24th set; submitted Sept. 10th; re: Why Are These CISF Risks Being Taken? To Offload High-Level Radioactive Wastes' title (ownership) and liability on the backs of the public taxpayer.
Submitted via <holtec-cisfeis@nrc.gov>
Dear Holtec-CISFEIS Resource and NRC Staff,
This is my 24th set of public comments in this proceeding.
I submit these comments on behalf of our members and supporters, not only in New Mexico, near the targeted Holtec/ELEA Laguna Gatuna site, but across New Mexico, and the rest of the country, along road, rail, and waterway routes that would be used for high risk, highly radioactive waste shipments to Holtec's CISF, as well as to Yucca Mountain, Nevada, on Western Shoshone land -- illegally and improperly assumed by Holtec, as well as NRC, to someday become a permanent disposal repository.
Due especially to the numerous problems I have experienced submitting public comments via this <holtec-cisfeis@nrc.gov> email address, please acknowledge receipt of these comments, and please provide me with confirmation of their proper placement in the official public record for this proceeding.
The following subject matter has gotten little to no attention in NRC's Holtec CISF DEIS, a far cry from NEPA's legally binding "hard look" requirement. In addition, these comments show that there is no legitimate nor reasonable purpose and need for the Holtec CISF, targeting New Mexico, in the first place.
Why Are These CISF Risks Being Taken?
As laid out by my previous comments submitted in this proceeding, there are many significant risks associated with Holtec's proposed CISF. So why are these CISF risks to be taken? For no good reason. Certainly not to increase public health, safety, security, or environmental protection, despite Holtec, Eddy-Lea Energy Alliance, and nuclear power industry claims and PR spin to the contrary. Truth be told, it’s to expedite or accelerate the transfer title, liability, costs, and risks, for the highly radioactive irradiated nuclear fuel, from the private commercial companies that generated it, and profited from its generation, onto the backs of federal taxpayers. That’s a pretty big favor to the companies – in fact, it’s unique in all of industry! And it happens to be illegal. It is a violation of the Nuclear Waste Policy Act of 1982, as Amended.
Dr. Mark Cooper of Vermont Law School calculated, in December 2013, in his expert witness comments to the U.S. Nuclear Regulatory Commission’s (NRC) Nuclear Waste Confidence/Continued Storage of Spent Nuclear Fuel Generic EIS proceeding, calculated that the first 200 years of commercial irradiated nuclear fuel storage will cost a "staggering" $210 to 350 billion (yes, with a B). (See his expert comments at < https://web.archive.org/web/20160909042541/http://www.nirs.org/radwaste/exhibitd2013-12-16markcooperfinaldeclaration.pdf>, as well as the related press release at < http://www.cleanenergy.org/2013/12/19/waste-disposal-nrc/>. I have also attached Cooper's testimony to this email.) His estimate assumed two centralized (or consolidated) interim storage sites (or facilities), one permanent disposal geologic repository, and ongoing on-site storage at nuclear power plants, as needed. It effectively doubled the costs of nuclear-generated electricity, in one fell swoop, because these particular irradiated nuclear fuel management costs had conveniently (for the nuclear power industry) previously never been accounted for. Thus, the consolidated interim storage facility, as at Holtec/ELEA's Laguna Gatuna site, would be yet another significant public subsidy, for the nuclear power industry, on top of more than a half-century of other significant public subsidies of various and numerous sorts. (See the Union of Concerned Scientists’ 2011 report < http://www.ucsusa.org/nuclear-power/cost-nuclear-power/nuclear-power-subsidies-report#.WK3Iz4WkUZU>, for a comprehensive overview of the many assorted, numerous, some of them unique and unmatched by any other industry, public subsidies the nuclear power industry has enjoyed over the past many decades.) It is worth noting that none of this public subsidization of the nuclear power industry is included in the NRC's DEIS, such as in the socio-economic impacts sections, or anywhere else, for that matter.
At NRC public comment meetings in NM and TX in mid-Feb. 2017, re: the Interim Storage Partners CISF, WCS (Waste Control Specialists) CEO Rod Baltzer pushed back against such criticisms. He said that the taxpayer is already obligated to pay for irradiated nuclear fuel storage, because DOE signed contracts with utilities in the 1980s, pledging to begin taking out the garbage beginning by Jan. 31, 1998. He pointed out that the utilities have sued DOE for partial breach of contract, and won damages from the U.S. Judgment Fund, which draws taxpayer funding from the U.S. Treasury, not ratepayer funding from the Nuclear Waste Fund.
