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NM has little say in Holtec plan, AG says

Attorney General Hector Balderas

Attorney General Hector Balderas

New Mexico Attorney General Hector Balderas said the state of New Mexico has limited recourse if it were to oppose federal licensure of a proposed interim storage facility for spent nuclear fuel.

The site, proposed by Holtec International, would see up to 100,000 metric tons of spent nuclear fuel rods from generator sites across the country held temporarily near the Eddy-Lea county line.

The company applied to license the facility through the federal Nuclear Regulatory Commission in 2017, and the application was accepted a year later, beginning a public scoping process that will see the NRC draft an environmental impact statement, which could ultimately lead to the issuance of a federal license.

During the federal process, a bicameral group of New Mexico lawmakers formed the Radioactive and Hazardous Materials Committee.

The committee chairman, state Sen. Jeff Steinborn, a Las Cruces Democrat, submitted a list of 57 questions to various state departments last month, but most deferred to the NRC.

State Sen. Jeff Steinborn

In his response, dated July 19, Balderas answered six of Steinborn’s questions.

The federal government is the sole agency to regulate the sites “before the fact,” Balderas said, but states can “indirectly” regulate them after they go into operation.

“While it is abundantly clear that the state cannot license or otherwise directly regulate interim storage facilities, the Supreme Court has repeatedly held that state tort law can provide a remedy for injuries suffered as a result of nuclear plant operation.”

Two federal laws regulate most nuclear activities, Balderas wrote: The Nuclear Waste Policy Act of 1982, and the Atomic Energy Act of 1954.

The NWPA, records show, specifically directed The Department of Energy to devise a permanent repository for nuclear waste.

An amendment in 2008 named Yucca Mountain in Nevada as the location, and directed Congress to focus on that area for the site.

But the project stalled after opposition from Nevada state lawmakers, and budget cuts by the administration of former-President Barack Obama.

The DOE withdrew its application in 2010.

In a recent budget proposal, President Donald Trump provided funding and called for the project to be resumed.

Meanwhile, the NRC does have the right to license “privately-owned, away-from-reactor” storage facilities, to temporarily hold the waste in the absence of a permanent repository, Balderas wrote, despite opposition from host states.

In 2003, a lawsuit stemming from a similar proposed storage site in Bullcreek, Utah, affirmed the NRC’s right to issue licenses for temporary storage away from generator sites. Utah lawmakers argued the NWPA removed the NRC’s legal authority to license such a site by calling for the Yucca Mountain project.

In its final opinion, the Court of Appeals for the District of Columbia validated the Utah lawmakers’ environmental and safety concerns, but admitted that the federal government alone has the final say on nuclear.

Following the Bullcreek decision, the Court of Appeals in the 10th Circuit issued another opinion in Skull Valley Band of Goshute Indians v. Nielson, also addressing a state government’s rights regarding such facilities, determining federal law preempted the state’s.

Steinborn told the Hobbs News-Sun Wednesday he was disappointed in the AG’s opinion, and that he wished the state had a say.