The Nuclear Regulatory Commission is trying to get a Texas-based minerals holding company booted off the Lone Star State’s lawsuit against a recently licensed interim storage facility in the state’s western reaches.
The company, Fasken Land and Minerals, has long opposed the planned Interim Storage Partners site at the existing Waste Control Specialists facility in Andrews County. The holding company is already involved with a lawsuit across the country — filed in early 2021 in the U.S. Court of Appeals for the District of Columbia Circuit — and has lately tried to piggyback on Texas Attorney General Ken Paxton’s lawsuit against the ISP site, filed in September in the Fifth Circuit Court of Appeals.
But Fasken’s argument doesn’t pass legal muster, and even if it did, it wouldn’t belong in the Fifth Circuit, according to a Thursday filing from the NRC, which is attempting to bat Fasken away from the case even as the Fifth Circuit considers the agency’s request to dismiss Paxton’s suit altogether.
The state of Texas has until Dec. 29 to file its briefs in the case, according to the docket. The court will consider the NRC’s motion to dismiss before any other in the case.
In its motion this week to get Fasken thrown out of Texas’ lawsuit, the NRC again defended itself against the now-familiar charge, leveled by Fasken in a November filing in the Fifth Circuit, that the agency ran afoul of the Nuclear Waste Policy Act (NWPA) by licensing ISP’s site before the government built a permanent nuclear waste repository.
The commission argued that its activities are governed by the Atomic Energy Act (AEA), not the NWPA, and that “it is well-settled that the Commission has authority under the AEA … to license and regulate the storage of such fuel by private parties.”
If the Fifth Circuit won’t throw Fasken’s petition out, it should move to the D.C. Circuit Court, where there are already arguments pending against the ISP licensing proceedings, NRC wrote this week.
ISP is a team comprising Waste Control Specialists and Orano USA.
NRC is facing multi-pronged legal challenges to both the proposed ISP site and a separate interim storage project in New Mexico proposed by Holtec International. Those suits are keeping NRC and Department of Justice lawyers very busy, commission chairman Christopher Hanson told RadWaste Monitor in an interview Tuesday.
