A minerals company is fighting with the Nuclear Regulatory Commission over whether it can stay involved with Texas’ lawsuit against a proposed interim storage facility for spent nuclear fuel, court papers filed this week show.
ISP, a joint venture between Dallas-based Waste Control Specialists (WCS) and Orano USA, plans to build an interim storage site at WCS’s existing low-level waste disposal facility in Andrews, Texas. NRC licensed the proposed facility in September.
On Thursday, NRC argued in the Fifth Circuit Court of Appeals that Texas-based Fasken Land and Minerals, a longtime opponent of the proposed ISP site, can’t sue the commission over the license because it was denied intervenor status in agency-level licensing proceedings.
The minerals company is only legally allowed to challenge NRC over its decision to boot it from those proceedings — something Fasken and a coalition of anti-nuclear groups are already doing in a separate suit in the D.C. Circuit Court of Appeals, the agency said.
Fasken told the Fifth Circuit Monday that its petition should remain on that court’s docket alongside state Attorney General Ken Paxton’s because the state’s lawsuit was the first timely court challenge to NRC’s September licensing decision.
“[S]ince Texas filed its petition in this Court within ten days of the NRC’s final order issuing the ISP license and this was the first petition filed with respect to that order, this Court is the appropriate venue for these matters,” Fasken said in its filing.
But NRC said Thursday that that argument was “erroneous,” and that the D.C. Circuit suit counts as the first lawsuit over the ISP site even though it doesn’t directly challenge the agency’s decision to issue a license.
“[I]ssuance of the license did not start or reopen the judicial-review window” for either the Fifth Circuit lawsuit or the separate D.C. Circuit challenge, said the commission, which wants to keep Fasken entirely in the D.C. circuit.
The first thing the Fifth Circuit will rule on in the Texas lawsuit is the NRC’s motion to dismiss the case entirely. That might take until well after New Year’s, as Texas has an unopposed motion before the court to delay a key filing in the case until February.
NRC is facing a multi-pronged legal challenge to its decision to license the ISP site. In addition to the Fifth Circuit and D.C. Circuit Court suits, New Mexico Attorney General Hector Balderas has also sued the agency in the Tenth Circuit Court of Appeals.
