A panel of three administrative judges at the Nuclear Regulatory Commission on Thursday rejected a motion that it be disqualified from adjudicating the license application for a planned spent nuclear reactor fuel site in West Texas.
The matter now goes to the full commission for a final ruling, according to the memorandum and order from the Atomic Safety and Licensing Board.
In a joint Nov. 26 motion, the Sierra Club and a coalition of environmental groups led by Don’t Waste Michigan said the board should be disqualified because the same judges were appointed to adjudicate the license application for a separate consolidated interim storage facility (CISF) for spent fuel planned for southeastern New Mexico.
“There will be multiple portentous rulings within each separate CISF case,” the groups said in their filing. “It is incumbent that the two adjudications be assigned to separate, non-overlapping ASLB panels to dispel any appearance or suggestion that the complex and controversial decisions in one case are being made, but in shortshrift or summary fashion, by the same judges in the other CISF licensing case.”
In a Dec. 6 response, NRC staff disputed the advocacy groups’ case. Past practice of the Atomic Safety and Licensing Board Panel, from which the three-judge board is drawn, has set a precedent for overlapping memberships in cases “where the proceedings have some commonality,” wrote Sara Brock Kirkwood, counsel for NRC staff.
The three administrative judges – Paul Ryerson, Nicholas Trikouros, and Gary Arnold – echoed that position in rejecting the motion from the Sierra Club and Don’t Waste Michigan group.
“The Moving Petitioners cite no case from any jurisdiction that has ever held assigning cases with some factual or legal similarities to the same judge or judges raises a reasonable question of bias, and the Board is aware of none,” they wrote. “On the contrary, arguments much like the Moving Petitioners’ have been rejected both by another Licensing Board and by the Commission.”
As a means of efficiency, it is standard practice for federal courts to merge cases that offer common issues, the three administrative judges said.
“We’re not surprised by the decision, but given the grave importance and implications of the decisions to be made regarding the [spent fuel storage] applications, believe the Commission should dispel any notion that the decisions made by the ASLB in one case will rather automatically become the determinations in the other,” Terry Lodge, an attorney representing Don’t Waste Michigan, said by email Thursday.
Interim Storage Partners, a joint venture of Orano and Waste Control Specialists, is seeking a 40-year NRC license for a facility with maximum capacity of 40,000 metric tons of spent fuel now held at commercial nuclear power reactors. The storage facility would be built on the WCS waste-disposal property in Andrews County, Texas.
Holtec International has also applied for a 40-year license, though its site in Lea County, N.M., would be designed to hold up to 173,000 metric tons of used fuel.
Both companies hope to open their facilities in the early 2020s. They are a potential means for the Department of Energy to finally meet its mandate from Congress to begin removing spent fuel from nuclear power plants – though the deadline was Jan. 31, 1998. They could hold what is already more than 80,000 metric tons of radioactive material until a permanent repository is ready.
Alongside concerns about the possible dangers of shipping and storing the used fuel, a number of advocacy groups worry that interim storage could become permanent if a final disposal site is never built. Backers of the projects emphasize the domestic safety record of spent fuel operations, the safety and security technology available for shipments, and the economic benefits to be derived from building and operating the new facilities.
The Sierra Club and slightly different configurations of the Don’t Waste Michigan coalition have filed petitions to intervene and hearings in both license proceedings.
In a Dec. 10 recommendation, NRC staff said the Sierra Club should in part be allowed to intervene in the NRC review of the Interim Storage Partners license application but that the Don’t Waste Michigan group failed to show standing or submit viable contentions that would enable it to intervene.
The three-member NRC Atomic Safety and Licensing Board will ultimately decide which groups are allowed to intervene and be granted hearings in the license proceeding. The other petitioners in the Interim Storage Partners licensing are the advocacy group Beyond Nuclear and two oil and gas concerns in the region: Fasken Land and Minerals and Permian Basin Land and Royalty Owners (PBLRO).
In its recommendation, posted to the NRC website on Tuesday, staff said the Sierra Club had shown standing to intervene in the licensing proceeding due to proximity of certain members to the storage location – some less than 6 miles away. Staff said part of two of 15 contentions from the Sierra Club should be admitted.
Staff, though, said the members of the Don’t Waste Michigan joint petition had not shown they will sustain “a concrete and particularized injury-in-fact” that could be linked to the Interim Storage Partners project. On that basis alone the joint petition should be rejected, staff said, though it also disputed the viability of 13 contentions.
The only contentions staff supported in full were requests from each party to adopt the other’s contentions.
Nuclear Regulatory Commission staff previously supported in part the intervention request from Fasken Land and Minerals and the PBLRO and recommended granting the Beyond Nuclear motion. Interim Storage Partners has argued against all such petitions.
On the Holtec project, agency staff has support intervention in part by the Sierra Club and Beyond Nuclear. However, it recommended rejection of similar petitions from the Alliance for Environmental Strategies; the Don’t Waste Michigan group; the Fasken-PBLRO team; and spent fuel storage provider NAC International, which is working on the Texas project.
The Atomic Safety and Licensing Board has scheduled a hearing on the Holtec licensing intervention petitions for Jan. 23 and possibly 24 in Albuquerque, N.M.
