The U.S. Supreme Court heard oral arguments on Wednesday in the Nuclear Regulatory Commission’s licensing of Interim Storage Partners’ consolidated interim storage facility in Andrews County, Texas. Both the NRC and ISP petitioned the Supreme Court to review a decision by the 5th Circuit Court of Appeals that invalidated the NRC-granted license for the facility. Those two cases were consolidated into one, NRC v. Texas, which was heard by the court.

A flurry of amicus briefs from states, politicians, and special interest groups were filed with the U.S. Supreme Court this week, urging the court to uphold a 5th Circuit Court of Appeals ruling that invalidated Interim Storage Partners' license for a consolidated interim storage facility for commercial spent nuclear fuel in Andrews County, Texas.

Interim Storage Partners (ISP), a joint venture of Waste Control Specialists and Orano USA, has petitioned the U.S. Supreme Court to overturn the decision by the 5th Circuit Court of Appeals to vacate its license for a consolidated interim storage facility for commercial spent nuclear fuel in Andrews County, Texas.

The 5th Circuit Court of Appeals has vacated Holtec International’s license to build and operate a consolidated interim storage facility (CISF) for spent nuclear fuel near the Waste Isolation Pilot Plant in southeastern New Mexico. The Nuclear Regulatory Commission granted the license for the Holtec facility, called the HI-STORE CISF in May 2023.

By a narrow vote of 9–7, the 5th Circuit Court of Appeals denied a petition to rehear the court’s 2023 decision to vacate Interim Storage Partners’ (ISP’s) license to build and operate a consolidated interim storage facility for commercial spent nuclear fuel in Andrews County, Texas.

The Nuclear Regulatory Commission and the U.S. Department of Justice are asking the 5th U.S. Circuit Court of Appeals to review its decision to vacate Interim Storage Partners’ license to build and operate a consolidated interim storage facility (CISF) for commercial spent nuclear fuel in Andrews County, Texas.

Craig Piercy
cpiercy@ans.org

Here we go again: Another “workaround” on U.S. nuclear waste policy just got shot down in a federal courtroom. On August 25, the 5th U.S. Circuit Court of Appeals found that the Nuclear Regulatory Commission lacked the authority to grant a license to Interim Storage Partners LLC (read: Waste Control Specialists) to accept and store up to 5,000 tons of used nuclear fuel at its proposed facility in Andrews County, Texas. Writing for the court, U.S. circuit judge James Ho found that “the Nuclear Waste Policy Act (NWPA) creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation. The scheme prioritizes construction of the permanent repository and limits temporary storage to private, at-the-reactor storage or at federal sites. It plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility.”

This decision is not necessarily a knockout blow. The court’s reading of the law is, well, novel. Other appeals courts have recognized the NRC’s authority to license away-from-reactor storage, and the Supreme Court is likely to weigh in. But given the current high court’s proclivities on “textualism” and the Chevron doctrine, we shouldn’t consider it a slam dunk.

The three-judge panel of the New Orleans–based 5^th U.S. Circuit Court of Appeals last week vacated Interim Storage Partners’ (ISP) license for a consolidated interim storage facility for commercial spent nuclear fuel in Andrews County, Texas.

Citing a lack of jurisdiction, the 10th U.S. Circuit Court of Appeals in Denver has dismissed a petition by the state of New Mexico challenging the Nuclear Regulatory Commission’s licensing of Interim Storage Partners’ (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas.

A federal appeals court rejected a lawsuit brought by environmental groups challenging the Nuclear Regulatory Commission’s licensing of a consolidated interim storage facility (CISF) for spent nuclear fuel in Andrews County, Texas. The U.S. Court of Appeals for the D.C. Circuit found that the NRC reasonably applied its hearing regulations when approving Interim Storage Partners’ (ISP) license for the facility.

This is the fourth of five articles to be posted today to look back at the top news stories of 2021 for the nuclear community. The full article, "Looking back at 2021,"was published in the January 2022 issue of Nuclear News.

Quite a year was 2021. In the following stories, we have compiled what we feel are the past year’s top news stories from the July-September time frame—please enjoy this recap from a busy year in the nuclear community.

