Interim Storage Partners, a joint venture between Orano and Waste Control Specialists, wants the U.S. Supreme Court to reconsider an August ruling by a federal appeals court that effectively blocked the Nuclear Regulatory Commission from approving a private temporary spent nuclear fuel storage site in Andrews County, Texas.
A three-judge panel for the Fifth U.S. Circuit Court of Appeals ruled in favor of Texas, holding the Nuclear Regulatory Commission (NRC) lacked authority to license such a high-level waste facility. Interim Storage Partners on Wednesday filed a petition for a writ of certiorari, asking the nation’s highest court to hear its request to reverse the Fifth Circuit.
Importantly, the NRC, represented by the Department of Justice, is also challenging the Fifth Circuit decision. The petitioners argue the Fifth Circuit got it wrong with its August decision that differed from rulings by other federal circuits.
The NRC initially signed off on the private spent nuclear fuel facility in September 2021. The state of Texas, Gov. Greg Abbott (R), and the Texas Commission on Environmental Quality sat out NRC’s licensing case at the time, the Justice Department said in its filing.
The Fifth Circuit “abruptly departed from nearly a half century of settled law,” Interim Storage Partners said.
The petitioners argue neither the Atomic Energy Act nor the Nuclear Waste Policy Act bar NRC from licensing “temporary away-from-reactor possession of spent nuclear fuel.” The government filing said: “The Fifth Circuit’s holding that the Commission lacks statutory authority to license temporary offsite storage of spent nuclear fuel conflicts with decisions of the D.C. and Tenth Circuits.”
The Nuclear Waste Policy Act created a framework for permanent disposal of spent fuel by the Department of Energy (such as the canceled Yucca Mountain Project in Nevada), according to Interim Storage Partners. But it “had nothing to do with” NRC’s licensing and temporary possession of spent fuel by a private entity, until DOE “complies with its permanent disposal obligations.”
“It is not hyperbole to observe that the departures by the Fifth Circuit in this case have the potential to upend the domestic nuclear power industry,” the Orano-WCS partnership said in its filing. There are at least a dozen existing sites in the country, known as Independent Spent Fuel Storage Installations, where there is no operating reactor and where spent nuclear fuel is stored, according to Interim Storage Partners.
Once fuel in a nuclear reactor is no longer useful, it must be removed from the reactor and cooled in a spent fuel pool for up to five years, after that it can be placed into such dry storage installations, the Justice Department said in its filing.
Orano USA is a corporate offshoot of the French government-controlled Orano SA. Waste Control Specialists (WCS), which owns a sprawling nuclear waste facility in Andrews County, is held by a branch of the investment firm, J.F. Lehman & Co.
The high court, which is separate from either the executive or the congressional branch of government, historically agrees to take only about 3% of the cases it is asked to hear.
The Texas Commission on Environmental Quality declined comment. The Texas attorney general’s office could not immediately be reached for comment.
