By John Stang
Holtec International argued Thursday that several advocacy groups do not have legal standing to contest the Nuclear Regulatory Commission’s licensing of the company’s planned New Mexico interim storage site for used nuclear fuel
Jay Silberg, an attorney for the New Jersey energy technology company, made the case during the second day of a pre-hearing session in Albuquerque before an NRC Atomic Safety and Licensing Board. The board on Wednesday and Thursday heard oral arguments from the petitioning groups, along with Holtec and NRC staff, on the requests for formal intervention and hearings in the licensing proceeding.
Holtec wants within five years to be operating the first segment of a facility in Lea County that ultimately could hold up to 173,000 metric tons of used fuel now stranded on-site at power plants around the country.
A number of groups have sought approval to become parties to the licensing proceeding: Beyond Nuclear; the Sierra Club; the Alliance for Environmental Strategies; regional oil and gas concerns Fasken Land and Minerals and Permian Basin Land and Royalty Owners; used fuel management specialist NAC International, which is working on a separate storage project; and a coalition of advocacy groups headed by Don’t Waste Michigan.
In petitions filed with the NRC, the groups have cited dozens of technical contentions regarding the potential risks of transporting radioactive waste from nuclear power plants around the country and then storing it for decades just underground in New Mexico. In its own filings. Holtec has opposed all the petitions.
Silberg, a partner in the Pillsbury law firm, contended the would-be intervenors have not shown there is a potential for a significant amount of contaminants to migrate from the proposed interim storage site.
“I’m having a hard time with this. Who would have standing for review?” asked a board member.
Silberg did not answer the standing question other that saying the petitioners have the responsibility to prove they have standing.
“We should be fairly lenient regarding standing,” the board member said.
The three-member board has indicated it expects to issue a decision on interventions in March. The rulings can be appealed to the full Nuclear Regulatory Commission.
Under the 1982 Nuclear Waste Policy Act, the Department of Energy is directed to remove what is now about 80,000 metric tons of spent fuel from commercial nuclear power reactors. Interim storage of the type planned by Holtec, plus a separate Orano-Waste Control Specialists storage project in West Texas also up for NRC approval, could be an option for DOE to meet its legal mandate until it has a permanent repository for the waste— supposedly at Yucca Mountain in Nevada.
In March 2017, Holtec applied for a 40-year NRC license for the initial part of the used fuel facility with underground-storage capacity for 8,680 metric tons. The company hopes the NRC will complete its review by July 2020 and that operations can begin in 2023.
Attorney Terry Lodge, representing several of the petitioners, said Holtec needs to provide more information on potential transportation routes across the United States, which are expected to use mostly rail lines that will pass within 50 miles of 218 million people
Nancy Simmons, legal counsel for the Alliance for Environmental Strategies, said minority communities in the counties near the planned site are not being given consideration in the process.
The Orano-Waste Control Specialists team, called Interim Storage Partners (ISP), anticipates the NRC in August 2020 will complete the review of its 2018 application for a 40-year license for its site in Andrews County, Texas, just across the state border from the planned Holtec facility. It would begin with 5,000 metric tons of capacity, up to a total of 40,000 metric tons.
The same three-member Atomic Safety and Licensing Board will consider petitions for intervention in the Interim Storage Partners licensing. The would-be intervenors in that process are a slightly different version of the Don’t Waste Michigan group; Fasken and the Permian Basin Land and Royalty Owners; the Sierra Club; and Beyond Nuclear.
Advocacy Group, NRC Battle Spent Fuel Storage Licensing Decision in Court
Meanwhile, Beyond Nuclear is calling on a federal appeals court to order the NRC to revisit its decision last year against dismissing the licensing proceedings for both planned interim storage sites.
The agency erred in kicking the legal question raised by Beyond Nuclear to the quasi-judicial Atomic Safety and Licensing Board, according to the Takoma Park, Md., group’s Dec. 27 motion before the U.S. Court of Appeals for the District of Columbia Circuit. “Accordingly, Petitioner respectfully requests this Court review, reverse, and vacate the Commission’s Order to deny Petitioner’s Motion to Dismiss, order the Commission to review Petitioner’s claim that the Applications violate the [Nuclear Waste Policy Act and Administrative Procedure Act], and grant any other remedies that may be appropriate.”
The NRC and both license applicants affirmed their opposition to Beyond Nuclear’s position in separate filings through Thursday. “Beyond Nuclear will be afforded the opportunity to raise the merits of its legal challenges to the license applications before the Board and, if it is dissatisfied with the result, before the Commission,” lawyers for the agency wrote in a Jan. 7 response.
In its July 2018 petition with the NRC, Beyond Nuclear said both licensing proceedings should be dismissed. The core of its argument was that the programs would require the Department of Energy to assume ownership of the used fuel to transport it to storage from nuclear power plants. But the 1982 Nuclear Waste Policy Act authorizes the federal government to take title to spent fuel from nuclear power licensees only when a disposal repository is operational. That has yet to happen.
In an October response to the Beyond Nuclear petition, Secretary to the Commission Annette Vietti-Cook said the issue should be addressed as part of the Atomic Safety and Licensing Board’s work.
The legality issue was raised during the oral arguments in Albuquerque this week, the Carlsbad Current-Argus reported.
