The state of Texas doubled down this week on its argument that federal law precludes the Nuclear Regulatory Commission from licensing a proposed interim storage facility for spent nuclear fuel in the Lone Star State, new court filings show.
NRC’s claim that neither the Nuclear Waste Policy Act (NWPA) nor the Atomic Energy Act prevented the agency from licensing Interim Storage Partners’ (ISP) proposed site is “remarkable,” Texas Attorney General Ken Paxton told the Fifth Circuit Court of Appeals in a brief Monday.
In particular, Paxton contended that Congress “deliberately avoided addressing long-term nuclear waste storage” when it passed the Atomic Energy Act.
“[N]o language in the Atomic Energy Act grants the Commission the power to license private, stand-alone storage facilities for spent nuclear fuel,” Paxton said. The attorney general argued that the Atomic Energy Act only allows NRC to license production and utilization facilities.
“These are carefully defined terms that do not contemplate a stand-alone facility, away from a nuclear reactor, that will simply store spent nuclear fuel,” Paxton said.
What’s more, Texas argued, is that the proposed ISP site was licensed for an “improper purpose” under the Atomic Energy Act. “The Commission claims that it can license any facility that is safe. That is wrong: The Atomic Energy Act provides clear limitations on the reasons for which the Commission may issue any license … [a]nd the Commission’s stated land restoration purpose is not one of those reasons.”
Meanwhile, Texas-based minerals company Fasken Land and Minerals, also party to the Fifth Circuit case, defended Monday its right to remain on the docket. Fasken has “repeatedly been found to have standing” as a party in agency-level proceedings surrounding the site’s licensing process, the company said in its own Monday brief.
Fasken was allowed to participate in NRC’s proceedings because it owns property “within 18 miles” of the proposed site in Andrews, Texas, and members of the company travel to and from the area, the company said.
Further, the company has provided enough evidence to prove that it would be hurt if the proposed ISP site was allowed to be built, the filing said. Fasken said it “asserted concrete, imminent concerns of harm to their health” due to the storage of nuclear waste at the proposed site as well as business ramifications related to spent fuel transportation traffic on rail lines the company uses for normal operations.
NRC’s argument that Fasken and Texas Attorney General Ken Paxton should have brought their challenge before the D.C. Circuit Court of Appeals, where a coalition of anti-nuclear groups is already fighting the proposed site, is also flawed, the minerals company argued.
“While the usual course may be for litigants to seek review of all final orders in the same court, as was done by Sierra Club, Don’t Waste Michigan, and Beyond Nuclear, there is nothing preventing [Fasken] from bringing their appeal on the final licensing decision in this Court,” the filing said.
NRC in November asked the Fifth Circuit to drop Fasken and Paxton’s joint suit, arguing, among other things, that the court had no jurisdiction to make a decision on the proposed site’s licensing and that Texas had not exhausted its agency-level options for opposing the project. As of Monday evening a judge had yet to rule on that motion.
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.
