The three-judge panel of the New Orleans–based 5th 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.
The Nuclear Regulatory Commission granted ISP, a joint venture of Orano USA and Waste Control Specialists (WCS), a license in September 2021 to build and operate the storage facility. The NRC’s license approval was challenged by the state of Texas, along with Fasken Land and Minerals, an oil and gas industry group, and Permian Basin Land and Royalty Owners, an association of ranchers and oil companies.
Finding in favor of Texas and the groups, the court ruled on August 25 that the NRC does not have the authority to issue a license for a spent fuel storage site that is away from a nuclear reactor.
Writing for the court, U.S. Circuit Judge James Ho wrote, “In sum, the Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And the Nuclear Waste Policy Act doesn’t permit it. Accordingly, we hold that the Commission doesn’t have authority to issue the license challenged here.”
ANS's response: In response to the court ruling, the American Nuclear Society issued the following statement:
The decision by the 5th U.S. Circuit Court of Appeals that the U.S. Nuclear Regulatory Commission lacks the authority to issue permits for private, temporary nuclear waste storage sites is disappointing. Essentially, the court has ruled that private industry is unauthorized to do the job that the federal government has so far refused to do.
The U.S. nuclear industry has been safely managing used fuel for decades, and technology tools exist to manage the entire nuclear fuel cycle, safely and cost-effectively, for centuries to come.
Other countries are forging ahead with geologic disposal and consolidated interim storage, while the U.S. is hamstrung by political inaction. Congress and the Administration should see this decision as a wake-up call to enact practical policy solutions for the disposal and storage of our spent nuclear fuel.
Supreme Court review: Writing for Vox news, senior correspondent Ian Millhiser said, “It is all but certain that the Supreme Court will hear this case.”
Millhiser said that the Supreme Court “pays special attention” to cases that have divided federal appeals courts, noting that the 5th Circuit decision goes against two other court cases that upheld the NRC’s authority to grant an away-from-reactor spent fuel storage license. Both of those cases involved Private Fuel Storage’s application to the NRC to build a storage facility in Utah.