LEA COUNTY, NEW MEXICO and WASHINGTON, D.C., May 9, 2023 --
Today, the Nuclear Regulatory Commission (NRC) announced it approved licensing for Holtec International’s controversial consolidated interim storage facility (CISF) in southeastern New Mexico’s Lea County, not far from the Texas border. The facility is designed to store high-level radioactive waste from nuclear power plants across the U.S. But NRC approval notwithstanding, a recently enacted New Mexico State law and multiple federal court challenges may yet block the project.
Holtec’s Bid to Enter the Nuclear Waste Storage Business
Holtec International is a New Jersey-based company which manufactures radioactive waste containers and decommissions nuclear power plants. But, in an unprecedented scheme, Holtec recently sought to return to operations a reactor in Michigan which was already shut down and which it supposedly acquired for the purpose of decommissioning only. It has also proposed building two-dozen so-called Small Modular Nuclear Reactors (SMNRs) of its own design, using federal and state subsidies including $7.4 billion in U.S. Department of Energy (DOE)-issued nuclear loan guarantees. The SMNRs are proposed to be built in New Jersey, Michigan, and Ukraine.
Holtec now seeks to branch out into consolidated storage and its associated high-level radioactive waste transportation. On the New Mexico CISF scheme it partnered with the Eddy-Lea Energy Alliance (ELEA), a quasi-governmental entity comprised of Eddy and Lea Counties (which border one another), as well as their county seats of Carlsbad and Hobbs, New Mexico. ELEA owns the targeted nuclear waste CISF site’s land surface, and would take a large cut of the proceeds.
Giant Capacity May Signal Storing Foreign and Military Nuclear Waste
The Holtec-ELEA nuclear waste CISF would store up to 173,600 metric tons of highly radioactive irradiated fuel (often euphemistically called “spent” nuclear fuel or SNF, despite the fact it is highly radioactive and lethal), as well as Greater-Than-Class-C (GTCC) radioactive waste from commercial nuclear reactors. The facility would hold up to 10,000 canisters of nuclear waste, inserted into pits in a platform which sits on the surface. Part of the canisters would stay above the natural land surface.
“If opened, the site could become home to the biggest concentration of radioactive waste in the world,” reported Diane D’Arrigo, Radioactive Waste Project Director at Nuclear Information and Resource Service.
The Holtec-ELEA CISF’s nuclear waste storage capacity would be in addition to another planned CISF some 40 miles to the east in Andrews County, Texas. If built, it would be able to store 40,000 metric tons of irradiated fuel and GTCC in above-ground dry casks. The Texas facility, proposed by Interim Storage Partners, LLC (ISP), was granted construction and operation license approval by the Nuclear Regulatory Commission on September 13, 2021.
Since the entire SNF inventory at U.S. commercial reactors is just over 90,000 metric tons, experts have questioned why the Texas and New Mexico facilities would need a combined capacity of 213,600 metric tons, and whether the projects may be aiming to store nuclear waste from abroad and/or from the military.
There is precedent for shipping irradiated fuel from other countries to the U.S. for storage at Idaho National Labs. And in 2018, a test shipment of a mock SNF cask was transported from Europe to Colorado. Lead ISP partner Orano (formerly Areva) of France services the largest nuclear power reactor fleet of any single company in the western world. It lacks facilities in France to permanently dispose of the country’s own waste.
The consortium backing the ISP facility includes Waste Control Specialists, LLC (WCS), a national dump for so-called “low-level” radioactive waste, located immediately adjacent to (and upstream of) the New Mexico border. WCS loudly proclaims its ties to the U.S. military, which needs to dispose of its own highly radioactive wastes.
Nuclear Waste Transport Dangers
Opening a CISF in the U.S. would trigger many thousands of shipments of domestic irradiated fuel across many of the Lower 48 states, through a large percentage of U.S. congressional districts. SNF canisters and transport casks are subject to so-called “routine” radiation emissions, as well as leakage and other failures, which would pose threats to thousands of communities along the transportation routes.
