If you want to understand the crucial irradiated fuel issue and what Holec is trying to do, read this excellent letter by Kevin Kamps. He lays out the issue in detail and describes how Holtec is trying to weasel around the law. Beyond Nuclear is going to court over this egregious decision by the NRC.
Dear Friends and Colleagues on the Decommissioning Working Group List-Serve,
FYI, see the press release below. And below that is an article that appeared today in the New Mexico Political Report. Both are Holtec related. Thanks.
—Kevin Kamps, Beyond Nuclear & Don’t Waste Michigan
BEYOND NUCLEAR FILES FEDERAL LAWSUIT CHALLENGING HIGH-LEVEL RADIOACTIVE WASTE DUMP FOR ENTIRE INVENTORY OF U.S. “SPENT” REACTOR FUEL
Petitioner charges the Nuclear Regulatory Commission knowingly violated U.S. Nuclear Waste Policy Act and up-ended settled law prohibiting transfer of ownership of spent fuel to the federal government until a permanent underground repository is ready to receive it
[WASHINGTON, DC – June 4, 2020] —
Today the non-profit organization Beyond Nuclear filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit requesting review of an April 23, 2020 order and an October 29, 2018 order by the U.S. Nuclear Regulatory Commission (NRC), rejecting challenges to Holtec International/Eddy-Lea Energy Alliance’s application to build a massive “consolidated interim storage facility” (CISF) for nuclear waste in southeastern New Mexico. Holtec proposes to store as much as 173,000 metric tons of highly radioactive irradiated or “spent” nuclear fuel – more than twice the amount of spent fuel currently stored at U.S. nuclear power reactors – in shallowly buried containers on the site.
But according to Beyond Nuclear’s petition, the NRC’s orders “violated the Nuclear Waste Policy Act and the Administrative Procedure Act by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility.”
Since it contemplates that the federal government would become the owner of the spent fuel during transportation to and storage at its CISF, Holtec’s license application should have been dismissed at the outset, Beyond Nuclear’s appeal argues. Holtec has made no secret of the fact that it expects the federal government will take title to the waste, which would clear the way for it to be stored at its CISF, and this is indeed the point of building the facility. But that would directly violate the 1982 Nuclear Waste Policy Act (NWPA), which prohibits federal government ownership of spent fuel unless and until a permanent underground repository is up and running. No such repository has been licensed in the U.S. The U.S. Department of Energy’s (DOE) most recent estimate for the opening of a geologic repository is the year 2048 at the earliest.
In its April 23 decision, in which the NRC rejected challenges to the license application, the four NRC Commissioners admitted that the NWPA would indeed be violated if title to spent fuel were transferred to the federal government so it could be stored at the Holtec facility. But they refused to remove the license provision in the application which contemplates federal ownership of the spent fuel. Instead, they ruled that approving Holtec’s application in itself would not involve NRC in a violation of federal law, and that therefore they could go forward with approving the application, despite its illegal provision. According to the NRC’s decision, “the license itself would not violate the NWPA by transferring the title to the fuel, nor would it authorize Holtec or [the U.S. Department of Energy] to enter into storage contracts.” (page 7). The NRC Commissioners also noted with approval that “Holtec hopes that Congress will amend the law in the future.” (page 7).
“This NRC decision flagrantly violates the federal Administrative Procedure Act (APA), which prohibits an agency from acting contrary to the law as issued by Congress and signed by the President,” said Mindy Goldstein, an attorney for Beyond Nuclear. “The Commission lacks a legal or logical basis for its rationale that it may issue a license with an illegal provision, in the hopes that Holtec or the Department of Energy won’t complete the illegal activity it authorized. The buck must stop with the NRC.”
“Our claim is simple,” said attorney Diane Curran, another member of Beyond Nuclear’s legal team. “The NRC is not above the law, nor does it stand apart from it.”
According to a 1996 D.C. Circuit Court ruling, the NWPA is Congress’ “comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants” [Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996)]. The law establishes distinct roles for the federal government vs. the owners of facilities that generate spent fuel with respect to the storage and disposal of spent fuel. The “Federal Government has the responsibility to provide for the permanent disposal of … spent nuclear fuel” but “the generators and owners of … spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of … spent fuel until such … spent fuel is accepted by the Secretary of Energy” [42 U.S.C. § 10131]. Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it has opened a repository [42 U.S.C. § 10131(a)(5)].
