BOISE, Idaho (CN) - Former Idaho governor Cecil Andrus accused the U.S. Department of Energy of using an exemption under the Freedom of Information Act to hide details about a plan to ship more nuclear waste to Idaho.
Andrus filed a Freedom of Information Act request with the DOE in January 2015, asking for documents related to its request for a waiver of a 1995 agreement that prohibits nuclear waste from being shipped to the Idaho National Laboratory, an 860 square-mile nuclear research complex located in the high desert of eastern Idaho.
The former governor and Secretary of the Interior during the Carter administration filed a lawsuit Wednesday in Federal Court after the DOE missed its deadline to respond to his FOIA request, provided 41 documents of mostly "heavily redacted" material and then denied his administrative appeal requesting the withheld information.
The agency cited several "unjustified" exemptions under FOIA according to Andrus, who says the DOE specifically relied on "exemption 5" to justify most of the redacted material.
"Exemption 5 protects 'inter-agency or intra-agency memorandums or letters which would be available by law to a party other than an agency in litigation with the agency,'" Andrus says in his 13-page complaint. "The response letter and index do not even attempt to describe the information withheld under Exemption 5 and do not identify any reasonably foreseeable harm that could justify withholding this information from the public."
Andrus was Idaho's governor from 1971 to 1977 and served as Secretary of the Interior under Carter from 1977 to 1981. He was elected as Idaho's governor again in 1987, serving until 1995.
One of his chief concerns has been reducing the amount of nuclear waste shipped to Idaho for storage, an issue he successfully leveraged during his election campaigns and championed while in office.
Nuclear waste presents a contamination risk for Idaho's largest water supply, the Snake River Plain aquifer, according to an earlier lawsuit Andrus filed against the DOE during his second tenure as governor.
The lawsuit challenged the DOE's management and storage of spent nuclear fuel and other wastes at the facility.
The litigation was settled in 1995, resulting in the "Batt Agreement," named for Andrus' successor, Gov. Phil Batt.
Under the agreement, the Idaho National Laboratory is prohibited from accepting new shipments of spent fuel from commercial nuclear power plants until a permanent facility outside Idaho has been built. New shipments can then be shipped to the lab, but only for "preparation" for shipment to the permanent, out-of-state facility.
The agreement is in effect through 2035.
In 2011, however, current Gov. C.L. "Butch" Otter and Idaho Attorney General Lawrence Wasden signed a memorandum of agreement between the state and the DOE which, Andrus says, allows the state to grant the DOE a "conditional waver" allowing "research quantities" of spent nuclear fuel to be shipped to the laboratory.
"In December 2014, pursuant to the 2011 MOA, DOE requested 'conditional approval' from Gov. Otter and Attorney General Wasden for a waiver of paragraph D.2.e of the Batt Agreement to allow two proposed shipments of commercial spent nuclear fuel to the INL," according to Andrus' 2015 complaint
The DOE says it needs the spent fuel to complete the final six of a 10-year "research" project.
"DOE's longtime pattern, through both Republican and Democratic administrations, has been to tout the short-term benefits of a 'research project' while never taking into account what eventually happens to the highly radioactive material for the next 25, 50 or 100 years," Andrus told the Idaho Statesman on Aug. 17, 2015. "Gov. Batt and I have long contended that Idaho is not an appropriate place to 'temporarily store' vast amounts of nuclear waste and his agreement, which is now in jeopardy by these requests for waivers, was designed to prevent Idaho from being cast in that role. Bottom line: Idahoans are entitled to know all of what is being proposed."
Marc Shumaker, of Advocates of the West and co-counsel in Andrus' lawsuit, said he could not comment about what the state stands to gain by once again allowing nuclear shipments to be shipped to the laboratory or whether Andrus could or would ask Idaho's Federal Court for a preliminary injunction of the planned shipments.
"We are not at that stage yet, so I can't speak to that," he told Courthouse News. "Right now we are just seeking more information."
Shumaker added that a proposed out-of-state facility that would have been used for spent nuclear fuel storage did not materialize.
"The only thing I've heard is that there is a site in Nevada - in the Yucca Mountains - that fell through," he said. "It's still sort of up in the air, but it was supposed to be a national repository and they don't have that yet."
The Yucca Mountain Nuclear Waster Repository, as designated by the 1987 Nuclear Waste Policy Act, would be a deep, geological repository storage facility for spent nuclear fuel and other high level radioactive waste. The site is located on federal land adjacent to the Nevada Test Site in Nye County, Nevada.
Congress approved the project in 2002 but funding was pulled in 2011, leaving its future uncertain.
Andrus is represented by Shumaker and Laurence Lucas of Advocates for the West, in Boise.
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