The shuttered Zion Nuclear Power Station sits along the shore of Lake Michigan March 11, 2009 in Zion, Illinois. The federal government estimates 86,000 metric tons of highly radioactive spent fuel is stored at 75 defunct and current nuclear power plants around the country.(Photo by Scott Olson / Getty Images)
The future is uncertain for a privately owned high-level nuclear waste facility halfway between Hobbs and Carlsbad due to a new state law poised to go into effect June 15.
Senate Bill 53 prohibits the state or other New Mexico authorities from issuing permits, contracts or leases for a disposal site for high-level nuclear waste, like the one proposed by Holtec International.
The ban is lifted under two conditions.
The state must approve the facility and that the federal government adopts a permanent underground storage site for nuclear waste.
But not everyone is so certain. In testimony before lawmakers, lobbyists for Holtec International said that New Mexico was overreaching with the law. Federal laws trump any state laws that conflict with federal code – called ‘preemption’ in legal terms.
Rikki-Lee Chavez, a lobbyist for Holtec, told the House Government, Elections and Indian Affairs committee in February that Senate Bill 53 ignored efforts by Southeastern local leaders that encouraged the facility.
She argued that New Mexico “seeks to circumvent the vigorous review by the Nuclear Regulatory Commission by adding requirements after Holtec has successfully completed all application steps.”
The questions on preemption were repeated by committee members on both sides of the aisle. Sponsors Rep. Matthew McQueen (D-Galisteo) and Sen. Jeff Steinborn (D-Las Cruces) responded that New Mexico is within its rights and authority to limit permits for constructing the facility.
“We can’t regulate nuclear safety, or regulations like that,” McQueen told the committee. “But we can still issue building permits; we can still specify the widths of the roads and thickness of asphalt, things like that.”
On top of federal EPA approval, Holtec also needs licenses from the New Mexico Environment Department and New Mexico Transportation Department to operate, according to the project’s Environmental Impact Statement. That report states Holtec will apply for five licenses with those state agencies.
Steinborn told Source NM that the state is prepared for opposition from the nuclear industry or even federal agencies that could come out against the new law.
“It’s great that we passed it, we created a little leverage for our state, but now we’re going to have to keep fighting,” Steinborn said.
What is the facility? What will it do?
Holtec International is a nuclear-equipment manufacturing company headquartered in Jupiter, Florida. The company plans to build a nuclear storage facility in southeastern New Mexico to store spent fuel from nuclear power plants around the country.
Spent fuel contains ceramic pellets, usually made with uranium-235, inside metal rods used in electric generation at nuclear power plants. The rate of decay for radioactive wastes varies, but many of the materials can be radioactive for decades to tens of thousands of years. These hazardous materials can produce fatal radiation doses over long periods of time, or can contaminate the environment. This waste is kept on the sites of current and former nuclear power plants around the country.
Despite a federal mandate, there is no permanent disposal site for high-level nuclear waste in the United States, a longstanding issue approaching its third decade.
Holtec first applied for a permit for a “Consolidated Interim Storage Facility” in 2017 to be constructed in Southeastern New Mexico.
Currently, federal regulators have not licensed the Holtec facility. The Nuclear Regulatory Commission, which oversees safety and permitting for nuclear facilities across the country, delayed issuing a permit for the prospective facility in southeastern New Mexico. NRC officials wrote they would consider the final decision for a license and a safety evaluation in May in a recent letter to Holtec International
Holtec is working in partnership with the Eddy-Lea Energy Alliance, which owns the land. The group is made up of government officials from the cities of Carlsbad and Hobbs and Lea and Eddy counties. The alliance is a vocal supporter of the facility, saying the site offers at least 215 construction and radiation worker jobs with pay starting at $75,000.
The project is years behind schedule. Initial estimates had the plant starting construction in 2020 after receiving the necessary permits and fully operational by 2023.
What’s the ‘preemption’ argument here?
Preemption was front of mind when crafting the bill, said Doug Meiklejohn, an attorney that specializes in land and water issues at the nonprofit Conservation Voters New Mexico.
“Federal law is the supreme law of the land,” Meiklejohn said. “If the federal government has passed a statute, and New Mexico passes a law that contradicts it, then New Mexico’s statute is invalid.”
Much of nuclear regulation in the beginning of the Atomic age was squarely in the hands of the federal government, since it was a matter of national security and weapons manufacturing. As nuclear became a source of public power it led to court battles between states, the federal government and the nuclear industry seeking to redefine regulations.
“There are cases that have opened up some areas and made clear that states do retain some authority in specific areas – where it’s not directly about nuclear facility design or nuclear safety,” said Bruce Baizel, general counsel for the New Mexico Environment Department.
Baizel and Meiklejohn advised on the bill’s language.
They pointed to a 2019 U.S. Supreme Court decision allowing Virginia’s ban on uranium mining to stand, and declined to expand the powers of the Nuclear Regulatory Commission.
The key, Baizel said, is that both Holtec and the Nuclear Regulatory Commission acknowledged the state has some permitting power for constructing the facility.
In terms of next steps, all eyes are on the Nuclear Regulatory Commission’s decision expected in May. Then, it would be up to Holtec to apply for the necessary permits from the New Mexico Environment and Transportation Departments.
“It may be that Holtec would want to go to another state where it doesn’t run into this kind of opposition,” Meiklejohn said.
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