The Nuclear Regulatory Commission on Thursday rejected nearly all appeals to a 2019 decision by one of its bodies against holding any adjudicatory hearings sought on a license application for storage of spent nuclear fuel in southeastern New Mexico.
However, the commission did direct the Atomic Safety and Licensing Board (ASLB) to reconsider one set of contentions filed by the Sierra Club, along with late submissions from the environmental organization and regional oil and gas concerns Fasken Land and Minerals and Permian Basin Land and Royalty Owners (PBLRO).
The board is reviewing the commission remand and will determine its approach soon, NRC spokesman David McIntyre said by email, without discussing a specific schedule. “If the Board were ultimately to find a contention admissible, then yes, it would reopen the hearing.”
The four commissioners approved the memorandum and order unanimously and without discussion. However, Chairman Kristine Svinicki filed a dissension to much of the decision on the Sierra Club’s appeal.
“I am pleased that the Commission at least remanded two of our contentions,” Wallace Taylor, an attorney for the Sierra Club, said by email Thursday. “That should allow us to get to an evidentiary hearing.”
The decision came one day after the NRC announced it would give the public an extra two months, to July 22, to comment on a draft environmental impact statement for Holtec International’s proposed facility. In that document, agency staff provided a preliminary recommendation in favor of licensing the operation.
In March 2017, the Camden, N.J., energy technology company applied for a 40-year NRC license for underground storage of 8,680 metric tons of radioactive used fuel in Lea County. With up to 19 further regulatory approvals, that could eventually be expanded to as much as 100,000 metric tons for 120 years, according to the Thursday order (though the math in theory suggests a cap in excess of 173,000 metric tons).
There is now over 80,000 metric tons of radioactive spent fuel stored around the nation, mostly at active and retired nuclear power plants, an amount that grows by about 2,000 metric tons per year. The Department of Energy is required to dispose of the material, but hasn’t made much progress since receiving the assignment from Congress in the 1982 Nuclear Waste Policy Act.
Interim storage has been seen as an avenue for the federal government to do something with the waste until a permanent repository is ready. However, Holtec’s project in New Mexico and a smaller facility planned nearby in West Texas are also raising some red flags – including the potential for the accidental release of radiation during transport or storage, threats to a state’s economic and environmental resources, and the potential for interim storage to become permanent if a disposal facility is never built.
The following organizations filed petitions in 2018 for hearings to raise formal objections to licensing the Holtec facility: the Sierra Club; the Fasken-PBLRO team; Beyond Nuclear; the Alliance for Environmental Strategies; a coalition led by Don’t Waste Michigan; and NAC International, a used fuel management specialist that is supporting Interim Storage Partners’ project in Texas. Admission would make them parties to the proceeding.
Following oral arguments in January 2019, the three-person Atomic Safety and Licensing Board last May ruled against all the petitions, asserting a combination of the organizations’ lack of standing to intervene in the proceeding or their failure to file admissible contentions against licensing. All the petitioners but NAC International appealed the ruling. As they did for the original petitions, NRC staff and Holtec opposed the appeals.
The Sierra Club appealed rejection of 11 of its original 29 contentions, including the argument that any contracts for storage would be illegal because the Nuclear Waste Policy Act prohibits DOE from taking title to the spent fuel until a repository is available. That was also the sole contention filed by Beyond Nuclear and Fasken, and then appealed.
Holtec countered that it could contract directly with nuclear utilities that now own the used fuel, a case that proved persuasive to the ASLB and to the commission on appeal.
Among the Sierra Club’s other contentions, the commission remanded as a group four items related to potential groundwater impacts from the storage facility. The group’s case, broadly, was that Holtec’s insufficient groundwater characterization at its chosen storage site could mean higher environmental effects in the event of radioactive contamination of groundwater.
