The U.S. Nuclear Regulatory Commission and Interim Storage Partners, a joint venture that gained a federal license last year to build an interim storage facility for spent commercial nuclear fuel at a Texas site, have until Aug. 3 to answer a federal lawsuit claim by state officials that a recent U.S. Supreme Court decision eliminates the federal agency’s licensing authority.   The state challenge now is before the U.S. appellate court in New Orleans.   NRC issued a license to the JV team of Waste Control Specialists and Orano USA to store for 40 years up to 5,000 metric tons of spent fuel and 231 metric tons of low-level radioactive waste at the proposed site, located northwest of Midland near the New Mexico border. It is estimated to cost $350 million to build, with total expenses of close to $2.3 billion by the end of its 40-year lifespan, says an NRC final environmental review issued in July 2021.

Interim Storage Partners said it could also enlarge the site to hold 40,000 metric tons of spent fuel, but the expansion would require a license amendment with additional NRC reviews, the agency said.   The proposed facility would be located adjacent to a separately operated existing low-level nuclear materials disposal facility in Andrews County, Texas, with other locations in Texas now storing spent nuclear fuel from the state’s two nuclear power plants.   Texas Attorney General Kenneth Paxton originally challenged the proposed site's license, claiming that it violated the federal Nuclear Waste Policy Act and NEPA.

But earlier this month, he added a new argument that NRC lacks statutory authority to issue the interim storage license, in the wake of the US Supreme Court’s June 30 decision in West Virginia v. EPA—which limited the ability of the U.S. Environmental Protection Agency to regulate power plant greenhouse gas emissions and could set other federal agency regulatory limits, observers speculate.   Texas argues that while NRC bases its licensing authority on the Atomic Energy Act of 1954 to license waste storage at a private site without a state’s consent, the law does not specifically refer to the storage or disposal of spent nuclear fuel. Following its enactment of a new law last year that bans interim commercial waste storage in Texas, the state wants the federal court to vacate the Interim Storage Partners site license.   That NRC was not given explicit authority by Congress makes it an issue under the “major questions doctrine,” Texas Assistant Solicitor General Michael Abrams said in a July 6 letter to the court.   In its ruling, the Supreme Court said that the doctrine applies when Congress has consistently rejected proposals to amend the law to give an agency an authority. Texas argued that Congress has considered multiple bills to explicitly authorize the US Energy Dept. to contract with privately owned spent fuel storage facilities but has not done so.   "Difficult and even in-tractable problems do not give an agency a blue pencil to rewrite its governing statute," said the state. "Because the Commission has done so here, the license should be set aside.” Texas accused the federal government of committing a “massive breach” of its obligation to provide permanent storage for spent nuclear fuel at Yucca Mountain in Nevada.   NRC, Interim Storage Partners and the US Justice Dept asked the court to allow briefs on the issues to be filed by both sides, due Aug. 3, with oral arguments set for the week of Aug. 29.

Meanwhile, on July 13, the NRC issued the final environmental impact review for an interim storage facility in New Mexico proposed by Holtec International, with agency staff recommending that the facility license be issued.

That site would initially store about 8,680 metric tons of spent nuclear fuel in 500 canisters. The agency review also considered the environmental effects of an expanded site holding 10,000 canisters. The project would be built on 1,000 acres in southeastern New Mexico  The agency expects to decide whether to issue the license in January.  

In a statement, Holtec said that the final NRC review "confirms that there are no adverse impacts to other enterprises in the area including oil and gas, ranching, and farming." It added that "the completely welded and hermetically closed canisters that will be safely stored at the facility are designed, qualified, and tested to maintain their integrity and prevent the release of radioactive material under the most adverse accident scenarios postulated by NRC regulations for both storage and transportation."

The statement also includes supporting comments from some local officials.

But New Mexico Gov. Michelle Lujan Grisham said, in her own statement, that "while NRC and Holtec International say that the proposal is ‘temporary,’ a 40-year license with the opportunity for renewal will threaten the health and safety of generations of New Mexicans." 

U.S. Sen. Martin Heinrich (D-New Mexico) and Sen. Ted Cruz (R-Texas) introduced a bill earlier this year to block federal funds from being used to carry out any activities at private interim storage sites.    

Mary B. Powers has reported on engineering and construction issues in the global energy and environmental sectors for more than 30 years from Washington, D.C. and Birmingham, Ala.  She formerly wrote for the Platt's group of energy sector publications under McGraw Hill and S&P Global that included Inside Energy and Megawatt Daily, and was state editor for the Lexington, Ky., Herald Leader. Mary has a master’s degree in journalism from The American University.

As ENR Editor-at-Large for Management, Business and Workforce, Debra K. Rubin has a broad vantage for news, issues and trends in global engineering, architecture and construction—from corporate finance and executive management to regulation and risk, next-generation workforce and developing markets such as offshore wind energy.

Debra also launched and manages ENR's Top 200 Environmental Firms ranking, which defines a $51-billion global market; and is editor of ENR WorkforceToday e-newsletter on industry talent management; She also is a key organizer of ENR's annual Groundbreaking Women in Construction conference, a major AEC industry forum for talent management and women's career advancement.

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