The state of New Mexico is pursuing its lawsuit over a proposed interim storage site for spent nuclear fuel in the wrong venue, the Nuclear Regulatory Commission argued in a recent court filing.
Since New Mexico attorney general Hector Balderas’s March suit in the state’s district court cited a violation of the Atomic Energy Act and the Administrative Orders Review Act — legal challenges that NRC argued can only be resolved in a federal court of appeals — the state court can’t rule on the complaint and should toss it, according to a motion to dismiss filed June 17.
The state also didn’t “exhaust its administrative remedies” by first appealing directly to NRC before filing suit, the agency argued. Other entities have used this avenue and “have raised many, if not all, of the same arguments that New Mexico raises,” the motion said.
At deadline Friday for RadWaste Monitor the court hadn’t ruled on whether to dismiss the case.
Balderas argued in his complaint that the federal government would run afoul of the Atomic Energy Act if it licensed Holtec International’s proposed interim storage facility, since the law requires a permanent repository for spent fuel and that facility doesn’t currently exist. Making New Mexico the home of some of the nation’s spent fuel inventory would place an unfair burden on the state, he said.
Balderas’s office didn’t return multiple requests for comment by deadline Friday for RadWaste Monitor.
Santa Fe is not eager for New Mexico to play host to Holtec or another nuclear waste repository. Sen. Martin Heinrich (D-N.M.) announced last week that a letter signed by the New Mexican Congressional delegation and other stakeholders is on its way to energy secretary Jennifer Granholm’s inbox. Secretary of the New Mexico Environment Department James Kenney told RadWaste Monitor in May that his state is “the wrong site” for an interim storage facility.
