Text

2.206 Petition Seeking Revocation of Materials License No. SNM-2515 for the Interim Storage Partners LLC (ISP) Consolidated Interim Storage Facility (CISF)
	ML21362A429
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/20/2021
From:	Balderas H; State of NM, Office of the Attorney General
To:	Dan Dorman; NRC/EDO
	Buckberg, P. H.
References
	Download: ML21362A429 (61)
	v • d • e

December 20, 2021 Daniel H. Dorman Executive Director for Operations United States Nuclear Regulatory Commission Washington, DC 20555-0001 PETITION PURSUANT TO 10 C.F.R. § 2.206 SEEKING REVOCATION OF MATERIALS LICENSE NO. SNM-2515 FOR THE INTERIM STORAGE PARTNERS LLC (ISP) CONSOLIDATED INTERIM STORAGE FACILITY (CISF) -

(EXPEDITED RELIEF REQUESTED)

On behalf of the State of New Mexico, the New Mexico Attorney General, Hector Balderas (Petitioner or New Mexico), submits this petition pursuant to 10 C.F.R. § 2.206, requesting that the United States Nuclear Regulatory Commission (NRC) institute a proceeding under 10 C.F.R. § 2.202 to revoke NRCs Record of Decision and issuance of ISP CISF Materials License No. SNM-2515 (ISP CISF License) (See Attachments 1 and 2) to construct and operate a facility to store high-level radioactive nuclear waste until the agency is in accordance with the law.

Specifically, Petitioner requests revocation of, and a stay or suspension of all activities relating to, the ISP CISF License in the interim. Petitioner seeks this stay until the agency complies with mandatory requirements under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (NEPA), including but not limited to 42 U.S.C. §§ 4332 (C), (D), (E), and (G), and until the agency conducts a comprehensive and appropriate evaluation of the cumulative impacts of the ISP/WCS CISF on the human environment and on the State of New Mexico. A thorough examination of such long-term impacts and reasonably foreseeable consequences of its licensing decision for the construction and operation of the ISP CISF is not only good policy, but required by law. New Mexico requests expedited treatment of this Petition seeking revocation and an immediate stay or suspension of the ISP CISF License in the interim.

New Mexico has a vested interest in the long-term construction and operation of the ISP CISF due to its close proximity to, and inevitable reliance on, New Mexicos infrastructure and resources, as well as its inevitable impacts on regional industries, economies, and environments.

The ISP CISF is situated approximately 0.6 kilometers (km) [0.37 mile (mi)] east of the Texas and New Mexico state boundary, with the nearest resident located approximately 6 km [3.8 mi] to the west of the ISP location in Eunice, New Mexico. Because the New Mexico side of the border is more densely populated, the ISP CISF will disproportionately impact New Mexicans in the immediate vicinity for decades (if not longer) and poses unacceptable risks to New Mexicos citizens, communities, and economy. Accordingly, New Mexico petitions the NRC to revoke the ISP CISF License and comply with existing law and its own regulations, including but not limited to, 10 C.F.R. § 51.10 and 51.91.

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I. NRC HAS FAILED TO ADEQUATELY CONSIDER FACTORS TO ENSURE THE 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 foreseeable cumulative impacts of the ISP CISF. In violation of its own regulations and NEPA, NRC failed to: (1) recognize ISPs submission of an unreasonable site selection process locating a CISF where there is little to no political support for the project; (2) evaluate the unfounded assumption that a permanent repository would be established by 2048; (3) consider how the de facto permanent storage of high-level radioactive nuclear waste at the ISP facility increases the risk of contamination and radiation exposure; (4) acknowledge the instability and unsuitability of seismological and geological characteristics in the area that render long-term suitability and storage at the ISP facility ill-advised; (5) conduct any evaluation as to potential impacts of a terrorist attack at the ISP facility or during transportation of spent nuclear fuel (SNF); (6) evaluate the need for improvements to rail access, infrastructure, and transportation to and from the ISP facility; and (7) evaluate the potential impact of the ISP CISF on regional water resources. 1 A. NRCS RELIANCE ON AN UNREASONABLE AND FLAWED SITE SELECTION PROCESS

