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Will New Mexico’s new law stop a proposed nuclear waste dump?

May 3, 2023
By Hannah Grover and Searchlight New Mexico

This story was written in collaboration with Searchlight New Mexico.

In March, New Mexico lawmakers took their biggest step yet in an attempt to block plans for a nuclear waste storage facility in the scrublands near Carlsbad.

The legislature passed Senate Bill 53 on a largely partisan vote, seeking to block Holtec International’s eight-year effort to build a facility in southeastern New Mexico that would hold 8,680 metric tons of high-level radioactive waste from nuclear power plants across the country.

The state has been challenging Holtec’s plans for years, both in court and before the federal Nuclear Regulatory Commission. But New Mexico’s best chance at stopping the project may come in the form of the new law, which became effective when Gov. Michelle Lujan Grisham signed it on March 17.

Legal and nuclear experts anticipate that the law will face legal challenges, however. And in the end, federal courts will likely determine if New Mexico has the authority to keep Holtec from building its Consolidated Interim Storage Facility on a 1,040-acre site between Carlsbad and Hobbs.

Foes of the project include not only the governor and state legislators, but also the state’s congressional delegation, the All Pueblo Council of Governors, numerous local governments and a wide array of activists and citizens.

Transporting radioactive waste through New Mexico and storing it near one of the world’s most productive oil fields would jeopardize the economy, the environment, and health and safety, opponents say.

“People are deserving of protection for our way of life and our health and well-being,” said Rose Gardner, a Eunice resident and member of the Alliance for Environmental Strategies, who advocated for SB 53 this spring.

Lujan Grisham, for her part, sent a letter to the NRC shortly after she signed the bill, asking the agency to “immediately suspend any further consideration of the Holtec license application.”

The new law, the governor noted, establishes two conditions that must be met before the state can issue permits, contracts or licenses for a high-level nuclear waste storage facility. First, New Mexico must consent to the facility; and second, the federal government must have a permanent nuclear waste repository in place, so that an alternative storage site exists. Neither of those conditions have been met.

If no permanent nuclear repository exists, the Holtec site wouldn’t be “interim storage,” as it’s now billed — instead, it would be forever storage, opponents argue. New Mexico would become the de facto dumping ground for all of the nation’s high-risk nuclear detritus, they say.

Legal questions ahead

In the event of a court challenge, legal experts say New Mexico will need to prove that the new law is not focused on safety concerns. Nuclear safety, including the storage and transport of radioactive waste, falls under the federal government’s purview, as established by the Atomic Energy Act (AEA).

Under the AEA, the federal government reserves the right to regulate safety issues for nuclear power plants and waste. The federal law preempts — or takes precedence over — state statutes, which can be challenged in court if they conflict with federal authority.

“Costly and time-consuming litigation could occur if this bill were challenged,” as the fiscal impact report for the new law puts it.

The measure’s co-sponsor, Rep. Matthew McQueen (D-Galisteo), directly addressed the preemption issue during committee hearings, assuring fellow lawmakers that the bill sidestepped any problems. “Federal law preempts the state’s ability to regulate the safety or handling of nuclear waste,” he told the House Judiciary Committee in March. “So we’re not doing that.”
About half a dozen lawyers and experts, however, said it was unclear whether New Mexico’s law could be considered a preemption.
Nuclear waste storage laws like New Mexico’s are almost always challenged in court, said Geoffrey Fettus, an attorney with the Natural Resources Defense Council. However, he said, “New Mexico took deep pains to sail the ship into the dock without hitting the sides of federal preemption.”

Legal challenges bring mixed results

Nearly two decades ago, Utah enacted statutes to block an interim nuclear waste storage facility, basing them on safety concerns. The U.S. Court of Appeals for the Tenth Circuit struck down Utah’s laws, finding that they were preempted. (The facility was nevertheless never built due to political opposition.)

A more recent case regarding Virginia’s battle to ban uranium mining went all the way to the U.S. Supreme Court. This time, the state prevailed: The high court upheld Virginia’s ban in 2019.

Legislation, meanwhile, has not always paid off. In September 2021, Texas enacted House Bill 7 to block a nuclear waste storage facility much like the Holtec project, located about a mile from the New Mexico border. Days later, the NRC approved a license for it. (The facility is not yet built; the battle against it is ongoing.)

The NRC has not yet issued a decision about whether it will approve a license for Holtec’s venture in New Mexico. The agency recently informed Holtec that its decision would be delayed until about the end of May.

Train crashes and temblors

In the backdrop, safety issues remain a major concern. Among many potential dangers, critics of the Holtec project note that trains transporting radioactive waste could derail or crash, a possibility made more real by the recent train derailment disaster in Ohio.

An accident involving the Holtec project would not only threaten residents and the environment. It could also devastate the economy, according to the legislative fiscal impact report. “A significant accident or attack on a radioactive waste storage facility could significantly disrupt oil and gas activity in one of the most productive oil and gas producing regions in the world,” it stated.

