Nukewatch Quarterly Fall 2021

By Beyond Nuclear

On September 13 the Nuclear Regulatory Commission (NRC) granted a license for a controversial centralized storage site for high-level radioactive waste in west Texas, on the New Mexico border. If it’s ever opened, the site would concentrate up to 40,000 tons of the waste uranium fuel from nuclear power reactors across the United States in one place.

The firm Interim Storage Partners (ISP), a joint venture of Waste Control Specialists and Orano (formerly the French conglomerate Areva), intends to store the irradiated reactor fuel — euphemistically known as “spent” nuclear fuel or SNF, despite the fact that it is highly radioactive and lethal — in heavy dry storage canisters on surface concrete pads. If completed, it would be the first private high-level radioactive waste site in the United States. As Ari Natter reported for Bloomberg, “The waste can remain radioactive for hundreds of thousands of years.” [See: How Long Does Reactor Waste Stay Deadly? p.4]

A second centralized waste dump in New Mexico, 35 miles from the ISP site, and proposed by Holtec International, is also expected to be approved by the NRC. Holtec wants a license to store another 173,600 metric tons of waste fuel in partly buried canisters. Since the total volume of this waste fuel at US reactors is about 90,000 metric tons, experts have asked why the two sites would seek a combined capacity of 213,600 metric tons. One possibility is that waste from other countries could be imported by the for-profit dump projects. The government has previously done so, storing foreign waste at the Idaho National Laboratory in Idaho Falls, and, in 2018, testing the transport of a “mock SNF cask” shipped from Europe to Colorado.

Opening either of the Desert Southwest dumps would set in motion thousands of transport shipments of the high-level waste which would cross at least 44 states. The loaded canisters and transport casks are subject to radiation leakage and other failures that pose threats to thousands of communities along the transport routes.

“Transporting highly radioactive waste is inherently high-risk,” said Kevin Kamps, Radioactive Waste Specialist with Beyond Nuclear. “Fully loaded irradiated nuclear fuel containers would be among the very heaviest loads on the roads, rails, and waterways. They would test the structural integrity of degraded rails and bridges, risking derailments,” he said.

Kamps continued, “Even if the nation’s infrastructure is ever renovated, the shipping containers themselves will remain vulnerable to severe accidents and terrorist attacks, which could release catastrophic amounts of lethal radioactivity, possibly in a densely populated urban area. Even so-called ‘routine’ or ‘incident-free’ shipments are like mobile X-ray machines that can’t be turned off, in terms of the hazardous emissions of gamma and neutron radiation, dosing innocent passersby as well as transport workers.”

The Nuclear Waste Technical Review Board recommends spending a minimum of a decade to develop better SNF cask and canister designs before attempting to transport irradiated nuclear fuel. Yet ISP expects its “Consolidated Interim Storage Facility” to open and start accepting shipments in the next few years. However, a lawsuit in federal court and near-unanimous opposition in the Texas legislature to importing spent nuclear fuel could upend ISP’s expectations.

Siting nuclear facilities is supposed to require the consent of the host communities, but Texas has made it clear on every level it does not consent. In September, prior to the NRC licensing of the ISP facility, the Texas legislature approved a bill banning storage or disposal of high-level radioactive waste in the state, and directing the Texas Commission on Environmental Quality to deny state permits that the ISP project needs. The measure passed the Texas Senate unanimously, and passed the Texas House 119-3.

“This kind of bipartisan vote is very rare,” said Karen Hadden, executive director of the Sustainable Energy and Economic Development (SEED) Coalition. “The message should be loud and clear: Texas doesn’t want the nation’s deadliest nuclear waste and does not consent to being a dumping ground.”

Texas Governor Abbott signed the bill into law a week before the NRC’s license approval. After it, Gov. Abbot said on Twitter, “Texas will not become America’s nuclear waste dumping ground.” Before the Texas Legislature passed the law, opposition to the ISP project in Texas was widespread and vocal.

Abbott and a group of Texas Congressional Representatives wrote to the NRC opposing the project. Resolutions against importing the waste to Texas were passed by Andrews County and five others, as well as three cities, representing a total of 5.4 million Texans. School districts, the Midland Chamber of Commerce, and oil and gas companies joined environmental and faith-based groups in opposing the ISP project.

“I am thankful that the Texas Legislature voted to stop this dangerous nuclear waste from coming to their state,” said Rose Gardner of the watchdog group Alliance for Environmental Strategies. Gardner is a party in a federal court challenge to the dumps. Two lawsuits that could block both the ISP project in Texas and the Holtec project in New Mexico — on the grounds that they violate federal law — are currently pending in the US Court of Appeals for the District of Columbia Circuit.

Temporary dumps prohibited by federal law

Both dump proposals are based on the presumption that the Energy Department will “take title” to the deadly material as it leaves the privately owned reactor sites, and free its current owners of liability for it. However, the transfer of ownership from private hands to the federal government is specifically prohibited by the Nuclear Waste Policy Act (NWPA) of 1982, as Amended, unless and until a permanent, deep dump site is open and operating — a prospect that remains decades away. The liability provision in the NWPA legally prevents “interim” storage sites from becoming permanent by default.

The Texas and New Mexico sites’ licensing processes have been approved in violation of the NWPA on the presumption that the law will be amended again.

“The NRC should never have even considered these applications, because they blatantly violate the federal Nuclear Waste Policy Act by assuming that the federal government will take responsibility [ownership] of the waste before a permanent repository is licensed and operating,” said Diane Curran, an attorney for Beyond Nuclear, one of the groups that brought the suits. “Licensing the ISP and Holtec facilities would defeat Congress’s purpose of ensuring that high-level waste generated by US reactors will go to a deep geologic repository, rather than to vulnerable surface facilities that may become permanent nuclear waste dumps.”

Now that the NRC has approved the ISP facility, the briefing phase of the federal Court of Appeals lawsuit is expected to begin. Participants in the legal challenge to the ISP and Holtec facilities are a national coalition of watchdog groups that includes Beyond Nuclear, the Sierra Club, the Austin-based SEED Coalition, and Don’t Waste Michigan.

Both lawsuits were also joined by Fasken Land & Minerals, Ltd., an oil and gas company, and the Permian Basin Land and Royalty Owners Association which promotes ranching and mineral rights.

“The grand illusion of nuclear power is now revealed,” said Michael Keegan of Don’t Waste Michigan.

“There is nowhere to put the waste. No community consents to accept nuclear waste — not Texas, not Michigan, or anywhere on the planet. We have to stop making it,” Keegan said.