ML22059A926
| ML22059A926 | |
| Person / Time | |
|---|---|
| Issue date: | 03/25/2022 |
| From: | Perry Buckberg, Caroline Carusone Plant Licensing Branch II |
| To: | Ogaz Z State of NM, Office of the Attorney General |
| Buckberg P | |
| Shared Package | |
| ML21356B483 | List: |
| References | |
| EPID L-2021-CRS-0002, OEDO-21-00547 | |
| Download: ML22059A926 (1) | |
Text
March 25, 2022 Zachary E. Ogaz Assistant Attorney General Office of the Attorney General State of New Mexico P.O. Drawer 1508 Santa Fe, NM 87504
Dear Zachary E. Ogaz:
I am writing in response to your petition, on behalf of the New Mexico Attorney General, Hector Balderas, dated December 20, 2021 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML21362A429), addressed to the U.S. Nuclear Regulatory Commission (NRC) Executive Director for Operations (EDO). The NRC EDO referred your petition to the Office of Nuclear Reactor Regulation for review in accordance with Title 10 of the Code of Federal Regulations (10 CFR) Section 2.206, Requests for action under this subpart.
In the petition, you requested that the NRC take enforcement action against Interim Storage Partners (ISP) by revoking their Materials License No. SNM-2515 and by revoking the NRCs Record of Decision regarding issuance of Materials License No. SNM-2515. Your rationale for requesting this action is your assertion that the NRCs process for approving SNM-2515 is not in accordance with the National Environmental Policy Act (NEPA) and the Waste Control Specialists, LLC (WCS) Consolidated Interim Storage Facility (CISF) will have a negative impact on the human environment and on the State of New Mexico. The bases for your request are summarized below:
- 1. The NRC failed to obtain backing and necessary permitting from host communities.
- 2. The NRC used flawed assumptions including the likelihood of a de facto permanent nuclear waste storage facility.
- 3. The site is geologically unsuitable.
- 4. There is a potential for terrorist attacks and sabotage.
- 5. The NRC did not consider potential impacts on water and ecological resources.
- 6. The NRC failed to consider the amount of funding needed to ensure the safety and protection of New Mexicos citizens and natural resources.
- 7. The NRC used a faulty analysis of environmental justice concerns.
Consistent with NRC Management Directive 8.11, Review Process for 10 CFR 2.206 Petitions (ADAMS Accession No. ML18296A043), the NRC established a petition review board (PRB) to evaluate your petition. The PRB consists of staff from NRC who are knowledgeable of the materials licensing process and related safety and environmental issues. In evaluating your petition, the PRB reviewed NRCs records regarding the issues you raised in your petition.
The PRBs initial assessment was that your submittal is not appropriate for the 2.206 petition process for several reasons. First, the 10 CFR 2.206 petition process is not an appropriate means to challenge the NRC staffs review of a license application, to include the NRC staffs
Z. Ogaz compliance with NEPA. Second, your petition does not meet the criteria in Management Directive 8.11, Directive Handbook Section III.C.1(b)(ii) for accepting petitions because the concerns raised in your petition have already been the subject of the NRC staffs review and evaluation and none of the additional Section III.C.1(b)(ii) circumstances apply.
On February 11, 2022, the NRC informed you by e-mail of the PRBs initial assessment (ADAMS Accession No. ML22045A056) and offered you an opportunity to meet with the PRB to clarify or supplement your petition with information for the PRB to consider before the PRB makes a final determination. On February 25, 2022, you declined the offer to meet with the PRB (ADAMS Accession No. ML22062A400).
Given no additional information, the PRBs final determination is unchanged in that the SNM-2515 licensing, safety and/or environmental issues described in your petition do not meet the criteria for consideration under 10 CFR 2.206 for the reasons described above.
Specific information regarding the detailed concerns expressed in your petition is presented in the enclosure to this letter along with the specific NRC issued document and section number where each concern was considered by the NRC staff during the licensing process.
The regulations in 10 CFR 2.206 provide an opportunity for the public to petition the NRC to take enforcement-related action, and, while the PRB determined that the issues raised do not warrant further review, the NRC understands that this process takes time, resources, and energy by petitioners. Accordingly, I thank you for taking the time to raise your concerns.
Sincerely, Digitally signed by Caroline L. Caroline L. Carusone Date: 2022.03.25 Carusone 14:42:49 -04'00' Caroline L. Carusone, Deputy Director Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation
Enclosure:
Petition Concern Table
10 CFR 2.206 Petition to Revoke License SNM-2515 Addressing of Petitioner Concerns Petitioner Concerns How NRC Addressed INTRODUCTION.
