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Nuclear Waste and States Rights

Carol Merrill, Jeff Radford
On Dignity (July 2023)
Healing the World

On March 17, 2023, the last evening of the state’s legislative session this year, the New Mexico House passed Senate Bill 53 (SB 53), sponsored by State Senator Jeff Steinborn and State Representative Matthew McQueen. This bill concerns state oversight of a private company – Holtec – and prevents state agencies from issuing permits for a “temporary” nuclear-waste storage facility in southeast New Mexico, a facility that Holtec wants to build to hold all the nation’s high-level nuclear waste, even though zero nuclear energy plants are sited in New Mexico.

According to the Holtec proposal, highly dangerous radioactive waste would be taken from commercial nuclear energy plants, placed in thin-walled containers, transported by rail across many state lines, and finally dumped in southeast New Mexico. This waste would consist mainly of nuclear fuel rods that had been used to boil water in nuclear reactors to make steam to produce electricity for people in many states, mostly states east of the Mississippi. Holtec International is a private company based in New Jersey.

A good number of New Mexico Quakers wrote letters, made calls, attended meetings, and held decision-makers in the Light – all in support of SB 53. Dozens of organizations worked to pass this bill, a coalition that brought hundreds of people out to demonstrate their opposition to Holtec’s project, which would have turned New Mexico into a nuclear wasteland. Instead, we are still the Land of Enchantment.

New Mexico Governor Michele Lujan Grisham signed SB 53 into law at 8 PM on March 17, 2023 – three hours after the legislature passed it. It went into effect on June 16, 2023. The law provides that no permit may be issued unless the state has consented. Senate Bill 53 includes that provision as well as the provision that no permit may be issued unless there is a permanent repository that is in operation. This bill is similar to a law enacted by the Texas Legislature in 2021.

No local community or state should be required to take full responsibility for the nuclear waste crisis in the United States, a problem that we have created as a nation and which we must resolve as a nation. 100,000 tons of dangerous, highly radioactive, “spent” commercial nuclear fuel is now being stored in the U.S. – “temporarily” – at the power plants where it is being produced. The National Research Council has determined that this nuclear waste will remain dangerous for about a million years.

If it were safe and profitable to operate in this way – for power companies to deplete nuclear fuel rods, then store those spent fuel rods as waste on site – then the owners and shareholders of nuclear power plants would not be so eager to get rid of this dangerous, highly radioactive waste. Since the mid-1970s, power companies in the U.S. have generally avoided building new nuclear power plants, largely because such plants are economically unworkable. Only two new nuclear units are under construction today, and both are additions to the same facility in Waynesboro, Georgia.

Likewise, insurance companies recognize that nuclear power operates on the basis of unacceptable risk. No insurance company exists that is willing to pay for damage from a nuclear accident. If a company that manages a nuclear facility were to go bankrupt, the local community surrounding that facility would become responsible for the nuclear waste left behind and would also become responsible to provide emergency response to any accident.

These risks would be dramatically compounded under Holtec’s scheme to take high-level radioactive waste away from numerous “on site” locations around the country and ship it across many state lines to a single storage facility. In its final environmental impact statement about Holtec’s application to build and operate such a nuclear storage facility in New Mexico, the U.S. Nuclear Regulatory Commission noted that expert assessment of the plan estimated that “thirteen accidents of any severity would be expected to occur over a 20-year period.” Such accidents could be caused by human error, terrorist attacks, or damage to railroads.

In fact, the mere act of transportation might be the worst risk factor in Holtec’s plan. To relocate 100,000 tons of waste would require 10,000 shipments by railroad through major cities, towns, and farmland. Later, presumably, such shipments would continue as long as nuclear power plants were operating.

Ironically, at the same time that the New Mexico Legislature was considering Senate Bill 53, a disastrous and highly publicized train derailment occurred in the city of East Palestine, Ohio, releasing hazardous materials into the air of a densely populated community. Every year, more than a thousand trains derail in the United States. Shipment by rail is clearly not a safe option for highly radioactive materials.

The prospect of radioactive accidents threatens local communities and whole states with environmental and economic disaster. Estimates by New Mexico officials of the financial impact of a serious nuclear accident on the state’s economy concluded that the cost would be in the billions. Due to public perception that products from the state (and possibly the entire state) would be contaminated, the agricultural sector could easily lose $300 million in a year, while the oil and gas sector could lose $3.4 billion in a year. The tourist industry could stand to lose more than $400 million in a year.

Unsurprisingly, the great majority of New Mexican residents oppose Holtec’s plan for nuclear waste storage. This widespread movement has received powerful leadership from the All Pueblo Council of Governors, from the entire New Mexico Congressional Delegation, and from the Office of the Governor of the State of New Mexico. This is not a partisan issue, as is evidenced by similar organizing efforts in Texas.

Because federal law is the law of the land, federal agencies can preempt state laws that conflict with federal laws. And indeed, the U.S. Nuclear Regulatory Commission did grant a license to Holtec on May 9 for their proposed New Mexico facility, despite the state law that passed on March 17 to oppose it. Similar facilities have been licensed in Texas, Nevada, Utah, and Tennessee, but the facilities have not gone into operation.

If Holtec applies for a permit to use land or water in New Mexico and they are denied by the state, a lawsuit could ensue.  Holtec would likely base its arguments on a 2004 ruling by the 10th Circuit Court of Appeals.  New Mexico could rely on a decision in 2019 by the U.S. Supreme Court in Virginia Uranium, Inc. v. Warren. In the meantime, New Mexico law will give state agencies the right to block any permits that could allow Holtec to begin construction on their facility.

The 2011 Fukushima nuclear disaster contained one positive note. Although the plant’s three nuclear reactors were obliterated by meltdowns and hydrogen explosions, the spent fuel rods stored at the site remained undamaged. These spent fuel rods were encased in thick-walled containers – up to nineteen inches thick. There was no release of radiation from the high-level radioactive waste stored at Fukushima, neither during nor after the earthquakes and tsunami.

In no way can a good solution to our nuclear waste problem involve 10,000 shipments of high-level radioactive waste traveling by rail across our country. An important lesson of Fukushima is that humanity’s most important responsibility toward nuclear waste is to keep it from going anywhere. Our task is to improve the means we are using to contain our nuclear waste.  For the next several decades, we should leave the waste where it is, and store it in world-class, thick-walled containers like they have engineered in Sweden and Japan.

Find out what your own public officials are doing to help contain nuclear waste, to oversee the energy sector generally, and to provide some leadership in humanity’s ongoing quest to develop non-extractive sources of renewable energy. Collaborate with local officials when they’re doing the right thing, and let them know when they aren’t. Be sure to thank them when they are doing the right thing. As we’ve learned in New Mexico, broad coalitions can work together effectively to protect our lives and our homeland.

Feel free to get in touch with me, Carol Merrill, at: [email protected]  ~~~

Carol Merrill is a retired librarian, teacher, author and poet. She has two books published by University of New Mexico Press and one by Blackberry Books. Merrill has been a member of several activist groups for decades. She initiated a scholarship for peacemakers at the UNM Foundation. Merrill is a member of Albuquerque Friends Meeting.

Jeff Radford is a retired international journalist who owned and edited Corrales Comment in New Mexico for forty years. He is a long-time ally of Friends in Albuquerque Friends Meeting.

nuclear waste community organizing

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