The U.S. Supreme Court on Wednesday waded into the decades-long debate over nuclear waste, hearing debate over whether a private company can build a repository designed to store tons of spent fuel that has stacked up over the years at commercial power plants across the country.
The case examines whether the Nuclear Regulatory Commission has the authority to grant a license to Interim Storage Partners Inc. to proceed with plans to construct a storage facility in West Texas. The NRC has also approved a license for a group that intends to build a similar project deep underground in southeastern New Mexico.
Oral arguments were scheduled to run for an hour, but justices fired questions at attorneys on both sides for 95 minutes.
The case could have major implications for the 3.55 million pounds of spent nuclear fuel currently stored in dozens of canisters at the San Onofre Nuclear Generating Station because if the sites in West Texas or New Mexico ever get built, it’s anticipated that at least some of the spent fuel in San Onofre will be sent there.
The Supreme Court is expected to issue a decision by the end of June.
Roughly 91,000 metric tons of waste have stacked up at nuclear power plants in 35 states around the country because a permanent repository in the U.S. has not been built.
For decades, Yucca Mountain in Nevada had been slated as the location to take the spent fuel but the Obama administration cut off funding for the site in 2010, following years of protests from lawmakers in the Silver State who had long opposed the project.
With Yucca off the table, federal officials have gone back to the drawing board, looking at potential sites to accept some or all of the country’s commercial spent fuel, either on an interim (still-to-be determined number of years) or permanent basis.
The proposal by Interim Storage Partners envisions taking up to 40,000 metric tons of used nuclear fuel and depositing the waste underground for about 40 years at the company’s proposed facility in Andrews County, Texas.
“With an interim storage option, the United States could finally begin the process of removing stranded used nuclear fuel from local communities and consolidating it at a single secure site while an ultimate long-term federal facility is debated,” the company’s website said.
But in the words of one of the lawyers before the high court Wednesday, Texas Gov. Greg Abbott has said, “No, essentially over my dead body, are you going to do this.” Abbott fears a potential mishap at the facility could batter the lucrative oil and gas sector in the Permian Basin.
In an odd political marriage, environmental and anti-nuclear organizations have joined Abbott in opposing the project.
“Hopefully we won’t have radiated oil and gas,” Justice Neil Gorsuch quipped during oral arguments.
Justice Samuel Alito raised a possible conundrum with building potential interim storage sites:
“If it is decided that the material can be stored off-site temporarily, and temporary means more than 40 years, maybe more than 80 years, maybe it means 250 years, maybe it means 500 years,” Alito said. “Where is the incentive to go forward to do what Congress wanted to have done, which is to establish a permanent facility?”
Attorneys opposed to the project argued that federal legislation specifically prohibits private interim storage facilities but lawyers representing the NRC and the West Texas project insisted the commission has interpreted laws dating to 1954 and 1982 that allow it to govern the nation’s disposal of nuclear material.
Justice Brett Kavanaugh remarked that Congress has not appeared to explicitly preclude the NRC from issuing licenses to private companies to go forward with off-site storage facilities.
“And that’s remained the settled understanding ever since,” Kavanaugh said. “That seems like kind of unusual step by Congress.”
As for the license granted in New Mexico, a group called the Eddy-Lea Energy Alliance wants to build an interim storage facility in conjunction with energy and nuclear company Holtec International. If constructed, the project would be located in a remote area not far from the New Mexico border with Texas.
In a 2022 interview with the Union-Tribune, the group’s vice president said the first phase of the facility could store 500 canisters holding about 8,680 metric tons of nuclear waste from commercial plants such as the San Onofre Nuclear Generating Station, or SONGS.
For perspective, SONGS currently stores 73 stainless steel canisters of spent fuel assemblies in vertical cavities on the north end of the plant. An additional 63 canisters of waste rest horizontally nearby.
Officials at Southern California Edison, the operator of the plant, say more than 80% of the canisters could be taken off-site now if a permanent or interim storage facility existed and 100% of canisters will be ready to be shipped by 2030.
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