In yet another setback for opponents of two proposed private interim storage facilities for spent nuclear fuel, a second federal court has dismissed the state of New Mexico’s lawsuit over the projects, court filings show.
In a ruling published Feb. 10, the Tenth Circuit Court of Appeals concluded that state Attorney General Hector Balderas’s suit against the Nuclear Regulatory Commission over the proposed Interim Storage Partners (ISP) site was outside the court’s jurisdiction.
The panel of federal judges found that New Mexico “didn’t participate in the licensing proceeding” for the project “or qualify as an aggrieved party,” and as a result hadn’t established standing to sue.
The court disagreed with Balderas’ argument that comments the state left on NRC’s environmental impact statement for the proposed site constituted participation in the licensing proceedings and gave New Mexico standing to sue.
“By choosing only to comment,” instead of filing administrative contentions with NRC or requesting a public hearing, “New Mexico bypassed the chance to participate as a party in the licensing proceeding,” the court said Friday.
The Tenth Circuit was also unimpressed with Balderas’s argument that NRC’s September decision to license the proposed ISP site ran afoul of the Nuclear Waste Policy Act (NWPA), which the attorney general argued bars the agency from permitting such facilities to be built before a permanent repository is in operation.
NWPA “governs the establishment of a federal repository for permanent storage—not temporary storage by private parties like Interim Storage,” the ruling said. Even if NRC had acted outside the scope of its authority, the court would lack jurisdiction “when the petitioner had other available remedies” of addressing that, such as administrative contentions or a hearing request.
A spokesperson for the New Mexico attorney general’s office did not respond to multiple requests for comment on whether the state would appeal the ruling. A spokesperson for NRC declined to comment.
The Tenth Circuit is the second federal court to reject a legal challenge to NRC’s interim storage licensing authority. The D.C. Circuit Court of Appeals in January threw out a similar suit filed by a coalition of anti-nuclear and mining groups, also citing jurisdiction issues.
If built, the proposed ISP site in Andrews, Texas, would be able to store around 40,000 tons of spent nuclear fuel, roughly half of what power plant owners now store on-site near the reactors that generated them.