“When Congress passed the Nuclear Waste Policy Act and refused to allow nuclear reactor licensees to transfer ownership of their irradiated reactor fuel to the DOE until a permanent repository was up and running, it acted wisely,” said Kevin Kamps, radioactive waste specialist for Beyond Nuclear. “It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment. Today, the NWPA remains the public’s best protection against a so-called ‘interim’ storage facility becoming a de facto permanent, national, surface dump for radioactive waste. But if we ignore it or jettison the law, communities like southeastern New Mexico can be railroaded by the nuclear industry and its friends in government, and forced to accept mountains of forever deadly high-level radioactive waste other states are eager to offload.”
In addition to impacting New Mexico, shipping the waste to the CISF site would also endanger 43 other states plus the District of Columbia, because it would entail hauling 10,000 high risk, high-level radioactive waste shipments on their roads, rails, and waterways, posing risks of radioactive release all along the way.
Besides threatening public health and safety, evading federal law to license CISF facilities would also impact the public financially. Transferring title and liability for spent fuel from the nuclear utilities that generated it to DOE would mean that federal taxpayers would have to pay for its so-called “interim” storage, to the tune of many billions of dollars. That’s on top of the many billions ratepayers and taxpayers have already paid to fund a permanent geologic repository that hasn’t yet materialized.
But that’s not to say that Yucca Mountain would be an acceptable alternative to CISF. “A deep geologic repository for permanent disposal should meet a long list of stringent criteria: legality, environmental justice, consent-based siting, scientific suitability, mitigation of transport risks, regional equity, intergenerational equity, and safeguards against nuclear weapons proliferation, including a ban on spent fuel reprocessing,” Kamps said. “But the Yucca Mountain dump, which is targeted at land owned by the Western Shoshone in Nevada, fails to meet any of those standards. That’s why a coalition of more than a thousand environmental, environmental justice, and public interest organizations, representing all 50 states, has opposed it for 33 years.”
Kamps noted that the U.S. Court of Appeals for the District of Columbia Circuit has upheld the NWPA before, including in the matter of inadequate standards for Yucca Mountain. In its landmark 2004 decision in Nuclear Energy Institute v. Environmental Protection Agency, it wrote, “Having the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment, nuclear waste has vexed scientists, Congress, and regulatory agencies for the last half-century.” The Court found the U.S. Environmental Protection Agency’s insufficient 10,000-year standard for Yucca Mountain violated the NWPA’s requirement that the National Academy of Sciences’ recommendations must be followed, and ordered the EPA back to the drawing board. In 2008, the EPA issued a revised standard, acknowledging a million-year hazard associated with irradiated nuclear fuel and high-level radioactive waste. Even that standard falls short, Kamps said, because certain radioactive isotopes in spent fuel remain dangerous for much longer than that. Iodine-129, for example, is hazardous for 157 million years.
Source: Beyond Nuclear http://www.beyondnuclear.org/
‘Forever deadly’: State officials, communities scramble to fight a proposal to house high-level nuclear waste in New Mexico
New Mexico could become home to nuclear waste generated at nearly 90 nuclear power plants across the country.
Rose Gardner is not giving up.
A Eunice resident, Gardner has spent the past few years fighting a proposal to store high-level nuclear waste in southeastern New Mexico.
“I was born here in Eunice, New Mexico, and have lived through a lot of ups and downs, oil booms and busts,” Gardner told NM Political Report. “But never have I ever felt that we needed an industry as dangerous as storing high-level nuclear waste right here.”
Gardner, who co-founded the Alliance for Environmental Strategies, is part of a groundswell of opposition to a project currently under consideration by the federal Nuclear Regulatory Commission (NRC) that would see the world’s largest nuclear waste storage facility be built along the Lea-Eddy county line.
Holtec International, a private company specializing in spent nuclear fuel storage and management, applied for a license from the NRC in 2017 to construct and operate the facility in southeastern New Mexico that would hold waste generated at nuclear utilities around the country temporarily until a permanent, federally-managed repository is established. The license application is making steady progress in the NRC’s process, despite the pandemic.
Proponents of the project tout the estimated $3 billion in capital investments and 100 new jobs that it would bring to the area. But opponents — including the governor of New Mexico, most tribal nations in the state, state lawmakers, 12 local governments and a number of local associations — worry that the proposed interim storage facility would become a de facto permanent storage solution for the nation’s growing nuclear waste.
