A federal judge should toss Texas’s suit against a proposed interim storage facility for spent nuclear fuel because the state has not attempted to settle its grievance with the Nuclear Regulatory Commission outside of court, the agency said Thursday.
It’s the same legal defense that the agency, which licensed Interim Storage Partners’ (ISP) proposed storage site in Andrews County, Texas, on Sept. 13, deployed in a New Mexico lawsuit about a similar storage facility proposed by Holtec International in Eddy County, N.M.
Because Texas never sought an administrative hearing with NRC over the ISP license application, the state isn’t an injured party under the Atomic Energy Act and the Hobbs Act — and the Fifth Circuit Court of Appeals should toss the state’s suit, the agency argued in a motion filed Thursday.
Although both the Texas Commission on Environmental Quality (TCEQ) and Gov. Greg Abbott (R) both submitted comments to NRC opposing the site, neither of those contentions requested a hearing or any other agency-level action that would make state attorney general Ken Paxton’s lawsuit against the commission valid, the motion said.
The court on Thursday accepted a separate motion from NRC requesting a stay on the briefing schedule while it deliberates on dismissal. In a clerk’s filing published Wednesday, the court said that Texas had until Dec. 13 to make its opening arguments.
The Texas suit has been heating up since October, when the court accepted ISP as an intervenor alongside NRC.
Paxton filed suit against the agency in late September, not long after it licensed ISP’s proposed site, which would be located at Waste Control Specialists’ existing radioactive waste facility not far from the New Mexico line. The company is a joint venture with Waste Control Speailists and Orano USA. Paxton’s first filing asked the Fifth Circuit to review the NRC license, but as of yet the attorney general hadn’t made his case against the proposed site.
The state attorney general’s office didn’t return voicemails and emails requesting comment by deadline Friday.
The proposed site has faced significant backlash from the Lone Star State. Gov. Abbott in September signed a law banning the storage of high-level nuclear waste in Texas, a move aimed at blocking the ISP site from breaking ground.
For its part, Andrews County also opposes the site — the county commission voted unanimously to oppose the ISP project during a community meeting in July.
WCS president David Carlson declined to comment to RadWaste Monitor Wednesday on whether his company was doing anything to fight that decision.
Updated 11/05/2021 at 10:48 PST.
