Last week, a federal appellate court in New Orleans ordered a review and reversed a federal license to operate a proposed spent-fuel facility in Andrews County, Texas, just miles across the border from Eunice, New Mexico.
In the Aug. 25 order, Fifth Circuit Judge James Ho wrote that federal law does not grant the Nuclear Regulatory Commission the authority to license private storage facilities for spent nuclear fuel away from reactors.
What is spent fuel?
Spent fuel is the highly radioactive remains of ceramic pellets of Uranium-235 used at power plants to generate electricity. Currently, nuclear waste is kept at current and former nuclear power plants around the country.
Different types of nuclear waste decay at varying rates. Waste can release radiation for tens of thousands of years. These hazardous materials can produce fatal radiation doses over long periods of time or can contaminate the environment.
“The Commission has no statutory authority to issue the license,” Ho wrote. “The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act.”
This is just the latest in a decades-long debate on what to do with the growing amount of radioactive waste from former and current power plants across the country.
Recently, Texas and New Mexico legislatures passed laws banning storage of nuclear waste – despite previous administrations welcoming the industry – and setting up for a showdown with the federal government, who has authority over the nuclear industry.
The Nuclear Regulatory Commission issued a license to Florida-based company Holtec International for a proposed storage site in southeast New Mexico between Hobbs and Carlsbad.
That license allows for a facility to store more than 8,680 metric tons of spent fuel, even as New Mexico passed a law banning the storage of high-level nuclear waste in the state just before the license was issued. The ban will not be lifted, according to the state law, until a national repository is built, and New Mexico officials give approval for a waste facility.
NM ready to defend new nuclear waste bill against industry and federal opposition
State officials said they would examine the decision further, said Matthew Maez, spokesperson for the New Mexico Environment Department.
“New Mexico is assessing the applicability of this decision to the NRC’s license to Holtec and evaluating additional avenues for ensuring that the well-being of our citizens and the environment are protected from this type of nuclear waste storage facility,” Maez said in a written statement.
Nuclear watchdogs and environmental groups said the timing of the Fifth Circuit opinion may have an impact on the appeal against the Holtec license going before the D.C. Circuit later this month. The deadline to file arguments is Friday.
Kevin Kamps, with nonprofit Beyond Nuclear, called the judgment “sweeping,” but said it’s complicated to determine how it might impact other cases.
“Sometimes circuits disagree, and they have disagreed here,” Kamps said. “It’s hard to say what the Nuclear Regulatory Commission and Department of Justice and even [Interim Storage Partners] ISP are going to do in response to the Fifth Circuit ruling.”
Previous court appeals over the Nuclear Regulatory Commission license of the Andrew’s Texas Facility have been tossed, most recently by the D.C. Appeals Circuit in January this year.
Kamps said Beyond Nuclear is “more confident” about the Holtec challenge. The court has not currently scheduled oral arguments, but it’s possible they’d be set for early 2024.
There’s still a lot of uncertainty, said Don Hancock, the nuclear waste program director at Southwest Research and Information Center.
“It’s better for our point of view than it is for Holtec’s point of view. But it doesn’t, for sure, decide what’s going to happen with the D.C. Circuit on the Holtec license,” Hancock said.
Patrick O’Brien, a Holtec International spokesperson, said the company had “no comment on the ruling at this time.”
The facility, located in the Permian Basin, was supposed to be a private facility managed by nuclear technology company Interim Storage Partners, to hold 40,000 metric tons of used fuel rods.
The Nuclear Regulatory Commission issued a license to operate the Andrews County, Texas facility in September 2021. The license designates the site as a “temporary facility” while a permanent place for nuclear waste is developed. Nuclear watchdog groups are concerned these interim facilities will become over time the permanent storage sites for high-level nuclear waste. The federal government abandoned the effort to build a permanent nuclear repository at Yucca Mountain, after years of opposition from officials and organizers in Nevada.
Days before the Nuclear Regulatory Commission issued the license, Texas passed House Bill 7, which bans the storage of spent nuclear fuel, offsite from current or former nuclear power reactors.
Oil and gas companies and the state of Texas sued in the Fifth Circuit Court of Appeals, requesting a review of the Nuclear Regulatory Commission license, and for the court to vacate it. The panel of three judges sided with Texas’ arguments.
The federal agency is checking its options to appeal, said David McIntyre, a spokesperson for the Nuclear Regulatory Commission.
“We are reviewing the Fifth Circuit Court’s decision and consulting with the Department of Justice,” McIntyre said in a phone call with Source NM.
The commission has until Oct. 17 to determine if it will file an appeal, which could include going before the entire Fifth Circuit. The license currently remains in place, since the court has not yet issued a mandate, he said.