When it comes to radioactive waste in New Mexico, the head of the state’s environment department thinks the buck should stop — or really, start — with him.
“This is the state to which things have been sent to. We are adamant that we will be the state that is first consulted with,” James Kenney, cabinet secretary for the New Mexico Environment Department (NMED), told RadWaste Monitor this week in a video interview.
The Land of Enchantment has long played host to nuclear weapons and waste programs, most notably at the crucible of nuclear science, Los Alamos National Laboratory, and the Waste Isolation Pilot Plant (WIPP) in Carlsbad, New Mexico: so far, the only permanent, deep-underground nuclear-waste repository in the U.S.
Lately, the state has also become one two proposed locations for a federally-licensed, commercially-operated, consolidated interim storage facility (CISF). Intended as a bridge to a permanent repository, these facilities could temporarily house some of the spent nuclear fuel currently stuck in limbo at nuclear power plants across the country.
But not if Kenney has anything to say about it.
Since Gov. Michelle Lujan Grisham (D) took office in 2019, New Mexico has taken a hard line against efforts to increase the amount of radioactive waste disposed of in the state, whether by slowly scrutinizing any change to WIPP operations or by maneuvering to block spent fuel from entering the state.
In March, state attorney general Hector Balderas filed suit against NRC, saying among other things that the federal government cannot take title to spent nuclear fuel from power plants unless a permanent repository exists — and, thanks to political intransigence about Yucca Mountain, none does.
At the same time, Grisham’s cabinet is negotiating an extension of DOE’s license to operate WIPP for another quarter-century — an essential part of the agency’s plan to clean up, as much as that’s possible, waste generated by decades of nuclear-weapons production during the arms race with the Soviet Union.
On top of all that, and in what has almost become a rite of passage for New Mexico governors, the state wants changes to the agreement with DOE that sets the rules for cleaning up waste from Manhattan Project and Cold War weapons programs at Los Alamos. The current consent agreement, negotiated under Grisham’s predecessor, wasn’t getting the job done, the powers in Santa Fe say now, and so the state has taken DOE to court over the matter.
Amid these live wires, Kenney and his deputy, Rebecca Roose, sat down this week with RadWaste Monitor for a 30-minute interview.
RadWaste Monitor: How is NMED working with NRC and Holtec on licensing of the company’s proposed interim storage site in the southeastern part of New Mexico?
Kenney: We’re not in the business in New Mexico of looking to bring the nation’s spent nuclear fuel to our state [but] I’m going to say this isn’t the site.
I don’t know if there’s a better site. That is up to, apparently, a private company and the federal government to make that determination and convince the hosting state that they’ve done their due diligence. Beyond science, and as a policy matter, we will say no: New Mexico doesn’t have the right site.
When we came into the administration in 2019 the Holtec process was [already] underway. [W]e asked the NRC if we could be a cooperating agency under NEPA [the National Environmental Policy Act]. We secured that position and worked on groundwater and surface water issues. It was a beneficial process for both the department as well as, I think, the NRC. But at this point in time, we don’t believe that the NRC has addressed or can address a significant number of our concerns.
I’ve personally met with Holtec multiple times, as has the rest of the cabinet. We’re very interested in understanding … what impact they would have from their core operations and operations associated with the facility, like the kinds of permits they would need.
It’s been a cross-cabinet effort, not just the environment department.
Which of NMED’s concerns about the proposed Holtec site can the NRC address? And what can’t the NRC address?
We’ve pointed this out: you can’t fix the wrong site, and it’s the wrong site.
We’ve also said that what NRC talks about as a full evaluation process isn’t a full evaluation. Otherwise, they would use science the way that we are and indicate that it is the wrong site.
I’ll let Rebecca jump in and sort of give a high level view of what the concerns are.
Roose: We’ve looked at the [NRC’s] draft EIS [environmental impact statement for the Holtec facility] in our reviews through the lens of all of our regulatory programs at the agency, but we’ve taken a deeper dive around groundwater and surface water quality, in part because of the cooperating agency status that we have.
We’ve had concerns about the level of analysis of existing surface water bodies in the vicinity of the facility and the analysis of the groundwater hydrology. In our review, we found that the EIS lacked an adequate conceptual hydrologic model for the site on which many other aspects of the environmental review should flow from.
