The Nuclear Regulatory Commission relied on the wrong law when it licensed private long-term storage of spent nuclear fuel, Texas and a mineral rights-group headquartered there told the U.S. Supreme Court last week.
It is essentially the same argument that the state and Fasken Land and Minerals successfully used to convince the U.S. Fifth Circuit Court in 2023 to outlaw privately operated interim storage sites for spent fuel.
The NRC said its founding law, the Atomic Energy Act, gave it the authority to regulate three isotopes found in all spent fuel and thus the authority to let private companies consolidate and store burned-up fuel from civilian power plants.
Not so, Texas and Fasken told the Supreme Court, an independent branch of the federal government, in briefs filed Aug. 21.
NRC’s approach amounted to “stitch work” that created an “ambiguous” justification for licensing private interim storage under a law that does not mention spent nuclear fuel at all, Fasken wrote in its brief.
The Commission also ignored another law, the Nuclear Waste Policy Act, in which Congress specifically tells federal agencies what has to be done with spent fuel, Texas said.
The Atomic Energy Act “nowhere authorizes issuance of a materials license to possess spent nuclear fuel for any reason, let alone for the sole purpose of storing such material in a standalone facility,” Texas wrote in its Supreme Court brief.
On the other hand, the Nuclear Waste Policy Act “contains a welter of provisions dealing directly with private waste storage, including the issue of where to put privately produced waste pending completion of the Yucca Mountain project,” Texas wrote in the brief.
The current Supreme Court case arose from a Texas lawsuit against Interim Storage Partners (ISP), a joint venture of Orano USA and Waste Control Specialists that got an NRC interim storage license for an as-yet-unbuilt facility near Waste Control Specialists’ existing low-level radioactive waste storage site near Andrews, Texas.
When the Fifth Circuit struck down ISP’s license, it also killed the only other commercial interim storage license, held by Holtec International, Jupiter, Fla. Holtec planned to build an interim storage site near Eddy County in southeastern New Mexico, not far from the Texas border and the proposed ISP site.