The parties in New Mexico’s ongoing lawsuit over two proposed interim storage facilities for spent nuclear fuel will no longer have to present their cases next month, a federal court ruled last week.
Although oral arguments in New Mexico Attorney General Hector Balderas’s lawsuit against the Nuclear Regulatory Commission had been scheduled for Nov. 15, a three-member panel of judges overseeing the case in the Tenth Circuit Court of Appeals voted unanimously to cancel the hearing, according to a court filing dated Friday.
Balderas’s case, which is challenging NRC’s September decision to license Interim Storage Partners’ (ISP) proposed interim storage facility in Andrews, Texas, will now be decided “on the briefs,” the Tenth Circuit said.
Santa Fe has argued that when the agency licensed the proposed ISP site it violated the federal Nuclear Waste Policy Act (NWPA), which Balderas has said prohibits the government from building interim storage sites until a permanent waste repository is active.
NRC has countered that the Atomic Energy Act, not NWPA, governs the agency, and that the law gives it authority to approve interim storage projects.
Balderas is also challenging a similar project planned by nuclear services company Holtec International for Eddy County, N.M., which is still under an NRC licensing review.
The Tenth Circuit case is Balderas’s second attempt to sink the proposed Holtec and ISP sites. The U.S. District Court for New Mexico in March dismissed a separate suit from the state attorney general, reasoning that a “final agency action” such as an NRC license could only be reviewed in a federal appeals court.
If it gets built, the proposed ISP site is designed to hold around 40,000 tons of spent fuel — around half of the country’s current inventory.
Holtec, meanwhile, has said that its proposed site could store roughly 8,700 tons of spent nuclear fuel in around 500 canisters, with capacity for an additional 10,000 canisters to be added via license amendments. Although NRC staff in August recommended Holtec get a license for the project, the agency has said a final decision would not be made until early 2023.