Baltzer is right on this one point: U.S. taxpayers are hemorrhaging $500 million to $800 million per year in these partial breach of contract damage awards, as Beyond Nuclear reported way back in 2010 < http://ieer.org/wp/wp-content/uploads/2010/03/NewWasteDisposalContractsBackgrounderFINAL3.pdf>.
(Baltzer now works in a leadership position at Deep Isolation, Inc. Holtec CEO Krishna Singh, at his Holtec CISF license application unveiling press conference held on Capitol Hill in Washington, D.C., in early April 2017, said that he regards the ISP CISF, proposed at WCS, TX, just 39 miles from the Holtec CISF site, as complementary, not as a competitor.)
But our criticism actually still holds. Under the Nuclear Waste Policy Act of 1982, as Amended, the nuclear utilities are responsible for interim storage of irradiated nuclear fuel. Taxpayers are responsible, most unfortunately, only for final disposal. But obviously now, the nuclear power utilities would like to transfer even consolidated interim storage facility expenses onto the backs of U.S. taxpayers, ASAP, as with DOE taking title and liability for commercial irradiated nuclear fuel bound for, and stored at, CISFs, such as Holtec/ELEA's in NM, and ISP's at WCS, TX.
This simple fact formed the basis for an environmental coalition letter to NRC in Oct. 2016, pointing out that the WCS license application is illegal, and that the agency should cease and desist from processing it. (For additional information, see:
http://archive.beyondnuclear.org/centralized-storage/2016/10/26/despite-setbacks-beyond-nuclear-and-allies-continue-to-chall.html )
Even though that letter focused on ISP/WCS in TX, the same legal principles and arguments also apply at Holtec/ELEA's CISF in NM, as Beyond Nuclear and other groups have raised at every turn, such as during NRC's Holtec CISF environmental scoping public comment period, during the NRC ASLB Holtec CISF licensing proceeding, in letters and legal appeals to the NRC Commissioners, and now during this NRC Holtec CISF DEIS public comment period.
Current law requires a final disposal repository to be licensed, open and operating (not just proposed, nor even nearing being granted a license), before a centralized (consolidated) interim storage site (facility) can be opened, that would rely upon the federal DOE to pay all the expenses -- in effect, taking title to, and liability for, commercial irradiated nuclear fuel interim storage. But there is no licensed repository open and operating. There is no prospect for one for another 28 years, if not significantly longer. So this Holtec CISF proposal violates the Nuclear Waste Policy Act of 1982, as Amended.
Holtec is seeking an end run around this legal constraint. This is very risky for the U.S. federal taxpayer. The linkage between an operating final disposal repository, and a centralized interim storage site, in the Nuclear Waste Policy Act of 1982, as Amended, is to guard against consolidated interim storage facilities from becoming de facto permanent, surface storage parking lot dumps -- the costs, liabilities and risks of which, the U.S. federal taxpayer may get stuck with indefinitely.
This end run around the legally mandated, precautionary linkage between a licensed and open/operating repository, and centralized interim storage facilities, that Holtec seeks, would be a huge boon to the nuclear power industry. It would expedite the transfer of all costs, risks, and liabilities for irradiated nuclear fuel, from the utilities that profited from its generation, onto the backs of U.S. federal taxpayers, sooner rather than later -- even before a repository is licensed, open and operating. Long before, actually: the DOE’s most recent estimate, as to when a repository can be opened, is 2048! And, as laid out in comments I've previously submitted in this proceeding, even that 2048 date may be overly optimistic.
Such an accelerated transfer of title for, and the costs, risks, and liabilities for, commercial irradiated nuclear fuel, means the nuclear utilities can walk away from the mess they’ve made all the sooner, removing that headache from their own ledgers. This would be yet another lucrative public subsidy for the nuclear power industry, this one paid by the U.S. taxpayer.
Holtec is clear about those costs, risks, and liabilities. In its initial license application, Holtec was careful, making it a licensing condition, that all those costs, risks, and liabilities for the commercial irradiated nuclear fuel, would be solely on DOE – that is, on U.S. federal taxpayers. Holtec would not accept any of those costs, risks, or liabilities. This of course set up a moral hazard with a highly radioactive twist. Holtec, a private, for-profit company, would have every incentive to cut corners, and take short cuts on safety and environmental protection, in order to save money, and boost its own profits. After all, DOE – U.S. federal taxpayers – would be shouldering all costs, risks, and liabilities. If anything were to go wrong, it would not be Holtec’s problem – it would be the taxpayers’ problem!
