Court annuls licence for Texas used fuel store

30 August 2023

The licence issued for the construction and operation of a consolidated interim storage facility (CISF) for used nuclear fuel in Texas has been cancelled by a US appeals court. The court ruled that the US Nuclear Regulatory Commission (NRC) does not have the authority to license a private storage facility away from nuclear reactors.

ISP's vision for the CISF (Image: ISP)

Interim Storage Partners (ISP) was established in 2018 as a joint venture of Waste Control Specialists and Orano CIS, a subsidiary of Orano USA, to license a CISF to be built at WCS's existing waste disposal site in Andrews County, Texas. The proposed licence would authorise a CISF to store up to 5000 tonnes of used commercial nuclear fuel as well as so-called Greater-Than-Class C waste for a period of 40 years. ISP plans a phased expansion of the facility over 20 years to eventually store up to 40,000 tonnes of used fuel, subject to future approvals.

In July 2021, the NRC issued its final environmental impact statement (FEIS) on ISP's application, recommending a licence be granted for the facility. The licence was issued in September 2021.

Fasken Land and Minerals, a for-profit group working in oil and gas extraction, and Permian Basin Land and Royalty Owners, an association focused on protecting the interests of the Permian Basin, along with the State of Texas and others, petitioned for review of the licence. Texas lawmakers passed a law in 2022 prohibiting the storage of high-level radioactive waste in the state, except at currently or formerly operating nuclear power reactors.

In a 25 August decision, a three-judge panel of the US Court of Appeals for the 5th Circuit ruled the NRC does not have authority from Congress to license such a facility under either the Atomic Energy Act or the Nuclear Waste Policy Act.

"The Nuclear Waste Policy Act creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation," the court said. "The scheme prioritises construction of the permanent repository and limits temporary storage to private at-the-reactor storage or at federal sites. It plainly contemplates that, until there's a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility.

"In sum, the Atomic Energy Act doesn't authorise the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And the Nuclear Waste Policy Act doesn't permit it. Accordingly, we hold that the Commission doesn't have authority to issue the licence challenged here. When read alongside each other, we find these statutes unambiguous. And even if the statutes were ambiguous, the Commission's interpretation wouldn't be entitled to deference.

"Accordingly, we grant the petition for review and vacate the licence," the court said.

The management of civilian used nuclear fuel in the USA is a federal responsibility, but the planned permanent repository at Yucca Mountain in Nevada, which in 1987 was designated as the sole initial repository for 70,000 tonnes of high-level wastes, has not been built. This means used fuel from over 70 shutdown, decommissioned and operating nuclear energy facilities is currently in storage at sites across the nation.

CISFs such as the one proposed by ISP would offer dry-cask storage at an away-from-reactor site pending disposal at a permanent disposal facility. ISP's facility would use proven above-ground dry fuel storage systems developed by Orano TN and NAC International, which are already in place at numerous operating and decommissioned commercial nuclear energy facilities in the USA. The storage system has a design life in excess of 100 years.

The NRC has also issued a licence to Holtec International to build and operate a CISF for used nuclear fuel in New Mexico. That licence, issued in May this year, is being challenged in the US Court of Appeals for the 10th Circuit.

In partnership with the Eddy-Lea Energy Alliance (ELEA), Holtec launched the initiative to set up the Hi-STORE CISF in 2015 at a site between Carlsbad and Hobbs in Lea County, New Mexico, on land owned by ELEA.

Holtec submitted its application with the NRC for a 40-year licence for the initial phase of the project, for up to 500 canisters holding some 8680 tonnes of used fuel, in 2017. The company said it expected this to increase to a total of 10,000 canisters in an additional 19 phases over the course of 20 years. Each expansion would require a licence amendment from the NRC.

Researched and written by World Nuclear News