Petitioner Seeks Stay Until Agency Conducts Evaluation of the Cumulative Impacts of the ISP/WCS Issue addressed in staffs final
[Interim Storage Partners LLC/ Waste Control Environmental Impact Statement (FEIS)
Specialists] CISF [consolidated interim storage facility] (ADAMS Accession No. ML21209A955) on the Human Environment and on the State of New (Section 5 - Cumulative Impacts).
Mexico.
Thorough examination of long-term impacts and Issue addressed in staffs FEIS (Section 4 reasonably foreseeable consequences of licensing
- Environmental Impacts and Section 5 -
decision for ISP CISF is not only good policy, but Cumulative Impacts).
required by law Because New Mexico side of the New Mexico/Texas border is more densely populated, the ISP CISF will Issue addressed in staffs FEIS (Section 4 disproportionately impact New Mexicans in the
- Environmental Impacts and Section 5 -
immediate vicinity for decades (if not longer) and poses Cumulative Impacts).
unacceptable risks to New Mexicos citizens, communities, and economy.
I. FAILURE TO CONSIDER FACTORS ENSURING SAFETY AND PROTECTION OF NEW MEXICOS CITIZENS, REGIONAL ECONOMIES, AND NATURAL RESOURCES The NRC has fundamentally failed in conducting an independent investigation into the reasonably Issue addressed in staffs FEIS (Section 4 foreseeable cumulative impacts of the ISP CISF. In - Environmental Impacts and Section 5 -
violation of its own regulations and NEPA [National Cumulative Impacts).
Environmental Policy Act of 1969], NRC failed to:
PART I. FLAWED SITE SELECTION PROCESS A. Failures to Obtain Backing and Necessary Permitting from Host Communities The selection of the ISP site has no support from the local communities where the proposed ISP CISF project is licensed to be constructed and operated for Issue addressed in staffs FEIS (Section decades. In the glaring absence of consent from the D.2.2.17 - NEPA Process/Public Texas and New Mexico governors and legislatures, and Participation - Consent-Based Siting and given the lack of necessary permitting for the facility, Community Consent for the Project).
the ISP facility cannot be built as proposed and therefore the License should be revoked.
NRCs licensure of the ISP CISF facility fails to consider major opposing viewpoints and fails to adhere to a reasonable site selection process. A primary parameter in the site selection process for nuclear Issue addressed in staffs FEIS (Section waste storage sites is political and community support D.2.2.17 - NEPA Process/Public for hosting a CISF, expressed at the time of the Participation - Consent-Based Siting and screening process. Yet, the ISP EIS [Environmental Community Consent for the Project).
Impact Statement] fails to address the major opposing viewpoints of New Mexico and Texas, who will shoulder the burden of costs and risks for the proposed action, in violation of NEPA and NRC regulations.
Enclosure
Petitioner Concerns How NRC Addressed Contrary to the fundamentals of consent-based siting, a broad range of businesses, state, local, and tribal Issue addressed in staffs FEIS (Section leaders have expressed their opposition to this project D.2.2.17 - NEPA Process/Public New Mexico has lodged numerous objections to Participation - Consent-Based Siting and the ISP site due to the potential impact on the States Community Consent for the Project).
economic resources.
Lack of necessary permitting for the facility (ISP has not obtained the necessary amendment(s) to groundwater Issue addressed in staffs FEIS (Sections discharge permit DP-1817 for the low-level radioactive 4.5.1.1.2 - Operations Impacts and waste disposal and storage operations at the ISP site) D.2.12.2 Surface Water - Precipitation,
.the ISP EIS does not even recognize the need for Runoff, and Flooding).
this required permit amendment The NRC issued the license to ISP to Further, the NRC lacks authority to build the proposed construct and operate the WCS CISF CISF in the State of Texas. (ADAMS Accession No. ML21188A099).
It is a 40-year term license.
B. Flawed Assumptions and Likelihood of a De Facto Permanent Nuclear Waste Storage Facility Issue addressed in staffs FEIS (Section D.2.6.2 - Assumptions - Availability of a NRC has no reasonable basis to assume in the ISP EIS Repository).
that a permanent repository will be established by Issue addressed in Appendix B to 2048.
NUREG-2157 (ADAMS Accession No. ML14196A105).
Over time, it is likely that the casks storing spent Issue addressed in staffs SER [safety nuclear fuel and high-level waste will lose integrity and evaluation report] (Sections 9.3.3 -
will require repackaging. Confinement Monitoring, and 10.3.17-Management of Aging Degradation)
(ADAMS Accession No. ML21188A101).
New Mexico does not have the luxury of assuming the The NRC issued the license for a 40-year canisters will not fail before a permanent SNF [spent term, which expires on 09/13/2061. This is nuclear fuel] storage location is constructed because also discussed in the staffs SER (Section there is no presumable end date to the proposed 10.3.17- Management of Aging interim storage. Degradation).