In court documents, New Mexico has argued that the NRC did not consider the costs associated with upgrades to the state’s rail system to accommodate the transportation of large volumes of spent nuclear fuel.

The Permian Basin is also prone to earthquakes, which have been linked to injection wells associated with fracking. New Mexico Environment Department Secretary James Kenney has expressed concern that earthquakes could damage Holtec’s storage canisters, jeopardizing the public and the groundwater.

Another concern is that Holtec could go out of business, leaving the canisters to languish and deteriorate, a prospect that many opponents mentioned during legislative committee meetings.
New Mexico has a history of failed cleanups for radioactive waste, including hundreds of uranium mines on the Navajo Nation that have yet to be remediated.

Defenders cite benefits

Patrick O’Brien, a Holtec spokesman, said the company is deeply disappointed in New Mexico’s new law. The proposed storage facility, he said in an emailed statement, is “safe, secure and does not impact the environment negatively.”

The Holtec facility would create jobs and is desperately needed, proponents argue. The nation’s lack of a nuclear waste repository has forced power plants to store their spent fuel on site, at enormous cost to taxpayers. The expense — covered by the federal government — has already reached $9 billion.

The Holtec facility has local backing, O’Brien added. Supporters include business leaders and public officials in Eddy and Lea counties, whose Eddy-Lea Energy Alliance has been promoting the project for years.The facility “is a tremendous economic opportunity for Southeastern New Mexico,” O’Brien wrote. The company, he said, will continue working “to help provide an interim solution to the spent fuel management impasse in the United States.”

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Fair Use Notice
This document contains copyrighted material whose use has not been specifically authorized by the copyright owner. SEED Coalition is making this article available in our efforts to advance understanding of ecological sustainability, human rights, economic democracy and social justice issues. We believe that this constitutes a “fair use” of the copyrighted material as provided for in section 107 of the US Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond “fair use”, you must obtain permission from the copyright owner.

New Mexico may seek veto power over spent nuke fuel storage

AP News

SANTA FE, N.M. (AP) — The New Mexico Senate on Monday approved a proposed ban on the local disposal of spent nuclear fuel, unless the state provides its consent first.

The bill from Democratic state Sen. Jeff Steinborn, of Las Cruces, could impact a proposed multibillion-dollar facility in southeastern New Mexico that is expected to temporarily store spent nuclear fuel from commercial power plants across the nation. The Nuclear Regulatory Commission may announce a decision as soon as March on whether to grant a license to that project from Holtec International.

The Senate endorsed the bill on a 21-13 vote with Republicans and two Albuquerque-based Democrats in opposition to the proposed ban. The bill moves next to the state House for consideration, amid backing from Democratic Gov. Michelle Lujan Grisham.

Steinborn said New Mexico residents should be wary of becoming “guinea pigs” for temporary storage projects before the federal government decides on a permanent storage site.

His proposal found support among Democratic legislators, including Sen. Brenda McKenna, of Corrales, who noted New Mexico already grapples with the impacts of Uranium mining.

“What I’m really tired of is hearing over the decades of how our resources have been excavated and then things get dumped here,” she said. “I’m tired of New Mexico being exploited this way.”

Several legislators expressed concern that the bill from Steinborn would challenge longstanding federal authority over nuclear safety matters and lead to new court challenges.

“We’ll find out where the state’s authority ends,” said Democratic state Sen. Joseph Cervantes, of Las Cruces, an attorney who voted in support.

New Mexico and neighboring Texas already have sued in federal court over two proposed multibillion-dollar interim storage facilities for spent fuel— the one in southeastern New Mexico and another in Andrews County, Texas.

New Mexico Republican Sen. Craig Brandt, of Rio Rancho, voted against the bill and expressed confidence in the safety vetting of proposed transportation and storage containers that would be used to bring spent nuclear fuel to New Mexico by rail.

Democratic state Sen. Jerry Ortiz y Pino, of Albuquerque, also voted no, saying it was wrong to overrule significant local community support at close range to a proposed storage site.

Nuclear reactors across the country produce more than 2,000 metric tons of radioactive waste a year, with most of it remaining on-site because there’s nowhere else to put it, according to the Department of Energy. The federal government pays to house the fuel, and the cost is expected to stretch into the tens of billions over the next decade, according to a review by independent government auditors.

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Fair Use Notice
This document contains copyrighted material whose use has not been specifically authorized by the copyright owner. SEED Coalition is making this article available in our efforts to advance understanding of ecological sustainability, human rights, economic democracy and social justice issues. We believe that this constitutes a “fair use” of the copyrighted material as provided for in section 107 of the US Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond “fair use”, you must obtain permission from the copyright owner.

