The company aiming to build an interim storage facility for spent nuclear fuel in Texas joined the Nuclear Regulatory Commission in calling for a state lawsuit to be kicked out of a federal appeals court, according to a new filing on the docket.
Texas Attorney General Ken Paxton’s arguments against Interim Storage Partners’ (ISP) proposed site “are fatally flawed,” and the Fifth Circuit Court of Appeals should drop the case, the Orano-Waste Control Specialists joint venture wrote in a Monday filing.
Texas’ top lawyer erroneously conflated the authorities of the Department of Energy and the Nuclear Regulatory Commission, ISP said, committing a “fundamental mischaracterization” that “fatally infects many, if not most, of the arguments presented.”
Paxton’s accusation that NRC’s September decision to license the ISP site violated the Nuclear Waste Policy Act (NWPA) “has nothing to do with this case,” the company said. “The NRC is a regulator of nuclear safety. It does not have legal obligations to accept and dispose of spent nuclear fuel, nor otherwise have policy, business, or other ‘goals’ or ‘plans’ or ‘wants’ of the sort attributed to it by Texas,” the filing said.
ISP, like the NRC, also said that Texas didn’t exhaust all of its agency-level options before filing suit. Even if they had, the company argued, Paxton should have filed his complaint with the D.C. Circuit Court of appeals, where a coalition of environmental groups is already challenging the proposed site.
Also, ISP said, Paxton’s “grab-bag of allegations” against NRC’s environmental impact statement for the proposed site wouldn’t hold up in either court. The concerns the state attorney general raised about the environmental review, including that the commission didn’t adequately consider the risk of a terrorist attack on the site, “all misconstrue the applicable statutory requirements and/or disregard relevant information in the administrative record,” ISP said.
As of Tuesday afternoon, Paxton had yet to respond and the Fifth Circuit had yet to rule on the case.
ISP’s arguments follows NRC’s April 18 filing defending the agency’s decision to license the proposed site. The commission pushed back on Paxton’s argument that it had not adequately assessed the effects of a terrorist attack on the site, saying that the National Environmental Policy Act does not require such a review.
“In any event, the agency has addressed the probability and consequences of the natural and man-made accident scenarios that a terrorist might seek to create,” NRC said, “and the agency has determined that the likelihood of such an occurrence is very low and that the associated risk is therefore small.”
