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 new 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.

The proposed facility 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 added NRC review, the agency said.

The facility would be located adjacent to a separately operated existing low-level nuclear materials disposal facility in Andrews County, Texas, with other locations in the state now storing spent fuel from two nuclear power plants.

Texas Attorney General Kenneth Paxton originally challenged the proposed site's license, claiming it violated the federal Nuclear Waste Policy Act and NEPA.

He now argues that NRC lacks statutory authority to issue the interim storage license, following the U.S. Supreme Court’s June 30 decision in West Virginia v. EPA—which placed limits on the U.S. Environmental Protection Agency regulation of power plant greenhouse gas emissions and could set other federal regulatory curbs, observers speculate.

While NRC bases its authority on the 1954 Atomic Energy Act 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, Texas claims. Following state enactment of a new law last year that bans interim commercial waste storage, Texas wants the federal court to vacate the Interim Storage Partners site license.

That NRC was not given explicit authority by Congress raises issues under the “major questions doctrine,” Texas Assistant Solicitor General Michael Abrams said in a July 6 letter to the court.

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 argues that Congress has considered multiple bills to explicitly authorize the U.S. Energy Dept. to contract with privately owned spent fuel storage facilities but none are enacted.

 “Difficult and even intractable problems do not give an agency a blue pencil to rewrite its governing statute,” said the state. 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, a now mothballed project.

NRC, Interim Storage Partners and the U.S. Justice Dept asked the court to allow case participants to file new briefs on the issues, due Aug. 3, with oral arguments set for the week of Aug. 29.

Meanwhile, New Mexico also is challenging NRC in U.S. appellate court in Denver over plans to site an interim storage facility in that state proposed by Holtec International.

The agency on July 13 issued the final environmental impact review for the first $230-million project phase, 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, if fully built, would cover 1,000 acres in southeastern New Mexico and cost up to $2.4 billion

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 local officials.

But 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.”

However, the state legislature this year failed to pass a bill that would have prevented New Mexico regulators from issuing Holtec permits for industrial wastewater and construction even if NRC approved the project license.

While Energy Secretary Jennifer Granholm has said the U.S. Energy Dept. is making progress to obtain interest from U.S. communities to locate an interim private storage site, bills also are pending in the U.S. Congress to block use of federal funds to support activity at such 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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