Feds lose appeal of vacated license for nuclear waste storage site in Permian Basin

A proposal to store spent nuclear fuel at a West Texas site along the southeast New Mexico border was dealt another blow in federal court last week as officials sought to reinstate a vacated license for the facility in question.

Interim Storage Partners proposed building capacity to store used nuclear fuel rods from private power plants at the site in Andrews, Texas, and was granted a license to do so by the Nuclear Regulatory Commission in 2021. A federal court vacated that license last year, finding the NRC lacked the authority to grant approval after those opposed to the project sued for a review of the license in federal court.

That ruling was handed down Aug. 25, 2023 by the Fifth Circuit Court of Appeals which contended the Atomic Energy Act does not allow the NRC to issue a license to nuclear waste storage to a private company. That same court on March 14 denied the NRC’s petition to rehear the case, voting 9 to 7 against the motion.

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“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,” read the decision.

NRC spokesman Scott Burnell did not indicate how the agency planned to respond to the verdict.

“The agency is reviewing the decision and will consider its options going forward,” Burnell said in a statement emailed to the Carlsbad Current-Argus.

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The Texas proposal was similar to another by Holtec International to build a larger spent nuclear fuel storage site in New Mexico near the Eddy-Lea County line. The NRC granted Holtec its license in 2023. Both sites were designed to store the waste temporarily, despite the U.S. lacking a permanent repository.

Nuclear waste projects opposed by oil and gas industry

Both sites also saw strong opposition from political leaders of both parties in both states, worried storing high-level nuclear waste alongside the oilfields of the Permian Basin would endanger their economies. With support from their governors, New Mexico and Texas lawmakers passed bills aiming to block the facilities from going into operation.

The companies were also opposed by the oil and gas industry itself, led by oil company Fasken Oil and Ranch and a consortium of landowners in the region known as the Permian Basin Coalition of Land and Royalty Owners.

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Attorney for Fasken and the Coalition Monica Perales said she expected the NRC to appeal this decision again, potentially having it heard in the U.S. Supreme Court.

"This is calling that agency out for acting like a rogue agency. Anything of significant environmental or economic consequence is to be decided by the legislature and not a federal agency," Perales said. "I do expect the NRC and ISP will file an appeal. We’ll be right there every step of the way. We’re not going to stop."

In its call to have the case reheard, the NRC argued Fasken was never officially admitted as an intervening party to the case, and thus could not seek a review of the license by the court.

Since it was the NRC itself that denied Fasken’s motions to intervene, the court found not admitting Fasken’s concerns would mean the federal agency “controls the courthouse doors through its authority to determine who may be parties to licensing proceedings.”

The court also said the State of Texas, which did not join the case, also made its position clearly known the NRC. If the case was reheard on grounds that Fasken or the State of Texas had no standing based on the NRC’s decisions, the court found it would give the agency “unilateral control” over the proceedings.

"You can present them (the NRC) with tremendous evidence, and they’ll turn around and say the applicant says this. Of course, they’re going to tell you its perfectly safe. Of course, they’re going to tell you no seismic activity for 1,000 years. But I say different, and I have evidence," Perales said. "The facts control the outcome. That is why I am glad that we finally had our day in court."

Texas ruling could impact New Mexico nuclear waste project

In his dissenting opinion, Circuit Judge Stephen Higginson wrote that the court lacked the authority to throw out Interim Storage Partners’ license because Fasken and the Coalition were not official parties to the licensing process thus could not petition for a review of the NRC’s decision under the Hobbs Act.

“Without the answer that Congress supplied, the panel relied on what it guessed Congress intended as ‘the function of the ‘party aggrieved’ status requirement,’” read the dissenting opinion. “This put the panel in the more difficult position of attempting to discern what degree of participation in the agency proceeding was enough.”

Language intended to block nuclear waste storage sites like Interim Storage Partners’ and Holtec’s was recently stripped out of the U.S. Senate’s version of the federal budget bill being considered, despite its inclusion in the House’s bill.

The wording would have blocked any storage facility for spent nuclear fuel without expressed consent from host state governments, and prevented any federal dollars from being used in such a project.

Without that, Perales said the Circuit Court's decision could still prove a path to preventing the waste from coming to the Permian Basin.

She said if the decision against the Interim Storage Partners license holds, it could prove detrimental to Holtec's project in New Mexico. She said blocking the projects was crucial to supporting the oil and gas industry that defines the economies of both states.

"I would expect that based on the evidence we presented, the Holtec license should be vacated," Perales said. "As I see it, the NRC is out of order. We’re going to do everything we can to protect our employees and the people of this region. We’re vital to the economy, not just to the state of Texas but the entire nation."

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on the social media platform X.

This article originally appeared on Carlsbad Current-Argus: Block of nuclear waste storage site in Permian Basin upheld in court