The Nuclear Regulatory Commission on Monday continued to poke holes in the state of Texas’s lawsuit over an interim storage facility for spent nuclear fuel proposed for Andrews County, arguing that the Lone Star State had no right to sue — and even if it did, that its case was badly flawed.
Texas hasn’t shown that it would face “a concrete and imminent injury” from the September licensing of Interim Storage Partners’ (ISP) proposed interim storage site, NRC told the Fifth Circuit Court of Appeals in a brief Monday. State Attorney General Ken Paxton’s argument about the possibility of an accident at the site is “remote and speculative” and “does not, without more, constitute injury to a legally protected interest” of the state, the agency said.
Further, NRC repeated an argument that it used in a similar case against New Mexico — that Austin hadn’t exhausted its agency-level options for opposing the project before filing suit, as required by federal law under both the Atomic Energy Act (AEA) and the Hobbs Act.
Texas “did not attempt to participate” in licensing proceedings, NRC said, and the state “should not be allowed to evade the agency-adjudication-exhaustion requirement that Congress codified” in those laws. The agency requested that the Fifth Circuit toss Paxton’s suit on those grounds.
Even if Texas had standing to sue, NRC said, its core arguments don’t hold any water. Although Paxton has argued that licensing the proposed ISP site runs afoul of federal law — in particular the Nuclear Waste Policy Act (NWPA) — the agency said the Atomic Energy Act gives it the authority to license a privately operated interim storage site.
NRC also went after Texas’s contention that the agency violated the National Environmental Policy Act (NEPA) by not including the possibility of a terrorist attack in its safety review of the proposed ISP site.
“[T]he agency was not required in its NEPA analysis to specifically evaluate the risk of a terrorist attack,” NRC said. “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. And the agency has determined that the likelihood of such an occurrence is very low and that the associated risk is therefore small.”
As of Monday afternoon, the Fifth Circuit had not yet ruled on whether to dismiss Paxton’s case, and the attorney general had not yet responded.
NRC’s most recent salvo is the first major movement in Texas’s lawsuit since Paxton in February laid out the state’s argument against the proposed ISP site. The petition was first filed with the Fifth Circuit in September.
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.
