to meet whatever deadline the court orders.

In the U.S. Court of Appeals for the 5th Circuit (technically, also the second highest court in the land -- all U.S. Courts of Appeals are equal in status and stature), headquartered in New Orleans, LA, opponents to ISP have filed appeals. This includes, again, Fasken Land and Minerals, Ltd., and PBLRO Assn. But it also includes the State of Texas itself. (Please note that the State of Texas opposes both CISFs, ISP in TX, as well as Holtec in NM. However, per above, since NRC has already rubber-stamped the ISP license, that case is happening first). This federal court appeal is not suspended. The court ordered a 2/7/22 filing of briefs by Fasken/PBLRO Assn. and State of TX. Both parties will meet this deadline.

In the U.S. Court of Appeals for the 10th Circuit (also tied for the second highest court in the land), headquartered in Denver, CO, the State of New Mexico has filed an appeal against the licensing of ISP. As with TX, NM also opposes both CISFs, the one within its borders at Holtec, the other immediately upon its border (within 0.37 miles), and upstream -- ISP. This case is also not suspended, so is proceeding. On January 20th, the court informed all parties that major filings of briefs would be due on or about 60 days in the future, so on or about March 20th.

In addition to its 10th Circuit appeal, the State of NM has also filed a lawsuit in federal district court in NM, opposing both CISFs. The NRC has filed a motion for summary disposition there. The court could rule on this motion for summary dismissal at any time.

In addition to federal court appeals, the parties opposed to both CISFs are taking action in other arenas, as well. For example, the State of TX enacted a law in September 2021, making the proposed CISF at ISP illegal. It ordered state agencies, such as TDEC (Texas Department of Environmental Control), to not issue permits required for the ISP CISF to go forward.

The State of NM is considering a similar law to disallow CISFs within its borders. A bill in the state legislature, under very active consideration right now, would do just that.

Additional sample comments you can use to write your own, addressing numerous aspects of federal CISFs DOE hasn't even asked about

“Consent-Based Siting” of Federal “Consolidated Interim Storage Facilities”
U.S. Department of Energy Request for Information Public Comment Opportunity

Deadline to Submit Public Comments: 5pm ET, Friday, March 4, 2022


Sample Comments You Can Use to Write Your Own
(Comments Can Be Submitted by Individuals, and/or on Behalf of Organizations)

See HOW to submit your comments, here.

Also see the sample comments at the bottom below, via the bolded and underlined links. Once there, the sample comments include further background information that can also be incorporated into comments if you so choose. Sometimes links are provided for even more background information that can also be incorporated. Feel free to use the comments however best helps you write and submit your own comments, including simply copying them verbatim. But here immediately below are ten sample comments, in more concise form:

(1.) The most serious and inevitable risk if the U.S. Department of Energy were to take ownership of commercial highly radioactive nuclear waste before a permanent geologic repository opens: federal Consolidated Interim Storage Facilities would likely become Consolidated Permanent Surface Storage, that is, de facto Above-Ground Permanent Disposal, or Parking Lot Dumps.

(2.) Indefinitely long, to permanent, surface storage at federal CISFs would require active features. Loss of institutional control anytime over the next million years would mean the potential for catastrophic releases of hazardous radioactivity into the environment, which would harm people and other living things downwind, downstream, up the food chain, and down the generations, potentially out to great distances, depending on wind and water driven flow over long periods of time.

(3.) Indefinitely long, to permanent, surface storage at federal CISFs would remain dangerously accessible, risking unintentional/accidental, but nonetheless catastrophic, releases of hazardous ionizing radioactivity, as due to container degradation/failure over time, extreme weather disasters due to climate chaos, etc. However, intentional releases, as due to an act of war, terrorist attack, or sabotage, are also possible. So too is theft/diversion of weapons-usable materials, risking proliferation of nuclear weaponry or radiological dirty bombs.

(4.) Indefinitely long, to permanent, surface storage at federal CISFs would achieve only very short-term effectiveness, at best, compared to the hazardous persistence of irradiated nuclear fuel and highly radioactive waste.

(5.) Indefinitely long, to permanent, surface storage at federal CISFs, would result in intergenerational inequity, a form of environmental injustice.

(6.) Any legal authority for DOE to take title to and liability for commercial irradiated nuclear fuel at a federal CISF, in the absence of a permanent geologic repository, was very limited as to the quantity that could be stored there (1,900 metric tons), was for emergency purposes only, and expired more than three decades ago, in 1990.

