In less than two months, a federal judge may hear oral arguments in the state of Texas’s lawsuit against the Nuclear Regulatory Commission over a proposed interim storage facility for spent nuclear fuel in the Lone Star State, court documents show.
If the Fifth Circuit Court of Appeals holds such an oral session, tentatively scheduled for the week of Aug. 29, it could be the first legal test of arguments made by Texas Attorney General Ken Paxton (R) and other opponents of NRC’s September decision to license Interim Storage Partners’ (ISP) proposed spent fuel depot in west Texas.
Paxton, who filed suit against the U.S. nuclear-safety regulator following its licensing decision in September, has argued in court filings that NRC violated the Nuclear Waste Policy Act (NWPA) by licensing the proposed ISP site. It’s similar to the tack taken by other interim storage opponents, such as New Mexico Attorney General Hector Balderas (D) and a coalition of environmental groups including the Sierra Club and Beyond Nuclear.
The Texas attorney general has also contended that the agency ran afoul of the National Environmental Policy Act by not considering the possibility of a terrorist attack during its safety review process for the project.
NRC has countered that it is governed by the Atomic Energy Act (AEA), not NWPA, and that AEA gives the commission the authority to license private interim storage facilities. The agency also wrote in an April court filing that while it was “not required” by law to consider the effects of a terrorist attack on the proposed interim storage site, NRC “determined that the likelihood of such an occurrence is very low.”
NRC has also told the Fifth Circuit that Texas has no standing to sue in the first place. The state did participate in NRC’s licensing process for the ISP site, the commission argued, so the lawsuit should be dismissed.
As of Tuesday, the Fifth Circuit had yet to finalize a date for the oral argument.
If ISP, a joint venture between Waste Control Specialists and Orano USA, manages to build its proposed interim storage site in Andrews County, Texas, the company has said it could eventually hold around 40,000 tons of spent fuel during its 40-year license.
