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D.C. Circuit Skeptical of Challenge to Texas Nuclear Waste Site

Nov. 10, 2022, 6:04 PM

A three-judge panel at the D.C. Circuit on Thursday sharply questioned arguments by environmental groups challenging a federal license of a privately owned interim nuclear waste storage facility in Texas.

Petitioners argued that the Nuclear Regulatory Commission’s approval last year of Interim Storage Partners’ facility violates the 1982 Nuclear Waste Policy Act because it includes language allowing a contract with the Energy Department. The case is the second legal challenge against the interim high-level waste facility licensed for Andrews County.

The provision is unlawful because the department, under that law, must select a permanent waste repository before siting a temporary facility, said Diane Curran, of counsel for Harmon Curran representing Beyond Nuclear.

“The only issue before this court is whether you should disregard the plain terms of the license condition, as suggested by the NRC, based on extraneous promises by the agency the fulfillment of the unlawful condition will never ever be carried out or allowed until Congress changes the law,” Curran said.

Hypothetical Development

But Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia Circuit pointed out the license is focused on privately owned waste and that the DOE provision would be a hypothetical future development.

“There’s still the other language authorizing arrangements with privately-owned waste, and you have no argument against that,” Katsas said. “Why wouldn’t we, at most, just excise the offending language and sever the rest? There’s no reason why the provision can’t operate as related to privately owned waste.”

Judge David Tatel presented a scenario in which the license could stand if the court received assurances from the government that the unlawful provision will never be implemented.

Curran said severing the provision would be a helpful remedy, but government assurances were not.

Commission Opposition

The NRC asked the judges to reject the challenge.

“The licensee’s requirement is to provide a proof of contract, and if the contract that it relied on in order to satisfy the condition were illegal, the NRC would say no,” said Andrew Averbach, the NRC’s solicitor.

If there were any future contract between the facility with DOE, parties could then seek judicial recourse, Averbach added. But the central premise of this license will be storing spent fuel involving private entities, and reactor licensees will continue to hold title of ownership.

“We’re not talking about DOE taking title,” Averbach said. “We’re talking about private licenses doing something with the fuel that they currently have title to.”

Texas officials sued the NRC for approving the license over the state’s objections, arguing in part that the NRC overstepped its authority by licensing a facility before a permanent one is established. Judges held oral arguments in August in that case at the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

The facility could hold 40,000 metric tons of spent fuel if all the phases of the project play out.

The case is Don’t Waste Michigan v. NRC, D.C. Cir., No. 21-1048, Oral argument 11/10/22

To contact the reporter on this story: Daniel Moore in Washington at dmoore1@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com