U.S. Supreme Court takes up Texas nuclear waste disposal case

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The U.S. Supreme Court on Wednesday will hear arguments in a case that could pave the way for Texas to host the nation’s first independent disposal ground for spent nuclear fuel.

Currently, thousands of tons of high-level radioactive waste are stored on site at nuclear power plants across the country, awaiting a permanent national disposal site, which federal authorities have tried to develop for decades without success.

But even as Texas touts plans to become the nation’s next-generation nuclear capital, its leaders remain unwilling to take in its most potent nuclear refuse. The state, along with a local oil company, sued the Nuclear Regulatory Commission in 2021 over its licensing of a temporary storage site for up to 11 million pounds of spent uranium fuel in West Texas, at a facility owned by Waste Control Specialists, which already accepts low-level nuclear waste.

“The NRC’s abuse of authority must be stopped,” said Monica Perales, a Midland-based attorney for Fasken Oil and Ranch, a plaintiff in the case. “If not now, then all the spent nuclear fuel in America and maybe even foreign waste will end up in Texas and New Mexico indefinitely.”

A panel of federal judges ruled in favor of Texas in 2023, and the Supreme Court agreed to review the case upon appeal from the NRC.

A spokesperson for the NRC said the agency does not comment on pending litigation. It has argued that it does have authority to license the facility and that plaintiffs failed to undergo the agency’s internal appeals process before seeking relief from the courts.

Waste Control Specialists first filed its application in 2016 to receive high-level nuclear waste and store it in concrete casks on a temporary basis.

The Consolidated Interim Storage Facility is “designed to store spent nuclear fuel until a permanent repository is constructed and operating,” the application said. “The initial request for a license is for a term of 40 years.”

A permanent storage facility, in contrast, would be designed to contain waste for more than 100,000 years with much higher engineering standards.

Given the federal government’s longrunning inability to establish a permanent repository, interests in Texas feared that none would ever be developed. For almost 30 years, the federal government tried to develop an underground nuclear waste repository in Yucca Mountain, Nevada. But the effort floundered under immense opposition from the public and lawmakers, until it was effectively canceled around 2010.

“The likelihood of an interim site out there becoming the de facto permanent waste site is extremely high,” said Tom “Smitty” Smith, who previously directed the Texas branch of Public Citizen for 31 years. “That facility is not designed for that kind of storage.”

Waste Control Specialists did not respond to a request for comment.

In 2017, several Texas cities, including Dallas, passed resolutions against the project, raising concerns about the transportation of high-level nuclear waste across their boundaries to the site. In 2019, Gov. Greg Abbott wrote a letter to the NRC opposing the project, and in 2021 the Texas Legislature passed a law prohibiting the disposal of high-level radioactive waste outside a working power plant in Texas.

When the NRC recommended licensing the project later that year, Texas and Fasken Oil filed suit.

In August 2023 the Fifth Circuit Court of Appeals ruled in their favor, canceling the site license. In a 26-page opinion, Judge James Ho said U.S. law sets a blueprint for the construction of a permanent repository, not a temporary one.

“It plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility,” Ho wrote. “The Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel.”

Ho also noted that spent uranium fuel continues to accumulate at reactor sites across the country, growing by more than 2,000 tons every year. If the U.S. is to realize ambitions for a broad buildout of nuclear power, it’s going to need a waste repository.

Last year, the NRC petitioned the Supreme Court, which agreed to review the case. It will consider two questions: whether the plaintiffs were entitled to petition the courts for review, and whether the Atomic Energy Act of 1954 permits the Nuclear Regulatory Commission to license private entities to temporarily store spent nuclear fuel away from the nuclear reactor sites

The hearing comes as Texas seeks to position itself as the national leader in next-generation atomic power. A repository for high level waste would add another strong leg under the state’s claim to nuclear dominance, along with its uranium mines and advanced reactor development projects.

But so far, no state leader has spoken for the disposal site. Spokespersons for Abbott, a strong supporter of the Texas nuclear sector, did not respond to a query, nor did the Texas Nuclear Alliance, a nuclear industry support group. A spokesperson for the Public Utility Commission of Texas said it does not comment on pending litigation.

A decision in the case is expected in June.

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