Attempts by New Mexico’s attorney general to pit a federal nuclear waste law against a proposed commercial interim storage facility for spent fuel in Texas don’t pass legal muster, the Nuclear Regulatory Commission told an appeals court last week.
State Attorney General Hector Balderas’s December argument that the Nuclear Waste Policy Act (NWPA) is “inextricably linked” to NRC’s decision to license Interim Storage Partners’ (ISP) proposed site is “neither relevant nor correct,” the agency argued in a Jan. 7 filing with the Tenth Circuit Court of Appeals.
Balderas’s contention that NWPA applies to the proposed ISP site is based on a misinterpretation of NRC’s environmental impact statement (EIS) for the project, the agency said.
In his Dec. 23 briefing to the court, Balderas said that the EIS includes language about the Department of Energy taking title to spent fuel for transport to the ISP site — and the NWPA, the attorney general said, forbids DOE from taking on spent fuel until a permanent repository exists.
NRC responded Friday that while the EIS “considers actions that would be undertaken in connection with the construction by DOE of a permanent spent fuel repository,” that stems from the agency’s responsibility under the National Environmental Policy Act to “identify direct and indirect environmental impacts” of the proposed site.
“[T]he NRC’s analysis in an EIS of anticipated impacts from separate … actions undertaken pursuant to the NWPA does not mean that issuance of the license to ISP depends upon NWPA activities,” the commission said.
The NWPA has been at the center of Balderas’s lawsuits against both the proposed ISP site and a similar project proposed in New Mexico by Holtec International. Balderas has argued that NRC is running afoul of NWPA by licensing the two commercial interim storage sites in the absence of a permanent repository — an angle of attack rejected by NRC and some experts.
The argument will likely get its first test in court this month at a hearing in the U.S. District Court for New Mexico on Balderas’s Holtec suit, currently scheduled for Jan. 20.
NRC is facing a number of legal challenges to both proposed interim storage sites. Texas Attorney General Ken Paxton is putting together his argument against the ISP site in the Fifth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals is wading through two separate joint suits against the proposed sites.
