By Kennedy Maize
The long-lived absurdities of the nation’s handling of the dangerous spent fuel rods from nuclear power plants got aired at the Supreme Court of the United States this week (Mar. 5). Much of the discussion revolved around the convoluted meanings of words such as “permanent” and “interim” and how long is too long.
The focus of the court’s oral argument session was on the August 2023 decision by the Fifth Circuit Court of Appeals in New Orleans banning a private high-level interim nuclear waste storage site in West Texas by Interim Storage Partners (ISP), later expanding that ban outside its geographic jurisdiction to a similar project in eastern New Mexico by Holtec International. The state of Texas, joined by Texas O&G company Fasken Land and Minerals, sued to stop the projects located on the oil and gas rich Permian Basin lands, although the claims that the above-ground waste facility could somehow contaminate the mineral resources deep underground are fatuous.
The U.S. Nuclear Regulatory Commission had granted both storage proposals a license, noting the inability of the Department of Energy to come up with a permanent underground storage site for all of the high-level civilian waste. That failure goes back to the 1970s, and most recently to the 1982 Nuclear Waste Policy Act and the 1987 congressional amendments to specify a site on federal land at Yucca Mountain, Nevada.
The Fifth Circuit ruled that the 1982 act forbade the government from approving spent fuel storage in temporary facilities located off the site of the reactors where they were generated until a final waste repository was available. Today, the spent fuel rods are stored on reactor sites in above-ground concrete and steel silos that the NRC licenses and inspects.
The NRC appealed the Fifth Circuit ruling to its own jurisdictional hometown, the U.S. Court of Appeals for the D.C. Circuit. The D.C. circuit last September upheld the NRC license, ruling that the 1982 law did not specifically rule out temporary, off-site storage.
That set the course for a SCOTUS appearance, as Texas and Fasken immediately asked the high court to hear the case. The court agreed in October.
In the oral argument, the Trump administration supported the NRC against the claims of Texas Republican Governor Greg Abbott and Fasken. Malcolm Stewart, Justice Department deputy solicitor general and a long-time DOJ veteran, argued for the government that Texas and Fasken did not have standing to bring the case, as they had passed up the opportunity to challenge it in the early stages. He also argued that the original Atomic Energy Act of 1946 authorizes the NRC action.
Stewart said, “The Atomic Energy Act prohibits the unlicensed possession of spent nuclear fuel’s constituent parts while authorizing the Commission to license private interim storage of those substances. The Nuclear Waste Policy Act left that scheme intact. And, since 1980, the NRC’s regulations have provided for both onsite and offsite storage. That system allows a substantial role for private market responses to the country’s nuclear waste storage issues, subject to Commission oversight to ensure that storage is safe and consistent with statutory requirements.
Noting that Yucca Mountain is “a hole in the ground, and you parties seem to think that the Yucca Mountain project is dead,” Justice Neil Gorsuch said. “If that’s true and there’s no different permanent repository, how is this interim storage that the government is authorizing here in any meaningful sense?” He added that the NRC license is 40 years and “that doesn’t sound very interim to me.”
Stewart replied that “the people who absolutely don’t bear responsibility for the delay are people like ISP, people – private enterprises who are trying to come up with interim solutions to the – the nuclear waste storage dilemma. And it’s – it’s not that the commission decided itself that this facility would be located in west Texas. ISP came up with a proposal. It filed a license application. And even if the – the license is upheld, ISP will actually be able to store spent nuclear fuel only if it can work out contracts with the people who control the waste now and the work out a – what is for both parties an economically beneficial arrangement.”
Justice Sonia Sotomayor commented, “I’m finding it curious that in a country that’s celebrating its 250th year that some of my colleagues think that 40 years can’t be temporary. I hope that we make it another 250, but if it takes 40 or 80 years for a solution to come, it would still be temporary, correct?”
Stewart answered, “Yes.”
Coincidentally, on Feb. 25, a New Jersey tax court ruled that dry the spent fuel storage casks at the shuttered Oyster Creek nuclear plant in Lacey Township are permanent property and the plant owner, Holtec International, must pay property taxes on them. Holtec bought 619-MW boiling water reactor plant from Exelon in 2019 in order to decommission it. When Oyster Creek closed in 2018, it was the oldest operating nuclear power plant in the country, having gone into service in 1969.
Holtec objected when the township assessed the property and billed Holtec for the taxes. The company argued that the storage was temporary, pending a final NRC-licensed repository. Exelon began moving the spent fuel from cooling ponds into the dry, above-ground steel and concrete casks in 1994. The storage site holds 67 casks.
The court wasn’t buying Holtec’s claim. Citing the upcoming Texas v. NRC case in detail, the New Jersey court ruled, “History amply demonstrates that efforts to relocate the spent fuel have become mired in legal and political wrangling. It is anyone’s guess as to when or if a disposal site will open. The court cannot base its decision upon speculation. Unless and until a disposal site is up and running and actually accepting spent fuel, the custom and usage is for the fuel to remain safely stored in the onsite storage casks.”
The court found that “since the taxpayers cannot transfer the spent fuel to another site,” it is taxable.
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