ML20269A003
| ML20269A003 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 09/22/2020 |
| From: | Public Commenter Public Commenter |
| To: | NRC/NMSS/DREFS |
| NRC/NMSS/DREFS | |
| References | |
| 85FR16150 | |
| Download: ML20269A003 (19) | |
Text
From: Biernoff, Ari <abiernoff@slo.state.nm.us>
Sent: Tuesday, September 22, 2020 7:38 PM To: Holtec-CISFEIS Resource
Subject:
[External_Sender] Public Comment - Holtec International HI-STORE, Docket ID NRC-2018-0052 Attachments: CPL Comment Letter Final.pdf Please see the attached public comment letter in this matter from New Mexico Commissioner of Public Lands Stephanie Garcia Richard.
- Yours, Ari Biernoff General Counsel 505.827.5756 New Mexico State Land Office 310 Old Santa Fe Trail P.O. Box 1148 Santa Fe, NM 87504-1148 abiernoff@slo.state.nm.us nmstatelands.org
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[External_Sender] Public Comment - Holtec International HI-STORE, Docket ID NRC-2018-0052 Sent Date: 9/22/2020 7:37:59 PM Received Date: 9/22/2020 7:38:43 PM From: Biernoff, Ari Created By: abiernoff@slo.state.nm.us Recipients:
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Stephanie Garcia Richard COMMISSIONERS COMMISSIONER State of New Mexico OFFICE Phone (505) 827-5760 Commissioner of Public Lands Fax (505) 827-5766 www.nmstatelands.org 310 OLD SANTA FE TRAIL P.O. BOX 1148 SANTA FE, NEW MEXICO 87504-1148 September 22, 2020 Via electronic mail (Holtec-CISFEIS@nrc.gov)
United States Nuclear Regulatory Commission Attn: Program Management, Announcements and Editing Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Re: Holtec International HI-STORE, Docket ID NRC-2018-0052
Dear Commissioners:
This comment is submitted in response to the United States Nuclear Regulatory Commissions (NRC) solicitation of public comment regarding Holtec Internationals (Holtec) application to build and operate a nuclear waste storage facility in New Mexico. See 85 Fed. Reg. 16150 (March 20, 2020); 85 Fed. Reg. 23382 (April 27, 2020); 85 Fed. Reg. 37964 (June 24, 2020).
Holtecs proposed project is problematic for many reasons. The intended site is located in the middle of the Permian Basin, one of the worlds most productive oil and gas regions. Nearly 2,500 oil, gas, and mineral wells or sites are operated by 54 different businesses or entities within a 10 mile radius of the proposed site. Locating a nuclear storage site above active oil, gas, and mining operations raises serious safety concerns.
Holtec has falsely claimed to have secured agreements from oil and gas operators at or around the site to restrict these activities, specifically assuring the NRC that oil and gas drilling will only occur at depths greater than 5,000 feet. However, there are no such agreements containing these restrictions in place with oil and gas lessees at the project site or the State Land Office. One agreement has been made with Intrepid Mining LLC, a potash mining company, but that agreement has not been approved, as required by that companys lease terms, by the New Mexico State Land Office (State Land Office).
Given the State Land Offices mineral ownership of the land and the lack of restrictions on mineral development at the site, any claim that activities at the site have been limited is incorrect.
Holtecs submissions to the NRC, including the companys Facility Environmental Report and
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 2 Safety Analysis Report, include statements that have the potential, intended or not, to mislead federal regulators as they consider the safety implications of the proposal. In addition, two State Land Office lessees on or immediately adjacent to the site, COG Operating, LLC and EOG Resources, Inc., previously raised significant concerns about the proposed project at the land use restriction that Holtec requires, particularly its implications for salt water disposal wells, pipelines, and horizontal wells underneath the site that Holtec might determine - using unknown criteria -
will disturb or conflict with its storage operations. (See Exhibit A, attached). Both companies advise that they will explore all legal options if the State Land Office were to impose a restriction on oil and gas activities permitted under their current leases, along the lines of what Holtec seeks.
A third State Land Office lessee near the intended nuclear waste site is separately submitting a public comment letter to NRC outlining its concerns.
Holtec actually proposes a de facto permanent storage site for nuclear waste shipped from operating, decommissioning, and decommissioned reactors across the country. Considering the initial and planned expansions, it is unlikely to actually serve only as an interim facility. In addition, the proposed location, in one of the worlds top producing oil and gas regions, could have an adverse impact on one of New Mexicos key economic engines.
