The Fifth Circuit determined that federal agencies do not have legal authority to obtain licenses for interim waste storage facilities.
On March 5, the U.S. Supreme Court considered whether the Nuclear Regulation Authority (NRC) could allow private companies to store nuclear fuel in Texas.
In the case, the court ordered two similar cases (NRC vs. Texas and Interim Storage Partners LLC vs. Texas) to be considered together.
The law stipulates that Mount Yucca in Nevada is the site of underground facilities for storing nuclear waste, and in 1998 directed the U.S. Department of Energy to begin storing waste from the state at the facility.
The department was unable to meet the 1998 deadline. Additionally, the proposed facility was formally called the Yucca Mountain Nuclear Waste Reservoir and faced opposition from Nevada, according to the petition.
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In 2008, the department submitted a license application for the Yucca Mountain Facility to the NRC.
The committee “closed review and consideration” of license applications and admitted that it had no intention of reviewing the application, despite the Nuclear Waste Policy Act requiring that a decision be made within three years of submission.”
The Obama administration has established the Blue Ribbon Committee on the Nuclear Future of America. This concludes that instead of dictating that nuclear waste could only be stored in Mount Yucca, a “consensus-based approach to setting up nuclear waste storage facilities” would be desirable.
A few years after the advisory board’s report, in September 2021, the NRC granted its license to Interim Storage Partners LLC (ISP) to operate its interim storage facility in Andrews County, Texas, adjacent to New Mexico.
The facility’s site is located in the Permian Basin, the country’s most productive oilfield.
Texas challenged the license in court.
The US Fifth Circuit Court of Appeals invalidated the license in August 2023 and found that federal law does not allow the NRC to license private companies to interim storage facilities.
The court said it was a Texas siding, which argued that the Atomic Energy Act would not grant the NRC “the broad authority that a private party would assert that it would issue a license to store spent nuclear fuel from a nuclear reactor.”
The court also stated, “The Nuclear Waste Policy Act establishes a comprehensive statutory scheme to address nuclear waste generated from commercial nuclear power generation, thereby seizing the committee’s claims of power.”
In the petition, Prologar urged the Supreme Court to file a lawsuit as the Fifth Circuit imposes “new restrictions” on the NRC’s licensing capabilities “which have serious implications.”
The decision, she wrote, “a 44-year-old regulatory framework for licensing the storage of spent fuel” and “disturbing the nuclear industry.”
Judge Neil Gorsuch said that despite Yucca Mountain being “a permanent solution,” it was merely a “hole in the ground,” despite “something like $15 billion” being spent on its proposed facility.
“Your party appears to think the Yucca Mountain Project is dead,” Justice added.
The interim storage facility will have a 40-year renewable license, he said.
“That doesn’t sound like much tentative to me,” Golsch said.
Gorsuch also questioned finding a facility “acquired oil and gas on a concrete platform in the Permian Basin.”
Judge Samuel Alito said granting long-term licensing to the interim storage facility undermines Congress’ hopes.
If the waste “can temporarily store offsite, “temporary” might mean over 40 years, perhaps over 80 years, perhaps 250 years… maybe that could mean 500 years… Where is the incentive for Congress to do what they want to do, namely establishing a permanent facility? ”
Referring to the country’s semiticentennial next year, Judge Sonia Sotomayor told Stewart, “I’m interested in some of my colleagues who think that 40 years are not temporary in a country that is celebrating its 250th year.”
“I hope we get another 250, but if it takes 40 or 80 years for the solution to arrive, is it still temporary?” she said.
Stewart responded positively, “Whether you want to consider it quasi-period, whether it’s temporary or permanent, it’s going to be the same time, regardless of whether the waste is in an ISP facility or on a decommissioned reactor site.”
Texas lawyer General Aaron Neilson said setting up storage facilities in Andrews County risks damaging oil fields in the Permian Basin.
“There is no way to move 140,000 tons of nuclear waste in 60 years. What the committee just did is to put permanent terrorist bullseye in America’s most productive oil fields.”
Neilson said, “If you think this is temporary, I have a bridge to sell you.”
The Supreme Court is expected to govern the case by the end of June.