C. Geologically Unsuitable Location The ISP EIS ignores reality that nuclear waste in over-sized railcars and/or heavy-haul trucks will be Issue addressed in staffs FEIS (Section transported along rails and roads in the region which D.2.9.26 - Transportation of SNF -
will inevitably traverse such geological instability Infrastructure).
(subsidence, sinkholes and karst fissures).
ISP EIS fails to examine the status of approximately Issue addressed in staffs FEIS (Section 600 boreholes on the ISP property or conduct an 3.2.4 - Mineral Extraction and Other adequate risk assessment as to whether or not these Industry Activities).
boreholes have been improperly abandoned or plugged Issue addressed in staffs SER (Section and whether they pose a threat of subsidence or 2.3.2 - Nearby Industrial, Transportation sinkholes. and Military Facilities).
Seismicity concerns at and around the ISP site are not Issue addressed in staffs FEIS (Section adequately addressed, with the ISP site selection 3.4.5 - Seismology).
process glossing over the recent March 2020
Petitioner Concerns How NRC Addressed magnitude 5.0 earthquake and the potential for more Issue addressed in staffs SER (Section frequent and more powerful earthquakes in the region 2.3.6 - Geology and Seismology).
in the future.
The ISP EIS provides general information but does not include discussion of mitigation measures to limit such impacts or provide specific information about Issue addressed in staffs FEIS (Section safeguards to protect against these known threats. 4.4.1.2 - Operations Impacts).
Such lack of adequate assessments violates NRC Issue addressed in staffs SER (Section regulations for siting evaluation. See, e.g., 10 CFR 2.3.6 - Geology and Seismology).
§§ 72.90 -108.
D. Potential for Terrorist Attacks and Sabotage The NRCs unjustifiable position that multiple rounds of Issue addressed in staffs FEIS (Section transport across the nation will result in absolutely zero 4.3.1.2.2 - Transportation Impacts from possibility of a release Nationwide SNF Shipments to the CISF).
The staff performed this review for the WCS CISF as part of the safety evaluation and documented the review in a separate
[NRCs] refusal to conduct any assessment at all for security evaluation (safeguards). Physical potential terrorist or sabotage attacks relating to the ISP security is discussed in Section 11.3.6 -
CISF, is unacceptable and unsupportable. Physical Security and Safeguards Contingency Plans - of the non-proprietary SER (ADAMS Accession No. ML21188A101).
Given that storage of SNF at the ISP CISF is inextricably linked to national transport of SNF to the ISP site in the Permian Basin (a vital energy and Issue addressed in staffs FEIS (Section security sector), the NRC must conduct a risk D.2.25.1 - Security and Terrorism - Out of assessment for potential terrorist attacks and sabotage Scope).
as required by NEPA and consistent with DOE recommendations and NRCs own policies for the Ninth Circuit.
E. Precious Water and Ecological Resources If there is any discharge of SNF or any other non-radiological contaminant, New Mexicos water Issue addressed in staffs FEIS (Sections resources will be directly impacted. The NRC does not 4.5.1.1.2 - Operations Impacts and comprehensively assess such potential impacts or D.2.12.2 - Surface Water - Precipitation, mitigation measures to limit adverse effects on New Runoff, and Flooding).
Mexicos waters in violation of NEPA.
Misleading characterization of shallow groundwater Issue addressed in staffs FEIS (Sections aquifers below and in the vicinity of the ISP CISF site 3.4.2 - Site Geology and 3.5.1 - Surface Water Resources).
Misrepresentations as to the source and potential Issue addressed in staffs FEIS (Sections contamination of nearby playas 3.5.1.2 - Local Topography, Surface Water, and Floodplains and 3.5.1.3 -
Wetlands).
Disregard of known competition for limited water Issue addressed in staffs FEIS (Sections resources and impacts on those resources both from 3.5.2.3 - Groundwater Use and 5.7.2.2 -
overlapping ISP CISF sites and climate change
Petitioner Concerns How NRC Addressed Overlapping Impacts of the Proposed CISF and Climate Change).
Failure to consider the adequacy of groundwater Issue addressed in staffs FEIS (Sections monitoring and NMED [New Mexico Environment 4.5.1.1.2 - Operations Impacts and Department or TPDES [Texas Pollutant Discharge D.2.12.2 - Surface Water - Precipitation, Elimination System] permitting requirements Runoff, and Flooding and Table 6.3-1 Summary of Mitigation Measures ISP Proposed.
