A proposal to build a temporary nuclear waste storage site near Carlsbad and Hobbs drew a lawsuit against the Nuclear Regulatory Commission (NRC), the agency tasked with permitting the facility, from the State of New Mexico which sought to block the project.
In a Monday filing, the NRC asked the U.S. District Court for the District of New Mexico to dismiss the State’s lawsuit due to lack of jurisdiction.
The State alleged in the suit that the NRC acted illegally in issuing an environmental impact statement (EIS) for the Holtec project that found the site would have minimal environmental impact and recommended a permit be granted.
Citing the Nuclear Waste Policy Act (NWPA), New Mexico Attorney General Hector Balderas argued federal law stipulated a permanent repository be available before an interim storage site, like Holtec’s, could be permitted.
But the NRC argued that in the State’s suit, Balderas ignored the NRC’s authority to issue licenses for nuclear facilities as designated in the Atomic Energy Act (AEA), that allows challenges to licenses applications be raised in the U.S Court of Appeals which New Mexico failed to do.
The NRC argued U.S. District Court was the wrong venue for New Mexico to appeal the decision under the AEA and that the case should be before the U.S. Court of Appeals.
“The arguments that New Mexico raises now could have been raised in this manner, but New Mexico elected not to participate in this process,” read the NRC’s response. “Confronted with the reality that it has belatedly raised its assertions in the wrong forum, New Mexico goes to great lengths to recast the allegations in its Amended Complaint.”
The NRC also argued New Mexico altered its complaint away from an appeal, allegedly knowing the State brought its challenge in the wrong forum, an instead voiced its opposition to the very concept of temporary nuclear waste storage.
“New Mexico cannot perform an end run around the administrative process Congress created by collaterally disrupting that process in a district court,” the NRC’s response read. “New Mexico fails to carry its burden of establishing that subject matter jurisdiction is proper in this Court.”
And as no final decision was yet issued by the agency, the NRC argued the State of New Mexico could not oppose the mere acceptance of a license application and the continued proceedings.
“Yet, in an effort to resuscitate its flawed arguments, New Mexico now contends that the agency’s mere act of accepting license applications that seek approval for a CISF is a final agency action under the (Administrative Procedure Act),” read the response. “This argument fails.”
State leaders cited the alleged risk the project, proposed by Holtec International, would pose to the environment and public safety should it be allowed to operate, along with concerns that it could become permanent as no such repository existed and potential incidents when transporting the waste into New Mexico.
Holtec first applied for a license from the NRC in 2017 to build the facility that would ultimately store up to 100,000 spent nuclear fuel rods on the surface at a location near the Eddy-Lea county line while a permanent repository was developed.
Such a repository does not yet exist, so the Holtec site would see the high-level nuclear waste brought into the remote area in southeast New Mexico via rail from nuclear power plants and facilities across the country to be held temporarily at the site known as consolidated interim storage facility (CISF).
A similar project was also amidst an NRC licensing process in Andrews, Texas, near the New Mexico-Texas state line for another company Interim Storage partners which so far received favorable reviews from the agency with a final decision expected later this year.
Upon announcing the lawsuit against the NRC to block Holtec’s project Balderas sought an injunction to block the licensing process.
He said the project would bring an unnecessary risk to the local communities near the site and along its transportation routes, along with economic drivers like oil and gas extraction and agriculture in the region.
“I am taking legal action because I want to mitigate dangers to our environment and to other energy sectors,” Balderas said. “It is fundamentally unfair for our residents to bear the risks of open ended uncertainty.”
Adrian Hedden can be reached at 575-618-7631, firstname.lastname@example.org or @AdrianHedden on Twitter.