Legal Battle Continues Against Proposed Nuclear Waste Site Near Carlsbad

“It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment,” Kevin Kamps, radioactive waste specialist at Beyond Nuclear, is worried that Holtec could become permanent.


The meeting was designed to allow public comment on a proposed Consolidated Interim Storage Facility by Holtec International.

planned nuclear waste repository near Carlsbad was challenged in federal court, as opponents sought to appeal a decision by the federal government to reject contentions to the project that would see spent nuclear fuel rods stored temporarily at a location near the Eddy-Lea county line.

Beyond Nuclear filed its appeal on June 4 in the U.S. Court of Appeal for the District of Columbia, questioning the federal Nuclear Regulatory Commission’s April 23 decision to reject challenges to Holtec International’s application for a license to build and operate a consolidated interim storage facility (CISF) that would hold nuclear waste at the surface until a permanent, deep geological repository was available to hold the waste permanently.

The facility would store up to 173,000 metric tons of the waste.

Such a permanent repository does not exist, and Beyond Nuclear — a non-profit organization that addresses nuclear issues nationwide — worried one wouldn’t be available until 2048.

The group also pointed to another NRC order in October 2018 where the NRC deemed contentions inadmissible but argued against both decisions that it said upheld a regulatory process that violated federal law.

The licensing process itself was illegal, read NRC’s court filing, because it considered the possibility that the U.S. Department of Energy would take ownership of the waste — a move illegal under federal law unless a permanent repository is available to hold the waste.

“This NRC decision flagrantly violates the federal Administrative Procedure Act (APA), which prohibits an agency from acting contrary to the law as issued by Congress and signed by the President,” said Mindy Goldstein, an attorney for Beyond Nuclear.

“The Commission lacks a legal or logical basis for its rationale that it may issue a license with an illegal provision, in the hopes that Holtec or the Department of Energy won’t complete the illegal activity it authorized. The buck must stop with the NRC.”

The NRC responded to this argument in the April decision, contending that Holtec expects the operators of the nuclear plants that send the waste will take title to the waste, unless the DOE is allowed to through a change in federal law enacted by Congress.

“Holtec envisions that its customers will either be nuclear plant operators or DOE, depending on which entity holds title to the spent nuclear fuel,” read the NRC report. “Holtec also acknowledged that it hopes Congress will change the law to allow DOE to enter into temporary storage contracts with Holtec.

“The Board concluded that Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future.”

The NRC also argued that merely issuing a license to Holtec would not violate federal law ahead the potential transfer of ownership of the waste was underway.

But Beyond Nuclear contended that even considering that the federal government could hold title to the waste should disqualify the license application from being reviewed and potentially approved.

Such a move would not only threaten public safety and evade federal law, read a Beyond Nuclear news release, but also cost American taxpayers billions of dollars as the DOE would then have to pay for the storage at the CISF.

Kevin Kamps, radioactive waste specialist at Beyond Nuclear also worried the Holtec could become permanent as previous attempts to build and activate the only project for a final repository at Yucca Mountain, Nevada had been stalled by lawmakers and was unlikely to be completed in the near future.

Holtec’s proposal was challenged by New Mexico state leaders, with Gov. Michelle Lujan Grisham and State Land Commissioner Stephanie Garcia Richard, along with multiple state legislators, voicing oppositions amid the licensing process.

“It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment,” Kamps said.

“But if we ignore it or jettison the law, communities like southeastern New Mexico can be railroaded by the nuclear industry and its friends in government and forced to accept mountains of forever deadly high-level radioactive waste other states are eager to offload.

In a statement, Holtec said it agreed with the NRC’s past decisions to deny the contentions of Beyond Nuclear and other organizations and hoped the company’s license application would continue to receive support in the courts.

Holtec believes that the Atomic Safety and Licensing Board and the Nuclear Regulatory Commission were correct in denying the petitions argument by Beyond Nuclear and the other petitioners having to do with ownership transfer to the federal government of spent fuel to be stored at the HI-STORE facility,” read the statement.

“We will not publicly comment on the various groups or their reasons for their appeals. We are confident that the Court will agree with the NRC’s analysis of Beyond Nuclear’s arguments and deny Beyond Nuclear’s petition.”


Scroll to top