US Supreme Court rules on interim storage facility case
The US Supreme Court ruled by 6-3 that the State of Texas and Fasken Land and Minerals were not entitled to judicial review of the US Nuclear Regulatory Commission's decision to license an interim storage facility for used nuclear fuel.
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The majority view was that the two were not parties to it as neither were licence applicants and neither had successfully intervened in the licensing process.
The background
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 consolidated interim storage facility to be built at Waste Control Specialists' existing waste disposal site in Andrews County, Texas. The proposed licence would authorise a facility 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 on ISP's application, recommending a licence be granted for the facility. The licence was issued in September 2021.
Fasken Land and Minerals, 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 decision in August 2023 a three-judge panel of the US Court of Appeals for the 5th Circuit ruled the NRC did not have authority from Congress to license such a private facility away from an existing nuclear power plant site under either the Atomic Energy Act or the Nuclear Waste Policy Act.
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.
Facilities 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 ruling
In his judgement for the majority position Justice Brett M Kavanaugh said: "Under the Hobbs Act, only an aggrieved 'party' may obtain judicial review of a Commission licensing decision. To qualify as a party to a licensing proceeding, the Atomic Energy Act requires that one either be a license applicant or have successfully intervened in the licensing proceeding. In this case, however, Texas and Fasken are not license applicants, and they did not successfully intervene in the licensing proceeding. So neither was a party eligible to obtain judicial review in the Fifth Circuit. For that reason, we reverse the judgment of the Court of Appeals and do not decide the underlying statutory dispute over whether the Nuclear Regulatory Commission possesses authority to license private off-site storage facilities."
The majority judgement of the US Supreme Court does not rule on whether or not the NRC has the authority to license such a private facility at a site away from an existing nuclear power plant: "To be clear, because Texas and Fasken's claims are not judicially reviewable, we need not and do not decide the ultimate question of statutory authority that the dissent focuses on. So that there is no confusion, however, we underscore that in resting on the threshold reviewability issue, we are not somehow assuming or buying into a premise that the Commission is wrong on the underlying merits. The dissent's description of an agency that is flagrantly violating its governing statutes seems to be in substantial tension with about 50 years of consistent congressional action, agency practice, and judicial interpretation."
It concludes: "Texas and Fasken were not parties to the Commission's licensing proceeding and are not entitled to obtain judicial review of the Commission's licensing decision. We reverse the judgment of the Court of Appeals and remand the cases with instructions to deny or dismiss the petitions for review."
The NRC also issued a licence to Holtec International to build and operate a consolidated interim storage facility for used nuclear fuel in New Mexico in 2023. Holtec International welcomed the Supreme Court's view and said it hoped it would help it to move ahead with its planned consolidated interim storage facility in New Mexico.
