Texas nuke waste storage license blocked by court. Could this impact New Mexico facility?
A federal appeals court vacated a license issued to a private company to store nuclear waste in Andrews, Texas along that state’s border to southeast New Mexico, a ruling that could impact a similar proposed site near Carlsbad and Hobbs.
The Fifth Circuit Court of Appeals in Louisiana handed down the verdict Aug. 25, ruling the Nuclear Regulatory Commission (NRC) did not have the authority to issue a license to Interim Storage Partners (ISP) to build the facility at the Waste Control Specialists site in West Texas.
The NRC did so in 2021 and issued another license for a similar site in New Mexico to Holtec International last year.
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The sites are known as consolidate interim storage facilities (CISF) and are designed to store spent nuclear fuel rods sent by train to the sites from nuclear reactors around the country.
While the Texas site was intended to hold up to 40,000 metric tons of the waste, the facility proposed in New Mexico would hold up to 100,000 metrics tons.
Both were intended to hold the rods at the surface in underground silos about 40 feet deep temporarily while a permanent repository is developed. A permanent facility does not exist in the U.S. after a project to build one at Yucca Mountain, Nevada was blocked in 2008 following widespread opposition in that state.
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And both proposals set off a wave of opposition from state leaders in New Mexico and Texas concerned they could put the public at risk of radiological exposure should an incident occur onsite or during transportation.
The sites could also endanger nearby oil and gas operations opponents alleged, as they’re both situated in the Permian Basin – the U.S.’ most active fossil fuel region.
That’s partly why Texas Gov. Greg Abbott and his state’s Commission on Environmental Quality were joined by oil company Fasken Land and Minerals and trade group Permian Basin Land and Royalty Owners, in bringing the appeal to ISP’s license.
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A similar appeal to Holtec’s license was filed by New Mexico officials and remained under review.
Court rules agency lacks authority for nuclear waste licensing
In the court’s ruling on the Texas site, Circuit Judge James Ho wrote that the Atomic Energy Act does not permit interim storage of nuclear waste or give the NRC “broad authority” to issue such a license to a private company.
The court granted the petition to review the NRC’s decision and vacated the license.
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“The Commission has no statutory authority to issue the license. The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel,” Ho wrote. “And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act.”
The verdict contended the NRC did have the authority to license and regulate nuclear power plants, and the possession of “special nuclear material,” but not for storage or disposal of “material as radioactive as spent nuclear fuel.”
NRC spokesman David McIntyre said the agency was reviewing the decision and planned to consult with the U.S. Department of Justice on its potential response.
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“The decision creates disagreements among various appeals court circuits concerning the need to pursue adjudicatory contentions prior to seeking judicial review of licensing decisions, as well as the scope of the NRC’s authority to issue materials licenses for away-from-reactor spent fuel storage facilities,” McIntyre said.
“The NRC stands by its licensing decision.”
New Mexico, Texas officials fighting nuclear waste storage
In response the licenses, Texas lawmakers passed House Bill 7 in 2022 to ban high-level nuclear waste storage in their state, followed by Senate Bill 53 in New Mexico during the 2023 Legislative Session.
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SB 53 sponsor Sen. Jeff Steinborn (D-36) said Friday that the Fifth Circuit Court verdict against the Texas license could set a precedent against the New Mexico proposal and any other similar actions by the NRC.
“It’s a massive ruling,” Steinborn said. “In the Fifth Circuit’s viewpoint, the NRC has not been delegated this authority. Federal law requires a deep geological repository. The law would have to change, and only Congress has that authority. That’s their ruling.”
Steinborn said both sites pose unacceptable risks to New Mexico and Texas, and issuance of the license displayed a “lack of federal leadership” and a disregard for the rights of state leaders.
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Holtec’s proposal in New Mexico was opposed by virtually all its executive branch, including Gov. Michelle Lujan Grisham who called the idea “economic malpractice” for its risk to other industries, along with her appointed cabinet secretaries of the New Mexico Environment (NMED) and Energy, Minerals and Natural Resources Departments.
Opposition also came from elected Commissioner of Public Lands Stephanie Garcia Richard, and New Mexico’s fully-Democrat congressional delegation, along with several members of the State Legislature.
The proposal was supported by local elected officials in Carlsbad and Hobbs who argued their fossil-fuel dependent communities would benefit from economic diversification brought on by expanded nuclear operations in the region.
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“I think there’s a lot of issues with what’s been proposed in the state and lots of concerns,” Steinborn said. “There is no permanent repository. This is a private company.
"This is certainly a ruling that has significant impacts for the Texas site and could have impacts on the legitimacy of the NRC’s authority to issues licenses for any offsite nuclear waste storage facilities.”
NMED spokesman Matthew Maez said the agency was assessing the ramifications the ruling could have for the State’s case against Holtec.
“This is the same type of license that the NRC issued to Holtec for its proposed temporary storage facility in New Mexico,” he said of the vacated license.
“New Mexico is assessing the applicability of this decision to the NRC’s license to Holtec and evaluating additional avenues for ensuring that the well-being of our citizens and the environment are protected from this type of nuclear waste storage facility.”
Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.
This article originally appeared on Carlsbad Current-Argus: Court blocks license for nuke waste site at Texas-New Mexico border
