A Texas company that owns land in the state’s oil-rich Permian Basin told a federal court this week that, despite claims by the Nuclear Regulatory Commission, the company had the right to sue the agency over an interim storage facility for spent nuclear fuel proposed for the region, court documents show.
Fasken Land and Minerals, LLC, which alongside Austin is suing NRC over the agency’s decision to license Interim Storage Partners’ (ISP) proposed site, argued in a Monday filing with the Fifth Circuit Court of Appeals that the company’s lawsuit is “proper” under a slate of federal laws including the Nuclear Waste Policy Act (NWPA) and the Hobbs Act.
Fasken’s filing comes in response to NRC’s Nov. 15 claim that a recent D.C. Circuit Court of Appeals ruling in the case Ohio Nuclear-Free Network v. NRC, a suit aimed at blocking a proposed license amendment to a fuel fabrication facility, proves that both the company and the state of Texas have no standing to sue the agency over the proposed ISP site.
The Ohio ruling found that the petitioners in that case lacked standing because they “failed to properly participate in adjudicatory proceedings” at NRC before the agency approved the license amendment. The same rule should apply to the interim storage case in Texas, NRC has said.
But Fasken’s attorneys argued Monday that the Ohio decision “does not warrant dismissal” and that the circumstances surrounding the ISP site’s licensing are “unprecedented.”
Comments registered with the commission by both Fasken and the state of Texas are “sufficient to establish ‘party aggrieved’ status” under the Hobbs Act, the company said. Under the circumstances, Fasken “complied with the ‘appropriate and available administrative procedure’” for opposing the proposed site, the brief said.
Fasken’s Monday filing comes after Texas Attorney General Ken Paxton Nov. 18 defended the Lone Star State’s right to sue NRC. Paxton argued at the time that, unlike the Ohio case, Texas’s suit challenges the agency’s legal authority to license a facility such as ISP’s.
The Fifth Circuit, which heard oral arguments on Paxton’s case in August, is currently weighing an NRC motion to dismiss the suit. The state attorney general filed suit in late September 2021.
If built, the ISP site, proposed for Andrews, Texas, would be able to store around 40,000 tons of spent fuel, or roughly half of the country’s total spent fuel inventory of close to 90,000 tons. NRC in September 2021 licensed the site to operate for 40 years.