“There’s a great concern that this waste, should it end up in New Mexico, will really never move from here,” state Sen. Jeff Steinborn, D-Las Cruces, told NM Political Report. “A facility that’s not designed to be forever, suddenly becomes forever. That’s really bad for New Mexico. That’s not in our interest at all.”
Seeking a home for the nation’s nuclear waste
The United States has a growing nuclear waste problem and no permanent solution in sight. In the early 1980s, Congress passed the Nuclear Waste Policy Act, which designated underground repositories as the national strategy for permanent storage of spent nuclear fuel.
After a years-long back-and-forth between federal agencies and scientists over the parameters needed to safely and permanently store spent nuclear fuel in perpetuity, the government settled on the Yucca Mountain site, a volcanic structure located in Nevada, as the national repository. But the project was scrapped under former President Barack Obama, in part because a geologic assessment of the area raised questions of the long-term safety of housing the waste there.
“This is the dilemma. It’s deadly for at least a million years, it’s actually deadly for much longer. Human beings have never devised a way to isolate this from the environment for that long a period of time,” said Kevin Kamps, radioactive waste specialist at Beyond Nuclear. “It raises the question, can we find geology for permanent disposal that can hold this stuff in for a million years or more?”
The Nuclear Waste Policy Act mandated the federal government take ownership of the waste when a permanent storage facility is established. But with no such facility in the works, the waste generated by commercial nuclear utilities is currently being stored in interim facilities at or near the power plants themselves, while nuclear utilities across the country have sued the federal government for failing to establish a permanent repository for the waste.
Holtec’s proposal would see waste from all the U.S. nuclear energy utilities be transported thousands of miles across the country to the proposed facility in New Mexico. The NRC is currently considering approving the license for 40 years, with an opportunity to renew the license in 40-year increments.
A spokesperson for Holtec told NM Political Report that under the proposal, Holtec would establish business relationships with the utilities who will pay Holtec to have the spent fuel stored at the proposed site, located in Lea County.
A map of nuclear power plants across the country that may begin shipping high-level waste to New Mexico if Holtec’s proposal is licensed. This map was part of Nuclear Issues Study Group co-founder Leona Morgan’s presentation to the Legislature’s interim Radioactive and Hazardous Materials Committee. Source: Nuclear Issues Study Group
Nuclear utilities are eager to have the waste taken off their hands. The San Onofre nuclear power plant is one example. The now-defunct plant butts up against a beach in southern California, between Oceanside and San Clemente. It holds 1,600 tons of high-level nuclear waste that is currently sitting in cooling ponds at the facility, which is vulnerable both to sea level rise and seismic activity due to a nearby fault line.
Local and state politicians in California have asked for top priority to ship the fuel out of state to an interim storage facility, like the one proposed by Holtec. Kamps said that underscores another dilemma in this saga: No one wants high-level nuclear waste in their communities — including those communities that generated the waste.
Kamps pointed to the community surrounding the San Onofre plant.
“It’s one of the most glamorous places in the country,” he said. “There’s this clamor to get [the waste] out of here: ‘We don’t care where it goes, just get it out of here.’ This community made this forever deadly waste, and now wants its cake and eat it too. They want to keep all those profits that they’ve enjoyed for decades, and get rid of this forever deadly waste, make it somebody else’s problem.”
Inviting nuclear storage to New Mexico
The Eddy-Lea Energy Alliance (ELEA), an economic development partnership between Eddy and Lea counties and the cities of Hobbs and Carlsbad, has tried for years to bring more nuclear activity to the area, and the economic development that comes with it.
The alliance initially hoped to participate in the federal Global Nuclear Energy Partnership (GNEP) program, which would have collected, recycled and stored spent nuclear fuel. ELEA vice chairman John Heaton told NM Political Report the alliance acquired a piece of land for an application to participate in the GNEP program over a decade ago. GNEP was shuttered in 2009, which left the ELEA with a piece of real estate primed for nuclear storage. The alliance then pivoted towards an interim storage facility for the land.
A rendering of the HI-STORE consolidated interim storage facility, proposed to be built in Lea County to store high-level nuclear waste from across the country.
“It really is an extraordinary location. It’s isolated, it’s 35 miles from any population; it has electricity, water, roads, rail access only four miles away. It’s 35 miles from the nearest town,” Heaton said. He added that the area already has some resident expertise in the nuclear industry. He pointed to the federal Waste Isolation Pilot Plant (WIPP), which houses low-level nuclear fuel; and URENCO, the country’s sole operating commercial enrichment facility, located in Eunice. The Holtec facility would be located about 12 miles from WIPP.
