In a federal lawsuit, Texas said recently that the state is legally allowed to take its complaint about a proposed nuclear waste storage depot directly to federal court and skip engagement with the Nuclear Regulatory Commission, court papers show.
Texas Attorney General Ken Paxton told the Fifth Circuit Court of Appeals in a Friday brief that a recent decision in a separate case, Ohio Nuclear-Free Network v. NRC, “does not support” NRC’s argument that the Lone Star State needed to participate in the agency’s process to license Interim Storage Partners’ (ISP) proposed site in order to sue over the licensing decision.
The Ohio decision did not question whether ‘the Commission lacked statutory authority” to license the site at all, as Texas’s suit does. NRC licensed the ISP site in 2021.
The Ohio decision came down Nov. 15 in the D.C. Circuit Court of Appeals and the NRC wasted no time delivering a brief about it to the Fifth Circuit, where the agency has pressed the argument that Texas had its chance to oppose the ISP license and let it slip by.
The Ohio decision found that petitioners seeking to roll back a proposed NRC license amendment for a fuel production facility “had failed to properly participate in adjudicatory proceedings before the agency,” NRC told the Fifth Circuit in a filing last week. The commission argued that the ruling in that case “applies to any argument that could have been asserted before the agency,” including Paxton’s attempt to block the ISP site’s license.
Aside from arguing that its lawsuit against NRC is broader in scope that one particular agency proceeding, Texas also took issue with NRC’s claim that the state did not participated in licensing proceedings.
Paxton told the Fifth Circuit Friday that other parties that had intervened at the agency level and “raised a materially similar statutory authority argument.” He also repeated his argument that the state itself filed comments with NRC during the licensing process, which Texas says should qualify as participating in the process.
The Fifth Circuit, which heard oral arguments on Paxton’s case in August, is currently weighing an NRC motion to dismiss the suit. The state attorney general filed suit in late September 2021.
Among other things, Texas has argued that NRC’s decision to license the ISP site violated the Nuclear Waste Policy Act, which Paxton has said bars the federal government from building interim storage facilities before a permanent nuclear waste repository is operational. Paxton has also pointed to the Supreme Court’s June ruling in West Virginia v. EPA as evidence that NRC lacks the authority to approve an interim storage site until Congress authorizes one.
If built, the ISP site, proposed for Andrews, Texas, would be able to store around 40,000 tons of spent fuel, or roughly half of the country’s total spent fuel inventory of close to 90,000 tons. NRC in September 2021 licensed the site to operate for 40 years.
