Defining Interim Storage of Nuclear Waste

Max Johnson | January 22, 2023

Nuclear power may be humanity’s best hope to curb climate-altering greenhouse gas emissions. But public fear of its dangers, including the toxicity of nuclear waste, undermines its expansion. To provide for more effective waste disposal, in 2021 and 2022 the Nuclear Regulatory Commission (NRC) recommended licensing two privately-owned nuclear waste storage facilities—called Consolidated Interim Storage Facilities (CISFs)—to be built in New Mexico and in Texas. Both states vehemently oppose the construction and operation of these facilities: legislators in both states have proposed state laws opposing them, and both states have sued the NRC challenging the legality of the facilities’ licensure.

There is no doubt that an effective waste solution is sorely needed for nuclear power to reach its full potential. But while consolidated, above-ground storage may play an important role in the development of long-term nuclear waste disposal, establishing such a program at the cost of state and public enthusiasm is a long-term mistake. Informed by an analysis of the history of nuclear power and the difficulties inherent in nuclear waste disposal logistics, this Note argues that the NRC’s licensure of the CISFs as “interim” storage facilities contradicts the meaning of that word, and therefore these licensing actions fall outside of the NRC’s regulatory bounds. In doing so, this Note provides a legal argument that New Mexico and Texas—and future parties opposing similar facilities—may utilize in their suits against the NRC. This Note then proposes specific steps that a court may require to ensure that the NRC applies the word “interim” as it is defined.