The U.S. Supreme Court may once again scrutinize the Nuclear Regulatory Commission’s authority to license consolidated interim storage facilities for commercial spent nuclear fuel. The antinuclear group Beyond Nuclear has filed a petition with the court for a writ of certiorari review of an August 2024 appeals court decision rejecting the group’s lawsuit against the licensing of Holtec International’s New Mexico storage facility, the HI-STORE CISF.

Matt Bowen

With a new administration and Congress, it is time once again to ponder what will happen—if anything—on U.S. spent nuclear fuel and high-level waste management policy over the next few years. One element of the forthcoming discussion seems clear: The executive and legislative branches are eager to talk about recycling commercial SNF. Whatever the merits of doing so, it does not obviate the need for one or more facilities for disposal of remaining long-lived radionuclides. For that reason, making progress on U.S. disposal capabilities remains urgent, lest the associated radionuclide inventories simply be left for future generations to deal with.

In March, Rick Perry, who was secretary of energy during President Trump’s first administration, observed that during his tenure at the Department of Energy it became clear to him that any plan to move SNF “required some practical consent of the receiving state and local community.”¹

The State of Texas has not one but two ongoing federal court challenges to the Nuclear Regulatory Commission that could, if successful, turn decades of NRC regulations, precedent, and case law on its head.

As the Department of Energy embarks on its consent-based process for siting a geologic repository for spent nuclear fuel and high-level radioactive waste, a new report from the Center on Global Energy Policy at Columbia University SIPA highlights relevant lessons from the federal government’s now defunct Office of the Nuclear Waste Negotiator.

Established under Title IV of the Nuclear Waste Policy Act, the office, an independent agency within the executive branch, was primarily active from 1990 to 1995. Its role was to engage with state and tribal governments to find an acceptable and suitable host site for a repository.

The full report, Lessons from the Nuclear Waste Negotiator Era of the 1990s for Today’s Consent-Based Siting Efforts, is now available online. Its executive summary is available here.

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.

Congress needs to take action to break the impasse over a permanent solution for commercial spent nuclear fuel, according to a report by the U.S. Government Accountability Office. The GAO recommends that Congress amend the Nuclear Waste Policy Act (NWPA) to authorize a new consent-based siting process, restructure the Nuclear Waste Fund, and direct the Department of Energy to develop and implement an integrated waste management strategy.

The GAO also recommends that the DOE finalize the consent-based process it began in 2015 for siting consolidated interim storage and permanent geologic repository facilities. The DOE agrees with that recommendation.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the American Nuclear Society.

As if COVID-19 and a rancorous presidential election were not enough, over the next few weeks we will also be dealing with the confirmation of a justice to fill the open seat on the Supreme Court. What does that have to do with the American Nuclear Society and nuclear technology? Well, nothing directly, but there is an interesting connection between the Supreme Court and a notable case on nuclear waste decided by the U.S. Court of Appeals for the District of Columbia Circuit in August 2013.