In a victory for Texas and the state’s oil and gas industry and a defeat for the nuclear power industry, a federal appeals court has overturned the U.S. Nuclear Regulatory Commission’s license for an above-ground, away-from-reactor storage facility for spent nuclear fuel in the Lone Star State.
In a case brought by Texas Gov. Greg Abbott; the Texas Commission on Environmental Quality; Fasken Land and Minerals, Limited; and Permian Basin Land and Royalty Owners, a unanimous three-judge panel of the Fifth Circuit Court of Appeals in New Orleans on Friday (Aug. 25) ruled that the NRC had no legal authority in 2021 to grant a license to build the high-level nuclear waste storage facility to Interim Storage Partners LLC.
Writing for the panel, Judge James Ho wrote, “The Commission has no statutory authority to issue the license. The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act. This understanding aligns with the historical context surrounding the development of these statutes.”
In the debate leading up to the 1982 waste law, which established the fundamentals for disposing of spent nuclear fuel, away-from-reactor retrievable storage was a key dispute. The nuclear and utility industries supported temporary away-from-reactor storage. The motivating factor for the nuclear utilities was a strong desire to get the used fuel off their sites and into a federal facility. For the nuclear industry, its goal was to be able to assert that the long-festering nuclear waste problem was “solved.”
Environmental, anti-nuclear, and non-proliferation groups opposed away-from-reactor storage, in part because they viewed it as a path to keep plutonium recycling, which had failed as a private enterprise, alive as a government program. They won the debate and the 1982 law and its successors never authorized temporary away-from-reactor storage. The law authorizes above-ground storage only after a permanent repository is in place, which has not occurred and is unlikely in the foreseeable future.
For many reasons, including naked regional and partisan politics, the 1982 law failed, as did the 1987 “Screw Nevada” successor. Their focus on a final underground nuclear waste facility on federal land in Nevada’s Yucca Mountain became a multi-billion-dollar embarrassment, a radioactive white elephant. Congress has been unable to deal with the issue since.
Interim Storage Partners (ISP), a joint venture of Orane USA and Waste Control Specialists, proposed a site next to their existing low-level waste storage site in Andrews County, Texas, near the New Mexico border. They outlined a plan for 40,000 metric tons of above-ground spent-fuel storage. The NRC in September 2021 granted a 40-year license for 5,000 tonnes of spent reactor fuel, noting that ISP “has said it plans to expand the facility in seven additional phases, up to a total capacity of 40,000 metric tons of fuel. Each expansion would require a license amendment with additional NRC safety and environmental reviews.”
In opposing the Texas project, Gov. Abbott said he would not allow Texas to become “America’s nuclear waste dumping ground.” The oil and gas petitioners argued that the waste repository could interfere with their operations in the oil-and-gas rich Permian Basin, lacked community support, and could result in permanent storage by default.
Judge Ho, a native of Taiwan who came to the U.S. as a toddler, was a Trump administration appointee to the Fifth Circuit in 2018. He was Texas solicitor general from 2008-2010, replacing current Sen. Ted Cruz (R-Texas). He was joined in the opinion by Edith Jones, a Reagan appointee after serving in private practice in Houston, and Cory Wilson, also a Trump appointee who had been a Republican member of the Mississippi House of Representatives.
The circuit court ruling could have broad implications, including in neighboring New Mexico, where the NRC last May granted Holtec International a license for an above-ground, away-from-reactor near Carlsbad, over the strenuous objections of the state government. The NRC license to New Jersey-based Holtec “authorizes the company to receive, possess, transfer and store 500 canisters holding approximately 8,680 metric tons of commercial spent nuclear fuel for 40 years. The company said it plans to eventually store up to 10,000 canisters in an additional 19 phases. Each expansion phase would require a license amendment with additional NRC safety and environmental reviews.”
–Kennedy Maize
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