NRC Staff Urges Rejection of Motions to Dismiss Spent Fuel Storage Applications

SEPTEMBER 28, 2018

Rad Waste Monitor

Staff at the Nuclear Regulatory Commission is recommending rejection of two separate motions calling for dismissal of license applications for facilities to store spent nuclear reactor fuel in Texas and New Mexico.

The motion from the advocacy group Beyond Nuclear and a joint filing from energy firm Fasken Land and Minerals and the Permian Basin Land and Royalty Owners "e;should be dismissed for failure to comply with NRC requirements,” according to the staff response, dated Sept. 24 and posted to the agency website on Tuesday.

In separate filings to the agency, the companies planning the storage facilities also this week argued against terminating their license applications.

The NRC is reviewing Holtec International’s March 2017 application for a southeastern New Mexico storage facility with an anticipated maximum capacity for over 170,000 metric tons of spent fuel, along with an application revived earlier this year by Orano-Waste Control Specialists joint venture Interim Storage Partners for a 40,000-metric-ton-capacity site in West Texas. Both licenses would have initial periods of 40 years for facilities that, with regulatory approval, would open in the early 2020s.

The dismissal petitions argue the license applications violate the 1982 Nuclear Waste Policy Act requirement that a permanent disposal facility be available before the Department of Energy become responsible for transport or storage of spent reactor fuel. The petitioners also warn of the potential dangers of transport and storage of highly radioactive waste.

The United States is years if not decades away from establishing a congressionally mandated permanent repository for its stockpile of spent reactor fuel and high-level radioactive waste. Congress this month again blocked efforts to fund licensing for the planned disposal site at Yucca Mountain, Nev.

Interim storage has been seen as an option to centralize spent fuel now stranded on-site at dozens of nuclear power plants around the country. Supporters see the projects bringing economic benefits to the regions and emphasize the history of safe radioactive waste management in the United States. Opponents worry about the threat posed by a breach of that safety record and suspect temporary storage could easily become permanent. Groups on both sides have filed to intervene in the NRC proceeding.

In the response to the dismissal motions, NRC staff noted that Beyond Nuclear and other groups had previously made a similar case against the 2016 license application for the Texas project when it was headed solely by Dallas-based Waste Control Specialists.

"e;The Commission unequivocally stated at the time that a petition to intervene is the appropriate place to raise concerns with a license application, including the legal argument that an application is inconsistent with the NWPA,” staff said. That should be its position in this case as well, according to the recommendation.

Staff added that both dismissal motions came in after the 10-day time frame set under federal regulations "e;of the circumstances from which the motion arises.” That would be the dates at which the agency accepted the applications for full technical reviews – March 19 of this year for Holtec and Aug. 29 for the slightly updated application from Interim Storage Partners.

There was no schedule for a decision by the five-person commission on the license application dismissal motions and staff recommendation, NRC spokesman David McIntyre said Tuesday.

Beyond Nuclear has also petitioned to intervene in the NRC licensing review for Holtec and said this week intends to do so for the Interim Storage Partners application. That would allow the organization to file formal contentions against the application. The Takoma Park, Md.-based antinuclear group also expects to petition the NRC to be allowed to respond to the staff finding on its dismissal motion. "e;We’re going to fight them at every turn,” Kevin Kamps, the organization’s radioactive waste watchdog, said in a telephone call.

Monica Perales, a staff attorney for Fasken Oil and Ranch, added in a statement to RadWaste Monitor: "e;Our concerns are legitimate, so it is unfortunate that they are exploiting procedure to try and skirt the merits of our argument.”

In its dismissal motion earlier this month, Fasken said it has oil and gas resources roughly 2 miles from the planned Holtec storage facility in Lea County, between the cities of Hobbs and Carlsbad. Permian Basin Land and Royalty Owners represents oil and gas operators and royalty owners in the region straddling the two states who believe their financial interests could be harmed by local spent fuel storage. Their joint petition raises concerns about a potential radiation release from the facilities, along with the general threat to property values if storage operations begin.

Holtec and Interim Storage Partners as of Monday had also submitted responses opposing the application dismissals.

Interim Storage Partners called the Beyond Nuclear filing "e;procedurally and substantively deficient on multiple, independent grounds.” Among these, it said: Beyond Nuclear has no standing to make the case for dismissal as it would not be injured by the Texas project, and in any case (as NRC staff said) its filing comes far too late.

Holtec made similar arguments in its largely identical responses to the petitions from both Beyond Nuclear and the Fasken-Permian Basin group.

"e;The Commission should dismiss the Motion because Movants have failed to demonstrate their standing, because the Motion is grossly out of time, and because the Commission has already ruled that this issue can and should be raised as a contention in a licensing proceeding, rather than through a motion to dismiss,” the company said in both documents.

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