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D.C. Circuit Skeptical of Challenge to Texas Nuclear Waste Site

Daniel Moore, Bloomberg News
Nov. 10, 2022

A three-judge panel at the D.C. Circuit on Thursday sharply questioned arguments by environmental groups challenging a federal license of a privately owned interim nuclear waste storage facility in Texas.

Petitioners argued that the Nuclear Regulatory Commission’s approval last year of Interim Storage Partners’ facility violates the 1982 Nuclear Waste Policy Act because it includes language allowing a contract with the Energy Department. The case is the second legal challenge against the interim high-level waste facility licensed for Andrews County.

The provision is unlawful because the department, under that law, must select a permanent waste repository before siting a temporary facility, said Diane Curran, of counsel for Harmon Curran representing Beyond Nuclear.

“The only issue before this court is whether you should disregard the plain terms of the license condition, as suggested by the NRC, based on extraneous promises by the agency the fulfillment of the unlawful condition will never ever be carried out or allowed until Congress changes the law,” Curran said.

Hypothetical Development

But Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia Circuit pointed out the license is focused on privately owned waste and that the DOE provision would be a hypothetical future development.

“There’s still the other language authorizing arrangements with privately-owned waste, and you have no argument against that,” Katsas said. “Why wouldn’t we, at most, just excise the offending language and sever the rest? There’s no reason why the provision can’t operate as related to privately owned waste.”

Judge David Tatel presented a scenario in which the license could stand if the court received assurances from the government that the unlawful provision will never be implemented.

Curran said severing the provision would be a helpful remedy, but government assurances were not.

Commission Opposition

The NRC asked the judges to reject the challenge.

“The licensee’s requirement is to provide a proof of contract, and if the contract that it relied on in order to satisfy the condition were illegal, the NRC would say no,” said Andrew Averbach, the NRC’s solicitor.

If there were any future contract between the facility with DOE, parties could then seek judicial recourse, Averbach added. But the central premise of this license will be storing spent fuel involving private entities, and reactor licensees will continue to hold title of ownership.

“We’re not talking about DOE taking title,” Averbach said. “We’re talking about private licenses doing something with the fuel that they currently have title to.”

Texas officials sued the NRC for approving the license over the state’s objections, arguing in part that the NRC overstepped its authority by licensing a facility before a permanent one is established. Judges held oral arguments in August in that case at the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

The facility could hold 40,000 metric tons of spent fuel if all the phases of the project play out.

The case is Don’t Waste Michigan v. NRC, D.C. Cir., No. 21-1048, Oral argument 11/10/22

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To contact the reporter on this story: Daniel Moore in Washington at dmoore1@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

Fair Use Notice
This document contains copyrighted material whose use has not been specifically authorized by the copyright owner. SEED Coalition is making this article available in our efforts to advance understanding of ecological sustainability, human rights, economic democracy and social justice issues. We believe that this constitutes a “fair use” of the copyrighted material as provided for in section 107 of the US Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond “fair use”, you must obtain permission from the copyright owner.

Spent fuel facility receives NRC license days after Texas moves to ban it

Sep 14, 2021

Nuclear Newswire

The Nuclear Regulatory Commission has issued a license to Interim Storage Partners (ISP), a joint venture of Waste Control Specialists and Orano USA, to construct and operate a consolidated interim storage facility for spent nuclear fuel in Andrews, Texas. Issued on September 13, the license comes just four days after Texas governor Greg Abbott signed a bill to block such a facility from being built in the state.

The license is the second one issued by the NRC for a consolidated storage facility for spent nuclear fuel. The first was issued to Private Fuel Storage in 2006, but the facility was never constructed. The NRC is currently reviewing an application from Holtec International for a similar facility proposed for Lea County, New Mexico. A decision on that application is currently expected in January 2022.

The ISP facility: ISP intends to build the storage facility on property adjacent to Waste Control Specialists’ low-level radioactive waste disposal site already operating under a Texas license. The NRC license authorizes ISP to receive, possess, transfer, and store up to 5,000 metric tons of spent fuel and 231.3 metric tons of greater-than-Class C low-level radioactive waste for 40 years.

The company has said that it plans to expand the facility in seven additional phases, up to a total capacity of 40,000 metric tons of fuel. Each expansion would require a license amendment, with additional NRC safety and environmental reviews.

The licensing: ISP submitted a revised license application to the NRC in July 2018. Waste Control Specialists had previously submitted an application for an interim storage facility in conjunction with Areva and NAC International but withdrew that application in 2017.

Read more on Nuclear Newswire

A private company got federal approval to store nuclear waste in Texas. The state is fighting back.

September 15, 2001

Douglas MacMillan and Aaron Gregg
Washington Post

The Nuclear Regulatory Commission’s approval of the planned facility opens a new front in a decades-long battle to find a home for the country’s nuclear waste

A private company has won federal approval to build an expansive nuclear waste site in Texas, even as residents, state lawmakers, environmentalists and Texas Gov. Greg Abbott (R) rail against it.

The Nuclear Regulatory Commission (NRC) on Monday issued a license for Andrews, Tex.-based Interim Storage Partners to store as much as 5,000 metric tons of radioactive waste. It’s one of two proposed storage sites — the other is in southeastern New Mexico — that has been under agency review for several years.

The approval opens a new front in a decades-long battle to find a home for 85,000 tons of nuclear waste accumulating at dozens of nuclear power plants across the country. Fears about the dangers of nuclear material, which scientists say remains hazardous to humans for many years, have stifled plans to build repositories, including a proposed waste dump in Nevada’s Yucca Mountain that was shelved by President Barack Obama.