“Transporting highly radioactive waste is inherently high-risk,” said Kevin Kamps, Radioactive Waste Specialist with Beyond Nuclear. “Fully loaded irradiated nuclear fuel containers would be among the very heaviest loads on the roads, rails, and waterways. They would test the structural integrity of badly degraded rails, for example, risking derailments. Even if our nation’s infrastructure gets renovated someday, the shipping containers themselves will remain vulnerable to severe accidents and terrorist attacks.
They could release catastrophic amounts of hazardous radioactivity, possibly in densely populated urban areas.”
“Even so-called ‘incident-free’ shipments are like mobile X-ray machines that can’t be turned off, in terms of the hazardous emissions of gamma and neutron radiation, dosing innocent passersby, as well as transport workers," Kamps added.
Kamps’ February 24 letter to U.S. Transportation Secretary Pete Buttigieg, cc'd to governors and state Attorneys General across the U.S., warned of the dangers of transporting high-level radioactive waste. "The recent train wreck at East Palestine, Ohio demonstrates the urgency of the problem and the potential for a serious radiological accident from nuclear waste transport," he wrote. "Environmental toxicologists have expressed deep concern that detection and response to release of hazardous chemicals in East Palestine were ineffective and untransparent and failed to protect public health and safety. But if the train that derailed had been carrying SNF or other highly radioactive wastes, the consequences would have been much worse."
The Nuclear Waste Technical Review Board has recommended spending a minimum of a decade to develop better irradiated nuclear fuel cask and canister designs before attempting to transport highly radioactive wastes. Yet Holtec and ISP expect their nuclear waste CISFs to open and start accepting shipments in just the next few years.
State Laws Could Block CISF Projects
Multiple lawsuits in federal appeals courts and state laws opposing storage and disposal of irradiated nuclear fuel in both New Mexico and Texas could upend both nuclear waste CISF schemes.
Siting nuclear facilities is supposed to be consent-based, but both Texas and New Mexico have made it abundantly clear they do not consent. In advance of the NRC licensing the ISP facility in September 2021, the Texas legislature overwhelmingly approved a bill banning storage or disposal of high-level radioactive waste including SNF in the state, and directing the Texas Commission on Environmental Quality to deny state permits the ISP project needs. The measure passed the Texas Senate unanimously, and passed the Texas House 119-3. Texas Governor Greg Abbott then signed the bill into law.
"This kind of bipartisan vote is very rare", said Karen Hadden, Executive Director of the Sustainable Energy and Economic Development (SEED) Coalition based in Austin, TX. "The message should be loud and clear: Texas doesn't want the nation's deadliest nuclear waste and does not consent to being a dumping ground."
In the runup to the Legislature passing the law, opposition to the ISP project in Texas was widespread and vocal. Abbott and a bipartisan group of U.S. Congressional Representatives from Texas wrote strong letters to the NRC opposing the project. Andrews County, five other counties and three cities, representing a total of 5.4 million
Texans, passed resolutions opposing importing nuclear waste from other states to Texas. School districts, the Midland Chamber of Commerce and oil and gas companies joined environmental and faith-based groups in opposing the ISP project. The City of Fort Worth, Texas submitted a Friend of the Court brief supporting appeals against ISP in the U.S. Court of Appeals for the District of Columbia Circuit.
Strenuous opposition to nuclear waste CISFs is also widespread in New Mexico. The state recently enacted Senate Bill 53 (SB53) barring storage and disposal of highly radioactive wastes in New Mexico without its explicit consent. New Mexico Governor Michelle Lujan Grisham signed SB53 into law on March 17, 2023, immediately after it had passed both houses of the State Legislature. Grisham has strongly objected to both nuclear waste CISFs on either side of New Mexico’s southeastern border since before she became governor in 2019.
“I am thankful that the New Mexico Legislature voted to stop this dangerous nuclear waste from coming to our state, and for Governor Grisham for signing it into law,” said Rose Gardner of Eunice, New Mexico, co-founder of the environmental justice watchdog group Alliance for Environmental Strategies. Gardner’s hometown is very close to the ISP project site in Texas, as well as to the Waste Control Specialists, LLC (WCS) national dump for hazardous and so-called “low-level” radioactive waste. Every single one of thousands of rail shipments of highly radioactive waste bound for the ISP CISF would pass through Eunice.