• Click here to see the first article in the series
• Click here to see the second article in the series
• Click here to see the third article in the series

The Nuclear Regulatory Commission has dismissed a challenge to the previously approved transfer of the license for the shuttered Three Mile Island-2 power reactor from FirstEnergy to a subsidiary of EnergySolutions for decommissioning. The order by the NRC commissioners denying the motion by Three Mile Island Alert to hold the license transfer in abeyance was issued on June 22.

New Mexico attorney general Hector Balderas has filed suit against the Nuclear Regulatory Commission and the United States, seeking to stop Holtec International’s application to build and operate its HI-STORE consolidated interim storage facility for used nuclear fuel in the state. The complaint, filed in the U.S. District Court of New Mexico on March 29, seeks a declaratory judgment that the NRC is acting beyond the scope of its authority and an injunction preventing the licensing from moving forward.

Abbott

In a letter sent to President Trump on September 30, Texas Gov. Greg Abbott expressed his opposition to two proposed consolidated interim storage facilities for spent nuclear fuel that are currently under review by the Nuclear Regulatory Commission. Abbott is opposing Interim Storage Partner’s (ISP) interim storage facility in West Texas and Holtec International’s planned facility in New Mexico, near the Texas border, claiming that the facilities will put U.S. energy security at risk by being sited within the oil-producing region of the Permian Basin.

Abbott also said that he was opposed to increasing the amount of radioactive waste permitted to be disposed of in Texas without state approval. In April 2019, Abbott wrote to the Department of Energy and the NRC expressing his objections to federal actions that could allow Waste Control Specialists (WCS) to accept greater-than-Class C waste at its disposal site in Andrews County, Texas. ISP is a joint venture of WCS and Orano USA.

The Nuclear Regulatory Commission has scheduled four webinars in October to present its draft environmental findings and receive comments on Interim Storage Partners’ (ISP) proposed consolidated interim storage facility for used nuclear fuel in Andrews County, Texas.

Information for the webinars will be posted on the NRC’s Public Meetings webpage. The webinars will be held at different times of the day to maximize opportunities for the public to participate and are tentatively scheduled for the following (all times are Eastern):

• October 1, 6 p.m. – 9 p.m.
• October 6, 2 p.m. – 5 p.m.
• October 8, 6 p.m. – 9 p.m.
• October 15, 11 a.m. – 2 p.m.

The Nuclear Regulatory Commission has extended the deadline for public comments on a draft environmental impact statement for Interim Storage Partners’ (ISP) license application to construct and operate a consolidated interim storage facility for spent nuclear fuel and greater-than-Class C waste in Andrews County, Texas. The NRC said the 60-day extension, to November 3, was to allow more time for members of the public to develop and submit comments in light of the events associated with the COVID-19 health emergency.

The Nuclear Regulatory Commission is requesting comments on its draft environmental impact statement (EIS) for Interim Storage Partners’ (ISP) proposed consolidated interim storage facility (CISF) for spent nuclear fuel and greater-than-Class C (GTCC) waste in West Texas. The NRC published notice of the draft EIS in the May 8 Federal Register with a deadline of September 4 to submit comments. The NRC said that it is extending the usual 60-day comment period to allow more time for members of the public to submit comments during the COVID-19 health emergency.

Comments can be submitted through the federal rulemaking website with a search for Docket ID NRC–2016–0231.

A rendering of Phase 1 of ISP’s proposed consolidated interim storage facility in Andrews County, Texas. Image: WCS

The Nuclear Regulatory Commission has released a draft environmental impact statement (EIS) for Interim Storage Partners’ (ISP) proposed consolidated interim storage facility (CISF) for spent nuclear fuel and greater-than-Class C (GTCC) waste in West Texas. Based on its environmental review of the CISF, the NRC staff issued a preliminary recommendation that an NRC license be granted to ISP to construct and operate the CISF to temporarily store up to 5,000 metric tons of uranium (MTU) in commercial spent fuel and GTCC waste for a licensing period of 40 years.