March 4, 2022
Office of Spent Fuel and Waste Disposition
Office of Nuclear Energy
U.S. Department of Energy
RE: Docket # DOE-HQ-2021-0032 Request for Information on Using a Consent-Based Siting Process to Identify Federal Interim Storage Facilities, 86 Fed. Reg. 68,244 (Dec. 1, 2021)
The National Radioactive Waste Coalition submits the following comments in response to the U.S. Department of Energy’s (DOE) request for information (RFI) in the above-referenced docket. We decline to comment on the specific areas of inquiry listed in the RFI. DOE has failed to analyze or respond to comments and information most of our member organizations already provided to DOE in two previous public comment proceedings, referenced in the RFI and which included substantively the same topics. Unless and until DOE clarifies what additional information it requires on the topics listed, beyond or supplemental to that which NRWC members and thousands of members of the public have already provided, we decline to reiterate or elaborate upon our previous comments.
The NRWC wishes to comment upon the RFI itself and DOE’s intent, stated therein, to pursue consolidated interim storage (CIS). DOE has thoroughly misstated its statutory mandate to pursue a federal CIS program. The agency appears either to be operating under a misapprehension of its authority, or to be misleading the public in order to win their acquiescence to the siting of CIS facilities. Both possibilities are troubling.
DOE’s persistence in promoting consent-based siting is disingenuous, at best. The agency’s now-repeated exercises in developing a consent-based siting program are a distraction from the failures of the nuclear waste management program and nuclear waste policy. We note that DOE issued the current RFI after a number of developments in 2021 that demonstrated a need for nuclear waste policy reforms: an April 2021 report by the Nuclear Waste Technical Review Board (NWTRB), which made extensive recommendation on how DOE could advance the nuclear waste program within the constraints of current policy; a June 15, 2021 Senate budget hearing in which Senators pressed Secretary Granholm to move the nuclear waste program forward; and the publication of a September 2021 report by the Government Accountability Office, which noted the need for statutory reforms by Congress. Both the NWTRB and GAO noted that DOE would have to begin a new process for public engagement, after recruiting “appropriate people with social science, communication, and technical skills to work with the public.” DOE’s initiation of the consent-based siting RFI appears to be a mere continuation of the agency’s previous counterproductive activities, meant to “check the box” on GAO’s suggestion that DOE finalize the draft consent-based siting recommendations without addressing the long-standing problems with the agency’s public engagement practices identified by the GAO, NWTRB, and the Blue Ribbon Commission on America’s Nuclear Future (BRC).
When first proposed by the BRC in 2012, the notion of consent-based siting was intended to be but one part of a wholesale reform of nuclear waste policy, which also included: removing Yucca Mountain’s designation and restarting the repository program; and removing DOE as the agency responsible for implementing nuclear waste policy. DOE has conveniently ignored most of the BRC’s recommendations, especially those which called into question the agency’s competency and credibility to implement the nuclear waste program.
As the NRWC detailed in a December 2021 letter to Congressmembers, President Biden, and Secretary Granholm, the BRC’s recommendations, taken on the whole, would not have produced a responsible, effective, equitable, and just nuclear waste policy, and are no longer relevant. In recent years, DOE has attempted to justify its continued misdirection of the nuclear waste program by selectively referencing the BRC and cherry-picking from its recommendations, thereby reinforcing the public’s distrust of the agency’s intentions. The BRC highlighted the lack of confidence in DOE among many stakeholders as fatal to the agency’s ability to execute the reforms needed to manage the nation’s inventory of nuclear waste. DOE’s continued pursuit of CIS, despite its lack of statutory authority to do so, and in dereliction of its actual duties and responsibilities under Nuclear Waste Policy Act, only reinforces the view among communities impacted by and targeted for nuclear waste that DOE cannot be trusted.
The failures of several proposed nuclear waste facilities by both DOE and private-sector entities have demonstrated the efficacy of state and local community opposition in overcoming statutory mandates and political and economic coercion, by exercising their constitutionally-protected rights and procedures under the federalist division of powers. DOE nevertheless appears to view the rubric of “consent-based siting” as a new vehicle for the same strategy it pursued in the 1990s through the Office of the Nuclear Waste Negotiator (ONWN). The office provided grants as financial inducements to engage Native American tribal governments in negotiations over siting CIS facilities on their territories. The effort failed and the ONWN was disbanded in 1995; private-sector CIS initiatives which attempted to harvest the poisoned fruits of its negotiations also failed. Nevertheless, DOE’s rhetoric in the current RFI suggests that “consent-based siting” will entail similar offers of money to state, local, and tribal governments to engage with DOE:
- What benefits or opportunities could encourage local, State, and Tribal governments to consider engaging with the Department as it works to identify federal interim storage sites? (DOE-HQ-2021-0032, Area 1, Question 3)
If not through grants of money, what “benefits or opportunities” does DOE imagine providing to “local, State, and Tribal governments” to encourage their engagement in siting CIS facilities?
