By John Stang
The activist organization Beyond Nuclear filed an appeal Thursday in federal court in hopes of overturning two orders from the Nuclear Regulatory Commission that have kept a proposed spent fuel storage facility on track in New Mexico.
Beyond Nuclear’s filing in the U.S. Court of Appeals for the District of Columbia Circuit targets the NRC’s rejections on Oct. 29, 2018, and April 23 of this year of filings against the license application from Holtec International and the Eddy-Lea Energy Alliance to build and operate the consolidated interim storage facility in Lea County.
The regulator’s decisions “violated the Nuclear Waste Policy Act and the Administrative Procedure Act by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility,” according to the filing from the Takoma Park, Md., organization.
The Beyond Nuclear petition for review asks the court to overturn the 2018 and 2020 decisions, and to halt the NRC’s review of Holtec’s license application. Holtec and the NRC declined Friday to comment on the appeal.
Holtec plans to build the facility on 1,000 acres of land provided by the Eddy-Lea Energy Alliance, a coalition of the cities of Hobbs and Carlsbad and Lea and Eddy counties. The New Jersey-based energy technology firm in March 2017 applied for the federal license to take in 8,680 metric tons of used nuclear fuel for up to 40 years. The facility, with further NRC approvals, could hold more than 100,000 metric tons for up to 120 years.
Beyond Nuclear was one of several advocacy groups and commercial concerns that opposed licensing the below-ground storage operation, along with a smaller facility planned by the Interim Storage Partners joint venture just across the border in Andrews County, Texas. Many of the same organizations filed petitions to intervene in both license applications.
Opponents contend the proposed New Mexico facility could leak radioactive contaminants into the groundwater in an oil-producing region, and that there is too great of a risk of accidents involving radioactivity as hundreds of spent fuel canisters are transported by rail and trucks across the nation to Lea County. They are also afraid the two proposed interim facilities could become permanent if the federal government never meets its congressional directive to build a geologic repository for used fuel and high-level radioactive waste.
There is now over 80,000 metric tons of radioactive spent fuel stored around the nation, which is growing by about 2,000 metric tons per year. The Department of Energy is required to dispose of the material under the 1982 Nuclear Waste Policy Act.
In October 2018, the NRC rejected separate motions from Beyond Nuclear and regional energy concerns Fasken Land and Minerals and and Permian Basin Land and Royalty Owners to dismiss the Holtec and Interim Storage Partners license applications. The decision was procedural, according to the order from Secretary of the Commission Annette Vietti-Cook: NRC “regulations do not … provide for the filing of threshold ‘motions to dismiss.’”
In May 2019, a three-member NRC Atomic Safety and Licensing Board rejected all petitions for intervention by Beyond Nuclear, the Fasken team, the Sierra Club, and other organizations. If approved, the organizations would be able to argue contentions against licensing at an NRC adjudicatory hearing. In the April decision in question, the four serving NRC commissioners rejected nearly all appeals of the Atomic Safety and Licensing Board ruling – including that from Beyond Nuclear.
Beyond Nuclear’s contention before the NRC was based on the Nuclear Waste Policy Act’s language that used fuel must be under federal ownership before it can be moved from the reactors of origin, and that cannot happen until a permanent storage repository is available. That facility does not exist, and the Trump administration this year has given up on the federal government’s latest attempt to resume the long-frozen licensing for the repository under Yucca Mountain, Nev.
The federal Administrative Procedure Act further disallows any action by a federal agency “not in accordance with the law” or “in excess of statutory jurisdiction, authority, or limitation,” according to Beyond Nuclear. Holtec responded that it could just contract directly with nuclear utilities to take their used fuel, a position accepted by the Atomic Safety and Licensing Board and the commission.
At the heart of Beyond Nuclear’s appeal is the NRCs admission that it would indeed be illegal under the Nuclear Waste Policy Act for the Energy Department to itself ship the spent fuel directly to the Holtec facility.
“Our claim is simple,” Beyond Nuclear attorney Diane Curran said in a press release. “The NRC is not above the law, nor does it stand apart from it.”
In a related matter, the NRC has scheduled a webinar for 3 p.m. Mountain time on June 23 on agency staff’s draft environmental impact statement for the proposed Holtec facility. In the March 10 document, staff preliminarily recommended licensing the facility.
The agency is accepting public comments on the draft EIS through July 22. The final version is expected next March, followed by the NRC’s decision on the license application. Holtec hopes within a couple years afterward to begin operations.
