New Mexico could try again to challenge nuclear waste storage project in court

By Adrian Hedden, Carlsbad Current-Argus
Published Oct 11, 2023 | 2:00 pm

Officials with the State of New Mexico continued their fight against a proposed storage site for spent nuclear fuel in southeast New Mexico during a Tuesday hearing before lawmakers in Carlsbad, and said the project could be challenged a second time in federal court. The New Mexico Environment Department (NMED) and Office of the Attorney General voiced opposition to such a site during the discussion held at Southeast New Mexico College with the Legislature’s interim Radioactive and Hazardous Materials Committee. Representatives of both agencies called into question the legality of such a site to store nuclear fuel away from a reactor amid the ranchlands and oilfields of the Permian Basin.

Holtec International applied to the federal Nuclear Regulatory Commission (NRC) for a license to build the facility in 2017, and it was issued in May. The facility would temporarily store about 100,000 metric tons of spent nuclear fuel from reactors across the country, brought in via rail from reactors and power plants to the site near border of Eddy and Lea counties. It would be held at the surface ahead of development of a permanent, underground repository, which presently does not exist in the U.S.

The State of New Mexico challenged in court the NRC’s findings in an environmental analysis ahead of the license, but the 10th Circuit Court of Appeals ruled the state could not object before it was issued. Gov. Michelle Lujan Grisham, her cabinet secretaries and Commissioner of Public Lands Stephanie Garcia Richard all voiced their opposition to the Holtec project throughout the licensing process, citing risks to the local communities and industries like oil and gas and agriculture. Bruce Baizel, director of compliance and enforcement with the NMED said the State could file another challenge to the license now that it is issued to Holtec.

He pointed to a federal court ruling earlier this year that vacated a license for a similar site issued by the NRC to Interim Storage Partners in Andrews, Texas, along the New Mexico border, which Baizel said could have legal implications for the New Mexico site. Assistant Attorney General William Grantham said the Office of the Attorney General believed a federal court would vacate Holtec’s license, arguing federal law did not allow an interim storage site as proposed by Holtec without a permanent repository available.

Also going against the project, during the 2023 Legislative Session, lawmakers passed Senate Bill 53 to block state agencies from issuing any permits for any site storing high-level nuclear waste as Holtec’s would. Baizel said the facility would require five such permits to operate. “That language would not allow us to process or approve any of those state permits for that project,” he said.

Carlsbad mayor attacks lawmakers for not including nuclear industry voices

Carlsbad Mayor Dale Janway, an ardent Holtec supporter, did not attend the hearing, citing an “imbalance” in the panels, particularly on nuclear storage, according to Rep. Cathrynn Brown (R-55) of Carlsbad. She read a letter to the committee from Janway before the hearings began, where he criticized the body for not including anyone from the nuclear industry in the discussion. The panel on nuclear storage included Baizel, Grantham and Camilla Feibelman of the Sierra Club Rio Grande Chapter. “We have serious concerns about the panels and discussion,” Janway’s letter read. “Civil discourse in which multiple viewpoints are provided for discussion is critical for the legislative process.”

Committee Chair Rep. Joanne Ferrary (D-37) responded that since the bill was passed, the committee was more interested in hearing from state leaders on how the bill would be enacted. “Given the passage of SB 53 into law, the committee was primarily interested in learning about next steps for the state,” she said.

John Heaton of the Eddy Lea Energy Alliance, a consortium of local southeast New Mexico government bodies that recruited Holtec, was added to the panel as the discussion began. He said the Holtec project was proven safe and testified to lawmakers that the State did not have the authority to regulate spent nuclear fuel, and that SB 53 was “pre-empted” by federal law.

Heaton said the nuclear waste presently sits at power plants near highly populated areas and large bodies of water, and that southeast New Mexico was a safer place for its storage. “Nobody is doing anything with the waste and the communities around the reactors have become de-facto storage sites. There’s a lot of out-cry about that,” he said.

He also said the project would help diversify the fossil fuel-dependent region, bringing up to $3 billion in capital investments and hundreds of jobs. Camilla Feibelman, director of the Sierra Club’s Rio Grande Chapter said that if Holtec was allowed to operate its facility,

New Mexico would take all the risks of the waste with no benefits like the jobs provided to states that do host nuclear power plants. “Holtec wants to bring the entire store of nuclear waste by rail to southeast New Mexico through thousands of communities along the way,” she said. “Spent nuclear fuel should be stored at the site of origin in the safest manner possible.”

Committee Vice Chair Sen. Jeff Steinborn (D-36), who sponsored SB 53, said the “reality” was that it made Holtec’s project and others like it illegal in New Mexico. “We have passed a law in New Mexico making it illegal to store high level nuclear waste in New Mexico,” Steinborn said. “That is the reality now. Only the courts could change that reality.” Rep. Cathrynn Brown (R-55) of Carlsbad said SB 53, and actions by the Legislature to block the Holtec project would “target” a private industry that could bring economic development and jobs to the state.

Heaton said Holtec invested about $80 million already in the project, and Brown said the bill would cause New Mexico and the company to lose that investment. She said that New Mexico lawmakers in the past passed a resolution consenting to the project, and that if the project is blocked Brown believed Holtec should get that money back from the State. “Holtec had that and relied on that information, and now they’re out $80 million,” she said. “I believe there should be some recoup.