NRCs position on permitting is that New Mexicos water resources are not within NRCs jurisdiction and Issue addressed in staffs FEIS (Sections are not required for an impact determination. See ISP 4.5.1.1.2 - Operations Impacts and EIS at D-96. But the NRC is tasked with the D.2.12.2 - Surface Water - Precipitation, responsibility of evaluating such impacts in the EIS Runoff, and Flooding).
regardless of the entity that is ultimately responsible for permitting PART II. NRCS FAILURE TO CONSIDER THE AMOUNT OF FUNDING NEEDED TO ENSURE THE SAFETY AND PROTECTION OF NEW MEXICOS CITIZENS AND NATURAL RESOURCES The NRC assumes without foundation that New Mexico and its political subdivisions will provide resources, Issue addressed in staffs FEIS (Section personnel, equipment, medical facilities, fire 4.11.1.2 - Socioeconomic Impacts-departments, and necessary training to mitigate any Operations Impacts).
radiological accidents or exposures during regional transportation and continued storage at the site.
NRC shirked its mandatory responsibilities regarding Issue addressed in staffs FEIS (Sections radiological accidents or exposures during regional 4.3.1.2.2.3 - Radiological Impacts to transportation and continued storage at the site Workers and the Public from SNF claiming that another party or entity will mitigate the risk Transportation Accidents and 4.15 -
without evaluating the impacts in violation of NEPA. Accidents).
NRC improperly segments the financially and functionally connected activity of transportation in the Issue addressed in staffs FEIS (Sections ISP EIS, in violation of NEPA, relying on untimely and 4.3.1.2 - Operations Impacts and 4.11.1.2 piecemeal evaluations that fail to capture actual costs - Socioeconomic Impacts-Operations and adverse impacts to New Mexico, its communities Impacts).
and existing industries.
The risks, hazards and feasibility of SNF transport to Issue addressed in staffs FEIS (Sections the ISP site are ignored, as are the added infrastructure 4.3.1.2 - Operations Impacts, 4.11.1.2 -
costs and whether such costs outweigh any alleged Socioeconomic Impacts-Operations economic benefits of the project. Impacts, and 8.3.2 - Economic and Other Costs and Benefits of the Proposed CISF).
But, NRC failed to conduct an independent Issue addressed in staffs FEIS (Section investigation into the regional risks of transporting the 4.3.1.2 - Operations Impacts).
SNF through New Mexico and sub silentio outsourced The NRC issued the license for a 40-year the responsibility for emergency response to New term, expires on 09/13/2061.
Mexico without properly analyzing the risks of Issue addressed in staffs SER (Sections permanent storage or of waste repackage or retrieval. 9.3.3 - Confinement Monitoring and 10.3.17 - Management of Aging Degradation).
Petitioner Concerns How NRC Addressed NRCs segmentation of transportation impacts is largely silent on the reasonably foreseeable cumulative impacts, including (i) potential risks from wear and tear Issue addressed in staffs FEIS (Sections and geologic instability, (ii) adverse impacts on regional 4.11.1.2 - Socioeconomic Impacts-industries use of the transportation infrastructure and Operations Impacts, D.2.9.12 -
the inevitable need for infrastructure improvement Transportation of SNF - Impact Analysis costs, and (iii) the costs associated with equipping and Approach - NEPA Compliance, and training first responders and emergency services to D.2.9.26 - Transportation of SNF -
respond to a radiological incident or exposure in this Infrastructure).
rural region (i.e., what the New Mexico Governor refers to as unfunded mandates).
PART III. FLAWED ANALYSIS OF ENVIRONMENTAL JUSTICE CONCERNS NRCs faulty cost and benefit analyses omits key Issue addressed in staffs FEIS (Sections information and misleadingly overstates an alleged 4.12 and 5.12 - Environmental Justice, and beneficial socioeconomic impact while discounting D.2.18 - Comments Concerning adverse impacts to communities that have historically Environmental Justice).
been overlooked or disadvantaged.
NRCs skewed environmental justice review turns a blind eye to existing minority and low-income populations in the region and along undisclosed Issue addressed in staffs FEIS (Sections transportation routes. Minority population density in 4.12 and 5.12 - Environmental Justice, and this region far exceed [sic] the national average, and D.2.18 - Comments Concerning the NRC improperly downplays the disproportionate Environmental Justice).
impacts on these communities by not including an analysis of those impacts in its evaluation.
ML21356B483 (Package); ML22059A926 (Letter) NRR-106 OFFICE NRR/DORL/LPL2-2/PM NRR/DORL/LPL2-2/LA NMSS/DFM/STLB/BC NMSS/REFS/ERMB/BC YDiaz-Sanabria (BWhite NAME PBuckberg RButler for) JQuintero (JCaverly for)
DATE 2/25/2022 3/01/2022 3/14/2022 3/4/2022 OFFICE OGC - NLO NRR/DORL/LPL2-2/BC NRR/DORL/DD NMSS/D NAME RCarpenter DWrona CCarusone JLubinski DATE 3/17/2022 3/17/2022 3/21/2022 3/22/2022 OFFICE NRR/D NRR/DORL/DD NAME AVeil (MKing for) CCarusone DATE 3/25/2022 3/25/2022