The Nuclear Regulatory Commission on Monday denied two groups’ petitions for dismissal of license applications for interim spent fuel storage facilities in Texas and New Mexico.
“The NRC’s regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application. These regulations do not, however, provide for the filing of threshold ‘motions to dismiss’ a license application; instead, interested persons must file petitions to intervene and be granted a hearing,” Annette Vietti-Cook, secretary to the commission, wrote in her order.
The nongovernmental group Beyond Nuclear on Sept. 14 called on the NRC to automatically reject the applications from Holtec International for its planned facility in southeastern New Mexico and from an Orano-Waste Control Specialists partnership for a smaller site just across the state border in West Texas. On the same day, the regional oil and gas concerns Fasken Land and Minerals Ltd. and Permian Basin Land and Royalty Owners filed similar dismissal petitions.
The groups emphasized the potential risk in shipping tens of thousands of tons of radioactive waste to the sites, then storing it for decades. However, their primary legal argument was that the facilities will make the Department of Energy responsible for transport and storage of the spent fuel, but that the 1982 Nuclear Waste Policy Act allows that only when a permanent repository is ready.
There is no such facility — the interim sites are seen as a means for DOE to meet its legal mandate to remove the used fuel from nuclear power reactors until it builds the disposal facility.
Diane Curran, an attorney representing Takoma Park, Md.-based Beyond Nuclear, said Tuesday the organization is considering whether to appeal the NRC decision to a federal court. Under the Hobbs Act, the deadline for an appeal is 60 days after the ruling. “We’re going to take the time that we need,” Curran told RadWaste Monitor.
There was no immediate comment this week on the ruling from Fasken Land and Minerals, which has expressed concerns about the impact of the spent fuel sites on its oil and gas operations in the region.
Vietti-Cook emphasized that her ruling was strictly procedural, not addressing the legal case raised by the challenges to used fuel storage. That means the issue can be raised by Beyond Nuclear and other groups in the separate process for petitioning the NRC for intervention and hearings on the applications.
Vietti-Cook referred all petitions on the Holtec application for consideration by a board of the NRC’s Atomic Safety and Licensing Board Panel. On Wednesday, Board Panel Chief Administrative Judge Edward Hawkens established a three-judge board to preside over the Holtec licensing proceeding. The judges will decide which organizations are allowed to intervene.
A decision on the process for ruling on contentions to the Orano-Waste Control Specialists application would be made following the extended filing deadline of Nov. 13.
Holtec International in March 2017 submitted its license application for a 40-year license initially covering storage of 8,680 metric tons of spent fuel. The storage site in Lea County would have a maximum capacity of about 173,000 metric tons. The company hopes to open the facility by 2022.
The Orano-Waste Control Specialists team, under the title Interim Storage Partners, in June submitted its application for a 40-year license initially covering 5,000 metric tons. The facility would be built on the 14,900-acre WCS waste disposal complex and would have a maximum capacity of 40,000 metric tons of spent fuel. The application is a lightly updated version of the document presented to the agency in 2016 by Waste Control Specialists under its previous management. That proceeding was frozen for more than a year while the company tried to complete its acquisition by rival EnergySolutions, which was blocked by a federal judge in June 2017, and then was acquired by private equity firm J.F. Lehman & Co. in January. The companies hope for a decision by 2020.
For each application, NRC staff is conducting an extensive technical review of environmental, security, and safety issues related to the projects.
Among the groups that have petitioned to intervene and seek hearings in opposition to the Holtec application: Beyond Nuclear; the Sierra Club; the Alliance for Environmental Strategies; nuclear fuel storage container manufacturer NAC International (which is working on the Orano-WCS project); and a coalition of environmental and antinuclear groups led by Don’t Waste Michigan.
Holtec has opposed the petitions. Staff at the NRC earlier this month recommended the commission or Atomic Safety and Licensing Board Panel approve in part the intervention requests from Beyond Nuclear and the Sierra Club. But staff said the other organizations had failed to prove standing to intervene or submit reasonable contentions to the application.
Several jurisdictions in southeastern New Mexico, including Eddy and Lea counties, have petitioned to participate in the Holtec licensing proceeding as local government bodies. These local governments, which have joined the Holtec program as the Eddy-Lea Energy Alliance, are making the case for the 200 jobs and $2.4 billion in capital investments they expect the project to bring to the region.
Beyond Nuclear and the Fasken-PBLRO team have also petitioned to intervene in the licensing process for the Interim Storage Partners project. The company has opposed both requests. Nuclear Regulatory Commission staff this week recommended approval of the Beyond Nuclear request and has not yet issued its position on the other petition.
A number of other environmental and antinuclear organizations had indicated they intended to petition to intervene in 2017 on the Waste Control Specialists application, suggesting more requests will be filed in this case prior to the deadline.
