The Sierra Club will be allowed to argue one environmental contention against U.S. Nuclear Regulatory Commission licensing of a facility in West Texas for temporary storage of spent reactor fuel from nuclear power plants.
An NRC Atomic Safety and Licensing Board (ASLB) ruled on Aug. 23 that the environmental organization had proved standing for intervention and an adjudicatory hearing in the licensing proceeding. However, it allowed just one of 17 contentions filed by the Sierra Club last November and barred other groups from intervening.
Attorneys for the organizations uniformly said this week they would appeal the ASLB decision to the full commission.
Interim Storage Partners is a joint venture of Waste Control Specialists and the U.S. branch of French nuclear company Orano (formerly AREVA). In June 2018 it applied for a 40-year NRC license to store 5,000 metric tons of spent fuel on the Waste Control Specialists disposal complex in Andrews County. The facility is designed for up to 40,000 metric tons and, with extensions in the license, could operate for as long as 120 years.
The storage site, along with a competing project planned by Holtec International nearby in southeastern New Mexico, could enable the Department of Energy to finally meet its legal mandate to remove used fuel from nuclear power plants. Under the 1982 Nuclear Waste Policy Act, the federal agency was supposed to have started that process by Jan. 31, 1998.
The Sierra Club was among a group of environmental, anti-nuclear, and energy concerns that filed to intervene in the licensing proceedings for both sites, raising concerns about the potential ecological, safety, and economic dangers posed by the used fuel operations.
That required them to prove standing, based on the impact to the organization or its members, along with meeting the multipart requirement for submitting “admissible” contentions, including that the issue is within the scope of the matter at hand and that there is “genuine dispute … on a material issue of law or fact.”
The three-member, quasi-judicial Atomic Safety and Licensing Board said the Sierra Club had proved standing to intervene because one of its members lives within 6 miles of Interim Storage Partners’ storage site. In its accepted contention, the group asserted that the environmental report included in the license application from Interim Storage Partners insufficiently considered what impact the storage site might have on the habitats of the dune sagebrush and Texas hound lizards, according to an Aug. 23 press release from the NRC.
Specifically, according to the contention, there is “no discussion of any studies or surveys to determine if the species are present and the impact of the project on those species. Therefore, the [Environmental Report] is inadequate in describing the affected environment.”
The Atomic Safety and Licensing Board in part accepted the “contention of omission” – that five references used in the license application to address the lizards situation are not described in full in the environmental report and almost certainly cannot be found by the public.
The Sierra Club will now be able to present this case in an adjudicatory hearing before the ASLB, though the hearing had not been scheduled as of Friday. If the contention is accepted, Interim Storage Partners would have to modify the environmental report to address the insufficiencies, said Wallace Taylor, an attorney representing the Sierra Club.
Taylor told RadWaste Monitor the organization expects to appeal the board’s rejection of four to five of the “stronger” contentions, though he could not say which ones those were. Among the other contentions: the NRC is not authorized by law to license the facility; the environmental report does not support Interim Storage Partners’ case that consolidated storage of used fuel is safer and more secure than keeping the material at nuclear power sites; and additional evaluation of earthquake dangers in environmental reports are needed.
The appeal is likely to be filed once the contention regarding the dune sagebrush and Texas hound lizards is resolved, according to Taylor.
The panel also found that a number of other groups had demonstrated standing to intervene during oral arguments in July, but had not submitted admissible contentions, making the point moot. Those petitioners were Beyond Nuclear; the Sustainable Energy and Economic Development (SEED) Coalition; and regional oil and gas concerns the Permian Basin Land and Royalty Organization (PBLRO) and Fasken Land and Minerals. The SEED Coalition was one of several environmental organizations led by Don’t Waste Michigan that jointly filed for a hearing; the other members did not prove standing, according to the licensing board.
Attorney Terry Lodge said the Don’t Waste Michigan coalition would also appeal. The board largely rejected its case for standing, which was based on members’ proximity to used fuel transport routes rather than the storage site. Only the SEED Coalition made that cut, with a member living roughly 5 miles away. All 15 of the coalition’s contentions – one of which was taking up all of the Sierra Club’s contentions – were also dismissed.
The group has not determined which contentions it will appeal, Lodge said. But it believes all of its members have standing to intervene.
Beyond Nuclear issued a fiery press release indicating its plan to appeal. As with the others, the group proved standing by having a representative who lives just a few miles from the ISP site.
Unlike its peers, though, the Takoma Park, Md., organization filed just one contention: That the license application must be dismissed because it would violate language in the 1982 Nuclear Waste Policy Act that requires a permanent repository be available before the Energy Department can take title to spent nuclear fuel. There is no repository today.
The Atomic Safety and Licensing Board noted that Interim Storage Partners agrees this is the law, but that it is holding open the option of doing business directly with the nuclear power companies that now have the used fuel. “As the Commission instructs us, ‘the NRC is not in the business of regulating the market strategies of licensees or determining whether market strategies warrant commencing operations,’” the board said in its order.
“ISP, Beyond Nuclear, and the NRC all agree that a fundamental provision in the ISP application violates the Nuclear Waste Policy Act. Now, the Licensing Board decided that the violation did not matter. But, the Board cannot ignore the mandates of federal law,” Mindy Goldstein, an attorney representing Beyond Nuclear, said in the release.
The Fasken-PBLRO group proved standing on the basis of Fasken having property and employees in the area, but the ASLB axed all of its contentions. Fasken had also argued the issue of the law under the Nuclear Waste Policy Act and five other contentions.
“Both Fasken and the Coalition are committed to President Trump’s goal of American energy independence, which is bolstered by the Permian Basin’s oil production,” Fasken attorney Monica Perales said by email Thursday. “For that reason and our more particular objective of protecting our business interests, and the safety and welfare of the people of the Permian Basin, we will not give up. “
Interim Storage Partners itself suggested it might appeal the single admitted contention. It opposed all intervention petitions.
“We are reviewing the decision and will decide on next steps,” the joint venture said in a statement Wednesday. “While we may provide additional clarifying information as the proceedings continue, we know the public can and should have confidence as a result of this process and in the safety and security of our proposed consolidated interim storage facility.”
The same three-member board in May rejected all petitions for intervention and hearings from a set of nongovernmental groups in licensing of Holtec International’s plans for consolidated spent fuel storage in Lea County, N.M. That facility would start with a 40-year license for 8,680 metric tons of material, but its capacity could ultimately exceed 100,000 metric tons.
The petitioners in that case were: Beyond Nuclear; the Sierra Club; Fasken-PBLRO; a slightly different Don’t Waste Michigan team; the Alliance for Environmental Strategies; and used fuel management company NAC International, which is working on the West Texas project. All parties but NAC International have appealed.
The petitioners said they did not anticipate quick decisions from the commission, possibly not until 2020, Lodge said.
“The NRC moves at a deliberate pace,” Taylor said.
The NRC expects to complete its full technical review of the Interim Storage Partners license application by May 2021, a delay from the prior schedule of August 2020. The Holtec review is due for completion by March 2021, pushed back from July 2020. Both companies hope to begin operations within a couple years of licensing.
