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 Monday, 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.
A spokesperson for NRC told Exchange 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.
