Court dismisses challenges to Texas SNF storage facility

A federal appeals court rejected a lawsuit brought by environmental groups challenging the Nuclear Regulatory Commission's licensing of a consolidated interim storage facility (CISF) for spent nuclear fuel in Andrews County, Texas. The U.S. Court of Appeals for the D.C. Circuit found that the NRC reasonably applied its hearing regulations when approving Interim Storage Partners' (ISP) license for the facility.

ISP, a joint venture of Orano USA and Waste Control Specialists, with additional support from NAC International, submitted a revised CISF license application to the NRC in June 2018. The NRC-approved license was issued in September 2021. The proposed facility will eventually store a total of 40,000 metric tons of SNF over eight phases.

The petitioners: The environmental groups Beyond Nuclear, Don't Waste Michigan, and the Sierra Club challenged the NRC's approval of the license, claiming it violated the Nuclear Waste Policy Act (NWPA) and that the NRC's process failed to meet the requirements of the National Environmental Policy Act (NEPA). Industry group Fasken Land and Minerals Ltd. and Permian Basin Land and Royalty Owners (PBLRO) also joined the lawsuit, claiming deficiencies in the NRC's environmental review.

"Our role is not to 'flyspeck' an environmental analysis for minor deficiencies," the court wrote in denying the groups' NEPA claims. "The environmental report contained adequate consideration and discussion of the storage facility's environmental impacts; and the [Atomic Safety and Licensing Board] and commission took the requisite 'hard look' at the environmental impacts."

The court also rejected the claim that ISP's license violated the NWPA, writing "Beyond Nuclear's contention ignored the proposed license's plain text, which requires ISP to obtain contracts with either DOE or private entities, as the title-holders of spent nuclear fuel."

The response: Beyond Nuclear said it will vow to continue to fight the ISP CISF. "We look forward to the opportunity to reappear before the court of appeals to discuss the merits of our claim," said Mindy Goldstein, a lawyer for Beyond Nuclear.

The environmental group is also challenging Holtec International's proposed CISF in nearby southeastern New Mexico. The NRC is expected to make a decision on that license as early as March.

Remaining cases: Two other lawsuits challenging ISP's license remain in federal court, awaiting rulings.

The 5th U.S. Circuit Court of Appeals in New Orleans is hearing a case brought by the state of New Mexico and Fasken and PBLRO. Arguments in that case are focused on the "major questions doctrine," following the recently published U.S. Supreme Court ruling in West Virginia v. EPA.

Likewise, the 10th U.S. Circuit Court of Appeals in Denver has yet to rule on challenges brought by the state of New Mexico against the CISF, which would be located less than a mile from the state border with Texas.