The federal government, Holtec International and a coalition of mining and environmental groups this week filed final briefs in another big federal lawsuit over the company’s proposed spent nuclear fuel storage site in New Mexico.
Not yet scheduled for oral arguments, the two-and-a-half-year-old case in the U.S. Court of Appeals for the District of Columbia Circuit focuses largely on a mineral company’s claims that Holtec and NRC effectively prevented challenges to the Jupiter, Fla., company’s interim storage application by slow rolling the release of information about the proposed facility’s effects on the oil and mining industries in the resource-rich Permian Basin: a geological expanse almost the size of Nebraska that spans parts of Texas and New Mexico.
The case is separate from a Fifth Circuit lawsuit that in August produced what could prove a landmark decision that the Nuclear Regulatory Commission cannot license private companies to collect and indefinitely store spent nuclear fuel from U.S. power plants. The Fifth Circuit decision came down a few months after NRC granted Holtec a license for an interim storage site in New Mexico, a license the company applied for in 2017.
In a 2017 environmental review filed with the commission, Holtec wrote that it “‘controls the mineral rights at the Site’ and it could effectively restrict any mineral extraction activities beneath and surrounding the site,” Fasken Land and Minerals and Permian Basin Land and Royalty Owners, both of Midland, Texas, wrote in their final brief.
Only years later, Fasken and Perman Basin said in their brief, did Holtec acknowledge that New Mexico owned the mineral rights to land beneath the site of the company’s proposed interim storage site in Eddy County, N.M., and that Intrepid Potash — New Mexico, LLC had a mining lease that covered the site.
In its own final brief in the D.C. Circuit, NRC said that New Mexico’s ownership of those mineral rights was neither a secret nor unknowable before the filing deadlines Fasken and Permian Basin missed.
But even if Fasken and its fellow petitioners had contested the license based on mineral rights, the issues would not have been enough for NRC to deny Holtec’s license application for safety reasons, according to the commission’s brief.
Holtec, in its final brief, repeated claims it made in revisions to its environmental report: other entities did have subsurface mineral rights at the proposed interim storage site, but they agreed not to dig there.
Fasken and Permian Basin complained that the details of those agreements, such as the one with International Potash, are murky, and that third parties cannot be sure the arrangements will stick.
Meanwhile, the NRC is still trying to overturn the ruling, by a three-judge panel of the Fifth Circuit Court, that commercial interim storage is essentially illegal. The commission in December asked for the entire circuit court to overturn the panel’s decision, rehear oral arguments and make a new decision.
Texas, which brought the Fifth Circuit complaint after NRC licensed an Orano-Waste-Control-Specialists joint venture to store spent fuel in the state, opposed a rehearing.
The Fifth Circuit had not ruled on the competing petitions as of deadline Friday for RadWaste Monitor.