i. NRC Cannot Ignore 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 decades. In the glaring absence of consent from the Texas and New Mexico governors and legislatures, and given the lack of necessary permitting for the facility, 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 waste storage sites is political and community support for hosting a CISF, expressed at the time of the screening process. 2 Yet, the ISP EIS 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. See e.g., Letter from New Mexico Governor Michelle Lujan-Grisham to U.S. Nuclear Regulatory Commission, November 3, 2020 (Grisham 2020) (See Attachment 3). (opposition includes both myself and Governor Abbott of Texas, who similarly recognizes the risk [of] a CISF in this region poses to Texas residents).

1 ISP CISF Final Environmental Impact Statement (EIS) (Sept. 2021) at 2-24, available at:

https://www.nrc.gov/docs/ML2120/ML21209A955.pdf.

2 Id.

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Contrary to the fundamentals of consent-based siting, a broad range of businesses, state, local, and tribal leaders have expressed their opposition to this project and to a similar project in New Mexico proposed by Holtec International. Grisham 2020. New Mexico has lodged numerous objections to the ISP site due to the potential impact on the States economic resources. The New Mexico Governor has emphatically stated: [a]ny disruption of agricultural or oil and gas activities as a result of a perceived or actual nuclear incident would be catastrophic to New Mexico, and even taking steps toward siting a CISF in the area could cause a decrease in investment in two of our states biggest industries.. Grisham 2020. Any incident or radiological contamination in the Permian Basin, one of the worlds top producing oil and gas regions, would be catastrophic to one of New Mexicos key economic engines, and [d]espite the proximity to New Mexico and the City of Eunice, multiple letters and comments from myself and other state officials and community representatives, there has been a lack of involvement with New Mexicos state agencies and local communities regarding the proposed action. Letter from New Mexico State Senator Jeff Steinborn to NRC, September 13, 2021 (Steinborn, 2021) (See Attachment 8).

Moreover, ISP has not obtained the necessary amendment(s) to groundwater discharge permit DP-1817 for the low-level radioactive waste disposal and storage operations at the ISP site (operated by its joint venture business partner Waste Control Specialist (WCS) (See Attachment 10). As a permit requirement, WCS is required to amend its permit at any point when there is a material change to the operations, and the ISP EIS does not even recognize the need for this required permit amendment. In this case, the limited discharge permit initially issued for low-level radioactive waste related discharges does not cover the activities licensed by the NRC, nor does it contemplate discharges of high-level radioactive or Greater-Than-Class C radioactive waste under the ISP CISF License. Without such amendment(s), ISP and WCS will be in violation of NEPA and NRC NEPA implementing regulations contained in 10 C.F.R. Part 51, and New Mexicos Water Quality Act, NMSA 1978, §§ 74-6-1 et seq. (1978). Regular groundwater monitoring reports will be absolutely necessary to ensure the protection of New Mexicos groundwater resources from any SNF leaks and other contaminants.

In addition to opposition from New Mexico, the ISP facility has a complete lack of local consent in Andrews County, with countless communities passing resolutions opposing CISFs and/or banning transportation of high-level radioactive nuclear waste. Further, the NRC lacks authority to build the proposed CISF in the State of Texas. 3 The State of Texas, Governor Greg Abbott, and the Texas Commission on Environmental Quality filed a Petition for Review in the United States Court of Appeals for the Fifth Circuit challenging the licensure of the ISP facility. 4 Governor Abbott has clearly expressed concerns regarding the impact of forcing states with low-level radioactive waste to accept more highly radioactive waste and its accompanying hazards without the consent of the state. Letter from Texas Governor Greg Abbott to NRC, November 3, 2020 (Abbott 2020) (See Attachment 5).

3 The NRC made a contrary assumption and relies on Texas to mitigate risk. HB 7 was passed unanimously in the Texas state senate in September 2021, sending a crystal-clear message of Texass opposition to the ISP CISF project.

https://legiscan.com/TX/bill/HB7/2021/X2. See Attachment 9.

