The state of New Mexico hasn’t proven to a federal court that it has sufficient legal standing to challenge the licensing of a proposed interim storage facility for spent nuclear fuel in Texas, the Nuclear Regulatory Commission argued this week.
NRC’s Monday filing with the Tenth Circuit Court of Appeals aims to derail New Mexico Attorney General Hector Balderas’s second lawsuit over the agency’s September decision to license the proposed Interim Storage Partners (ISP) facility. The ISP site, planned for Andrews County, Texas, would be located just miles from the New Mexico border.
ISP, a joint venture between Waste Control Specialists and Orano USA, has said that its site, if built, could store around 40,000 tons of spent nuclear fuel — roughly half of the country’s total inventory of nearly 90,000 tons.
This lawsuit is Balderas’s second crack at getting a judge to walk back the ISP site’s license. The U.S. District Court for New Mexico in March dismissed a similar case filed by the attorney general in March 2021. In its ruling, the court concluded that the Tenth Circuit was the only appropriate venue to challenge the proposed site. A spokesperson for Balderas told RadWaste Monitor at the time that he would “proceed accordingly.”
On Monday, in the last live lawsuit New Mexico has left, NRC took issue with Balderas’s ability to challenge a license across state lines.
“New Mexico’s standing to challenge a license for a facility in another state is far from self-evident, yet it has not even attempted to meet its burden of establishing standing,” NRC said. Even though the state has property near the proposed site, that fact alone is “insufficient” to establish legal standing, the agency said.
Balderas’s argument against the proposed ISP site “lacks any assertion — whether in the statement of jurisdiction or in the argument section — undermining NRC’s record-based conclusion that the facility would pose no credible threat to protection of the health and safety of the public,” the commission said.
Like other litigious opponents of commercial interim storage, NRC argued that New Mexico did not exhaust all of its agency-level options for challenging the proposed site’s licensing process, and so it has no right to sue the commission. “Allowing litigants to challenge the license itself, divorced from the agency’s adjudicatory proceedings, effectively nullifies the exhaustion requirement,” NRC said.
In a March 10 briefing, Balderas claimed that NRC took an “risky and unauthorized approach” to interim storage by licensing the proposed ISP site. The commission’s approval violated the Nuclear Waste Policy Act as well as its governing law, the Atomic Energy Act, Balderas said. The attorney general also contended that NRC violated the National Environmental Policy Act by, among other things, making “unsupported and unrealistic assumptions” about the future existence of a permanent spent fuel repository.
As of Friday, the Tenth Circuit had not yet ruled on the case.