“I live less than five miles from the ISP site, yet my community in New Mexico has had no vote and no choice, and gave no consent for nuclear waste to be stored at the facility,” she said. “I have long been concerned about WCS and its voracious appetite for bringing more and more nuclear waste to my area, claiming it now needs a license for high-level radioactive waste because the waste disposal business wasn't making enough money. I hope my concerns will be heard by a higher court than the NRC."
Gardner has served as a standing declarant in legal challenges to both the Holtec and the ISP CISFs in federal court.
Lawsuits Argue CISFs Violate Federal Law
Two sets of lawsuits seek to block the ISP project in Texas and the Holtec project in New Mexico on the grounds that they violate federal law. They have been pending before the U.S. Court of Appeals for the District of Columbia Circuit for years.
In January 2023, the court rejected all opponents’ appeals against the Interim Storage Partners nuclear waste CISF in Texas. However, a separate federal court, the 5th Circuit Court of Appeals in New Orleans, is still considering appeals against the ISP CISF from the State of Texas, as well as from Fasken Land and Minerals, LLC/Permian Basin Land and Royalty Owners.
After being held in abeyance for several years, now that NRC has approved the license for the Holtec nuclear waste CISF in New Mexico, federal appeals against it are likely to move forward. The briefing phase of the D.C. Court of Appeals lawsuit is expected to resume soon, and other federal appeals are also ripe for judicial consideration in the 5th and 10th (Denver) circuits, pending final agency action.
These lawsuits argue that nuclear waste CISFs violate federal law. Consolidated interim storage facilities are predicated on the assumption that the U.S. Department of Energy (DOE) will enable SNF transportation by taking title to commercial reactor waste as it leaves the reactor sites, thus relieving the licensees of their liability for it. But transferring responsibility for highly radioactive nuclear waste from private businesses to the federal government is specifically prohibited by the Nuclear Waste Policy Act of 1982, as Amended (NWPA) -- unless and until a geologic repository is open and operating. By DOE’s own admission, an operating geologic repository remains at least 25 years away.
The prohibition against DOE taking title to commercial reactor waste was included in the NWPA precisely to guard against “interim” storage sites becoming de facto permanent surface dumps for nuclear waste. But the Nuclear Regulatory Commission’s CISF licensing process was pushed ahead anyway in defiance of the law, on the theory the law will be changed by Congress and the President.
Former New Mexico U.S. Senator Jeff Bingaman, who chaired the Energy and Natural Resources Committee, was adamant that this “linkage” between any “interim” site to an operating final repository remain in the law.
“The NRC never should have even considered these applications, because they blatantly violate the federal Nuclear Waste Policy Act by assuming that the federal government will take responsibility for the waste before a permanent repository is licensed and operating,” said Diane Curran, an attorney for Beyond Nuclear, one of the groups that brought the suits.
”Licensing the ISP and Holtec facilities would defeat Congress’s purpose of ensuring that nuclear waste generated by U.S. reactors will go to a deep geologic repository, rather than to vulnerable surface facilities that may become permanent nuclear waste dumps,” Curran added.
Participants in the legal challenge to the Holtec CISF include the Non-Governmental Organizations (NGOs) Beyond Nuclear, Sierra Club, and Don't Waste Michigan, et al., a national grassroots coalition of watchdog groups, including the New Mexico-based anti-nuclear collective formerly called Nuclear Issues Study Group (recently renamed DNA, short for Demand Nuclear Abolition). Additional coalition members include: Citizens for Alternatives to Chemical Contamination (MI); Citizens’ Environmental Coalition (NY); Nuclear Energy Information Service (IL); and San Luis Obispo Mothers for Peace (CA). Federal appeals before the D.C. circuit court have also been filed by
Fasken Land and Minerals, Ltd., and Permian Basin Land and Royalty Owners, which advocate for ranching and mineral rights.
"The grand illusion that the nuclear power industry will figure out what to do with the lethal nuclear waste later, is now revealed,” said Michael J. Keegan of Don't Waste Michigan, one of the lead intervenors in the lawsuits. “There is nowhere to put the waste. No community consents to accept nuclear waste -- not Texas, not New Mexico, not Michigan, or anywhere on this planet. We have to stop making it. No more weapons of mass deception!"
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