The Nuclear Regulatory Commission on Monday offered a strongly-worded rebuke to the New Mexico attorney general’s claim that a proposed interim storage facility for spent nuclear fuel violates federal law, according to a new court filing.
NRC has the right to license commercial facilities under the Atomic Energy Act (AEA), the agency argued in the brief in the U.S. district court of appeals for New Mexico. The argument sidesteps state attorney general Hector Balderas’s claim that Holtec International’s proposed interim storage site in southeastern New Mexico would violate the Nuclear Waste Policy Act (NWPA).
“Licensing of the CISF facilities by private parties is governed by the AEA, not the NWPA,” NRC wrote in the filing. The Nuclear Waste Policy Act, the commission said, only applies if the Department of Energy has filed a license to construct a federally owned facility.
Balderas argued in a July 19 filing that because the NWPA mandates the federal government have a permanent repository for spent fuel before it licenses an interim storage site, and because no such federally-licensed repository currently exists, Holtec’s site would violate the law if NRC licensed it.
The NWPA argument is one that has been taken up recently by opponents of the Holtec site as well as the proposed Interim Storage Partners (ISP) counterpart in west Texas.
In Monday’s filing, NRC also defended its June request that the New Mexico District Court of Appeals dismiss Balderas’s suit on jurisdictional grounds, saying that the attorney general “belatedly raised [his] assertions in the wrong forum.”
NRC also argued that Balderas’s suit runs afoul of the Hobbs Act, which ensures that all federal agencies get the same standard of judicial review. Balderas should have filed suit in the D.C. circuit court of appeals, NRC said.
In his July filing, Balderas argued that he was not challenging an agency proceeding so he wouldn’t need to abide by the Hobbs Act.
Meanwhile, both proposed interim storage sites are in the late stages of NRC licensing review. The commission has said it should complete a required environmental review of the proposed Holtec site by November and should make a final licensing decision by January. Commission staff recommended in July that ISP’s proposed Texas site get a license. A final call on that site should come down from the commission next month, NRC has said.