(7.) Federal CISFs would multiply the highly radioactive waste transportation risks, while accomplishing no increase whatsoever in the safety, security, health, or environmental protection associated with the storage of irradiated nuclear fuel.

(8). Nuclear power should be phased out and abolished, so that no more highly radioactive waste will be generated. We need to stop making it in the first place. However, for highly radioactive irradiated nuclear fuel (INF) that already exists, hardened on-site storage (HOSS), or hardened near-site storage, is the best interim measure, not CISFs. HOSS, or hardened near-site storage, is the preferred interim alternative, not CISFs.

(9.) The continued targeting of CISFs at BIPOC (Black, Indigenous, People of Color) and/or low-income communities, already disproportionately burdened by pollution and hazardous facilities, is a violation of environmental justice principles. DOE, which itself has an infamous history of targeting Native American reservations for CISFs (previously called by other names, such as Monitored Retrievable Storage (MRS) sites, Independent Spent Fuel Storage Installations (ISFSIs), Away From Reactor (AFR) sites, etc.), must cease and desist from such environmentally/radioactively racist practices.

(10.) Federal CISFs would be a dangerous dead-end detour on the road to a scientifically/technically, and socially acceptable, repository. Federal CISFs would also constitute a radical reversal of long established U.S. policy, law, regulation, and court precedent, which has held that the private owners of commercial irradiated nuclear fuel are responsible for its interim storage, while the federal government (that is DOE, using both nuclear ratepayer funds at first, and then when that Nuclear Waste Fund inevitably runs out/falls short, federal taxpayer funds as well) is responsible for its permanent disposal.

Same sample comments as listed above, but followed by further background information and links that can also provide additional/more detailed ideas for including in your own comments to be submitted:

Link to PDF version with hyper-links;

Link to Pages word processing version with hyper-links.

Sample comments you can use to write your own for submission to DOE, opposing CISFs targerted at EJ communities under ruse of "consent-based siting"

These sample comments directly respond to the series of questions asked by DOE in its Federal Register Notice:

Posted here in PDF format.

Posted here in Pages word processing format.

“Consent-Based Siting” of Federal “Consolidated Interim Storage Facilities”
U.S. Department of Energy Request for Information Public Comment Opportunity

Deadline to Submit Public Comments: 5pm ET, Friday, March 4, 2022


Sample Comments You Can Use to Write Your Own
(Comments Can Be Submitted by Individuals, and/or on Behalf of Organizations)

See HOW to submit your comments, here.

Feel free to use the comments however best helps you write and submit your own comments, including simply copying them verbatim.

HOW to submit public comments re: DOE's "consent-based siting" of CISFs RFI

As provided in the U.S. Department of Energy's Request for Information Federal Register Notice, re: "consent-based siting" for so-called Consolidated Interim Storage Facilities:

Response Preparation and Transmittal Instructions

Please submit responses to this RFI electronically to consentbasedsiting@hq.doe.gov no later than 5:00 p.m. (ET) on March 4, 2022. Please include in the subject line “RFI: Consent-Based Siting and Federal Interim Storage.” Responses must be received by March 4, 2022, for immediate consideration; however, DOE will continue to accept responses after that date and will review as time permits. Responses may be directly emailed or provided as attachments to an email. It is recommended that attachments with file sizes exceeding 25MB be compressed ( i.e., zipped) to ensure message delivery; however, no email shall exceed a total of 45MB, including all attachments. Responses sent as an email attachment must be provided as a Microsoft Word (.docx) or Portable Document Format (.pdf) document.

Please identify your answers by responding to a specific question or topic, if applicable. Please clearly state the specific question to which you are responding. All proprietary and restricted information must be clearly marked. Respondents may answer as many or as few questions as they wish. DOE will not respond to individual submissions. A response to this RFI will not be viewed as a binding commitment to develop or pursue the project or ideas discussed.

Please provide the following information at the start of your response:

• Community, organization, or company (if applicable)
• Contact name

• Contact's address, phone number, and email address Start Printed Page 68246

Data collected from this RFI will not be protected from the public view in any way. Individual commentors' names and addresses (including email addresses) received as part of this RFI are part of the public record. DOE plans to post all comment documents received in their entirety at following the close of the public comment period. Any person wishing to have their name, address, email address, or other identifying information withheld from the public record of comment documents must state this request prominently at the beginning of any comment document, or else no redactions will be made.

‘Consent’ on Nuclear Waste Storage a Slippery Word in DOE Plan

As reported by Bloomberg Law. (The article, after the first few paragraphs, is behind a pay wall.)