The nuclear waste storage/disposal application also raises significant issues with respect to transportation safety, among other concerns; however, the State Land Offices comments herein are primarily focused on errors, omissions, and unfounded assumptions in the draft Environmental Impact Statement relating to material legal, financial, environmental, and safety considerations that have a significant bearing on the proposed project.
New Mexico State Land Office The New Mexico State Land Office is an independent state agency responsible for administering around nine million acres of surface and 13 million acres of subsurface estate for the beneficiaries of the state land trust, which include public schools, universities, hospitals and other important public institutions. New Mexico acquired many of these lands, known as state trust lands, under federal legislation (the Ferguson Act of 1898 and the Enabling Act of 1910),
with additional lands obtained through subsequent conveyances and exchanges.
As New Mexicos Commissioner of Public Lands, it is my duty to optimize revenue for New Mexico schoolchildren and other beneficiaries while protecting the long-term health of state trust lands for future generations. By leasing state trust lands for a wide variety of uses, including farming and ranching, renewable energy, and oil and gas development, the State Land Office generates hundreds of millions of dollars each year to support the trust beneficiaries.
The State Land Office manages significant land resources in Lea County in the southeast part of the state, where Holtecs proposed nuclear waste storage facility would be located. In many instances, the State Land Office controls both surface and mineral estate, and in other instances only one or the other estate. The State Land Office, on behalf of its trust beneficiaries, controls the mineral estate at the site of Holtecs proposed waste facility.
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 3 The Proposed Nuclear Waste Facility Holtec seeks regulatory approval from NRC to store metal canisters containing between 5,000 and more than 100,000 metric tons of highly radioactive waste gathered from nuclear facilities across the United States. See United States Nuclear Regulatory Commission, Office of Nuclear Material Safety and Safeguards, NUREG-2237, Environmental Impact Statement for the Holtec Internationals License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel and High Level Waste - Draft Report for Comment (DEIS) at 1-1, 2-1. The intended site for Holtecs proposed nuclear waste facility is located in Section 13, Township 20 South, Range 32 East, Section 13, and portions of Section 17 and 18, Township 20 South, Range 33 East, between the cities of Hobbs and Carlsbad, in Lea County near its boundary with Eddy County (the Site). See DEIS at 2-2, DEIS Fig. 2-2.1.
While Holtec is seeking authorization to store nuclear waste at the Site for a minimum of 40 years, DEIS at xxii, 1-2, it has made clear its intention to keep waste at the Site for more than a century. DEIS at 2-2 (noting that Holtec has indicated that it may seek to renew the license for two additional renewal periods of up to 40 years each for a total of up to 120 years). Holtec has publicly stated that it expects to break ground on the site by 2021 and to accept the first shipment of nuclear waste by 2023, for which it already has booked orders. By Holtecs own estimates, the nuclear waste that it intends to acquire would remain in Lea County until 2048 at the earliest, and the company acknowledges that there is no designated permanent repository anywhere in the nation for high-level nuclear waste. DEIS at 1-2, 2-21. The company also has advertised that the Lea County site is large enough to receive all of the used nuclear fuel that currently exists in the entire United States.
Holtecs Misrepresentations About Site Ownership and Control NRC should be aware that Holtec consistently has misrepresented its prospective ownership and control of the Site. The DEIS incorrectly states that the proposed project area is privately owned by the Eddy-Lea Energy Alliance LLC. DEIS at 2-2. While the surface estate is privately owned, the mineral estate remains the property of the State of New Mexico, held in trust and managed by the State Land Office. 1 This is not a technicality; there are real consequences that follow from Holtecs misrepresentations; despite the fact that the Site mineral estate is owned and held in trust by the State Land Office, the agency was not consulted by the NRC. See DEIS at iii, 2-29. Instead, the DEIS relies on incorrect and misleading statements made by Holtec that the State Land Office previously noted in its June 19, 2019 letter to the company and NRC (attached as Exhibit B). Had the State Land Office been properly consulted as part of this process, it would have provided NRC staff with accurate information relating to the project site and existing and potential mineral estate activities.
Of great concern to me, Holtec claims that it is in discussions with the New Mexico State Land Office regarding an agreement to retire potash leasing and mining within the proposed project area, DEIS at 4-4, 5-24. This statement is false. The DEIS does not indicate any 1
The DEIS elsewhere acknowledges that [l]and surrounding the proposed project area is either privately-owned or owned by the BLM or the State of New Mexico . The State of New Mexico owns the subsurface property rights within the proposed project area. DEIS at 3-2. The DEIS conclusions, however, are based on the incorrect assumption that Holtec (through Eddy-Lea Energy Alliance LLC, with whom it may have an agreement not disclosed in the record) controls the Site.