“It is possible that, to the extent Sierra Club’s groundwater contentions are purely site-characterization disputes, they fail to show a material dispute with the application because they do not indicate how Sierra Club’s groundwater concerns would affect the ultimate discussion of environmental impacts,” the commission said. “But initial determinations of contention admissibility rest with the Board, and the Board did not discuss whether any of the groundwater contentions contained a genuine issue apart from the claims that radioactive leaks from the canisters could contaminate the groundwater.”
This is where Svinicki dissented. She said the Atomic Safety and Licensing Board was right to reject the groundwater contentions in full upon finding that the Sierra Club’s case for potential storage canister leaks should not be admitted. “While I would certainly disagree with an open-ended remand to the Board on this issue, here the majority has instead focused this remand on the material … issue of whether the challenges to groundwater characterization could impact the analysis of environmental impacts in this proceeding.,” Svinicki wrote. “On balance, however, I find even this narrow remand to be an exercise in elevating form over subs.”
The commission also directed the ASLB to consider the admissibility for hearings of single contentions filed separately by the Sierra Club and Fasken group late last year, after the board had completed its work.
Fasken-PBLRO in August filed a contention derived from a letter to Holtec President and CEO Kris Singh to New Mexico Commissioner of Public Lands Stephanie Garcia Richard. In that letter, Richard accused Holtec of “misrepresenting facts” about its plans and refusing to answer questions.
The Sierra Club in October said a then-new report from the federal Nuclear Waste Technical Review Board raised issues that should have been addressed in Holtec’s environmental report for its license application.
The commission rejected the appeals on three contentions from the Alliance for Environmental Strategies and eight appealed contentions from the Don’t Waste Michigan coalition.
An appeal by any of the parties to this week’s NRC decision would be filed with the U.S. Court of Appeals for the D.C. Circuit.
“Holtec intends to appropriately address the issues remanded to the Atomic Safety and Licensing Board (ASLB),” spokesman Joe Delmar said in a statement Friday. “We are confident that the ASLB will again conclude that none of these issues have any merit.”
The company, and a regional coalition of communities partnering on the project – the Eddy-Lea Energy Alliance (ELEA) – have emphasized the safety and economic benefits of the facility. Radioactive material would be held within four layers of storage in a facility that would generate 215 jobs and an estimated $2.4 billion in capital investment, ELEA says.
NRC Extends Comment Period for Environmental Doc
Meanwhile, the Nuclear Regulatory Commission said Wednesday it would give the public additional time to comment on a preliminary finding in support of licensing Holtec’s facility.
“We’ve extended the public comment period on our draft Environmental Impact Statement for #Holtec‘s proposed spent #nuclear fuel storage site in New Mexico,” the agency announced on Twitter. “Deadline is now July 22.”
The previous deadline was May 22. New Mexico’s entire congressional delegation in March requested an extension until public meetings on the environmental review could safely be held after the COVID-19 pandemic recedes. A group of 50 advocacy groups, including Beyond Nuclear and the Sierra Club, made a similar request that month “for the duration of the national COVID-19 pandemic emergency.”
No meetings on the environmental document have been scheduled.
Senator Martin Heinrich (D-N.M.) “is pleased that NRC has agreed to an initial delay of 60 days, and expects NRC will be open to further extensions if the situation with the pandemic warrants,” according to a spokesman Friday.
The agency’s extension is not adequate given the potential length of the federal public health emergency in place since January, Kevin Kamps, radioactive waste watchdog at Beyond Nuclear, said by telephone Thursday. “They’re going full-steam ahead on the license during a national crisis.”
In the March 10 draft report, NRC staff determined there would be mostly small impacts on environmental areas including land use, geology and soils, groundwater, and air quality. “Based on its environmental review, the preliminary NRC staff recommendation is issuance of a license to Holtec authorizing the initial phase of the project, unless safety issues mandate otherwise.”
The environmental impact statement is expected to be finalized next March. Along with the separate safety report, it will contribute to the NRC’s final decision on licensing shortly afterward.
