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Atomic Safety and Licensing Board winks at acknowledged violations of federal law
TAKOMA PARK, MARYLAND and WEST TEXAS --
In yet another astounding ruling Friday, the U.S. Nuclear Regulatory Commission (NRC) Atomic Safety and Licensing Board (ASLB) acknowledged that an application by Interim Storage Partners (ISP) to store 40,000 metric tons of highly radioactive irradiated nuclear fuel in Andrews County, Texas violates federal law, but nevertheless dismissed Beyond Nuclear’s legal challenge on the ground that ISP could be depended on not to implement the unlawful provision if the license were granted. ISP is a consortium of Waste Control Specialists, and Orano (formerly Areva) of France, and has also partnered with container vendor Nuclear Assurance Corporation.
At page 27 of its ruling (page 29 of 111 on the PDF counter), the ASLB stated:
"ISP may hope that Congress changes the law to allow it the option of contracting directly with DOE [the U.S. Department of Energy]. Meanwhile, we are confident that ISP -- having acknolwedged on the record that it would be unlawful to contract with DOE under the NWPA [the Nuclear Waste Policy Act of 1982, as Amended] as currently in effect -- will not try to do just that. Nor may we assume that DOE would be complicit in a violation of the NWPA."
The NRC ASLB's ISP ruling is nearly identical to its equally astounding ruling regarding the Holtec International/Eddy-Lea Energy Alliance, New Mexico consolidated interim storage facility (CISF) scheme on May 7, 2019. Holtec/ELEA propose to store a whopping 173,600 metric tons of irradiated nuclear fuel, just 39 miles from ISP, across the Texas/New Mexico state line.
Mindy Goldstein, a lawyer for Beyond Nuclear stated, “ISP, Beyond Nuclear, and the NRC all agree that a fundamental provision in the ISP application violates the Nuclear Waste Policy Act. Now, the Licensing Board decided that the violation did not matter. But, the Board cannot ignore the mandates of federal law.”
Indeed, the Administrative Procedure Act prohibits an agency from acting contrary to the law as issued by Congress and signed by the President.
“NRC may be an independent agency, but it is not above the law,” Goldstein said.
Goldstein said this is but the latest time the NRC has issued a decision overruling Beyond Nuclear’s objection to NRC consideration of the unlawful ISP (as well as Holtec/ELEA) applications, and that the group will pursue a federal court appeal. The next step in the process, however, is to appeal the ASLB ruling to the NRC Commissioners themselves, as Beyond Nuclear has already done in the Holtec/ELEA proceeding.
Diane Curran also serves as legal counsel for Beyond Nuclear.
Kevin Kamps, radioactive waste specialist for Beyond Nuclear, called the federal Nuclear Waste Policy Act “the public’s best protection against an interim storage facility becoming a de facto permanent, national, high-level radioactive waste dump at the surface of the Earth.” Under the Act, the federal government may not take title to irradiated (also euphemistically referred to as "spent" or "used"), highly radioactive reactor fuel, unless and until a permanent disposal repository has opened. DOE has stated such a repository cannot open prior to the year 2048. In violation of the Act, ISP’s application assumes that the U.S. Department of Energy may take title to the irradiated fuel to be stored at the interim facility. ISP's proposed consolidated interim storage facility is located immediately adjacent to an already operational national so-called "low" level radioactive waste dump at Waste Control Specialists (WCS). WCS, within Texas but immediately adjacent to the New Mexico state line near Eunice, sits near, or even above, the Ogallala Aquifer, vital to eight High Plains states for drinking and irrigation water. WCS, just like Holtec/ELEA, is also located in the Permian Basin, the most active oil extraction and natural gas fracking field in the country, and one of the most active in the entire world.
New Mexico Governor Michelle Lujan Grisham warned Energy Secretary Rick Perry and NRC Chairman Kristine Svinicki in June, "given that there is currently no repository for high-level waste in the United States, any interim storage facility will be an indefinite storage facility."
"Critics have long warned that opening a consolidated interim storage facility, without an operating permanent repository, risks so-called 'temporary' becoming de facto permanent. That is the carefully crafted wisdom of the Nuclear Waste Policy Act, to protect states like New Mexico and Texas from being screwed by the powerful nuclear industry, its friends in the federal government, and other states looking to off-load their mountain of forever deadly high-level radioactive waste,” said Kamps, radioactive waste specialist at Beyond Nuclear.
Despite this, Energy Secretary Rick Perry testified at a U.S. House hearing in late March that he welcomed "permanent" storage (in other words, disposal) at WCS in West Texas (and, by extension, Holtec/ELEA in NM). This flies in the face of DOE's own warning that, over a long enough period of time, with loss of institutional control, surface storage containers will fail and release catastrophic amounts of hazardous ionizing radioactivity into the environment.
“On behalf of our members and supporters in Texas and New Mexico, and across the country along the road, rail, and waterway routes in most states, that would be used to haul the high risk, high-level radioactive waste out West, we will appeal today’s bad ruling to the NRC Commissioners by the fast-approaching deadline,” Kamps added.
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Beyond Nuclear is a 501(c)(3) nonprofit membership organization. Beyond Nuclear aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to safeguard our future. Beyond Nuclear advocates for an energy future that is sustainable, benign and democratic. The Beyond Nuclear team works with diverse partners and allies to provide the public, government officials, and the media with the critical information necessary to move humanity toward a world beyond nuclear. Beyond Nuclear: 7304 Carroll Avenue, #182, Takoma Park, MD 20912. Info@beyondnuclear.org. www.beyondnuclear.org.
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September 5, 2019