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 4 analysis by NRC of actual control of mineral resources at the Site, instead simply accepting Holtecs misrepresentation as true.
Impairment of State Trust Mineral Resources Holtec has claimed in the past, and the DEIS accepts as true, that the State Land Office and its lessees will limit development of mineral resources to accommodate Holtecs intended use of the Site for nuclear waste storage and disposal. As noted above, Holtec is not in discussions with the State Land Office to limit mineral exploration and production at the site.
Oil and Gas Development Additionally, as the NRC acknowledges, DEIS at 3-6, the proposed nuclear waste facility is in an area of active oil and gas development. Holtec claims that its nuclear waste facility will have no impact on oil and gas exploration and development in the proposed project area because extraction will occur at depths greater than 930 m [3,050 ft]. DEIS at 4-6. While oil and gas production frequently takes place in deeper formations, the DEIS simply assumes without discussion that no shallower development can occur now or in the future. State Land Office oil and gas leases, whose terms are prescribed by the New Mexico Legislature, do not impose any depth restrictions on oil and gas development. NRCs actions to approve Holtecs nuclear waste facility, as contemplated by the DEIS, thus could directly impair both the State Land Offices enjoyment of the full benefit of its mineral rights as well as contractual rights afforded to its oil and gas lessees.
Relying on statements made by Holtec, the DEIS finds that construction of the proposed CISF would not have an effect on oil and gas operations within the proposed project area and that the company has no plans to use any of the plugged and abandoned wells. DEIS at 4-4. This determination is based on incorrect information and unfounded assumptions.
First, this is not an assurance the company can make. The State Land Office leases the Sites mineral estate for oil and gas development. Holtec does not own, lease, or have any control whatsoever over the development of the mineral estate. The State Land Office has active oil and gas leases in the project area, which contain provisions that are intended to facilitate the extraction of oil and gas resources and generate royalties for the public schools. Oil and gas operations are conducted as deemed appropriate by the lessees, as long as the activities are in accordance with the lease terms, State Land Office rules and Oil Conservation Division regulations. These leases are held by production and may remain active for decades to come. Holtec has no authority to dictate what does or does not occur with respect to oil and gas mineral estate development.
Second, the DEIS incorrectly assumes that should oil and gas activities occur, they will not interfere with the project because oil and gas resources will be accessed through off-site drill islands and at depths below 3,000 feet. DEIS at 3-8, 4-5. While it may be true that targets exist at depths between 3,000 and 16,000 feet and the Belco Tetris Shallow and Belco Deep drill islands could provide an offsite location for wells, there is no assurance that this would occur. The State Land Offices oil and gas lease terms are set by statute and do not contain any depth limitations.
By law and contract, oil and gas lessees are able to explore and develop resources at any depth.
Even assuming the State Land Office desired to restrict mineral development to certain depths, it
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 5 would be subject to potential lawsuits for conflict with the statutory lease. (See Exhibit A).
Additionally, the DEIS does not consider what environmental and safety impacts might reasonably manifest if oil and gas operations did occur at shallower depths Potash Mining As the DEIS notes, potash mining is a major part of the Eddy and Lea County economies.
DEIS at 5-24. Potash deposits in the immediate vicinity of the Site are considerable. Potash extraction takes place at depths shallower than 3,000 feet, DEIS at 3-9, so the DEIS conclusion that mineral development at the Site will not be impaired by the nuclear waste facility because such development will occur deeper than 3,000 feet, DEIS at 4-6, does not logically follow.
The DEIS recognizes that the project proposal may interfere with potash mineral extraction activities at the Site but views the impact as minor considering that there are other available resources in the region. This conclusion fails to consider that the State Land Office, as the trustee of the mineral estate, is obligated to get revenue from the mineral estate that it owns for the trust beneficiary assigned to that specific tract of land, in this case the states public schools. It does not matter that resources exist elsewhere, because the State Land Offices federal and state mandate is to generate money from all the lands it manages. The DEIS notes that potash demand is likely to increase over time with increased mining over the next 20-30 years, DEIS at 5-2, and with the potential potash resources at the site worth millions of dollars, abandoning the opportunity to develop these resources would result in a significant loss of revenue for public schools.
Furthermore, the DEIS relies on Holtecs incorrect assumption that it will be able to restrict existing and future potash mining in the area. The DEIS notes that Holtec has asserted that [t]he New Mexico State Land Office is currently in discussions with Holtec International regarding an agreement in principle to retire any potash, unencumbered by regulatory restrictions, in perpetuity. DEIS at 4-4. Discussions Holtec may have had with the previous Commissioner of Public Lands did not result in the issuance of any land use restriction, Holtec is not currently in discussions with me or my staff about such restrictions, and I have made clear that I do not intend to issue any such restrictions.
