A federal court this week dismissed a 2021 lawsuit by a coalition of environmental and mining groups who tried to block the Nuclear Regulatory Commission’s license of a proposed private storage facility for spent nuclear fuel.
The D.C. Circuit Court of Appeals said Wednesday that the plaintiffs, led by anti-nuclear group Beyond Nuclear, were not, as they claimed, illegally shut out of the internal NRC debate in 2019 about whether to grant Interim Storage Partners’ (ISP) a license for an interim spent-fuel storage facility in Andrews, Texas.
The NRC granted the license in 2021, giving the company permission to contract either with power plants or with the Department of Energy for storage of spent nuclear fuel resulting from commercial electricity generation.
“We see no error in these decisions,” the court wrote in its judgment this week.
ISP, a joint venture between Waste Control Specialists and Orano, has said that its proposed facility could store around 40,000 tons of spent fuel, about half the nation’s existing inventory.
In a statement Wednesday, Beyond Nuclear said the court threw out the case on “a procedural technicality,” and that the group has a winning argument about the legality of ISP’s license that could help sink the license application of another private interim storage facility, this one proposed by Holtec International.
Even some NRC staff said that Beyond Nuclear’s argument, which centers on a license clause allowing ISP to take spent-fuel deliveries from the Department of Energy, had merit. The Circuit Court acknowledged staff’s opinion in its ruling Wednesday but said Beyond Nuclear never actually included its purported silver bullet in its formal motion for NRC to dismiss the ISP license proceedings — something Beyond Nuclear did not deny on Wednesday.
In July 2019, during oral arguments before an NRC Atomic Safety and Licensing Board in Midland, Texas, Beyond Nuclear said the ISP license was illegal because it would allow the Department of Energy to send ISP spent fuel from commercial nuclear power plants — fuel that DOE was not legally allowed to touch, under the federal Nuclear Waste Policy Act.
Under the act, DOE is prohibited from taking title to commercial spent fuel or building its own interim storage site until it first builds a permanent geologic repository. With the Yucca Mountain geologic repository politically dead and no alternative in sight, power plants must either store the fuel themselves or wait for industry to offer commercial storage.
According to a transcript of the 2019 oral arguments, Sara Kirkwood, an NRC lawyer, told the Atomic Safety and Licensing Board that Beyond Nuclear’s contention about “whether it is legally permissible to include DOE as a potential customer [was] an admissible contention” to ISP’s license application.
But less than two months after oral arguments in Texas, the board nixed all the contentions Beyond Nuclear’s raised, writing in an August 2019 memo that there was “no credible possibility” that DOE would contract with ISP for storage of fuel covered under the Nuclear Waste Policy Act, and that there was therefore no reason for “devoting [NRC] resources to further legal briefing or to an evidentiary hearing” on the possibility.
After that, Beyond Nuclear appealed to the NRC commissioners, who sided with the board. The group finally went to the appeals court, which agreed with NRC’s reasoning at nearly every turn and threw out the anti-nukers’ lawsuit, writing that the group focused narrowly on the ISP license’s language about DOE and totally ignored the part of the license that allows the company to contract privately with power plants that own their own fuel and are unconstrained by the Nuclear Waste Policy Act.
Beyond Nuclear’s contention did not account for “the possibility of private ownership” of spent nuclear fuel and “ignored the proposed license’s plain text,” the court wrote. Besides, the court said, “[a]ll parties agree that DOE would violate the NWPA by taking title to and transporting spent nuclear fuel to the facility.”
