By John Stang
A panel of specialists at the Nuclear Regulatory Commission has rejected a petition from a pair of Texas-based oil and gas interests to reopen its case for a hearing in the licensing of Holtec International’s planned spent-fuel storage facility in New Mexico.
The three-member Atomic Safety and Licensing Board (ASLB) essentially decided that Fasken Land and Minerals Ltd. and the Permian Basin Land and Royalty Owners (PBLRO) did not raise any new issues in a timely manner — echoing arguments made against the petition by Holtec and NRC staff.
The board issued its decision on Sept. 3, about a month after it heard oral arguments in the matter. The ruling was posted to the NRC website the next day.
Fasken/PBLRO could appeal this decision to the commission, as it did previously in the proceeding. The groups “are weighing their next move,” Fasken attorney Monica Perales said by email Tuesday.
The federal regulator is expected in 2021 to rule on Holtec’s 2017 application for a 40-year license to build and operate a storage facility for up to 8,680 metric tons of radioactive spent fuel stranded at U.S. nuclear power plants. The New Jersey-based energy technology company could ultimately receive federal authorization to hold in excess of 100,000 metric tons of used fuel for up to 120 years.
Fasken and companies represented by the PBLRO drill for oil and natural gas in the Permian Basin. which covers the western half of Texas and a small portion reaching into New Mexico’s Lea and Eddy counties, whose governments and economic interests support Holtec’s proposed facility between the cities of Hobbs and Carlsbad. The Fasken/PBLRO group joined the Sierra Club, Beyond Nuclear, and a handful of other organizations in petitioning for intervention in the licensing proceeding, which would have enabled them to argue contentions about the project.
The same Atomic Safety and Licensing Board in May 2019 rejected all petitions. Nearly all of the groups appealed that decision to the commission, which last April directed the board to reconsider four contentions from the Sierra Club and two late-filed contentions from the environmental organization and Fasken/PBLRO. The board in June dismissed the Sierra Club’s contentions, along with the Fasken/PBLRO contention “as originally proffered.” The Sierra Club has also appealed that ruling to the commission.
Meanwhile, Beyond Nuclear and a coalition of advocacy organizations headed by Don’t Waste Michigan have appealed the commission dismissals of their petitions in the U.S. Court of Appeals for the District of Columbia Circuit. Those appeals are continuing.
Fasken and the PBLRO had contended Holtec misled the federal government regarding mineral rights below the New Mexico site — citing a June 19, 2019, letter from the New Mexico commissioner of public lands to Holtec that said the state still controlled those mineral rights. But the ALSB, NRC, and Holtec countered that the company acknowledged the state held those mineral rights in its 2018 environmental report for the license application. This is a not a new issue and, therefore, not eligible to be brought up in the August hearing, the ALSB ruling said.
Last March, Fasken submitted a revised version of the same argument, with the ALSB repeating its stance that it does not provide any new information that was not already available in Holtec’s 2018 report.
The last remaining contention from Fasken and the PBLRO boiled down the assertion that Holtec did not adequately study how the rock layers sink in an area honeycombed by drillholes and prone to earthquakes.
During the Aug. 5 oral arguments, Fasken attorney Allan Kanner noted there have been four earthquakes with a magnitude of 5.0 or greater on the Richter scale within 200 miles of the planned Holtec site, with the latest being 50 miles away last spring. In the past two months, roughly 20 earthquakes of a magnitude of 2.5 or greater have occurred within 25 miles of the site. A 5.0 is enough to be felt by almost all people while damaging poorly constructed buildings while either not damaging or slightly damaging other buildings. A 2.5 translates to being slightly felt by some people with no damage to buildings.
Kanner contended these factors contribute to sinkholes and to the sinking of subterranean rock formations, which decreases the stability of the ground at and around Holtec’s site.
Attorneys representing Holtec and the NRC staff countered that Fasken and the PBLRO did not submit these specific arguments by an NRC September 2018 deadline to provide input on Holtec’s license application.
“Given the 70 years that Fasken has been drilling wells in the Permian Basin and the 40-plus years it’s been drilling in the vicinity of the Holtec site, it’s not credible that Fasken hasn’t known for years the information which it now says is new and which it learned only from the (draft EIS,),” Holtec attorney Jay Silberg told the board.
The ALSB concurred in its latest order.
“It is too late for Fasken to challenge anything in Holtec’s application that could have been challenged in September 2018, unless the challenge is premised on materially new information,” the board stated. “Repetition in the (March NRC draft environmental impact study) of information similar to that in Holtec’s Environmental Report does not qualify. And, although Fasken makes general references to other ‘newly disclosed and highly pertinent information,’ neither Fasken’s motions nor its supporting affidavit and declarations tell us when Fasken first learned of any new information on which it relies.”
During the Aug. 5 hearing, board Chairman Paul Ryerson rejected a Fasken request to having its own geology expert testify — saying only attorneys were allowed to speak at that session. That prompted an Aug 12 letter from the Fasken lawyers to NRC Chairman Kristine Svinicki to ask the commissioners to address Ryerson’s ruling – — although it did not specify how.
“As an attorney, I can tell you that I expect a hearing to be a forum by which evidence is presented and expert opinions are heard to ensure the development of an ample record for a decision. Such was not the case during the ASLB’s Holtec hearing, which is not surprising but quite disappointing,” Perales wrote in her Tuesday email.
On Aug. 18 and on Wednesday, the NRC declined to comment on this issue, referring to the passage in the latest ASLB ruling about not hearing experts at oral arguments.
