Federal judges hear arguments on Holtec's proposed nuclear waste site

Mar. 5—Federal judges in Washington, D.C., reviewed a petition Tuesday by opponents of Holtec International's plans to build an underground storage site for spent nuclear fuel in southeastern New Mexico.

Petitioners contend the Nuclear Regulatory Commission issued an invalid license last year — going so far as to call it illegal — because it would allow the U.S. Department of Energy to be a Holtec client that deposits nuclear waste in the underground site.

By law, the federal agency can't take ownership of the high-level radioactive waste that nuclear power plants produce until a permanent disposal site is created — otherwise, the interim site could wind up becoming the permanent repository by default, the petitioners' attorneys told the panel of three judges.

For this reason, the Energy Department must be removed from the license, they said.

Holtec and other industry representatives said the license eventually will enable the site to take waste both from commercial utilities and the Energy Department. They argued the license must give Holtec the latitude to take DOE-controlled waste in the future.

Attorney Paul Clement bashed the petitioners' push to bar the federal agency from depositing commercial nuclear waste at the site, calling it "absolutist" and "extremist."

Clement acknowledged a 25-year-old federal law doesn't permit DOE to take title to spent nuclear fuel until a permanent repository is built but said Congress could change the law to enable the agency to store and dispose of the waste rather than subsidizing storage costs, as it's now doing.

"It's the same darned waste at the end of the day," Clement said.

But Diane Curran, attorney for Beyond Nuclear, an industry watchdog, countered that although the waste is the same, having the government own it shifts the potentially high storage and disposal costs from private entities to the public.

"Holtec wants the government to pay for it," Curran said in an interview after the hearing. "This is twice as much stuff as would go in Yucca Mountain," she said referring to the Yucca Mountain Nuclear Waste Repository in Nevada.

The 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.

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 cast-off solid fuel is kept at 70 sites in three dozen states, either in steel-lined, concrete pools or dry casks, the agency said on the web page, adding these sites offer safe storage until a permanent place to consolidate the waste is created.

Still, federal agencies have pushed 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.

Critics contend the 40-year license is further proof New Mexico is being set up as a de facto permanent dump site, given no other prospects have emerged since Yucca Mountain was derailed two decades ago.

No one wants such a facility in their backyard, except the rural communities where the site is proposed, due to the jobs it would create.

In New Mexico, state and federal leaders have joined conservationists, anti-nuclear activists and community advocates in decrying the Holtec project.

A state law passed in 2023 bars New Mexico from issuing permits to build and operate a temporary storage site for high-level nuclear waste unless a permanent underground facility already exists — essentially mirroring the federal law at the center of Tuesday's appellate court debate. Holtec contends the state does not have the ability to override the NRC's licensing authority.

NRC Solicitor Andrew Averbach assured the court Holtec would not take waste from the Energy Department as long as it was illegal to do so.

But when Judge Neomi Rao asked Averbach whether the department would be able to dispose of waste at the site if Congress changed the law to give the agency that authority, Averbach replied, "Yes."

Averbach insisted the license doesn't specifically say the department will be able to store waste at the Holtec site, so he's unclear about what the petitioners' objection is.

However, Curran said both the license application and the NRC's decision approving the license contain language indicating the department could be a future client. For this reason, the license must be revised to ensure the federal agency is barred from being a waste customer, she said.

"Once the industry can get rid of liability for their spent fuel, they wash their hands of the whole thing, and they're done," Curran said. "They want to keep creating this stuff, and they want the federal government to take responsibility ... so they can minimize their costs."