Nuclear Waste Storage Site in Texas Draws Supreme Court Review

(Bloomberg) -- The US Supreme Court will consider reviving a plan to store as much as 40,000 tons of highly radioactive waste at a temporary west Texas site, accepting a case that could be a turning point after decades of wrangling over spent fuel from the nation’s commercial reactors.

Agreeing to hear appeals from the Biden administration and the joint venture that would build and run the facility, the justices said they will review a federal appeals court ruling that the Nuclear Regulatory Commission lacked authority to issue a crucial license.

The above-ground site outside the town of Andrews in the Permian Basin oil field would be the first of its kind, designed to take waste from commercial reactors around the country until a long-running fight over a permanent storage location is resolved. 

The plan has the backing of the nuclear power industry. It’s opposed by Texas Governor Greg Abbott and a coalition of landowners and oil and gas operators who call the planned facility a public-health hazard.

In its appeal, the Biden administration said the 5th US Circuit Court of Appeals upended more than 40 years of NRC practice by concluding the Atomic Energy Act didn’t authorize the license. The decision put the 5th Circuit, perhaps the country’s most conservative federal appeals court, in conflict with other appellate panels.

The ruling “disrupts the nuclear-power industry by categorically prohibiting the commission from approving offsite storage of spent fuel, despite the agency’s longstanding issuance of such licenses,” Solicitor General Elizabeth Prelogar argued. She also contends that Texas and other opponents lack the legal right to challenge the decision in court.

Texas Attorney General Ken Paxton urged the justices not to hear the case. He said federal law expressly requires the nation’s nuclear waste to be stored at Yucca Mountain, Nevada, where efforts to build a facility have been scuttled by local opposition.

“Congress specified that the nation would dispose of its nuclear waste at a government-owned facility at Yucca Mountain,” Paxton argued. “By no means can the commission solve its Yucca Mountain problem by disregarding clear statutory language.”

Fasken Land and Minerals Ltd., which owns hundreds of thousands of acres in the Permian Basin, told the justices that the NCR has never authorized a comparable facility, saying that existing temporary storage sites are either owned by the government, located on the sites of decommissioned reactors or in one case set up a half-mile from a working reactor. 

The company that would run the site, Interim Storage Partners LLC, joined the federal government in urging Supreme Court review. Interim is a joint venture owned by a unit of Orano SA and J.F. Lehman & Co.’s Waste Control Specialists LLC. The joint venture envisions having nuclear waste shipped by rail from around the country and sealed in concrete casks. 

The business-backed Nuclear Energy Institute said the 5th Circuit ruling “will have far-reaching and destabilizing consequences for the nuclear industry if allowed to remain standing.” The group told the justices in court papers that the Texas facility would save the industry more than $600 million as compared to continued onsite storage.

The fight is likely to determine the fate of Holtec International Corp.’s separate planned facility in New Mexico. The 5th Circuit blocked that project in March, pointed to its earlier decision in the Texas case.

The Supreme Court will hear arguments, likely early next year, and rule by early July. 

The cases are Nuclear Regulatory Commission v. Texas, 23-1300, and Interim Storage Partners v. Texas, 23-1312. 

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