By John Stang
A coalition of environmental organizations on Wednesday petitioned a federal appeals court to overturn a Nuclear Regulatory Commission decision against several challenges to a proposed consolidated interim used nuclear fuel installation in southeastern New Mexico.
This is the second lawsuit from organizations that say the agency has unlawfully prevented them from intervening in the licensing proceeding for Holtec International’s planned storage facility in Lea County.
On April 23, the commission rejected nearly all appeals from several groups to the May 2019 order from an NRC Atomic Safety and Licensing Board against holding any adjudicatory hearings on the license application.
A group of seven organizations led by Don’t Waste Michigan had asked the commission to reconsider its case for standing to intervene in the proceeding and eight of its contentions, which if approved could be argued at the hearing. Among the issues raised were insufficient assurance of funding for the Holtec project, potential undercounting of the volume of low-level radioactive waste, and insufficient disclosure on the routes the used fuel would travel on the way to New Mexico.
The four commissioners ruled against all eight contentions, which made the standing issue moot. In a petition for review, the Don’t Waste Michigan coalition is asking the U.S. Court of Appeals for the District of Columbia Circuit to reverse the commission decision and order the NRC to dismiss the license application.
The complaint says the NRC “wrongfully and unlawfully” denied the groups’ right to intervene in the licensing proceeding in breach of the Atomic Energy Act, Nuclear Waste Policy Act, and Administrative Procedure Act. At the heart of the claim for all three laws is the position that the 1982 Nuclear Waste Policy Act requires that the Department of Energy take title to any used fuel for transport, but that is allowed only once a permanent federal repository is built.
The agency also incorrectly applied those laws and the National Environmental Policy Act in determining that none of the contentions were admissible, according to the filing.
“The proposal to transport high-level radioactive waste to a poor community of color in southeast New Mexico as a ‘temporary’ storage solution is dangerous and irrational. San Luis Obispo Mothers for Peace advocates for storing waste at or as close as possible to the site of generation until a science-based permanent solution can be determined,” Molly Johnson, a board member for the California organization, said in a press release announcing the lawsuit.
The proposed installation would be built in western Lea County, near the border with Eddy County. According to 2019 federal census estimates, Lea County is 35 percent white and Eddy County is 46 percent white.
The other members of the Don’t Waste Michigan coalition are Citizens for Alternatives to Chemical Contamination in Michigan; Citizens’ Environmental Coalition in New York: Nuclear Energy Information Service in Illinois; Nuclear Issues Study Group in New Mexico; and Public Citizen in Texas and Washington, D.C.
Holtec, an energy technology company based in Camden, N.J., filed its license application in March 2017 for just-underground storage of 8,680 metric tons of spent fuel for 40 years. With further approvals from the NRC, that could be expanded up to 120 years and in excess of 100,000 metric tons of material.
The regulator is expected next year to rule on the license application. However, the exact schedule is in flux – last week, the NRC added two months to the public comment period for its draft environmental impact statement on the Holtec facility. Since the document was issued in March, the public comment period has been extended from May 22 to July 22 and now to Sept. 22, due to the impact of the COVID-19 pandemic. The regulator had planned to complete the environmental impact statement next March, but is now assessing that timeline.
Orano and Waste Control Specialists have partnered for a smaller storage project, with a 40,000-metric-ton maximum capacity, just across the state line in West Texas.
The Nuclear Regulatory Commission declined to comment on the lawsuit.
“Holtec believes that the Atomic Safety and Licensing Board and the Nuclear Regulatory Commission were correct in denying the arguments by Don’t Waste Michigan to become a party in the licensing proceeding,” spokesman Joe Delmar said by email.
The organization Beyond Nuclear on June 4 also filed an appeal with the same federal court against the NRC’s rulings against its challenges to the Holtec project. Its argument are similar to those laid out by Don’t Waste Michigan.
The Takoma Park, Md., group also wants the court to order a halt to the NRC license review, and to overturn two orders from the commission: the 2018 rejection of a petition to dismiss the applications for both spent-fuel storage applications and the April 2020 decision against the appeals from Beyond Nuclear and the other organizations of the Atomic Safety and Licensing Board ruling last year.