Additionally, the EIS found that Holtec has entered into an agreement with Intrepid to relinquish certain potash mineral rights to the State of New Mexico. DEIS at 4-4. This statement is misleading in several respects. First, any agreement to relinquish a State Land Office lease for the benefit of a third party would require the approval of the Commissioner. NMAC 19.2.3.18.
This has not occurred. Second, if the lease were simply relinquished by Intrepid back to the State Land Office, the potash resource would again be subject to leasing by another company.
Regardless, the approval of the Commissioner is legally required. As such, the safety and environmental assessments that have been conducted so far rely on the mistaken assumption that future potash leasing will not occur in the project area. 2 NRCs conclusion that Holtecs proposal will have no meaningful impacts on potash development at the Site thus is premised on incorrect or incomplete assumptions.
2 See, e.g., DEIS, Section 5.4, Geology and Soils, noting that because Holtec has entered into an agreement with Intrepid and previously discussed a leasing restriction with a prior Commissioner of Public Lands, the risk of soil subsidence from potash mining was low.
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 6 Other Mineral Development State Land Office control of the Sites mineral estate is not limited to oil, gas, and potash, but encompasses all mineral resources, including caliche, sand, gravel, and other substances. See DEIS at 3-6 (Mineral extraction in the area of the proposed project area consists of underground potash mining and oil and gas extraction, and noting active State Land Office mineral leases). As the DEIS notes, the Site is located in an area of dense caliche deposits, DEIS at 3-4, 3-18, and nearby there is active sand, gravel, and quarry stone mining for various purposes, including roads and other infrastructure to support renewable energy projects in the area. DEIS at 5-24, 5-25. In addition to exercising control over mineral resources at the Site, the State Land Office is entitled to access and utilize surface lands to facilitate mineral development; [a]s holder of the dominant estate, a mineral owner has the right to use the land, both surface and subsurface, absent an express limitation, as is reasonably necessary to enjoy its property rights. XTO Energy, Inc. v. Armenta, 2008-NMCA-078, ¶ 10, 144 N.M. 212. The DEIS does not take any of these considerations into account, particularly the State Land Offices (and its lessees) right to access and utilize the Sites surface for mineral development purposes.
Inadequate Cost-Benefit Analysis Holtec has not been forthcoming about the possible conflict between nuclear waste storage and current or future oil and gas development at the Site. The International Atomic Energy Agency appears top share my and State Land Office lessees concerns about the interaction between nuclear waste storage and preexisting oil and gas development on the very same tract of land. In a 2007 publication, that agency explained that [a]ny potential site will require an adequately controlled single-use land area to accommodate storage facilities, and that potential waste disposal sites should avoid land with exploitable mineral and energy resources.
International Atomic Energy Agency, Selection of Away-From-Reactor Facilities for Spent Fuel Storage: A Guidebook, IAEA-TECDOC-1558 (Sept. 2007) at 3.2.2 (pp. 23-24) (emphases added).
Despite Holtecs assurances, it does not appear that the company - or the NRC, through the DEIS
- has undertaken a thorough and critical analysis of the potential conflicts between nuclear waste storage and the vital economic activities that are already taking place on the Site.
The DEIS does not capture the full potential costs of the proposed project. It fails to consider the economic cost to the state and region if there were an accident that impacts the ability of companies to work in one of the most productive oil producing regions in the world. Any production decline related to a work stoppage could be hugely detrimental to the states finances, which is heavily dependent on oil and gas taxes and revenues, as well as local economies. It also fails to recognize the potential negative revenue impact to the states public schools if restrictions were put in place limiting mineral extraction at the Site.
Additionally, the DEIS does not consider the potential serious legacy costs of an accident.
If the mineral estate were to become contaminated, the ability of the State Land Office to generate revenue from the Site and nearby areas could be severely limited or rendered impossible. A radioactive mineral estate could also result in vast remediation costs, which could fall on taxpayers and trust land beneficiaries.
For all the reasons stated above, I strongly urge the NRC to adopt the No-Action
United States Nuclear Regulatory Commission Docket ID NRC-2018-0052 Page 7 Alternative and to not issue the proposed license to Holtec. I appreciate your attention to these issues. Please let me know if you have any questions or need any additional information from the State Land Office.
Sincerely, Stephanie Garcia Richard Commissioner of Public Lands
Enclosures:
June 12 and 14, 2019 Oil and Gas Lessee Letters (Exhibit A)
June 19, 2019 State Land Office Letter to Holtec (Exhibit B)
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