In a reprieve for U.S. commercial interim storage, a federal judge in New Mexico late this week tossed a state lawsuit aimed at blocking such a facility in the southeastern part of the state, new court filings show.
In a Thursday order, the U.S. District Court for New Mexico dismissed state Attorney General Hector Balderas’s suit against the Nuclear Regulatory Commission challenging both Holtec International’s proposed interim storage project and a similar site planned for Texas by Waste Control Specialists-Orano USA joint venture Interim Storage Partners (ISP). The court found that it does not have jurisdiction to rule on the case, the order said.
The decision effectively closes the book on Balderas’s suit, filed in March 2021.
In its decision, the court ruled that NRC’s licensing review of the proposed Holtec site is “not yet a final agency action” that would be reviewable under the Atomic Energy Act (AEA) that empowers the commission. Even if it was, the order said, the law says such actions can only be litigated in federal appellate court.
The court also passed on reviewing NRC’s September decision to license the proposed ISP site, saying that an appeals court — in New Mexico’s case, the Tenth Circuit Court of Appeals — has “exclusive jurisdiction” over the matter, under the AEA. Balderas has already sued NRC over the proposed Texas project in the Tenth Circuit.
A spokesperson for Balderas’s office told RadWaste Monitor via email Friday afternoon that the attorney general agrees with the ruling “that New Mexico can bring its claims in the Tenth circuit, and we will proceed accordingly.”
Both Holtec and NRC declined to comment.
While commercial interim storage appeared to dodge Thursday what could have been its first legal litmus test, the dismissal in no way marks the end of the proposed sites’ judicial challenges. NRC is still navigating three other appellate court suits filed by New Mexico, Texas, and a coalition of anti-nuclear groups.
Private interim storage is also facing political backlash. A bipartisan bill introduced in Congress last week aims to strip federal funding for interim sites. In Austin, Gov. Greg Abbott (R) signed a law banning the storage of high-level nuclear waste in the Lone Star State. A similar piece of legislation died in the New Mexico state house in February.
Meanwhile, NRC is pressing on with its licensing review of the proposed Holtec site, planned for Eddy County, N.M. The commission is preparing a third round of information requests for the company which it needs to complete required safety and environmental surveys.
If its site gets built, Holtec has said that it could house around 8,700 tons of spent nuclear fuel in 500 storage canisters with capacity for an additional 10,000 canisters to be added in future license amendments.
Updated 03/11/2022 12:24 p.m. Eastern time with comments from Attorney General Balderas’s office.