Only when Beyond Nuclear, and other groups, challenged this in Holtec's NRC ASLB licensing proceeding, and during the NRC environmental scoping for this CISF, did Holtec change its application, adding <and/or licensee title holders>, in addition to DOE, as potential customers at the CISF. Beyond Nuclear, and other groups, such as Don't Waste Michigan et al. (a seven group, national grassroots environmental coalition), and Sierra Club (the oldest, and largest, environmental group in the country), continued to press their point, however, throughout the ASLB licensing proceeding, as well as on appeal to the NRC Commissioners. Now that not only the ASLB, but also the NRC Commissioners, have rejected all such interventions and appeals, the Holtec CISF opponents have appealed to the federal courts. A common argument, made by Beyond Nuclear, Don't Waste Michigan et al., Sierra Club, and other Holtec CISF opponents, even at the current U.S. Court of Appeals for the District of Columbia Circuit level (the second highest court in the land), is that DOE's role as effective title holder (notwithstanding <and/or licensee title holders> as a fig leaf and afterthought to the contrary) makes this proposed CISF by Holtec illegal, a violation of the Nuclear Waste Policy Act of 1982, as Amended. And, as Beyond Nuclear has argued for years, NRC cannot violate the Nuclear Waste Policy Act of 1982, as Amended, without also violating the Administrative Procedure Act.
Here is Beyond Nuclear's press release, with links to certain cited legal documents, announcing its federal court appeal against Holtec's CISF, focused on this particular illegality subject matter:
http://archive.beyondnuclear.org/centralized-storage/2020/6/4/beyond-nuclear-files-federal-lawsuit-challenging-high-level.html
Here is the press release, reproduced in full:
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Source: Beyond Nuclear http://www.beyondnuclear.org/
NEWS FROM BEYOND NUCLEAR
For immediate release
Contact:
Diane Curran, Harmon, Curran, Spielberg + Eisenberg, LLP, (240) 393-9285, dcurran@harmoncurran.com
Mindy Goldstein, Director, Turner Environmental Law Clinic, Emory University School of Law, (404) 727-3432, mindy.goldstein@emory.edu
Kevin Kamps, Radioactive Waste Specialist, Beyond Nuclear, (240) 462-3216, kevin@beyondnuclear.org
Stephen Kent, KentCom LLC, (914) 589 5988, skent@kentcom.com
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BEYOND NUCLEAR FILES FEDERAL LAWSUIT CHALLENGING HIGH-LEVEL RADIOACTIVE WASTE DUMP FOR ENTIRE INVENTORY OF U.S. “SPENT” REACTOR FUEL
Petitioner charges the Nuclear Regulatory Commission knowingly violated U.S. Nuclear Waste Policy Act and up-ended settled law prohibiting transfer of ownership of spent fuel to the federal government until a permanent underground repository is ready to receive it
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| [WASHINGTON, DC – June 4, 2020] -- Today the non-profit organization Beyond Nuclear filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit requesting review of an April 23, 2020 order and an October 29, 2018 order by the U.S. Nuclear Regulatory Commission (NRC), rejecting challenges to Holtec International/Eddy-Lea Energy Alliance’s application to build a massive “consolidated interim storage facility” (CISF) for nuclear waste in southeastern New Mexico. Holtec proposes to store as much as 173,000 metric tons of highly radioactive irradiated or “spent” nuclear fuel – more than twice the amount of spent fuel currently stored at U.S. nuclear power reactors – in shallowly buried containers on the site.
But according to Beyond Nuclear’s petition, the NRC’s orders “violated the Nuclear Waste Policy Act and the Administrative Procedure Act by refusing to dismiss an administrative proceeding that contemplated issuance of a license permitting federal ownership of used reactor fuel at a commercial fuel storage facility.”
Since it contemplates that the federal government would become the owner of the spent fuel during transportation to and storage at its CISF, Holtec’s license application should have been dismissed at the outset, Beyond Nuclear’s appeal argues. Holtec has made no secret of the fact that it expects the federal government will take title to the waste, which would clear the way for it to be stored at its CISF, and this is indeed the point of building the facility. But that would directly violate the 1982 Nuclear Waste Policy Act (NWPA), which prohibits federal government ownership of spent fuel unless and until a permanent underground repository is up and running. No such repository has been licensed in the U.S. The U.S. Department of Energy’s (DOE) most recent estimate for the opening of a geologic repository is the year 2048 at the earliest.
In its April 23 decision, in which the NRC rejected challenges to the license application, the four NRC Commissioners admitted that the NWPA would indeed be violated if title to spent fuel were transferred to the federal government so it could be stored at the Holtec facility. But they refused to remove the license provision in the application which contemplates federal ownership of the spent fuel. Instead, they ruled that approving Holtec’s application in itself would not involve NRC in a violation of federal law, and that therefore they could go forward with approving the application, despite its illegal provision. According to the NRC’s decision, “the license itself would not violate the NWPA by transferring the title to the fuel, nor would it authorize Holtec or [the U.S. Department of Energy] to enter into storage contracts.” (page 7). The NRC Commissioners also noted with approval that “Holtec hopes that Congress will amend the law in the future.” (page 7).
