A federal appeals court has rejected environmental conservation organizations’ effort to participate in the process of deciding whether to license a spent nuclear fuel storage facility in New Mexico.
The August 27 ruling by the U.S. Court of Appeals for the District of Columbia Circuit upheld the Nuclear Regulatory Commission’s (NRC) decision to deny intervention requests from groups opposing the construction of the Lea County, NM-based project.
“The Commission did not act unreasonably or contrary to law in denying the requests for intervention . . . in Holtec’s licensing proceeding,” wrote U.S. Circuit Judge Neomi Rao in the unanimous opinion.
Rao referred to the designer and builder of the spent nuclear fuel plant, known as HI-STORE CISF.
Spent nuclear fuel is the used material that remains after nuclear energy is generated in reactors. It is highly radioactive and must be stored carefully due to the potential environmental and health risks associated with its radioactivity, which can last for thousands of years. Initially, spent fuel is stored at reactor sites in pools of water, where it cools and is shielded from emitting radiation. Over time, it can be moved into dry casks made of steel and concrete for longer-term storage.
The U.S. produces about 2,000 metric tons of spent nuclear fuel each year, according to the Department of Energy (DOE).
“U.S. commercial reactors have generated about 90,000 metric tons of spent fuel since the 1950s,” the agency’s Office of Nuclear Energy said. “If all of it were able to be stacked together, it could fit on a single football field at a depth of less than 10 yards.”
Holtec’s proposed facility in New Mexico is designed to store spent nuclear fuel temporarily, providing an interim solution while the federal government works toward establishing a permanent repository. The facility would house the spent fuel away from reactor sites and be regulated by the NRC to ensure compliance with federal safety and environmental regulations.
The Albuquerque Journal reported in May 2023 that the license issued to Holtec authorizes it “to receive, possess, transfer and store 500 canisters of spent nuclear fuel — a total of 8,680 metric tons of spent fuel — for 40 years.”
The D.C. Circuit case, Beyond Nuclear, Inc. v. U.S. Nuclear Regulatory Commission, included a claim that Holtec’s application was based on incorrect assumptions about the DOE potentially taking ownership of the spent fuel. The aspiring intervenors also argued that the NRC failed to adequately assess environmental risks, and thereby violated the National Environmental Policy Act, and that the NRC lacked authority under the Nuclear Waste Policy Act to approve the facility.
Rao’s made quick work of the assertion that Holtec had not clearly articulated DOE’s role in owning or operating the spent nuclear fuel to be stored at the facility. She and the two other judges on the appellate panel ruled that Holtec’s revised application did not rely on DOE ownership of the spent fuel.
The panel also turned away the petitioners’ contention that Holtec’s license application did not meet NEPA environmental review requirements.
Although the opponents of the facility submitted scientific studies that raised questions about geologic risks associated with the spent nuclear fuel plant’s construction and operation, the court found that NRC’s environmental impact statement adequately evaluated those concerns.
“Holtec’s environmental report sufficiently evaluated the seismic risks in the area, and petitioners did not provide evidence to refute the agency’s conclusions,” Rao wrote.
The panel also concluded that Holtec’s use of representative transportation routes for environmental assessment was acceptable under NEPA. The actual transportation routes would be subject to further regulatory approval, the court noted.
NRC approved the Holtec license in May 2023 after a review process that lasted about five years.
The New Mexico attorney general’s office participated in the D.C. Circuit case on the side of those opposing the nuclear spent fuel facility. The Land of Enchantment’s governor, Michelle Lujan Grisham, signed in March 2023 a bill that would require the facility to be approved by state regulators.
Licensure of nuclear power plants and related facilities is governed exclusively by federal law.
Circuit judges Brad Garcia and Justin R. Walker were the other two members of the federal appeals court panel that decided the case.
The New Orleans-based U.S. Court of Appeals for the Fifth Circuit ruled in March 2024 that NRC had improperly issued Holtec a license for the New Mexico site. The Biden administration asked the Supreme Court in June to review that ruling.
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