The U.S. Department of Energy has “no authority” under federal law to issue contracts for any commercially operated facility for temporary storage of spent nuclear fuel, Energy Secretary Rick Perry said in a recent letter to a member of Congress.
That runs counter to the business plans laid out by both corporate teams seeking federal regulatory approval for consolidated interim storage facilities (CISF) for used fuel: Holtec International, in Lea County, N.M.; and Interim Storage Partners, a joint venture of Orano and Waste Control Specialists, in Andrews County, Texas.
Holtec said in several iterations of the environmental report for its March 2017 application to the U.S. Nuclear Regulatory Commission that the first phase of construction of its site would begin “after issuance of the license and after Holtec successfully enters into a contract for storage with the U.S. Department of Energy (DOE).”
Interim Storage Partners made a nearly identical statement regarding its contracting plans in its own license application to the federal regulator.
However, both companies have also acknowledged the current legal situation and said they are prepared to do business directly with nuclear utilities that currently own the radioactive waste. That would cut out the Energy Department as the middleman but also likely require a significantly greater number of contracts.
“Under federal law, spent nuclear fuel from commercial nuclear plants can be stored at interim storage facilities such as HI-STORE CISF. What is not permitted is the U.S Department of Energy (DOE) taking title to commercial fuel before there is a repository or before Congress changes the law,” Holtec spokesman Joe Delmar said by email Thursday. “Holtec remains committed to funding the licensing effort of the HI-STORE Consolidated Interim Storage Facility. Once licensed by the U.S. NRC, construction could commence after Holtec successfully secures funding from the U.S. DOE, and/or utilities, or other source(s).”
Interim Storage Partners will contract with the entity that owns the spent nuclear fuel, spokesman Thomas Graham said by email Friday. “Our requirement is that our customers hold legal title.”
The 1982 Nuclear Waste Policy Act (NWPA) made DOE legally responsible for disposal of the nation’s growing stockpile of used fuel from nuclear power plants and high-level radioactive waste. The agency has made little progress toward meeting this directive, despite the Jan. 31, 1998, deadline to begin disposal. It still lacks an NRC license for the planned geologic repository at Yucca Mountain, Nev.
The CISFs have been seen as an option for DOE to meet its legal responsibility before permanent disposal is available. The idea is that the Energy Department would take title to the used fuel, transport it off-site, and then pay one or more companies to store it for a period of decades.
There is now more than 80,000 metric tons of spent fuel stranded at operating and retired nuclear power plants in more than 30 states. That stockpile grows by about 2,000 metric tons per year.
In an Oct. 23 letter to Rep. Deb Haaland (D-N.M.), Perry said the Energy Department remains committed to ending the long impasse on management of spent nuclear fuel.
“Yet, DOE does not play a role in the licensing of private SNF storage sites. Such licensing is solely in the hands of the NRC,” Perry wrote. “Moreover, even if NRC were to license a private SNF interim storage facility, DOE has no authority to contract for SNF storage services with Holtec or any other private storage provider.”
Perry, who has resigned as energy secretary effective Dec. 1, wrote that the prohibition was noted in a May 2019 ruling by an NRC Atomic Safety and Licensing Board (ASLB) on petitions by outside groups to intervene in the Holtec licensing process. He was responding to an earlier letter from Haaland, who opposes the project.
The Energy Department this week did not respond to a query regarding Perry’s letter. However, the former Texas governor appeared to be addressing reference in the Atomic Safety and Licensing Board order to the Energy Department being barred under the NWPA from taking title to commercial used fuel until the permanent disposal repository is ready.
Camden, N.J.-based energy technology firm Holtec is working with a coalition of four local cities and counties in southeastern New Mexico, the Eddy-Lea Energy Alliance, to develop a facility with a maximum storage capacity exceeding 100,000 metric tons of spent fuel. The first phase would cover 8,680 metric tons. The initial 40-year license could be extended up to 120 years.
Interim Storage Partners in 2018 revived a 2016 application for a 40-year license that had been filed solely by Waste Control Specialists, for a new facility to be built on its West Texas waste disposal complex. The Dallas-based company had suspended the project while it sought to preserve its buyout by rival low-level waste disposal provider EnergySolutions, which was ultimately blocked by a federal judge in an antitrust lawsuit filed by the Department of Energy. The project would encompass up to 40,000 metric tons of storage space, starting with licensing for 5,000 metric tons.
Both teams hope for NRC licensing and the beginning of operations by the early 2020s.
The Sierra Club, Beyond Nuclear, and other advocacy groups petitioned the NRC to intervene in both proceedings, citing potential safety, security, and environmental dangers of the storage plans. If approved by a quasi-judicial NRC Atomic Safety and Licensing Board, they would have the opportunity to argue contentions at an adjudicatory hearing.
One argument in both licensings was that the applications must be dismissed as a violation of federal law. Beyond Nuclear, in fact, made that the sole contention against both Holtec and ISP. In nearly identical language, it said the NRC must reject the license requests because their “central premise … that the U.S. Department of Energy (“DOE”) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities—violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened.”
(This contention was rejected in both proceedings. Ultimately, the ASLB partially approved only one contention from the Sierra Club in the Interim Storage Partners licensing. Most of the other groups are appealing the rulings to the full commission.)
Holtec and Interim Storage Partners have acknowledged the law as it applies to used-fuel storage, the Atomic Safety and Licensing Board said in separate orders on the intervention petitions in each licensing. (There were technically separate boards for each proceeding, but they featured the same three members.)
During oral arguments on petitions for hearings on the Holtec application, the company’s counsel said “Holtec has no intention of contracting with DOE to accept most nuclear power plants’ spent fuel unless and until Congress amends the NWPA to make that lawful,” according to the ASLB order from May.
Congress has attempted to do so, without success so far.
The 2019 Nuclear Waste Policy Amendments Act from Rep. Jerry McNerney (D-Calif.) would authorize the energy secretary to site, build, and run at least one “monitored retrievable storage” facility, potentially operated by an NRC-licensed commercial operation. After being advanced out of subcommittee in September, the bill is waiting for consideration by the full House Energy and Commerce Committee.
The same language was included in a largely identical 2017 bill from Rep. John Shimkus (R-Ill.) that was passed out of the House but never got a vote in the Senate. Sen. John Barrasso (R-Wyo.) is also working on a discussion draft of the Nuclear Waste Policy Amendments Act, but it is not clear when he will file it in the upper chamber.
Nuclear utilities paid billions of dollars into the Nuclear Waste Fund, which would pay for construction and operation of the repository for their used fuel. Once the January 1998 deadline passed, they began suing the federal government to recoup costs of continued management of their stranded waste. The government has already paid out more than $7 billion of what could be a liability exceeding $35 billion, according to the Congressional Research Service.
“The nuclear plant owners … might be willing to apply their ongoing damage payments toward paying a private company to store their spent fuel offsite, so that it would no longer be their responsibility to keep onsite and secure,” according to the August ASLB order on the Interim Storage Partners licensing petitions.
That approach, though, would likely involve multiple contracts with separate utilities, rather than Holtec or Interim Storage Partners having a single customer in the Department of Energy.
Holtec and ISP did not say this week how they might handle that business model.
