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The passage of SB 53, Storage of Certain Radioactive Waste, marked a significant step forward in New Mexico determining its own nuclear future. Before this bill, our state was subjected to federal nuclear authority without robust regulatory power of its own. Now any proposals for the disposal or storage of spent nuclear fuel in New Mexico must receive the state’s consent and be issued the necessary permits before moving forward. 

Southeastern New Mexico already hosts the underground Waste Isolation Pilot Plant (WIPP). WIPP is an “interim” nuclear waste storage facility that has already been in operation for more than 20 years. Several accidents at WIPP have released radioactive materials and tunnel sections in which material is stored have collapsed. Fracking in the region has dramatically increased earthquake activity, heightening fear that underground storage will not be safe.

The passage of SB 53 was timely. A private company, Holtec International, plans to build another “interim” storage facility in New Mexico (and on May 9th, 2023, received a permit to do so from the federal Nuclear Regulatory Committee). This proposed site would collect high-level nuclear waste from production sites nationwide. Any such facility will likely become permanent due to the immense cost and risk of removing, transporting, and storing radioactive material. 

SB 53 amended the composition of the state’s radioactive waste consultation task force. That body was expanded to include the secretaries of Homeland Security and Emergency Management, Indian Affairs, and the Commissioner of Public Lands. These new members join the secretaries of the Energy, Minerals, and Natural Resources, Health, Environment, Public Safety, and Transportation  departments. This task force is now more representative of New Mexico and our diverse communities, while also holding more comprehensive regulatory power.

More importantly, SB 53 sets two conditions for radioactive waste storage in New Mexico: the state must agree to any radioactive waste facility here, and for high-level waste, the federal government must have an operating permanent repository somewhere. This creates another means by which New Mexico can limit the construction of new waste facilities. 

Some concerns around preemption of state law by federal law were raised during the passage of the bill. Specifically, some critics claimed that SB 53 would be preempted by the federal Atomic Energy Act, meaning that New Mexico would not have the authority to deny Holtec’s ability to create their proposed repository if the Nuclear Regulatory Commission (NRC) issued them a permit. 

Fortunately, in Holtec’s Environmental Report filed with the Nuclear Regulatory Commission in November of 2020, Holtec explained that it would be required to comply with state environmental permitting programs administered by the New Mexico Environment Department. Those permits would govern protection of surface water, drinking water, ground water, and air quality. Further, Holtec also asserted that they would have to comply with New Mexico’s requirements governing pollution prevention, waste management, historic and archeological resources, and access to the proposed Holtec site.

Even stronger support of the legal basis of SB 53 came from the NRC in its Environmental Impact Statement concerning the proposed Holtec project, in which the Commission stated: 

“In addition to obtaining an NRC [Nuclear Regulatory Commission] license prior to construction of the proposed CISF [Holtec] project, Holtec is required to obtain all necessary permits and approvals from other Federal and State agencies during construction and operation of the proposed facility.”

Given this information, it is likely that New Mexico is on solid footing for the enforcement of SB 53. When it comes time to engage in negotiations with the federal government about the future of nuclear waste in the state, New Mexicans will not be left out of the discussion. This robust regulatory authority is precisely what New Mexico needs in order to ensure the health and safety of its lands and people.