Dear Mr. McCree:
On behalf of Beyond Nuclear, Nuclear Information and Resource Service, Public Citizen, Inc., and SEED Coalition,1 we are writing to ask you to immediately order the dismissal of Waste Control Specialists, L.L.C.’s (“WCS”) application for a license for a consolidated interim spent fuel storage facility (“CISF”) in Andrews County, Texas, because the terms under which WCS seeks a license for the Andrews County facility are precluded by the Nuclear Waste Policy Act of 1982, as amended (“NWPA”).
WCS’ license application, filed April 28, 2016, seeks U.S. Nuclear Regulatory Commission (“NRC”) approval to build and operate a storage facility for up to 5,000 metric tons (“MT”) of spent fuel at the Andrews County site.2 WCS also anticipates expanding the capacity of the facility to 40,000 MT through subsequent license amendments. Environmental Report at 1-1. NRC recently informed WCS that it has embarked on an environmental review of WCS’ license application, pursuant to the National Environmental Policy Act (“NEPA”). Letter from Mark D. Lombard, NRC, to Michael Ford, WCS (Oct. 7, 2016) (ML16285A317)
While WCS plans to construct and operate the proposed facility, it assumes that the U.S. Department of Energy (“DOE”) will take ownership of the spent fuel to be stored at the site. License Application at 1-1 – 1-6. For instance, at page 1-1, the application asserts that “[t]he U.S. Department of Energy (DOE) will be contractually responsible for taking title of the spent fuel at the commercial reactor sites and transporting the spent fuel to the CISF, by rail.” This assumption of federal ownership of spent fuel is central to WCS’ license application: WCS has stated that it does not intend to build or operate the proposed facility unless and until the federal government takes title to the spent fuel. License Application at 1-6 (“WCS shall not receive [spent nuclear fuel] until such a contract with the DOE is provided to the NRC as a condition of the license.”).
The NRC must drop its NEPA review and dismiss WCS’ license application because the key condition of WCS’application — federal acquisition of title to commercially-generated spent fuel prior to the opening of a permanent repository — is inconsistent with the NWPA, Congress’ “comprehensive scheme for the interim and permanent disposal of high-level radioactive waste generated by civilian nuclear power plants.” Indiana Mich. Power Co. v. DOE, 88 F.3d 1272, 1273 (D.C. Cir. 1996). Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it is received at a repository:
“The generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the provisions of this Act [42 U.S.C. 10101 et seq.] ”
42 U.S.C. § 10131(a)(5). Further, Section 123 provides that “[d]elivery, and acceptance by the Secretary [of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository . . . shall constitute a transfer to the Secretary of title to such waste or spent fuel.” 42 U.S.C. § 10143 (emphasis added); see also 42 U.S.C. § 10222(a)(5)(A) (requiring DOE to “take title” to spent fuel only “following commencement of operation of a repository”).
The only NWPA provision that allows transfer of title to spent fuel from commercial licensees to the DOE, prior to the opening of a repository, is the emergency “Interim Storage Program” found in Subtitle B of the NWPA. But the Interim Storage Program expired in 1990. 42 U.S.C. § 10156(a)(1).Thus the NWPA contains no current provision that would allow DOE to assume title and responsibility for the spent fuel to be stored at the proposed CISF.
As the Commission has recognized, by providing, in the Interim Storage Program, a narrow time period (1982 to 1990) when DOE could take title to spent fuel prior to the opening of a repository, “Congress intended to force the utilities to solve their own interim storage solutions after the federal program had ‘bought them time’ to do so.”4 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-29, 56 NRC 390, 405-06 (2002). This resolve to force licensees to solve their own problems was based on “Congress’ belief that interim storage was the generators’ responsibility.” Id. at 404.
Congressional intent to place responsibility for interim spent fuel storage squarely on licensees also is reflected in the other, extremely narrow, provisions of the Interim Storage Program. For instance, the Interim Storage Program limited the amount of spent fuel that could be transferred to the DOE to only 1,900 metric tons (“MT”). 42 U.S.C. §§10151(b)(2), 10155(a)(1). And before transferring that stopgap quantity of spent fuel to the DOE, a reactor licensee was required to persuade the NRC that a lack of adequate spent fuel storage capacity at an operating nuclear reactor would jeopardize “the continued, orderly operation” of the reactor. 42 U.S.C. §
10151(a)(3). Finally, the Interim Storage Program required spent fuel storage at a federal facility, not a privately owned facility. 42 U.S.C. § 10151(b)(2).5 All of these provisions show that Congress intended, prior to the opening of a repository, to sharply restrict the time and circumstances under which the DOE could take title to spent fuel.
By assuming that DOE will take title to the spent fuel to be stored at the CISF, WCS flouts the limitations of the NWPA and the “responsibility” of spent fuel generators to come up with “their own interim storage solutions.” Private Fuel Storage, 56 NRC at 404-06. Taking responsibility for spent fuel logically includes all obligations incident to the ownership of spent fuel, such as financing the cost of building and maintaining a facility to safely house the spent fuel, and liability for operational problems and accidents. But WCS would have the DOE assume all responsibility for the spent fuel, including title to the spent fuel and financial responsibility for maintaining it. See, e.g., License Application at 1-5 (“The funding for constructing the CISF is expected to be primarily through a contract for storage of [spent fuel] with the DOE”); id. at 1-6 (“WCS will obtain funds to operate the CISF pursuant to a contract with the DOE.”). These assertions are diametrically opposed to the plain language and the intent of the NWPA.
Accordingly, the NWPA precludes the DOE from taking title to commercial spent fuel for storage at WCS’ proposed facility. And by the same token, the NWPA would preclude NRC from permitting individual reactor licensees to transfer title of spent fuel to the federal government for purposes of storing spent fuel at the CISF. Having previously issued reactor licensees a “general license” to “receive title to and own spent fuel” under 10 C.F.R. § 72.6, the NRC could not approve a subsequent transfer of spent fuel title and ownership to the federal government because such a transfer would not be “consistent with applicable provisions of the law. . .” 10 C.F.R. § 72.50(c)(2).
Given the fundamental incompatibility of WCS’ license application with the NWPA, the NRC has no lawful basis to review WCS’ application. Therefore, the NRC must dismiss the application and drop its NEPA review.
Please provide us with immediate written assurance that you will instruct the NRC Staff to refuse to continue to review WCS’ application and reject it as inconsistent with the NWPA. To continue to review WCS’ license application, forcing citizen groups to review it and prepare for a hearing as if it were a legitimate and lawful license application, would be grossly unfair to the affected public.
/s/ Diane Curran
Harmon Curran Spielberg & Eisenberg LLP
1725 DeSales Street NW, Suite 500
Washington, DC 20036 240-393-9285
/s/ Robert V. Eye
Robert V. Eye Law Office
4840 Bob Billings Pkwy, Suite 1010
Lawrence, Kansas 66049 785-234-4040
/s/ Mindy Goldstein
Turner Environmental Law Clinic
Emory University School of Law
1301 Clifton Road
Atlanta, GA 30322 404-727-3432
Attorneys for Beyond Nuclear, Nuclear Information and Resource Service,
Public Citizen, Inc., and SEED Coalition
Cc: NRC Commissioners:
Stephen G. Burns, Chairman
Kristine L. Svinicki