Fifth Circuit will not give NRC another chance to prove commercial interim storage is legal

RadWaste Monitor Vol. 17 No. 12
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RadWaste Monitor

Article 3 Of 8

March 22, 2024

Fifth Circuit will not give NRC another chance to prove commercial interim storage is legal

By Dan Leone

The Nuclear Regulatory Commission will have to appeal to the U.S. Supreme Court if it wants another chance to prove that it can legally license commercial interim storage of spent nuclear fuel.

According to an order dated March 14, judges of the Fifth Circuit voted 9-7, with one recused, not to rehear the NRC’s argument that the Atomic Energy Act authorizes the commission to license interim storage of spent fuel away from the reactors that generated it.

“We continue to adhere to our position that the judiciary has not only the authority but the duty to review the NRC’s actions, which may threaten significant environmental damage in the Permian Basin, one of the largest fossil fuel deposits in the world,” the court wrote in its opinion.

In August, as part of a lawsuit filed by the state of Texas, a panel of three Fifth Circuit judges ruled that the Atomic Energy Act did not give NRC this authority, effectively striking down a license the NRC granted to a joint venture of Waste Control Specialists and Orano to store spent fuel in Andrews County, Texas.

The Fifth Circuit’s ruling last year also killed a similar commercial interim storage license the NRC gave to Holtec International for a proposed facility in eastern New Mexico.

Three Fifth Circuit judges disagreed with the majority’s opinion last week, writing among other things that the court’s ruling will allow people to evade regulatory agencies using maneuvers with no basis in federal law.

“This exercise of jurisdiction has grave consequences for regulated entities’ settled expectations and careful investments in costly, time consuming agency proceedings, inviting spoilers to sidestep the avenues for participation that Congress carefully created to prevent this uncertainty,” the three dissenting judges wrote.

Among other things, NRC argued that Texas never participated in the commission’s debate about licensing the Andrews County facility and that therefore the state had no right to sue over the commission’s final licensing decision.

Meanwhile, the NRC continues to argue in a separate but related case in the U.S. Court of Appeals for the District of Columbia Circuit that the Atomic Energy Act allows the agency to license commercial interim storage of spent fuel.