Federal appeals court kills Holtec's license for temporary nuclear waste storage in New Mexico

Apr. 1—A federal appeals court has nullified Holtec International's license to store commercial nuclear waste from power plants across the country in a temporary underground site the company wants to build in southeastern New Mexico.

The Fifth Circuit Court of Appeals' three-judge panel ruled the Nuclear Regulatory Commission lacked the authority to grant a license for a private storage site located away from nuclear power plants until a permanent repository is established.

The court's finding is similar to the decision it made against Interim Storage Partners, or ISP, a company that sought to build a temporary place for spent nuclear fuel in West Texas.

The judges said in a short two-page opinion that although the projects would involve two different companies in two different states, they are "materially identical," making the New Mexico license as invalid as the one in Texas.

In both states, the proposed nuclear waste sites have drawn staunch opposition from political leaders, conservationists, community advocates and even fossil fuel companies that worry about potential adverse effects on oil fields within the Permian Basin.

In an email, Holtec spokesman Patrick O'Brien wrote the appellate court was wrong in both cases, adding the company plans to appeal the decisions to the U.S. Supreme Court.

"The government, ISP and Holtec are likely to bring one or both of these decisions to the U.S. Supreme Court, which we believe is likely to overturn the Fifth Circuit's decisions," O'Brien wrote.

One longtime opponent of the project said a conservative appellate court made a "cut and dried" decision against NRC approving a waste-storage license for Holtec.

"Obviously if they [NRC officials] don't have the authority to issue a license in one case, they don't have authority to issue a license in another," said Don Hancock, director of nuclear waste safety for the nonprofit Southwest Research and Information Center.

It's questionable whether the Supreme Court will agree to hear Holtec's appeal, Hancock said, because the justices turn down most cases.

For now, Holtec is without a license and can no longer use that as a selling point to prospective customers, Hancock said.

Industry groups Fasken Land and Minerals and the Permian Basin Land and Royalty Owners filed joint petitions with the court to challenge the NRC licenses in Texas and New Mexico.

They are tied to a growing coalition of large oil companies that oppose having high-level nuclear waste buried in the Permian, despite Holtec's assurances the waste would pose no threat to fossil fuel operations.

The Carlsbad project has been contentious since Holtec applied for a 40-year license in 2017 to build an interim underground site to store up to 10,000 canisters of commercial nuclear waste.

Critics contend such a long-term license is further proof New Mexico is being set up as a de facto permanent dump site, given no other prospects have emerged since the proposed Yucca Mountain repository in Nevada was derailed two decades ago.

The purpose is to provide a temporary, centralized place to store the spent fuel piling up at nuclear power plants throughout the country. These plants generate about 2,000 metric tons of waste a year, with an estimated 90,000 metric tons amassed since the 1950s, according to Energy Department figures.

The castoff solid fuel is kept at 70 sites in three dozen states, either in steel-lined, concrete pools or dry casks, the agency said on its website, adding the sites offer safe storage until a permanent disposal site is created.

Federal agencies have pressed harder in recent years to consolidate the waste at a central location as political leaders explore boosting nuclear energy as a carbon-free source, albeit one that produces radioactive waste.

Legislatures in New Mexico and Texas have countered this federal push by passing state laws to bar construction of temporary storage facilities for spent nuclear fuel until a permanent disposal site is operating. Those who support the storage sites because of the jobs they'll create say states can't override NRC's licensing authority.

Stoking New Mexico leaders' opposition to the Holtec storage site is the state already having the Waste Isolation Pilot Plant, the country's only repository for what's known as transuranic nuclear waste.

WIPP takes in transuranic waste — mainly irradiated gloves, clothing, equipment, soil and other materials — from Los Alamos National Laboratory and an array of out-of-state facilities.

Gov. Michelle Lujan Grisham, an avid opponent of the Holtec project, applauded the federal court's decision to invalidate the license. She said in a statement that keeping nuclear waste at WIPP is enough for New Mexico.

"Holtec's proposal to store high-level nuclear waste in New Mexico was deeply flawed and posed serious risks to our state's agriculture and energy sectors," Lujan Grisham said. "I'm relieved that a federal appellate court blocked it."

The federal government must fulfill its commitments to clean up legacy nuclear waste at the Los Alamos lab while looking elsewhere for any additional waste storage sites, she said.

"It's time for other states to step up and help shoulder our nation's nuclear waste load," she said.