DOE must accept that it has no statutory authority to pursue the siting of federal CIS facilities. The Nuclear Waste Policy Act, as amended in 1987, is still the controlling statute defining DOE’s duties, responsibilities, and authorities for managing the nuclear waste program. It explicitly prohibits DOE from accepting title to waste and establishing CIS facilities until a permanent repository is in operation.
Contrary to DOE’s assertion in the December 1, 2021 federal register notice, the Consolidated Appropriations Act of 2021 (CAA) does not authorize DOE to pursue CIS. The CAA specifically provides funding for DOE to “conduct an advanced fuel cycle research, development, demonstration, and commercial application program,” with the following goals:
to improve fuel cycle performance
minimize environmental and public health and safety impacts
support a variety of options for used nuclear fuel storage, use, and disposal
CIS is listed as one among eight possible research topics for the Used Nuclear Fuel Research, Development, Demonstration, and Commercial Application program:
“(A) dry cask storage;
“(B) consolidated interim storage;
“(C) deep geological storage and disposal, including mined repository, and other technologies;
“(D) used nuclear fuel transportation;
“(E) integrated waste management systems;
“(G) fuel recycling and transmutation technologies, including advanced reprocessing technologies such as electrochemical and molten salt technologies, and advanced redox extraction technologies;
“(H) advanced materials to be used in subparagraphs (A) through (G); and
“(I) other areas as determined by the Secretary.”
Funding for a RD&D and commercial application program is far from authorizing DOE to pursue CIS, in contravention of the NWPA’s express prohibition. If the CAA had done so, as DOE avers in the RFI, the GAO would certainly have noted it. Instead, GAO found that Congress would need to enact legislation authorizing DOE to undertake a federal CIS program.
The rationale for the NWPA prohibition on federal CIS remains as valid as ever. The goals of the NWPA are to ensure the safe and secure, long-term isolation of nuclear waste from the environment and nonproliferation of fissile materials. Without an operating permanent repository, any supposedly “interim” centralized storage facility could easily become a de facto permanent site. Waste could remain in facilities that are not environmentally unqualified to secure it for indefinite periods of time that would result from failure to open a permanent repository. Even the BRC, which favored removing the NWPA’s “linkage” between a federal CIS and an operating repository, only recommended doing so in conjunction with restarting the repository program and removing the current logjam created by the designation of the unsuitable Yucca Mountain project. The BRC recognized the intent of the existing law, in fact, by listing the recommendation to restart the repository program prior to initiation of a federal CIS program.
DOE’s issuance of the RFI is also disconnected from present-day circumstances, of which the agency is most certainly aware. Two CIS facilities are already very far along in the process of being sited today: Interim Storage Partners (ISP) and Holtec have both submitted license applications to the Nuclear Regulatory Commission (NRC) for CIS facilities which would be located, respectively, in Texas and New Mexico. NRC issued a license to ISP in mid-2021, and is expected to complete its review of Holtec’s application in 2022. Legal appeals have already been filed against both applications, and the challenge to ISP’s application is now moving through the judicial process.
These matters directly implicate DOE’s role in implementing CIS. Both ISP and Holtec stated in their license applications that they do not intend to operate the facilities except as contractors to DOE–i.e., that the agency would pay for the cost of transporting and storing the waste in the CIS facilities. This would, presumably, depend on DOE taking title to commercial irradiated fuel and contracting with ISP and/or Holtec to manage it at their respective facility(s). Since that is presently illegal under the Nuclear Waste Policy Act unless and until either a permanent repository is in operation or Congress changes the law, suits against each of the licenses include challenging NRC’s authority to license facilities whose operations are contingent on a circumstance that is not currently legal. It is unclear whether ISP and/or Holtec has already entered into discussions with DOE about implementing such arrangements. However, it would be negligent of them to expend the significant time and cost of applying to license facilities whose operation is contingent on winning contracts from DOE without ensuring the facilities would meet the agency’s requirements.
DOE must be transparent about its intentions with respect to the siting of these proposed privately owned and operated CIS facilities. Both sites face well-grounded claims of environmental injustice, due to their location in majority-Hispanic communities that are already burdened with multiple polluting facilities, industrial activities, and extractive industries. Neither facility can be said to have consent, with both vocal opposition in the host communities/areas and expressions of opposition from key elected officials. Each site is opposed by the governor of the respective state: Governor Greg Abbott of Texas; and Governor Michelle Lujan Grisham of New Mexico. In 2021, the Texas legislature enacted HB7, prohibiting the operation of a CIS facility within the state’s borders. New Mexico’s legislature has considered a similar bill in 2022. Also, in 2021, the Commissioners’ Court of Andrews County, Texas, where the ISP facility would be located, passed a resolution opposing CIS.
Should NRC licenses for the ISP and/or Holtec facilities go into effect, they would not meet even the most cursory standard for consent-based siting. DOE must state whether it is truly committed to consent-based siting as a principal, and whether it would entertain contracting with ISP and/or Holtec without local consent for the operation of their respective facilities.
