A panel of administrative judges at the U.S. Nuclear Regulatory Commission on Tuesday rejected all petitions for an evidentiary hearing to contest Holtec International’s license application for a spent nuclear fuel storage facility in southeastern New Mexico.
The three-member Atomic Safety and Licensing Board (ASLB) ruled that only three of six petitioning groups proved they had standing to participate in a hearing. But none of the roughly 50 contentions filed by all of the organizations made the cut, leaving the issue of standing moot.
“The judges held that the contentions either were not relevant to the application or did not establish a genuine dispute with aspects of the application,” the NRC said in a press release.
All the organizations have until June 3 to appeal the decision to the commission itself. They could then further appeal a negative decision by the commission in federal court.
Following the ruling, Holtec said it remains on track for a 2020 decision from the NRC’s Office of Nuclear Material Safety and Safeguards on its March 2017 application for a 40-year license to store 8,680 metric tons of used fuel underground in Lea County, N.M. With regulatory approval and license extensions, the facility ultimately could hold up to 173,000 metric tons for as long as 120 years. Holtec hopes to begin operations by 2022.
The petitioning groups challenging the license application, broadly on legal, environmental, and safety grounds, were: the Sierra Club; Beyond Nuclear; a coalition of environmental organizations led by Don’t Waste Michigan; the Alliance for Environmental Strategies; local oil and gas interests Fasken Land and Minerals and Permian Basin Land and Royalty Owners; and used fuel storage company NAC International, which is supporting a separate license application for a storage facility in West Texas.
“That decision we feel is incorrect, so Beyond Nuclear will challenge that before the Nuclear Regulatory Commission,” attorney Mindy Goldstein, director of Emory University’s Turner Environmental Law Clinic, told RadWaste Monitor on Tuesday.
The Takoma Park, Md., nongovernmental organization has also sued in U.S. Court of Appeals for the District of Columbia Circuit to quash the entire license application.
An attorney for the Sierra Club declined to comment Tuesday on the ASLB ruling, while the other petitioners did not respond to queries.
An NRC spokesman this week could not say how long it might take for the commission to rule on any appeals of the board decision. If any of the groups are authorized to intervene as parties to the licensing proceeding, some of their contentions could be included as NRC directives.
There is now roughly 80,000 metric tons of used nuclear fuel stored on-site at active and retired nuclear power plants in more than 30 states. Congress in the 1982 Nuclear Waste Policy Act gave the Department of Energy until Jan. 31, 1998, to begin taking that waste for disposal. That has yet to happen. In the absence of a permanent repository, consolidated interim storage has been viewed as an option for DOE to finally meet its legal mandate.
The Holtec HI-STORE consolidated interim storage facility would be built on 1,000 acres of land provided by the Eddy-Lea Energy Alliance, a coalition of Eddy and Lea counties and the cities of Carlsbad and Hobbs. It would hold used-fuel canisters at a maximum depth of 25 feet underground, according to the 142-page ASLB report.
After the NRC last year began its formal technical review of the license application, the agency in July invited organizations to file their petitions for intervention. To become parties to the licensing proceeding, the groups were required to demonstrate standing by proving they would be impacted by the proceeding and filing contentions that should be considered during the process.
“The Board concludes that Beyond Nuclear, Sierra Club, and Fasken have demonstrated standing,” the three administrative judges wrote in their order. “However, the Board denies Beyond Nuclear’s petition, because its sole contention no longer identifies a genuine dispute with Holtec’s license application. Likewise, neither Sierra Club nor Fasken has proffered an admissible contention and their petitions are therefore denied.”
Along with pursuing hearings, Beyond Nuclear and the Fasken-Permian Basin duo separately requested the commission dismiss the license application based on the argument that it would violate the Nuclear Waste Policy Act. The commission rejected those requests, and Beyond Nuclear then took its case to the U.S. Court of Appeals for the District of Columbia Circuit.
The legal argument, which Beyond Nuclear and other petitioners also raised in their hearing petitions, is that the Nuclear Waste Policy Act directs the Energy Department to take title to spent fuel from power plants only when a permanent repository is available. Assuming DOE would be Holtec’s direct customer, it could not legally take title to the material to ship it to interim storage, according to the petitioners.
At oral arguments on the intervention petitions in January, Holtec’s representative acknowledged the law as it stands. But the company said it would not contract directly with the Department of Energy until Congress updates the 1982 law to allow that for interim storage. Instead, its intention is to contract directly with nuclear power plants that today own the spent fuel.
The Atomic Safety and Licensing Board said Holtec has updated its application to make clear that its customers could be the Energy Department or the nuclear power companies. Referrals to DOE in the document do not in themselves represent a violation of law, according to its ruling. The administrative judges said they trust Holtec to carry through with its pledge not to contract with the Energy Department for spent fuel storage in contravention of the Nuclear Waste Policy Act.
“Holtec, Beyond Nuclear, and the NRC all agree that a fundamental provision in the Holtec application violates the Nuclear Waste Policy Act,” Goldstein said in a Beyond Nuclear press release. “Today, the Licensing Board decided that the violation did not matter. But, the Board cannot ignore the mandates of federal law.”
The members of the Eddy-Lea Energy Alliance, both individually and together as the organization, also requested to join the licensing proceeding as interested local government bodies. Having rejected all hearing petitions, the ASLB also rejected the governmental requests “as moot.”
Having completed the Holtec proceeding, the same three-judge Atomic Safety and Licensing Board on Tuesday tentatively scheduled oral arguments for intervention requests for Interim Storage Partners’ license application for a storage facility in Andrews County, Texas.
The company, a joint venture of Orano and Waste Control Specialists, plans to store up to 40,000 metric tons of used fuel. The June 2018 license application is an updated version of the application filed previously in 2016 solely by Waste Control Specialists, and the site would be built on the company’s waste disposal complex.
The petitioners are similar to those for the Holtec license application: Beyond Nuclear; Permian Basin Land and Royalty Organization and Fasken Land and Minerals; the Sierra Club; and a reconfigured Don’t Waste Michigan coalition.
Oral arguments are expected to be held on July 11 and possibly 12 at the Lubbock County, Texas, Courthouse, according to a board memorandum. However, the ASLB is accepting input through May 20 on other potential locations, which could include NRC headquarters in Rockville, Md.