Something that maybe the NRC would not be able to address through a NEPA process, or even their safety review process, is the siting of the facility. Southeastern New Mexico is the highest oil and gas producing region in the world with very active oil and gas extraction activities and underground injection activities that can potentially affect seismicity in the area.
We also look at the potential siting of a facility like the Holtec CISF in that location and what we see is potentially not really a short term or temporary storage facility. That’s another one of our concerns: the potential for this to go on for generations.
Is NMED involved in the ongoing suit against the NRC about spent fuel that was filed by the New Mexico attorney general?
Kenney: No, we are not party to that suit. I will say that we in the administration support the agency’s efforts to prevent a spent nuclear fuel facility like Holtec’s from opening in the state of New Mexico, but strictly speaking, we at NMED are not party to that suit.
Our mission is to protect public health and the environment. Where we don’t have regulatory authority is around spent nuclear fuel outside of my department. That doesn’t mean that we forgo our mission of protecting public health in the environment, which is why we are involved and adamant about commenting on the EIS, where science-based, engineering-based technical people will understand us. But our regulatory authority doesn’t allow us to get involved in the case.
In the Texas legislature last month, during debate on a proposed state-level ban on high-level nuclear waste storage, opponents said the ban wouldn’t stop the feds from licensing an interim storage site in Texas. Is that something you’re concerned could happen in New Mexico?
Yeah, I think it’s absolutely something we’re concerned about. Whether you’re talking about Holtec and the inappropriate site selection for the scientific reasons we mentioned, or whether you’re looking at it from the the governor’s and executive agency’s perspective, this will not only disrupt our economy, but this could potentially cause public health and human health issues for generations to come, through transport and storage or repackaging container issues. I mean, I could go on and on.
It’s Congress that maintains the authority here to work with their executive agencies on the siting of spent nuclear fuel. We in New Mexico believe that we should have more say and more rights in this process.
These are long term siting and storage projects. Governors change every four to eight years, and when these processes last longer than that, it doesn’t always give states the ability to come back and make other decisions that are different than a prior governor’s decision as science evolves and as we learn more.
And that’s exactly what happened here. Holtec was moving forward under the prior administration, then this administration came in speaking for the people of New Mexico and said ‘no,’ and that’s where we are now.
But, the wheels started turning because Congress allowed them to do that in the prior administration. I think we’re going to see more of these problems, not just here in New Mexico. This is a bigger issue than just New Mexico.
I’d like to turn to some of DOE’s sites in New Mexico. What’s the timeline on a hearing or any state action regarding the agency’s request for a WIPP permit renewal?
I’m a decision maker on that permit or any permanent modifications. So for me to speak to that, while we’re in the midst of petition hearings would be theoretically an ex parte conversation, or your question could bias my decision making.
Alright, let’s discuss Los Alamos instead. Does the state still want to terminate the entirety of the 2016 consent decree, or do you think parts of the original agreement are still salvageable?
I think the answer to that is just simply that it has to be functional. We have to have a final date by which cleanup will occur. We have to have real milestones that aren’t based on appropriations by Congress or the inability or ability to spend money, and we have to have enforcement-based outcomes from missing deadlines. There are aspects of the existing consent decree that fulfill those goals, and there are aspects that don’t.
So, you could potentially leave parts of the agreement intact or you could scrap the whole thing, but that’s not what’s really important to you?
Yeah, I think what’s most important are those three components that I mentioned.
Thanks so much for your time and for your insight.
One parting comment that I’d like to make is that whether we’re talking about DOE or NRC action, New Mexico’s always thought about the destination. We’re the point of origin, in the sense that anyone who has eyes on New Mexico with any kind of defense waste, radiological waste or spent nuclear fuel needs to start by meeting with myself, the cabinet and the governor before they ever talk to any other state governor, any other legislator or any other congressional person.
This is the state to which things have been sent to. We are adamant that we will be the state that is first consulted with. So, there is no Holtec discussion out of New Jersey without first talking to this state. I think that’s a paradigm shift for the country. And we’re here, and we’re going to be heard, and we’re going to be respected on behalf of New Mexicans.