What is more, DOE must also clarify its intent with regard to the design of legal settlements in lawsuits for damages filed by nuclear power plant owners under the Nuclear Waste Policy Act. The future operations of both ISP and Holtec are potentially tied to the management of irradiated fuel at reactor sites owned by affiliated entities. Holtec has acquired multiple closed reactors and their irradiated fuel. ISP is controlled by Waste Control Specialists, a subsidiary of J. F. Lehman, which also owns Northstar, the lead partner in Accelerated Decommissioning Partners (ADP). Northstar owns the Vermont Yankee reactor and its irradiated fuel, and ADP has the contract to decommission the Crystal River 3 reactor and take ownership of the associated NRC license, irradiated fuel, and independent spent fuel storage installation (ISFSI). Holtec and Northstar/ADP are actively seeking to acquire more decommissioning reactors and their irradiated fuel.
As the owners and licensees of nuclear reactors, their irradiated fuel, and the standard contracts with DOE for disposition of the fuel, ISP’s affiliates and Holtec have the right to sue DOE for breach of contract and recoup the cost of their continued management of irradiated fuel. In such suits, it has become standard practice for DOE to enter into settlements with the reactor owners to pay most or all of such damages. It is possible that Northstar/ADP and Holtec will propose settlements to DOE that would cover the cost of relocating the waste from their decommissioning reactor sites and storing it at their affiliated CIS facilities. If DOE were to enter into such settlements, it would effectively implement a federally-funded CIS program, through an end run around the plain intent of the NWPA. And because the ISP and Holtec facilities do not enjoy the consent of host states and communities, it would not comply with the criteria of consent-based siting on which DOE says it intends to base a federal CIS program.
DOE’s silence on these questions in the RFI and its prior consent-based siting activities is glaring. DOE owes it to the targeted communities, the broader public, and Congress to state whether it would consider entering into such settlements, and whether consent of states and impacted communties to the siting of CIS facilities would have to be met. We further encourage DOE to acknowledge the extensive failures of the nuclear waste management program and the need for extensive policy reform, and we invite DOE to embrace the Guiding Principles for Humane and Equitable Nuclear Waste Policy as the basis for legislation, regulations, and programs going forward.
Citizens Resistance at Fermi 2 (CRAFT)
Post Office Box 401356
Redford, MI, 48240
Nuclear Information and Resource Service
6930 Carroll Ave., Suite 340
Takoma Park, MD, 20912
On behalf of the National Radioactive Waste Coalition:
Alliance for Environmental Strategies (Eunice, NM)
Blue Ridge Environmental Defense League (Knoxville, TN)
Cape Downwinders (Harwich, MA)
Chesapeake Physicians for Social Responsibility (Baltimore, MD)
Citizens Action Coalition (Indianapolis, IN)
Citizens Awareness Network (Shelburne Falls, MA)
Citizens’ Environmental Coalition (Albany, NY)
Citizens Resistance at Fermi Two (Redford, MI)
Concerned Citizens for Nuclear Safety (Santa Fe, NM)
Council on Intelligent Energy & Conservation Policy (Scarsdale, NY)
Fairewinds Energy Education Nonprofit (Charleston, SC)
Georgia Women’s Action for New Directions (Atlanta, GA)
Green State Solutions (Iowa City, IA)
Greenaction for Health and Environmental Justice (San Francisco, CA)
Healthy Environment Alliance of Utah (Salt Lake City, UT)
Heart of America Northwest (Seattle, WA)
Hudson River Sloop Clearwater, Inc. (Beacon, NY)
Indian Point Safe Energy Coalition (Cortlandt Manor, NY)
Manhattan Project for a Nuclear-Free World (New York, NY)
Multicultural Alliance for a Safe Environment (Albuquerque, NM)
Native Community Action Council (Las Vegas, NV)
Nevada Nuclear Waste Task Force (Las Vegas, NV)
North American Water Office (Lake Elmo, MN)
Nuclear Energy Information Service (Chicago, IL)
Nuclear Information and Resource Service (Takoma Park, MD)
Nuclear Issues Study Group (Albuquerque, NM)
Nuclear Watch New Mexico (Santa Fe, NM)
Nuclear Watch South (Atlanta, GA)
Nukewatch (Luck, WI)
Occupy Bergen County (Woodcliff Lake, NJ)
Physicians for Social Responsibility-Los Angeles (Los Angeles, CA)
Safe Energy Rights Group (NY)
Samuel Lawrence Foundation (Del Mar, CA)
San Clemente Green (San Clemente, CA)
San Luis Obispo Mothers for Peace (San Luis Obispo, CA)
Shut Down Indian Point Now (New York, NY)
Snake River Alliance (Boise, ID)
Southwest Research and Information Center (Albuquerque, NM)
Stop the Algonquin Pipeline Expansion (Rye, NY)
Sustainable Energy & Economic Development Coalition (Austin, TX)
Uranium Watch (Monticello, UT)
Vermont Yankee Decommissioning Alliance (Plainfield, VT)
Women Changing the World (Atlanta, GA)
Women’s Energy Matters (Fairfax, CA)