Nearly 40 years have passed since the Nuclear Waste Policy Act went into effect, mandating that the U.S. government designate a location to permanently dispose of the nation’s spent nuclear fuel from power plants.
It never happened, as nuke-watchers well know, but this week, an interim waste storage site conceived by the privately owned Interim Storage Partners (ISP) team of Orano and Waste Control Specialists got closer to reality than almost any solution to the waste-storage problem proposed since the landmark 1980s legislation that created the stillborn Yucca Mountain repository.
Yucca remains the only congressionally-authorized site to permanently dispose of spent fuel to which the Department of Energy is supposed to take title from power plant operations, but the Joe Biden administration has vowed not to build a repository in the remote Nye County, Nev., site. Even the Donald Trump administration, which stormed into Washington gung-ho to restart DOE’s application to license Yucca, couldn’t unknot the staunch political opposition to the repository, which is despised by almost every kind of politician from Nevada.
So, private companies have swirled into the vacuum left by the federal government. The Nuclear Regulatory Commission is currently deliberating over two commercial applications for consolidated interim storage facilities (CISFs): Holtec International’s in southeastern New Mexico and ISP’s in west Texas.
On Thursday, NRC staff recommended that the commission grant a license to the proposed ISP site in September. Assuming the availability of willing customers at nuclear power plants across the country, the site could soon begin the belated business of consolidating spent fuel in a location other than the general vicinity of the plants that generated it and the communities that consumed the resulting electricity.
As it stands now, however, Holtec and ISP won’t be allowed to break ground on their CISFs without a fight.
The latest argument mustered by opponents of commercial interim storage sites boils down to this: the Nuclear Waste Policy Act (NWPA) requires the federal government to have a permanent spent fuel repository before it builds any interim storage sites, so NRC would break the law by licensing the proposed commercial facilities.
A nuclear industry group says that’s not so.
Rod McCullum, senior director of fuel and decommissioning at the Nuclear Energy Institute trade group, told RadWaste Monitor via phone Thursday that allegations of a NWPA violation are “false.”
“NRC can license a private interim storage site,” McCullum said. “The Nuclear Waste Policy Act only applies to Department of Energy interim storage sites ⏤ federal sites.”
McCullum said that there’s historical precedent for NRC’s move to license private spent fuel storage. He cited an early-aughts commission license allowing Duke Energy, then Progress Energy, to move spent fuel to its Brunswick nuclear plant in North Carolina from its Robinson plant in South Carolina for storage at its independent spent fuel storage installation.
Despite that, commercial interim storage opponents hold that licensing would violate federal law. Rep. Henry Cuellar (D-Texas) has emerged as a voice for the opposition on Capitol Hill. This week, he used every minute of his speaking time on the House floor, during debate of a 2022 DOE budget bill, to slam the proposed CISFs.
Cuellar said Tuesday during floor debate that NRC “not only lacks consent [for interim storage] but is acting unilaterally despite clear opposition in a bipartisan way.”
Cuellar said that the NWPA allows for state governors to voice their disapproval of a proposed interim storage site. “The law is very clear … that the governor can disapprove [of an interim storage facility],” he said.
According to the law, a state governor has “authority to submit a notice of disapproval” to Congress. Texas Gov. Greg Abbott (R) and New Mexico Gov. Michelle Lujan Grisham both oppose the proposed interim storage sites in their states and have said as much to elected officials in Washington.
In the event Congress gets a notice of disapproval, federal the law says, interim storage “shall be disapproved” unless Congress votes to pass “a resolution approving such proposed provision” within 90 days.
Cuellar’s office didn’t return a request for comment by deadline Friday for RadWaste Monitor.
Meanwhile, the state of New Mexico is actively testing the limits of federal nuclear waste law in court.
State attorney general Hector Balderas used the permanent repository argument as part of his March lawsuit against NRC, filed in the U.S. District Court for New Mexico. In addition to violating the NWPA, Balderas argued that the interim storage facility Holtec plans in Lea County, N.M., would place an unfair economic burden on the state by imposing an “unfunded federal mandate” for which Santa Fe would have to pay. James Kenney, secretary of the New Mexico Environment Department, echoed Balderas’s concerns in June, saying New Mexico is “not the site” for interim storage.
Just over the Land of Enchantment’s eastern border, Texas is also working to counter Interim Storage Partners’ proposed spent fuel site. ISP, a joint venture between Dallas-based Waste Control Specialists and the U.S. branch of French nuclear services company Orano, is looking to build its CISF at Waste Control Specialists’ existing low-level radioactive waste storage facility in Andrews County, Texas.
Dozens of Texas state legislators penned a letter to NRC July 23 making the same argument as Balderas: that licensing the ISP site would run afoul of federal law. The letter asked that NRC deny a license to the proposed site.
“We do not consent to having our state become a nuclear waste dumping ground,” the letter said. “Please prevent nuclear disasters that risk the health and safety of Texans and imperil our businesses and economy.”
ISP’s potential host county has also thrown its hat in the ring. The Andrews County Commissioners’ Court voted earlier this month to publicly oppose the project after a community meeting.
All of this opposition follows a failed attempt to halt the proposed interim storage site in Austin. A proposed bill from Rep. Brooks Landgraf (R) died in the state House in May after a parliamentary spat caused the measure to be kicked back into committee.
With members of the House headed back to their districts in August for a work week of campaigning with constituents, Cuellar and other opponents of the proposed ISP site will have some time to huddle away from Washington before the NRC’s licensing decision for Waste Control Specialists’ site comes down the pike.
New Mexicans have more time still to muster their resistance. NRC said earlier this month that it won’t be able to publish a required environmental review for the Holtec site proposed for Lea County until November. The final licensing decision for the proposed site, according to commission chair Christopher Hanson, will be ready in January.
