Holtec's New Mexico nuclear waste proposal questioned during federal court hearing

A company looking to store spent nuclear fuel in southeast New Mexico went before a federal appeals court Tuesday to defend the proposal from environmental groups and an oil company in the Permian Basin.

Holtec International in 2017 applied for a license to construct and operate a facility designed to temporarily store more than 100,000 metric tons of used nuclear fuel rods taken from private reactors around the country.

The site would be near the border of Eddy and Lea counties, and Holtec received a license in May 2023 from the Nuclear Regulatory Commission (NRC) amid opposition from New Mexico state leaders, congressional members and environmental groups.

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Beyond Nuclear and the Sierra Club, both environmental groups opposed to the project, filed official contentions into the federal record but were denied by the Nuclear Regulatory Commission. The NRC argued the contentions were not relevant to the proceedings and did not present any new information at the time of licensing.

The opposition appealed this decision and went before the U.S. Court of Appeals for the District of Columbia to argue its case, looking to have its contentions entered into the record and ultimately seeking to have Holtec’s license vacated. Oral arguments were made during the hearing, with the court to issue its verdict later on.

Attorney for Beyond Nuclear Diane Curran said Tuesday before the three-judge panel that the license application suggested the project would take federally owned waste for storage. Curran said this was illegal under the Nuclear Waste Policy Act.

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That meant, she said, the Holtec license was “hypothetical” in that it would require an act of Congress to change the law and make that part of the project legal.

She said if language in the application was removed and that it adequately specified the facility was only for commercial reactor waste, Holtec’s license would not run afoul of the law.

Curran suggested the application be rewritten and resubmitted, restarting the approval process from the beginning.

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“This appeal presents a clear case of agency overreach. The NRC in the licensing decision approved the application with intent of Holtec’s ultimate ability to store spent nuclear fuel,” Curran said. “Unlawful language cannot remain in the license, whether the court decides to throw out the whole thing or reject just this language. Resubmit this application and leave out the unlawful language.”

Holtec and federal agency argue nuclear waste license followed the law

Andrew Averbach, attorney of the Nuclear Regulatory Commission countered that the license that was ultimately issued did not make specific mention of federally owned nuclear waste. He said the NRC was within its authority to issue a license to Holtec.

“The Atomic Energy Act gives authority to the agency to issue licenses for commercial spent nuclear fuel at the reactors and away from the reactors. In order to possess spent fuel, one needs to have a license to possess spent nuclear fuel,” Averbach said. “Congress gave the agency the authority to issue the licenses based on those core radioactive materials.”

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He said the NRC and Holtec had an understanding that the company would not seek to store federal waste if it was illegal.

“If the law changed, and all other aspects of the fuel contained in the license were covered in the license, there would be no conditions against that,” Averbach said. “Holtec has represented to the NRC that if it remains illegal, Holtec will not try to do that.”

Attorney for Holtec Anne Leidich said the company had no intention of illegally acquiring federal nuclear waste, and that the facility as designed was intended for commercial spent fuel.

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“Holtec will not store any waste illegally that the DOE takes title to under the Atomic Energy Act,” Leidich said. “For that reason, we argue the contentions should be rejected.”

Environmental groups, oil industry unite against nuclear waste project

Wally Taylor, an attorney for environmental groups the Sierra Club and Don’t Waste Michigan, which filed as legal intervenors in the appeal, repeated his organization’s contentions that were also previously denied standing by the NRC.

He said since then, new information existed on the presence of earthquakes caused by increased oil and gas operations in the area. The danger of earthquake impacts, Taylor said, was likely the strongest argument his clients made against the Holtec project.

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“The oil and gas industry through its fracking had caused earthquakes and that was at or near the Holtec site,” Taylor said. “The NRC could have supplementally revised their environmental report.”

Oil and gas industry groups also voiced concerns to the proposal, worried nuclear waste storage could impede fossil fuel drilling in the Permian Basin, known as the U.S.’ busiest shale region.

Allan Kanner, representing Fasken Oil and Ranch and the Permian Basin Land and Royalty Owners Association said the NRC should reopen the record to include such concerns. He said Holtec misrepresented its control of the land around the proposed site.

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New Mexico State Land Commissioner Stephanie Garcia Richard maintained throughout the licensing process that the State Land Office controlled the mineral estate beneath the 1,000-acre property where Holtec wanted to build the facility.

Because of the area’s high use for oil drilling, a key driver of New Mexico’s economy, Gov. Michelle Lujan Grisham labeled the proposal “economic malpractice” at its inception.

“This is a case about competing land uses at a specific site in the Permian Basin. The NRC has decided not to make a record that these are incompatible land uses,” Kanner said during the hearing. “Holtec lied. They said by agreements they had control of the land. What you’re telling Fasken is you’ve contacted all the mineral lessees and the state regulatory agencies. We know that’s a lie.”

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on the social media platform X.

This article originally appeared on Carlsbad Current-Argus: Holtec's New Mexico nuclear waste proposal chided at court hearing