The Nuclear Regulatory Commission distorted the state of New Mexico’s arguments against a proposed interim storage facility when it said that a district court didn’t have the authority to rule on a state lawsuit, according to a new court filing.
Since the state isn’t looking to challenge a final agency decision under the Hobbs Act and is instead raising concerns about specific actions in which NRC “exceed[s] its authority and [is] otherwise not in accordance with the law,” the U.S. District Court for New Mexico is an appropriate venue to oppose NRC’s licensing of Holtec International’s proposed interim storage facility, state attorney general Hector Balderas argued in a brief filed Monday.
The commission’s June 17 motion to dismiss “is based on a number of gross mischaracterizations and fallacious reasoning,” Balderas said.
Instead of challenging an administrative proceeding that would be reviewable under the Hobbs Act, the state is taking issue with the NRC’s position that it can license interim storage facilities without Congressional approval, Balderas said.
That stance is a pivot from the agency’s previous opinion that the Nuclear Waste Policy Act (NWPA) would need to be amended before an interim storage facility can take title to spent nuclear fuel (SNF) or high-level radioactive waste (HLRW), Balderas argued.
“Because NWPA specifies a deep, geologic permanent repository should first be built for ultimate disposal of SNF and high-risk HLRW, and because there is no chance of such a repository being established in the foreseeable future, legislative changes are clearly required before any other long-term interim storage and/or disposal facility can be constructed,” Balderas said.
NRC also exceeded its authority by saddling New Mexico with the financial burden of an “unfunded federal mandate,” Balderas said. NRC indicated in its draft environmental impact statement for the proposed Holtec site that no federal grant money would be available for the development of emergency response teams and infrastructure improvement costs and that Santa Fe would be saddled with those expenses, Balderas said. Further, that information wasn’t indicated to the state until after administrative proceedings on the proposed site were closed, he said.
“These unfunded mandates, disclosed to the public only after NRC closed its administrative proceedings, impinge on the State’s sovereignty, and unfairly force the State to expend its limited public resources on challenging clear violations of NWPA and agency actions that are clearly not in accordance with the law,” Balderas said.
Balderas also refuted NRC’s June 17 argument that New Mexico hadn’t “exhaust[ed] its administrative remedies” before filing suit.
“When faced with the anticipation of such substantial expenditures and in resolving difficult fiscal decision-making, the State simply cannot afford to waste its limited time and resources with futile efforts in engaging in inadequate administrative agency proceedings that offer no hope for relief,” Balderas said.
At deadline Friday for RadWaste Monitor the court hadn’t ruled on whether to dismiss the case, according to the docket.