Oil companies join fight against US nuclear waste facilities

Beaumont Enterprise
March 11, 2022

CARLSBAD, N.M. (AP) — Oil companies operating in the most active oilfield in the United States are the latest opponents of plans to store spent nuclear fuel from commercial power plants in the Permian Basin.

Federal regulators already have granted a license for one interim storage project in West Texas, and developers are awaiting approval for a similar facility in southeastern New Mexico.

Tommy Taylor, chairman of the Permian Basin Coalition, said in a recent statement that rising gas prices and global tensions involving Russia — one of the world’s largest oil producers — should be a concern.

“Gas prices are soaring and families are struggling to pay bills,” Taylor said. “Yet the federal government wants to keep America’s energy producers on the sidelines by keeping oil and gas production low, and to make matters worse, they are putting America and our allies at risk by proposing to store high-level nuclear waste in America’s most productive oil field.”

The coalition has called on Congress to include language to block the storage projects in the federal omnibus spending package, the Carlsbad Current-Argus reported.

The coalition’s members include Shell Oil Company, the Texas Oil and Gas Association and dozens of Texas cities, counties and chambers of commerce.

The Nuclear Regulator Commission recently granted a license to Waste Control Specialists for a storage facility in Andrews, Texas. They’re still considering an application by Holtec International for a similar facility just to the west of the state line in New Mexico.

Both facilities would see thousands of metric tons of spent fuel shipped into Texas and New Mexico from nuclear power plants around the country for temporary storage pending development of a permanent repository.

Critics, including top elected officials from Texas and New Mexico, have voiced concerns because the federal government lacks any plans for a permanent resting place for the radioactive waste.

U.S. Sens. Martin Heinrich of New Mexico and Ted Cruz of Texas recently introduced legislation aimed at banning federal funding from supporting such a site.
Dozens of environmental groups and nuclear watchdogs also have outlined their concerns about the projects in comments to the U.S. Energy Department.

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Spent fuel facility receives NRC license days after Texas moves to ban it

Sep 14, 2021

Nuclear Newswire

The Nuclear Regulatory Commission has issued a license to Interim Storage Partners (ISP), a joint venture of Waste Control Specialists and Orano USA, to construct and operate a consolidated interim storage facility for spent nuclear fuel in Andrews, Texas. Issued on September 13, the license comes just four days after Texas governor Greg Abbott signed a bill to block such a facility from being built in the state.

The license is the second one issued by the NRC for a consolidated storage facility for spent nuclear fuel. The first was issued to Private Fuel Storage in 2006, but the facility was never constructed. The NRC is currently reviewing an application from Holtec International for a similar facility proposed for Lea County, New Mexico. A decision on that application is currently expected in January 2022.

The ISP facility: ISP intends to build the storage facility on property adjacent to Waste Control Specialists’ low-level radioactive waste disposal site already operating under a Texas license. The NRC license authorizes ISP to receive, possess, transfer, and store up to 5,000 metric tons of spent fuel and 231.3 metric tons of greater-than-Class C low-level radioactive waste for 40 years.

The company has said that it plans to expand the facility in seven additional phases, up to a total capacity of 40,000 metric tons of fuel. Each expansion would require a license amendment, with additional NRC safety and environmental reviews.

The licensing: ISP submitted a revised license application to the NRC in July 2018. Waste Control Specialists had previously submitted an application for an interim storage facility in conjunction with Areva and NAC International but withdrew that application in 2017.

Read more on Nuclear Newswire

Nuclear waste in the oil patch? Feds spark clash with Texas


By Edward Klump
E&E News/EnergyWire

A site in West Texas now has a federal license to store spent nuclear fuel, setting up a potential showdown with state leaders who oppose the prospect of attracting high-level radioactive waste from across the country.

The Nuclear Regulatory Commission announced the license for Interim Storage Partners LLC to build and operate an interim storage facility in Andrews County, Texas, on Monday — just days after Texas Republican Gov. Greg Abbott signed a bill seeking to restrict nuclear waste storage in the state.
Yesterday, Abbott tried to use the new license in the Permian Basin oil patch to hammer President Biden, though an application for the site was filed in 2016, and the Trump administration didn’t kill the project.

“The Biden Admin. is trying to dump highly radioactive nuclear waste in west Texas oil fields,” Abbott said on Twitter. “I just signed a law to stop it. Texas will not become America’s nuclear waste dumping ground.”

David McIntyre, an NRC spokesperson, declined to comment on the governor’s criticism but said in a statement this week that the “licensing decision was made according to the applicable federal statutes and regulations after thorough, multi-year technical and environmental reviews.”
The drama is being watched by the electricity sector, as nuclear power plants continue to store spent fuel on-site without a permanent U.S. repository. Yucca Mountain in Nevada has failed to garner enough sustained support to be an option (E&E Daily, July 22). In the meantime, backers of the Interim Storage Partners, or ISP, site in West Texas and a separate project in eastern New Mexico from Holtec International have pursued interim storage proposals that could last for decades.

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