Such concerns are fueling the opposition in Texas, where environmental activists have forged a rare alliance with oil interests and powerful state Republicans to prevent the site from moving forward. They worry that transporting and storing “high-level” nuclear waste, including contaminated fuel rods, exposes the state to the threat of a radiological incident or potential for groundwater contamination.

“Our concern is that the waste will sit there, the cement around it will crack, leaks will develop, and radioactive contamination will result,” said Karen Hadden, the executive director of the SEED Coalition, an Austin-based advocacy group.

In a direct challenge to federal regulators, Abbott signed legislation last week preventing federally approved waste facilities from obtaining local construction and wastewater permits. The governor has framed the license as an unwelcome incursion by the Biden administration, which he accused of “trying to dump highly radioactive nuclear waste” in Texas oil fields.

Read more at Washington Post site

Nuclear waste in the oil patch? Feds spark clash with Texas

09/15/2021

By Edward Klump
E&E News/EnergyWire

A site in West Texas now has a federal license to store spent nuclear fuel, setting up a potential showdown with state leaders who oppose the prospect of attracting high-level radioactive waste from across the country.

The Nuclear Regulatory Commission announced the license for Interim Storage Partners LLC to build and operate an interim storage facility in Andrews County, Texas, on Monday — just days after Texas Republican Gov. Greg Abbott signed a bill seeking to restrict nuclear waste storage in the state.
Yesterday, Abbott tried to use the new license in the Permian Basin oil patch to hammer President Biden, though an application for the site was filed in 2016, and the Trump administration didn’t kill the project.

“The Biden Admin. is trying to dump highly radioactive nuclear waste in west Texas oil fields,” Abbott said on Twitter. “I just signed a law to stop it. Texas will not become America’s nuclear waste dumping ground.”

David McIntyre, an NRC spokesperson, declined to comment on the governor’s criticism but said in a statement this week that the “licensing decision was made according to the applicable federal statutes and regulations after thorough, multi-year technical and environmental reviews.”
The drama is being watched by the electricity sector, as nuclear power plants continue to store spent fuel on-site without a permanent U.S. repository. Yucca Mountain in Nevada has failed to garner enough sustained support to be an option (E&E Daily, July 22). In the meantime, backers of the Interim Storage Partners, or ISP, site in West Texas and a separate project in eastern New Mexico from Holtec International have pursued interim storage proposals that could last for decades.

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Protestors to Nuclear Regulator Commission: Keep Nuke Waste out of Texas

Sept. 13, 2021
For Immediate release

Contacts: Karen Hadden, Karendhadden@gmail.com, 512-797-8481,
Hon. Lon Burnam, lonbunram@gmail.com, 817-721-5846
Susybelle Goslee, sgosslee@airmail.net, 214-732-8610

MEDIA ADVISORY

Protestors to Nuclear Regulator Commission: Keep Nuke Waste out of Texas

Arlington, Texas – Protesters gathered outside of the Regional Headquarters of the US Nuclear Regulatory Commission (NRC) in Arlington, Texas today to oppose the agency’s expected approval of a license to store dangerous nuclear reactor waste in West Texas.

Overwhelming opposition to the plan has been demonstrated over and over again, most recently with the passage of HB 7 unanimously in the Texas Senate and by a 119-3 vote in the House. Such a strong bipartisan vote is rare these days in Texas. The Governor signed the bill on September 9 and it went into effect immediately.

“The NRC should listen to the voices of our governor, legislators and millions of Texans and halt licensing of a facility that would put our health and safety at risk. Strong bipartisan votes are a clear message from the Texas Legislature to the U.S. Nuclear Regulatory Commission. When it comes to importing deadly radioactive waste to Texas: We Don’t Want It!,” said SEED Coalition Director Karen Hadden. “We will keep fighting even if the license is issued. We have legal challenges in the courts and will continue organizing. We hope the Texas Attorney General fights to protect us as well.”

“The U.S. Nuclear regulatory Commission is likely to issue a license today to store up to 40,000 metric tons of the nation’s most dangerous nuclear reactor waste in Andrews County, Texas. With the passage of HB 7, the state can deny the permits necessary to dump new waste at the site. We hope the feds have heard the message: We don’t want it!” said Tom “Smitty” Smith, former director of Public Citizen’s Texas Office.

“The recent bill at the Texas Legislature will help support our legal case opposing licensing for high-level radioactive waste storage, which is now at the DC Circuit Court of Appeals,” said Cyrus Reed, Conservation Director for the Lone Star Chapter of the Sierra Club. SEED Coalition, Beyond Nuclear and a coalition of oil and gas industries led by Fasken Oil and Ranch also have cases on appeal.

Opposition to the nation’s high-level waste coming to Texas for storage has been expressed in a recent resolution by Andrews County, which could host the facility if the Nuclear Regulatory Commission (NRC) licenses a facility.

Five other counties and three cities passed similar resolutions, representing 5.4 million Texans. School districts, the Midland Chamber of Commerce and oil and gas companies have joined environmental and faith-based groups in opposing the dangerous plan. Governor Abbott has written strong letters to the NRC and a bipartisan group of Congressional Representatives spoke out as well. Letters and a recent press release are online at www.NoNuclearWaste.org. The enrolled version of HB 7 is online here.

“Licensing of the proposed high-level radioactive waste storage facility does not mean it will get built. We will continue to fight for protection of the health, safety, environment and economy of Texas,” said former State Representative Lon Burnam.