“We have a robust nuclear scientific workforce in our area because of WIPP and because of URENCO. It’s a very good project from that point of view,” Heaton said.
When Holtec began the NRC application process for the facility, the ELEA had the backing of the state government. Then-governor Susana Martinez expressed her support for the project in a 2015 letter to then-DOE Secretary Ernest Moniz, citing “broad support in the region” for the facility and a “significant and growing national need” to house the nuclear waste in an interim storage facility.
Today, a significant chunk of support has vanished, while opposition to the facility has steadily grown. Current Gov. Michelle Lujan Grisham has publicly opposed the project, as has the All Pueblo Council of Governors, the City of Las Cruces, and the county governments of Santa Fe, McKinley and Bernalillo counties; and a slew of local associations, including the New Mexico Cattle Growers’ Association, the New Mexico Farm and Livestock Bureau, and the Permian Basin Petroleum Association. Nationally, the project is also opposed by several environmental and anti-nuclear groups. But with an estimated two years left in the application process, the window to block the project is closing fast.
State has little say in NRC licensing process
Public opposition to nuclear waste has proven to be a significant obstacle for the federal government in establishing a nuclear storage facility. The Yucca Mountain project was deeply unpopular among local communities and local lawmakers, including former Democratic Senate Majority Leader Harry Reid.
That opposition was instrumental to the project’s abandonment. In 2010, Congress completely defunded Yucca Mountain. The Trump administration has since tried to revive Yucca Mountain for a permanent repository, but has failed to secure any new funding for it from Congress.
Holtec’s proposal for southeastern New Mexico, on the other hand, doesn’t require any federal government funding, nor does it require any approval from Congress. Instead, Holtec needs only receive a license from the NRC to temporarily house nuclear storage at the selected site, and that license can be approved without a permanent storage solution existing. Aside from a few state regulatory permits, Holtec’s proposal doesn’t need state approval, either.
“This is a private project, this is a private company dealing with private utilities,” Heaton said. “It’s not a public operation. I think people think this is somehow like WIPP. It’s not.”
NRC public affairs officer David McIntyre told NM Political Report states do have some say in the application process, but said no opposition was presented at the time.
“The NRC’s rules for licensing spent fuel storage facilities also provide opportunity for states or local government entities to intervene in licensing matters through the NRC’s adjudicatory hearing process,” McIntyre said, which occurred under the Martinez administration. McIntyre added that “no state government entities submitted hearing requests” during the hearing process for the Holtec application.
Steinborn said the state should have a larger seat at the table of the NRC’s processes.
“It exposes the real failing of federal law as it stands right now, as a state that could potentially be forced to be the home of a facility like this,” Steinborn said. “The fact that our state government, and our governor, elected by the entire state — her opinion, and that of many of our federal legislators would have no standing whatsoever. It’s really unfair.”
Steinborn introduced legislation during the 2020 session that would have required the state to do an evaluation of this and future proposals. During the session, the state Energy, Minerals and Natural Resources Department (EMNRD) Secretary Sarah Cottrell Propst spoke in support of the bill, though it died in committee during the short session earlier this year.
“That law would have required the state, on behalf of the citizens, our state government to do a thorough evaluation of not only this proposal but other ones that may come in the future,” he said. “Unfortunately, we still hold very little cards, from a regulatory standpoint.”
Communities not giving up
The NRC released a draft environmental impact statement for the Holtec facility at the beginning of the COVID-19 pandemic in early March, but extended the deadline for an additional sixty days. The public comment period, one of the last opportunities for state agencies and residents of New Mexico to weigh in on the proposal, is currently slated to close mid-July.
Heaton is confident the NRC will approve Holtec’s license application. If all goes smoothly, he said construction on the facility could start in late 2022 or early 2023.
Local and national opponents, including Beyond Nuclear and Alliance for Environmental Strategies, raised nearly 50 objections about the license application. The NRC dismissed all those contentions and the commission’s Atomic Safety and Licensing Board declined to hold an evidentiary hearing.
Holtec declined to comment on the objections, citing pending litigation.
Kamps says Beyond Nuclear is appealing the decision at the federal D.C. Court of Appeals. Gardner said her organization isn’t giving up either.
“We’re going through the appeal process,” Gardner said. “I refuse to just sit back and let them come into town without a fight. I don’t want to be a guinea pig.”
By Kendra Chamberlain