US Efforts to Store Nuclear Waste Poised for High Court Review

An intensifying legal battle over efforts to store the country’s nuclear waste is likely to reach the US Supreme Court following appellate court rulings that split on the issue of whether the Nuclear Regulatory Commission has authority to license two facilities, one of the developers said Thursday.

The most recent ruling arrived Wednesday, when the US Court of Appeals for the Fifth Circuit vacated the commission’s license granted to Holtec International Corp. to temporarily store spent nuclear reactor fuel in Lea County, N.M.

In August 2023, the Fifth Circuit vacated an NRC license for a similar facility proposed by Interim Storage Partners (ISP) about 40 miles away in Andrews County, Texas. The NRC’s request for rehearing was denied March 14 by the full Fifth Circuit by a 9-7 vote, with one recusal.

Wednesday’s two-page opinion referred to those rulings, finding “the panel’s consideration of this case will be controlled by” decisions in the Texas case.

“Holtec believes that the Texas and the Holtec decisions are incorrect and that the government, ISP and Holtec are likely to bring one or both of these decisions to the US Supreme Court which is likely to overturn the Fifth Circuit’s decisions,” Patrick O’Brien, director of government affairs and communications for Holtec International, said in a statement.

A spokesperson for the NRC said the agency “is reviewing the decision and will consider its options going forward.”

The parties would have 90 days to file a petition with the high court, unless an extension is granted.

The Fifth Circuit rulings clash with a January 2023 opinion from the US Court of Appeals for the District of Columbia Circuit.

In that case, the DC Circuit rejected claims by environmental groups and found the commission produced an adequate environmental review and reasonably applied its hearing regulations in the process of approving a license for the ISP facility in Texas.

“Our role is not to ‘flyspeck’ an environmental analysis for minor deficiencies,” the court wrote. “The environmental report contained adequate consideration and discussion of the storage facility’s environmental impacts; and the board and commission took the requisite ‘hard look’ at the environmental impacts.”

Put together, the conflicting appeals court rulings effectively stall some of the most promising efforts to make progress on finding a home for spent nuclear fuel generated by the country’s reactor fleet.

The legal situation “underscores this basically stalemate we have on waste disposal,” said Stephen Burns, who chaired the commission from 2015 to 2017 and identifies as an independent. The two sites were the furthest along in being developed, but the Energy Department is still working to study how to build consensus at the local level to site temporary waste storage facilities.

At the center of the legal fight is whether decades-old laws, including the Atomic Energy Act of 1954 and the Nuclear Waste Policy Act of 1982, permit the commission to site storage facilities away from nuclear reactors.

Following the 1982 law, Congress designated Yucca Mountain in Nevada as the permanent nuclear waste site, but political opposition to that top-down decision created delays.

The Obama administration pulled the plug on that idea, and there has been no serious effort to cite a permanent site since. Recent efforts have focused on developing temporary sites to consolidate some of the waste to eventually send to a central repository.

At least 86,000 metric tons of nuclear waste is stored at 75 nuclear power plant sites in 33 states, according to a 2021 estimate by the Government Accountability Office. The government’s “ad hoc” approach to nuclear waste raises potential threats to health and safety and burdens taxpayers with costs associated with paying plants to store waste, the GAO found.

The effect of the rulings “just leaves us where we have been, which means we’ll have spent fuel storage at every nuclear plant across the country,” said Jay Silberg, a partner with Pillsbury Winthrop Shaw Pittman who was one of the lawyers representing Holtec.

The legal issues at play “show a split between the circuits,” Silberg said. “We think the Supreme Court should a) take the case and b) overturn the circuit court decisions.”

A consolidated facility would make sense for a lot of reasons, Silberg added, “but until we resolve these hurdles that Texas and New Mexico have put in the way of these facilities, it’s going to be the status quo.”

The case is Fasken Land and Minerals v. NRC, 5th Cir. App., No. 23-60377, Opinion 3/27/24.