ML22144A095

5-23-22 New Mexico V. NRC - Letter to Court (10th Cir.)(Case No. 21-9593)

ML22144A095
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	05/23/2022
From:	Ogaz Z State of NM, Office of the Attorney General
To:	Andrew Averbach, Fagg A, Heminger J, Lighty R, Marian Zobler Morgan, Morgan, Lewis & Bockius, LLP, NRC/OGC, US Federal Judiciary, Court of Appeals, 10th Circuit
References
010110688075, 21-9593
Download: ML22144A095 (2)

Text

Appellate Case: 21-9593 Document: 010110688075 Date Filed: 05/23/2022 Page: 1 STATE OF NEW MEXICO OFFICE OF THE ATTORNEY GENERAL HECTOR H. BALDERAS ATTORNEY GENERAL May 23, 2022 Tenth Circuit Court of Appeals Arnold Bradley Fagg Byron White United States Courthouse Ryan Kennedy Lighty 1823 Stout Street Morgan Lewis & Bockius Denver, Colorado 80257 1111 Pennsylvania Avenue, NW 10th_Circuit_Clerk@ca10.uscourts.gov Washington, DC 20004-2541 brad.fagg@morganlewis.com ryan.lighty@morganlewis.com Andrew Averbach Marian Zobler Justin Heminger U.S. Nuclear Regulatory Commission Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, MD 20852 Andrew.averbach@nrc.gov marian.zobler@nrc.gov justin.heminger@usdoj.gov Re: Balderas, et al v. United States Nuclear Regulatory Commission, et al.

United States Court of Appeals Docket No. 21-9593

Dear Clerk:

The State of New Mexico, by and through counsel, pursuant to FRAP Rule 28(j) hereby provides notice that on March 10, 2022, the New Mexico District Court dismissed case No. CIV 21-0284 JB/JFR. New Mexicos First Amended Complaint had sought a court order declaring the Nuclear Regulatory Commission had acted outside of its authority in the review of materials license applications filed by Interim Storage Partners and Holtec International. See March 10, 2022 Order, attached hereto as Exhibit 1. The district courts order was issued the same day

Appellate Case: 21-9593 Document: 010110688075 Date Filed: 05/23/2022 Page: 2 New Mexicos Opening Brief was filed in the instant case, as was noted in the Statement of Related Cases at page vi of that brief. It is New Mexicos position that the Order supports the proposition that this Court has jurisdiction over New Mexicos ultra vires arguments and New Mexicos unfunded mandate arguments. See Order at 4-8; Opening Brief at 21-22, 26-29, 40-42.

In addition, New Mexicos Petition pursuant to 10 C.F.R. § 2.206 before the U.S. Nuclear Regulatory Commission was denied on March 25, 2022. The petition sought revocation of the materials license issued to Interim Storage Partners for a consolidated interim storage facility.

See NRC Letter of March 25, 2022, attached hereto as Exhibit 2. The letter finalizes the preliminary rejection of New Mexicos petition noted in footnote 3 on page 3 of the Opening Brief. It is New Mexicos position that this denial shows there is no administrative relief available to New Mexico via 10 C.F.R. § 2.206.

Respectfully submitted this 23rd day of May, 2022 Very truly yours,

/s/Zachary Ogaz Assistant Attorney General NM Office of the Attorney General