Private Spent Nuclear Fuel Storage Hits Another Snag

The path to temporarily store spent nuclear fuel (SNF) is stalled once again following the most recent ruling by the US Court of Appeals for the Fifth Circuit on the Eddy-Lea Alliance site in Southern New Mexico. This is the second ruling by the Fifth Circuit that ends with a Nuclear Regulatory Commission (NRC) license vacated in the last two years.

The issue at hand is not about the viability of private nuclear storage or the safety of storage (which occurs in other countries and at 75 sites around the US) – instead it is whether the Nuclear Regulatory Commission (NRC) has the legal authority to grant a license for such storage facility.

At the center of the legal situation are the Atomic Energy Act of 1954 and the Nuclear Waste Policy Act of 1982 (NWPA), as amended. Under the NWPA Congress designated Yucca Mountain in Nye County, NV to be the permanent SNF and nuclear waste site. The US has, to date, abandoned the Yucca Mountain project. The question now is whether NWPA requires for Yucca Mountain to be the only place for off-site storage or if the NRC is authorized to license a facility for the storage of spent nuclear fuel away-from-the-reactor.

On March 27, 2024 the Fifth Circuit ruled in Fasken Land and Minerals v. NRC, that NRC did not have the authority to grant a license to Holtec International Corp. to temporarily store SNF in Lea County, New Mexico. This is not the first ruling on NRC’s authority by the Court in. In August 2023, the Fifth Circuit also vacated an NRC license for a facility proposed by Interim Storage Partners (ISP) in Andrews County, Texas.

In Texas v. NRC, the court ruled: “The Atomic Energy Act does not confer on the [NRC] the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor… the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority.”

The Fifth Circuit referred to the earlier ruling during their most recent decision, “Because this court’s holding in Texas v. NRC dictates the outcome here, we grant Fasken’s and PBLRO’s petition for review and vacate the Holtec license. The NRC’s motion to transfer the petition for review to the United States Court of Appeals for the District of Columbia Circuit is denied as moot.”

The US Court of Appeals for the District of Columbia Circuit is currently reviewing a case that is challenging the NRC’s authority to grant a HI-STORE CISF license to Holtec, in Beyond Nuclear, Inc. v. NRC. The court has previously found the NRC to have the authority to license private, away-from-reactor nuclear waste storage facilities in Bullcreek v. NRC.

Holtec’s Director of Government Affairs and Communications, stated that, “Holtec believes that the Texas and the Holtec decisions are incorrect and that the government, ISP and Holtec are likely to bring one or both of these decisions to the US Supreme Court which is likely to overturn the Fifth Circuit’s decisions.”

The parties have 90 days to file a petition with the high court, unless they request and are granted an extension.

Other previous federal court rulings have also affirmed the NRC’s authority to grant licenses for such facilities. These clashes show a clear split between the circuits. It is expected for the U.S. Supreme Court to review the 5th Circuit Court’s order.

As the legal battle ensues, there are currently at least 86,000 metric tons of nuclear waste that is currently being stored at 75 nuclear power plant sites in 33 states and at several DOE owned sites, such as the Hanford site in Tri-Cities, WA, Idaho National Lab in Idaho Falls, ID, and the Savannah River Site in Aiken, SC. These cases highlight the stalemate that is occurring in this country on waste disposal.

ECA will continue to provide updates as these cases move forward.