A US Supreme Court ruling has revived plans to temporarily store nuclear waste at sites in rural Texas and New Mexico. The Court ruled by 6-3 that the State of Texas and Fasken Land and Minerals were not entitled to judicial review of a US Nuclear Regulatory Commission (NRC) decision to licence an interim storage facility for used nuclear fuel.
In August 2023, a US appeals court cancelled a licence granted by NRC to a company planning construction of a temporary nuclear waste storage facility in Andrews County, western Texas. The New Orleans-based 5th US Circuit Court of Appeals found that NRC lacked the authority under federal law to issue permits for private, temporary nuclear waste storage sites.
The licence, issued in 2021 to Interim Storage Partners (ISP), had been challenged by Texas as well as west Texas oil and gas interests. ISP is a joint venture of Waste Control Specialists and Orano CIS, a subsidiary of Orano USA.
Texas Governor Greg Abbott and other state officials had petitioned the court in 2021 to review NRC’s order authorising Interim Storage Partners to receive and store up to 5,000 tonnes of used fuel and about 230 tonnes of low-level radioactive waste for 40 years at the planned repository.
New Mexico Governor Michelle Lujan Grisham and the state’s congressional delegation have been similarly fighting a proposal by Holtec International to build a facility in Lea County. In July 2023, Holtec received the final licence from the NRC for construction and operation of the facility, which is intended to temporarily store nuclear waste from NPPs across the USA.
NRC issued the licence despite strong opposition with the passage of a new law in New Mexico that seeks to block the facility by requiring a federal permanent repository to be in operation before any nuclear waste can be stored. There are some 2,500 oil, gas or mineral extraction sites operated by 54 different entities within 10 miles of the site where Holtec plans to build the facility.
The Supreme Court ruling does not mean nuclear waste will end up in West Texas. Texas legislators have sent a bill to Governor Abbott that reiterates the state’s stance that nuclear waste may only be stored at the location where a reactor is operating. And ISP said in a statement that it does not plan to continue developing the project “without the consent of the State of Texas”.
Andrew Mahaleris, a spokesman for Governor Abbott, told the Odessa American that building the West Texas waste site would go against state law. “Governor Abbott will not allow illegal dumping of ultra-hazardous spent nuclear fuel near the world’s largest producing oilfield,” he said.
Justice Neil Gorsuch, one of the three dissenting voices in the Supreme Court ruling wrote that the NRC’s “decision was unlawful” because used nuclear fuel can be temporarily stored in only two places under federal law, at a nuclear reactor or at a federally owned facility. Justices Samuel Alito and Clarence Thomas signed on to the dissenting opinion.
Roughly 90,000 tonnes of used fuel, some of it dating from the 1980s, is accumulating at current and former NPP sites in the US and growing by more than 1,800 tonnes a year. The waste was meant to be kept there temporarily before being deposited deep underground. NRC has said that the temporary storage sites are needed because existing plants are running out of room.
Plans for a permanent underground storage facility at Yucca Mountain, northwest of Las Vegas, are stalled because of staunch opposition from most Nevada residents and officials.
New Mexico Governor Grisham said she was deeply disappointed by the Supreme Court ruling, reiterating that Holtec International was not welcome in the state. She vowed to do everything possible to prevent the company from storing waste in New Mexico. “Congress has repeatedly failed to secure a permanent location for disposing of nuclear waste, and now the federal government is trying to force de-facto permanent storage facilities onto New Mexico and Texas,” she said. “It is a dangerous and irresponsible approach.”
