Nuclear waste storage proposed in Permian Basin facing lawsuits from national groups

Nuclear watchdog groups argued a proposal to build a storage facility for spent nuclear fuel along the Texas-New Mexico border was illegal and a federal license issued last year should be reversed.

Nuclear technology company Interim Storage Partners (ISP) proposed building a facility to store the waste from nuclear reactors around the country, expanding its existing facility in Andrews, Texas to hold up to 40,000 metric tons of the fuel rods temporarily while a permanent repository was developed.

The license for that facility was issued in September 2021 by the Nuclear Regulatory Commission (NRC).

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A permanent resting place for the waste does not exist in the U.S., after a project at Yucca Mountain, Nevada was blocked amid state opposition, leaving opponents of the Andrews project concerned it could become “de facto” permanent disposal.

That was also a sticking point for critics of a similar proposal by Holtec International to build such a facility in New Mexico, near the Eddy-Lea county line, for which the NRC recently recommended a license be issued following environmental analysis, with a final decision expected in January 2023.

State and congressional leaders of both political parties and both states voiced opposition to the projects during their licensure processes, arguing they could imperil nearby industries like oil and gas and agriculture, and put local communities at risk.

Local elected officials and business leaders in Carlsbad and Hobbs supported the proposals as needed economic activity and diversity for their communities which are heavily reliant on oil and gas.

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The latest lawsuit against the NRC decision on the Texas facility was initially filed in U.S. District Court for the District of Columbia, and the plaintiffs included national environmental groups the Sierra Club and Beyond Nuclear which filed briefs July 20 outlining several arguments against the legality of the project.

Appeals are also being filed by Texas in Fifth Circuit Court of Appeals in New Orleans, while New Mexico appealed to the 10^th Circuit Court of Appeals in Denver.

Final briefs in the case are due Aug. 10, when the plaintiffs expected a trial could be scheduled.

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The latest filings argued the license violated at least two federal laws governing nuclear policy, along with the U.S. Constitution’ while also ignoring what the plaintiffs argued was the danger of transporting the waste to the facility for storage.

Under the Nuclear Waste Policy Act, the suit argued federal law required to the waste be sent only to a permanent repository should it be removed from generator sites, and that a thus-nonexistent Congressional action was needed to allow the temporary facilities to exist.

“No federal agency is above the law,” said Diane Curran, an attorney for beyond nuclear. “Beyond Nuclear asks the D.C. Circuit Court of Appeals to strike down the license issued to ISP by the NRC because it ignored the unambiguous mandates of the Nuclear Waste Policy Act.”

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The group also argued that approving the license for the ISP facility usurped Congress’s authority under the separation of powers clause of the Constitution by potentially prompting lawmakers to take action to support the project.

“Only Congress can decide whether to abandon one of its primary strategies for ensuring the completion of a federal repository: preventing private licensees from shifting spent fuel storage costs to the federal government before the opening of a repository,” read the brief.

The suit also argued the NRC’s environmental analysis for the project was inadequate because it did not address the transportation, risk to the site from earthquakes, or impacts to groundwater supplies.

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Plaintiffs said they were seeking a court order to compel the NRC to redo its analysis of the project to include transportation risks.

In a letter to U.S. Transportation Secretary Pete Buttigieg, Radioactive Specialist with Beyond Nuclear Kevin Kamps wrote that the project would mean “thousands” of shipments of the waste would be sent through 44 states , likely via rail, to the Texas and New Mexico sites.

Those shipments should not be allowed, Kamps wrote, without further environmental review and policies to specifically protect communities along the routes.

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The U.S. Department of Transportation (USDOT) should conduct its own analysis of the risks, the letter read, and not rely solely on the NRC.

“We’ve now entered a situation that will require USDOT to take concrete action on these concerns, the letter read.  

Kamps said the proposal would "maximize" transportation risks, while he said federal law called for "minimizing" risks of transporting and storing nuclear waste.

That risk is worsened, he said, because there is no permanent repository and thus no planned final route for the waste to take for disposal.

"When it leaves the facility, you're doubling the transportation risk, and you don't know where the repository is going to be," Kamps said.

During his confirmation hearing, Buttigieg was questioned by U.S. Sen. Jacky Rose (D-NV) who voiced similar concerns for transporting nuclear waste to Yucca Mountain.

“I’m committed to making sure that there are solutions that everybody believes in. I share the concerns that you’ve raised, not just from the Nevada perspective but all across the route,” Buttigieg said in response, per a transcript of his confirmation proceedings.

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Amid this ongoing debate on nuclear waste storage, U.S. Sen. Joe Manchin (D-W.Va.) proposed legislation that would establish a new federal agency, separate of the U.S. Department of Energy, to lead “consent-based” siting processes for nuclear waste facilities.

The bill known as the Nuclear Waste Administration Act would take the responsibility of managing nuclear waste from the DOE and would “provide for centralized storage of nuclear waste pending completion of a repository.”

It would also ensure that all generators of the waste and owners, mostly utility companies, would pay for such projects, and require that state and Tribal leaders would need to approve of such a facility before it would be allowed to be developed.

The bill was expected to be read Thursday before the U.S. Senate Committee on Energy and Natural Resources.

Kamps said Manchin's bill could provide an avenue for opening the sites in Texas and New Mexico known as consolidated interim storage facilities (CISF), allowing the private utility companies to pass the liability of the waste on to the American people and federal government.

That risk included, Kamps said, the impacts of the CISFs becoming permanent repositories without the existence of such a facility the waste could be sent to for final disposal.

"That's very unfortunate because our perspective is that CISF makes no sense," Kamps said. "It's a dangerous idea. It seems the intention of the bill is to expedite the transfer of liability to the public. You can't have CISF until you have a repository, or else you're taking that risk that it will become permanent. That's a huge risk."

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.