Frustration Over Nuclear Waste - Local Government Sues DOE Over Being an Interim Storage Site

County asks for payments identified under the NWPA and states it does not oppose the lawful, safe, and environmentally sound administration of interim storage of spent nuclear fuel at INL

On March 6, Butte County, Idaho sued the U.S. Department of Energy (DOE) in Federal court, citing DOE's ongoing failure “to perform statutorily mandated annual duties under the Nuclear Waste Policy Act of 1982 as well as to end unlawfully providing interim storage capacity of spent nuclear fuel.” The County also claims DOE has never utilized its authority to make payments to the local community for serving as an interim storage site for nuclear waste.

Butte County hosts just over 60 percent of the Idaho National Laboratory (INL), a DOE installation that stretches 890 square miles. INL provides interim storage capacity for approximately 325 metric tons of spent nuclear fuel.

The Nuclear Waste Policy Act of 1982 (NWPA) places continuing obligations on DOE regarding storage and disposal activities for nuclear waste, specifically to establish one or more deep geological repositories to provide for permanent disposal of spent nuclear fuel as well as interim storage solutions. The Act also establishes a right for states and/or units of local government to receive impact assistance “in order to mitigate social or economic impacts occasioned by the establishment and subsequent operation of any interim storage capacity within the jurisdictional boundaries of such government.”

In the lawsuit, Butte County argues the “interim storage of spent nuclear fuel in Butte County is now de facto permanent disposal,” and that the “perpetual hazard” posed is the reason an interim storage site “is not located next to the Forrestal Building in Washington D.C. where DOE would be free from the need for state or local government cooperation.”

The filing states that DOE is failing to perform its duties under the NWPA, is unlawfully providing interim storage capacity in excess of statutory authority, and has yet to “take any steps to implement the impact assistance provision despite the Department of Energy’s plan to continue providing federal interim storage capacity, including continuing to increase the capacity and the quantity of spent nuclear fuel on an annual basis at the Idaho National Laboratory.”

According to the County, which is raising environmental justice issues to DOE, “the federal interim storage of spent nuclear fuel has ongoing social and economic impacts to Butte County as well as social and economic impacts that have yet to occur.” The County points out in the complaint that Butte County has the highest poverty rate in the State of Idaho among counties not hosting a university.

“The social and economic harm or impacts of hosting nuclear waste storage (or disposal) is expressed by Congress in numerous provisions in the NWPA,” according to the complaint. “This impact is presumed in the plain language and intent of 42 U.S.C. § 10156(e), [which establishes the right to impact assistance payments]. The social and economic impact of federal interim storage capacity has harmed and continues to harm Butte County.”

The lawsuit also states that “Butte County does not oppose the lawful, safe, and environmentally sound administration of interim storage of spent nuclear fuel at INL. However, the plain language and clear intent of 42 U.S.C. § 10156(e) must first be acknowledged and addressed by DOE.”

Butte County lost a similar but unrelated suit against the United States in the Court of Federal Claims (Claims Court), where the Federal Appeals Court dismissed the case on other grounds.

In that case, Butte County sued the Claims Court, asserting a violation of the NWPA as a basis for monetary damages under the Tucker Act, 28 U.S.C. § 1491(a)(1). Specifically, Butte County alleged that DOE was storing the material pursuant to NWPA provisions governing interim storage capacity for spent nuclear fuel and that Butte County was entitled to “impact assistance payments.”

The United States moved to dismiss, and the Claims Court granted the motion on two grounds. First, the Claims Court held that it lacked jurisdiction under the Tucker Act because Butte County’s claim was untimely under 28 U.S.C. § 2501. Id. at 815–18. Second, it held that Butte County failed to state a claim for payments under 42 U.S.C. § 10156(e). Butte County’s appeal was dismissed in March 2022 for lack of jurisdiction, though not on the timeliness ground.

In the more recent lawsuit, Butte County specifically noted that its challenge is based on “DOE’s recent actions and omissions, as well as the ongoing violations of the NWPA,” in an attempt to “preempt DOE’s superficial assertion or argument that Butte County’s causes of action are untimely by challenging past decisions.”

To read the full complaint, please click here.