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Opponents of a proposed interim nuclear fuel storage facility in southeast New Mexico are vowing to appeal a Nuclear Regulatory Commission board decision Tuesday that denied them an evidentiary hearing.
The NRC Atomic Safety and Licensing Board denied requests by several petitioners to conduct a hearing challenging Holtec International’s license application to construct and operate a consolidated interim storage facility for spent nuclear fuel in Lea County.
“This decision is a perfect example and a lesson for the citizens of New Mexico and the United States of how the NRC process is shamelessly designed to prevent the public from participating,” Sierra Club attorney Wally Taylor said in a news release.
The three-judge board held oral arguments in Albuquerque in January on the standing of the various petitioners and the admissibility of their proposed contentions under NRC regulations.
While the judges agreed that some of the six petitioners met the qualifications for standing, they concluded the nearly 50 contentions raised were not admissible for an evidentiary hearing.
In January, Holtec had said in a news release that it did not believe any of the parties’ contentions had merit. Efforts to reach Holtec officials after the hearing were unsuccessful.
On Tuesday, the judges held that the contentions either were not relevant to the application or did not establish a genuine dispute with aspects of the application, a release from the NRC said.
But Terry Lodge of Don’t Waste Michigan, which had raised questions at the January hearing, said, “When not a single one of the more than 45 contentions crafted by some of the most talented antinuclear activists and lawyers in the game nationally qualifies for a hearing, there is something fundamentally wrong with the way these dangerous ‘forever’ projects are licensed.”
Lodge and John Buchser, the nuclear waste co-chair of Sierra Club Rio Grande Chapter, raised concerns about the facility becoming a permanent site for storage.
“New Mexico citizens should be very concerned about this project,” Buchser said.
Attorney Mindy Goldstein, who represents petitioner Beyond Nuclear, said she finds the ruling baffling regarding her organization’s argument.
Beyond Nuclear questions the legality of Holtec’s application, saying the Department of Energy is not able to take ownership of the radioactive waste under the Nuclear Waste Policy Act, which stipulates there must be a permanent repository in place before the DOE can do so. Holtec documents mention the possibility of the company contracting with the DOE at the facility.
“They’re (Atomic Safety and Licensing Board) saying they’re really OK with it,” Goldstein said. “They’re saying they’re going to trust the applicant, that they won’t do anything illegal, and that the law could change.”
Holtec attorneys at the hearing did not dispute DOE not being able to take ownership.
But Holtec counsel Jay Silberg said during the January hearing the plan will still be viable if electric utilities retain title to the waste if the Nuclear Waste Policy Act is not altered or a permanent repository is not constructed.
Beyond Nuclear made a motion to dismiss Holtec’s application. That motion was denied.
The NRC’s hearing process allows appeals to the commission. Goldstein said Beyond Nuclear planned to take its case to the commission and is challenging the Holtec licensing application in U.S. Circuit Court in Washington, D.C.
The Sierra Club also said in a release it was also appealing the ruling with the Commission.
“It’s clear from the hearings across the state that the people of New Mexico don’t want this. They need to join forces and make that clear to New Mexico officials,” Taylor, of the Sierra Club, said. “State officials can pass and enforce laws that would require permits or other protections from the dangers posed by the transport of high-level radioactive waste to southeast New Mexico.”
Hearing petitions were filed by Beyond Nuclear, the Sierra Club and the Fasken Land and Minerals and Permian Basin Land and Royalty Owners, which were granted standing.
Two other petitioners – a coalition of several different organizations and NAC International, a rival dry storage cask vendor – were denied standing. The standing of a sixth petitioner, the Alliance for Environmental Strategies, was not decided.