Fight Over New Mexico Nuke Waste Plan Lands in DC Circuit

The Indian Point nuclear power plant in Buchanan, N.Y. (AP Photo/Julie Jacobson, File)

(CN) — Opponents of a plan to ship highly radioactive nuclear waste from power plants across the U.S. to a site in rural New Mexico elevated their fight Thursday with a lawsuit against the federal regulators considering the plan.

The Maryland-based group Beyond Nuclear claims in a petition for review filed in the D.C. Circuit that the Nuclear Regulatory Commission was wrong to push the group out of earlier regulatory proceedings where opponents tried to challenge a license application for the plan.

A company called Holtec International has asked regulators for permission to build a storage facility for “high-level” nuclear waste in the Chihuahuan Desert region of southeastern New Mexico. Under the plan, the nation’s growing stockpile of used-up nuclear power plant fuel would be shipped to the site and stored there, potentially for decades, until the U.S. finds a more permanent disposal solution.

Beyond Nuclear, the Sierra Club and other opponents have challenged the plan for years, along with a similar proposal just across the state border in Texas, claiming a variety of environmental, health and safety risks.

In New Mexico, Democratic Governor Michelle Lujan Grisham has spoken out against the proposal, though a draft federal review of the plan released earlier this year concluded it would be acceptably safe.

Still, Thursday’s filing in the federal appellate court doesn’t center on environmental concerns. Rather, the lawsuit includes allegations that regulators have violated procedural laws as they consider whether to give Holtec the go-ahead to build the facility.

Specifically, Beyond Nuclear claims that regulators should never have considered Holtec’s proposal for the site in the first place because it mentions the possibility of the company contracting with the Department of Energy to handle the waste. The group claims that would be illegal under current federal law.

“Our arguments will be focused on solely whether an agency is allowed to issue a license with an illegal provision in it,” Mindy Goldstein, an attorney for Beyond Nuclear and professor at the Emory University School of Law, said in an interview.

“The Administrative Procedures Act prohibits agencies from issuing hypothetical or illegal licenses,” she said. “You don’t get to do that. You have to wait for the law to change.”

The group is also challenging the regulators’ handling of the process under the Nuclear Waste Policy Act.

“We generally do not comment on litigation, but will respond in court,” Nuclear Regulatory Commission spokesperson David McIntyre said in an email.

McIntyre referred Courthouse News to the commission’s April decision that dismissed the environmental group from being formally involved in the discussion of whether to approve the plan.

“We disagree with the assertions that the license would violate the NWPA,” the commission wrote at the time.

Holtec did not immediately respond to a request for comment on Thursday’s lawsuit.

Goldstein, the attorney for Beyond Nuclear, suggested that the group may seek to take further legal action against the similar Texas nuclear waste plan if it wins its court battle against the New Mexico plan.

“If we won this Holtec proceeding, and we had the D.C. Circuit say this provision is not allowed, that would absolutely impact the [Texas] proceeding as well,” she said.

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