Legality of Holtec’s Interim Spent Fuel Repository Application Called Into Question

Feb 13, 2019

Opponents of an interim spent nuclear fuel repository proposed by Holtec International, the Camden-based company seeking to jump start the Oyster Creek Nuclear Generating Station decommissioning should a license transfer be granted by the feds, say the company is putting the cart before the horse when it comes to seeking approval for the southeast New Mexico site. In fact, Caroline Reiser, a fellow with Emory Law School’s Turner Environment Law Clinic who appeared on behalf of Beyond Nuclear at an Atomic Safety and Licensing Board legal proceeding last month, called the application illegal.

“This adjudicatory body does not have the authority to review a license application that is based on an illegal premise,” she said during the first day of a two-day legal proceeding on the application. “Although Holtec presents it as an alternative, the mere inclusion of the Department of Energy as an option to be responsible for spent nuclear fuel transported to and stored at the proposed facility is illegal.”

Citing the Nuclear Waste Policy Act, Reiser said the federal government cannot take title to privately produced spent nuclear fuel until a final repository is operational.

“The law is clear,” she said. “There is no dispute that no final repository is operational, let alone even licensed; thus Holtec’s application is based on an illegal presumption, and application should be dismissed.”

Indeed, the DOE unceremoniously rejected its own plans for a federal repository at Yucca Mountain in Nevada almost a decade ago. It was the same site the DOE selected in 2002 as its long-term solution for housing spent nuclear fuel from the nation’s commercial nuclear power plants as well as U.S. Navy reactors.

“The interim repositories are viewed as a storage bridge until a permanent repository is opened,” Neil Sheehan, Nuclear Regulatory Commission public information officer for Region 1, said recently. “At this point, it is not clear when, or if, that will occur.”

He said the federal agency isn’t actively reviewing the Yucca Mountain application because more funding to do so is needed.

“We need to conduct a hearing on the proposal,” Sheehan said.

In the meantime, Reiser said Holtec’s application attempts to skirt the issue of who may legally own nuclear waste it proposes to store.

“The Nuclear Waste Policy Act is Congress’ comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants,” she said. “It is the result of brilliant and wise balancing on the part of Congress that establishes distinct responsibilities for the federal government and private generators regarding spent fuel with the ultimate goal that nuclear waste will end up underground in a permanent repository.”

Jay Silberg, of the law firm Pillsbury Winthrop Shaw Pittman of Washington, D.C., who spoke on behalf of his client, Holtec International, said while Holtec is pleased to sponsor the facility, it is also disappointed its needed.

“... because the Nuclear Waste Policy Act provided that the Department of Energy was supposed to start accepting spent nuclear fuel from the nuclear industry starting Jan. 31, 1998, a day some of us say will live in infamy,” he said, calling the existing dry cask storage facilities on nuclear power plant sites across the nation stranded.  “There will be more of them as time moves on, as plants are shut down, plants are decommissioned, and everything but the spent fuel is off the site. Both the utilities that own those sites and the jurisdiction in which those sites are located would desperately like the spent fuel to be stored safely and environmentally secure at another location.”

Silberg said it’s the phrase “its deployment will ultimately depend on the DOE and the U.S. Congress” that seems to have garnered everyone’s attention while being taken out of context.

“If, for instance, Congress and DOE decide to go ahead with Yucca Mountain, we pray that will happen – and it’s ironic that people (who) would criticize this facility, as perhaps, reducing incentive for a permanent disposal are among those who have fought toughest to keep us from Yucca Mountain,” he said. He noted if the necessary steps were taken to move ahead with Yucca Mountain, that would make Holtec’s project unnecessary and would have an obvious impact. “If we build phases 1-5 and Yucca becomes available, then we don’t build 6-10.”

Holtec and its opponents had until Feb. 11 to provide additional information for consideration. There is no time frame for a decision from the ASBL on the proceedings.

Three administrative judges from the NRC’s Atomic Safety and Licensing Board presided over the session. The board may hold adjudicative hearings on major licensing actions by the NRC, but is independent of the NRC staff. A board’s rulings may be appealed to the commission, a five-member board that sets NRC policy.

— Gina G. Scala

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