Court throws out New Mexico’s challenge to ISP’s SNF storage facility

February 13, 2023, 3:20PMRadwaste Solutions

Citing a lack of jurisdiction, the 10th U.S. Circuit Court of Appeals in Denver has dismissed a petition by the state of New Mexico challenging the Nuclear Regulatory Commission’s licensing of Interim Storage Partners’ (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas.

The decision follows a U.S. Court of Appeals for the D.C. Circuit rejection of a lawsuit brought by several environmental and industry groups against the ISP license. That order was issued on January 25.

ISP, a joint venture of Orano USA and Waste Control Specialists, with additional support from NAC International, submitted a revised CISF license application to the NRC in June 2018. The NRC-approved license was issued in September 2021. The proposed facility will eventually store a total of 40,000 metric tons of SNF over eight phases.

Lack of jurisdiction: Because New Mexico did not participate in the NRC’s licensing proceedings by seeking to intervene, requesting a hearing, or submitting contentions, the court found that the state could not be considered an “aggrieved party” and cannot claim jurisdiction in the case.

“New Mexico had other available remedies by seeking intervention in the commission’s proceedings,” the court wrote in its February 10 decision. “So we grant the commission’s motion to dismiss the petition for lack of jurisdiction.”

Remaining case: Another case brought by the state of New Mexico and oil and gas industry groups against ISP’s licensing remains before the 5th U.S. Circuit Court of Appeals in New Orleans. Arguments in that case are focused on the “major questions doctrine,” following the recently published U.S. Supreme Court ruling in West Virginia v. EPA.

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