“This NRC 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,” said Mindy Goldstein, an attorney for Beyond Nuclear. “The Commission lacks a legal or logical basis for its rationale that it may issue a license with an illegal provision, in the hopes that Holtec or the Department of Energy won’t complete the illegal activity it authorized. The buck must stop with the NRC.”
“Our claim is simple,” said attorney Diane Curran, another member of Beyond Nuclear’s legal team. “The NRC is not above the law, nor does it stand apart from it.”
According to a 1996 D.C. Circuit Court ruling, the NWPA is Congress’ “comprehensive scheme for the interim storage and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants” [Ind. Mich. Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996)]. The law establishes distinct roles for the federal government vs. the owners of facilities that generate spent fuel with respect to the storage and disposal of spent fuel. The “Federal Government has the responsibility to provide for the permanent disposal of … spent nuclear fuel” but “the generators and owners of … spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of … spent fuel until such … spent fuel is accepted by the Secretary of Energy” [42 U.S.C. § 10131]. Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it has opened a repository [42 U.S.C. § 10131(a)(5)].
“When Congress passed the Nuclear Waste Policy Act and refused to allow nuclear reactor licensees to transfer ownership of their irradiated reactor fuel to the DOE until a permanent repository was up and running, it acted wisely,” said Kevin Kamps, radioactive waste specialist for Beyond Nuclear. “It understood that spent fuel remains hazardous for millions of years, and that the only safe long-term strategy for safeguarding irradiated reactor fuel is to place it in a permanent repository for deep geologic isolation from the living environment. Today, the NWPA remains the public’s best protection against a so-called ‘interim’ storage facility becoming a de facto permanent, national, surface dump for radioactive waste. But if we ignore it or jettison the law, communities like southeastern New Mexico can be railroaded by the nuclear industry and its friends in government, and forced to accept mountains of forever deadly high-level radioactive waste other states are eager to offload.”
In addition to impacting New Mexico, shipping the waste to the CISF site would also endanger 43 other states plus the District of Columbia, because it would entail hauling 10,000 high risk, high-level radioactive waste shipments on their roads, rails, and waterways, posing risks of radioactive release all along the way.
Besides threatening public health and safety, evading federal law to license CISF facilities would also impact the public financially. Transferring title and liability for spent fuel from the nuclear utilities that generated it to DOE would mean that federal taxpayers would have to pay for its so-called "interim" storage, to the tune of many billions of dollars. That’s on top of the many billions ratepayers and taxpayers have already paid to fund a permanent geologic repository that hasn’t yet materialized.
But that’s not to say that Yucca Mountain would be an acceptable alternative to CISF. “A deep geologic repository for permanent disposal should meet a long list of stringent criteria: legality, environmental justice, consent-based siting, scientific suitability, mitigation of transport risks, regional equity, intergenerational equity, and safeguards against nuclear weapons proliferation, including a ban on spent fuel reprocessing,” Kamps said. “But the Yucca Mountain dump, which is targeted at land owned by the Western Shoshone in Nevada, fails to meet any of those standards. That’s why a coalition of more than a thousand environmental, environmental justice, and public interest organizations, representing all 50 states, has opposed it for 33 years."
Kamps noted that the U.S. Court of Appeals for the District of Columbia Circuit has upheld the NWPA before, including in the matter of inadequate standards for Yucca Mountain. In its landmark 2004 decision in Nuclear Energy Institute v. Environmental Protection Agency, it wrote, “Having the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment, nuclear waste has vexed scientists, Congress, and regulatory agencies for the last half-century." The Court found the U.S. Environmental Protection Agency’s insufficient 10,000-year standard for Yucca Mountain violated the NWPA’s requirement that the National Academy of Sciences' recommendations must be followed, and ordered the EPA back to the drawing board. In 2008, the EPA issued a revised standard, acknowledging a million-year hazard associated with irradiated nuclear fuel and high-level radioactive waste. Even that standard falls short, Kamps said, because certain radioactive isotopes in spent fuel remain dangerous for much longer than that. Iodine-129, for example, is hazardous for 157 million years.
NOTE TO EDITORS AND PRODUCERS: Sources quoted in this release are available for comment. For a copy of the petition filed today, to arrange interviews or for other information, please contact Stephen Kent, skent@kentcom.com, 914-589-5988
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September 13, 2020