No existing federal law allowed the Nuclear Regulatory Commission to license a proposed commercial interim storage facility for spent nuclear fuel in Texas, the Lone Star State’s attorney general told a federal judge this week, rolling out his long-awaited argument in the state’s lawsuit against the agency.
NRC “lacks authority” to grant a license to Interim Storage Partners (ISP) for its proposed site in Andrews, Texas, state attorney general Ken Paxton argued in a brief filed with the Fifth Circuit Court of Appeals Monday.
In particular, Paxton challenged an assertion that the commission has made in other lawsuits against similar private interim storage sites — that the Atomic Energy Act (AEA), the federal law which governs NRC, gives the agency the ability to license such projects.
“No language in the Atomic Energy Act grants the Commission the power to license private, away-from-reactor storage facilities for spent nuclear fuel,” Paxton said. The attorney general pointed to language in the AEA which says that NRC can license production and utilization facilities for handling radioactive materials as evidence that the law does not “contemplate a stand-alone facility, away from a nuclear reactor, that will simply store spent nuclear fuel.”
Paxton also cited a 2004 D.C. Circuit Court of Appeals decision in which a judge ruled that the AEA “does not specifically refer to the storage or disposal of spent nuclear fuel.” That’s the same case, Bullcreek v. NRC, that the agency used to affirm its authority to license an interim storage site in a June filing as part of a similar case in the U.S. District Court for New Mexico.
NRC noted in its June filing that the 2004 decision finds that “it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of [spent fuel].” In fact, the parts of the decision that Paxton and the commission have cited separately are part of the same sentence.
Paxton’s Monday filing also towed a now-familiar line among legal challengers to private interim storage — that the federal Nuclear Waste Policy Act (NWPA) bars NRC from licensing such a site until a permanent repository is present.
“[T]here is no authority [in NWPA] to license a private facility to store nuclear fuel away from the reactor where the fuel was processed,” Paxton said.
The commission and experts have countered that NWPA’s restrictions only apply to federally-operated interim storage sites and not private facilities.
Further, Monday’s brief alleged that NRC violated the National Environmental Policy Act (NEPA) by “refusing to consider the potential that the licensed facility will be the target of a terrorist attack.” The agency’s safety review of the proposed ISP site, published among its licensing documents in September, included an analysis of the project’s physical security, including barriers, surveillance and security patrols of the site.
Paxton asked the Fifth Circuit to review NRC’s license for the proposed ISP site and determine whether “any federal statute authorizes the Commission to issue a license to a private facility to store spent nuclear fuel away from the reactor site where it was generated.” As of Tuesday afternoon the court had yet to respond.
A spokesperson for NRC told RadWaste Monitor via email Tuesday that the agency does not comment on pending litigation, but said that the commission has 30 days to respond to Paxton’s brief. As of Tuesday afternoon such a response had yet to be filed.
All this comes as the Fifth Circuit considers whether to dismiss Paxton’s lawsuit against the proposed ISP site, filed just weeks after NRC licensed the project in September. It’s not the only challenge the Lone Star State has mounted against the project. Gov. Greg Abbott (R) in September signed a law banning the storage of high-level waste and spent nuclear fuel in Texas.
If ISP, a joint venture between Waste Control Specialists and Orano USA, manages to build its proposed interim storage site, the company has said it could eventually hold around 40,000 tons of spent fuel during its 40-year license — around half of the roughly 80,000 tons of nuclear waste currently stranded at reactor sites across the country.
