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Federal government rejects contentions to nuclear waste site near Carlsbad and Hobbs

A proposed nuclear waste repository near Carlsbad and Hobbs proceeded through the federal licensing process despite protests from environmental groups who questioned the legality of the project.

Holtec International applied to the Nuclear Regulatory Commission (NRC) for a license to build and operate a facility that would temporarily store spent nuclear fuel rods in a remote location of southeast New Mexico while a permanent repository is developed.

The consolidated interim storage facility was challenged by Beyond Nuclear and other organizations who questioned Holtec’s application for suggesting the U.S. Department of Energy could take ownership of the waste.

Opponents argued federal law prohibited the government from taking legal possession of spent nuclear fuel.

They also argued against Holtec’s plan to transport the waste via rail, potentially putting communities along the route at risk of exposure to radiation.

Kevin Kamps, radioactive waste specialist at Beyond Nuclear argued Holtec’s application was in violation of the federal Nuclear Waste Policy Act (NWPA), and the proposed temporary storage facility could become permanent as so such repository exists.

“(The NWPA) is the public’s best protection against an interim storage facility becoming a de facto permanent, national radioactive waste dump at the surface of the Earth.” Kamps said. “Congress knew, in passing the NWPA, that the only safe long-term strategy for care of irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation.

Last year, the NRC’s Atomic Safety and Licensing Board rejected about 50 contentions raised by various organizations, citing their lack of standing or adequate factual basis.

And in an April 23 decision the NRC upheld several of the rejects on appeal as either being irrelevant to the licensing process or already addressed in the application itself.

A proposed new contention issued by Fasken Oil and Ranch, questioning if Holtec owned the mineral rights beneath the surface of the proposed site location was remanded by the NRC for further consideration, along with

Against contentions that the Holtec facility would require “illegal” contracting with the federal government to take ownership of the waste, the NRC contended the application assured regulators that Holtec “committed to not contract unlawfully with DOE.”

“Holtec envisions that its customers will either be nuclear plant operators or DOE, depending on which entity holds title to the spent nuclear fuel,” read the NRC report. “Holtec also acknowledged that it hopes Congress will change the law to allow DOE to enter into temporary storage contracts with Holtec.

“The Board concluded that Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future.”

While the NRC affirmed the Sierra Club’s standing in the proceedings, as some members of the organization live in close proximity to the proposed site, it found that Sierra Club’s contentions around the transportation of the waste and risk of an accident or release were unfounded.

The NRC contended that the National Environmental Policy Act (NEPA) does not require a “worst-case-scenario” analysis be conducted in issuing the license and that the Sierra Club presented “no expert opinion” to support its assertions on the danger of rail transportation.

Against arguments that the storage casks were flawed or insufficient to hold the waste safely, the NRC upheld that Holtec’s HI-STORM UMAX system that it would use at the facility was already federally certified and cannot be questioned in the proceedings unless a rule waiver was granted.

No such waiver was granted at the time of the NRC’s recent decision.

“Because certified designs are incorporated into our regulations, they may not be attacked in an adjudicatory proceeding except when authorized by a rule waiver,” the report read.

“A contention cannot attack a certified design without a rule waiver because this would challenge matters already fully considered and resolved in the design certification review.”

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Mindy Goldstein, a lawyer from Beyond Nuclear said the NRC’s denial of the appeals was illegal as it contemplated the hope that the law would change to allow the DOE to take title to the waste but was still contrary to present law.

“The NRC’s 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,” she said.

“The Commission lacks a legal or logical basis for its rationale that the illegal provisions could be ignored in favor of other provisions that are legal, or that an illegal license could be issued in ‘hopes’ that the law might change in the future.”

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.

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