4 State of Texas, et al. v. NRC, Case No. 21-60743 (5th Cir. 2021).

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In sum, the ISP facility has no support from local communities at the current site, and NRCs ISP EIS fails to address all of the necessary permitting and authorization requirements in Texas, as well as in New Mexico.

ii. NRCs Flawed Assumptions and Likelihood of a De Facto Permanent Nuclear Waste Storage Facility Beyond the crucial criteria of community support sorely lacking here, secondary considerations of ISPs site selection process would further preclude selection of Andrews County given the unsuitability of placing what will become a de facto permanent nuclear waste storage facility amidst valuable mineral resources and the potentially devastating adverse impacts it could have on extensive and ongoing extraction operations that serve as the cornerstones of regional economies. Given the NRCs shortcomings in licensing and budgetary limitations, the NRC has no reasonable basis to assume in the ISP EIS that a permanent repository will be established by 2048. 5 Grisham 2020.

The proposed storage poses significant and unacceptable risks to New Mexicans, [its]

environment and [its] economy, with risks and uncertainty that are elevated in the absence of a permanent repository. Grisham 2020. Of concern is, [o]ver time, it is likely that the casks storing spent nuclear fuel and high-level waste will lose integrity and will require repackaging. Any repackaging of spent nuclear fuel and high-level waste increases the risk of accidents and radiological health risks as well as risks to communities along regional transportation routes. Id.

Presently, the ISP CISF does not have and has not proposed the capability to repackage or retrieve the nuclear waste after initial packaging. This is a grave concern of the State. New Mexico does not have the luxury of assuming the canisters will not fail before a permanent SNF storage location is constructed because there is no presumable end date to the proposed interim storage.

The proposed action unacceptably puts New Mexico communities at risk without a permanent storage site plan and without a long-term study on SNF canister durability. Steinborn 2021.

iii. NRCs Selection of a Geologically Unsuitable Location The ISP site is in a region that is geologically unsuitable. The site is in an area that is underlain by concerns for sinkhole development and shallow groundwater[,] does not provide deep geologic isolation for indefinite [SNF] storage[,] and is unsuitable for storage over a period of decades. Letter from New Mexico Governor Michelle Lujan-Grisham to the NRC, September 13, 2021 (Grisham, 2021) (See Attachment 4). Furthermore, the proposed ISP surface level storage over an area with shallow groundwater contradicts well-established scientific recommendations for radioactive wastes to be stored in deep, geologically stable formations. New Mexico Environment Department Letter to U.S. NRC, November 3, 2020 (NMED 2020) (See ).

5 ISP CISF Final EIS (Sept. 2021) at 2-2, available at: https://www.nrc.gov/docs/ML2120/ML21209A955.pdf.

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The ISP EIS acknowledges the presence and existence of subsidence, sinkholes and karst fissures in the region but unjustifiably claims the ISP site will not be impacted, ignoring the reality that nuclear waste in over-sized railcars and/or heavy-haul trucks will be transported along rails and roads in the region which will inevitably traverse such geological instability. 6 Similarly, ISP EIS fails to examine the status of approximately 600 boreholes on the ISP property or conduct an adequate risk assessment as to whether or not these boreholes have been improperly abandoned or plugged and whether they pose a threat of subsidence or sinkholes. NMED 2020.

Additionally, seismicity concerns at and around the ISP site are not adequately addressed, with the ISP site selection process glossing over the recent March 2020 magnitude 5.0 earthquake and the potential for more frequent and more powerful earthquakes in the region in the future. 7 See also, Letter from New Mexico Environment Secretary James Kenney, September 14, 2021(Kenney 2021) (See Attachment 7). The ISP EIS provides general information but does not include discussion of mitigation measures to limit such impacts or provide specific information about [] safeguards to protect against these known threats. Steinborn 2021.

Such lack of adequate assessments violates NRC regulations for siting evaluation. See, e.g.,

10 C.F.R. §§ 72.90 -108.

iv. Potential for Terrorist Attacks and Sabotage NRCs failure to conduct any terrorist risk assessment is inconsistent with the United States Department of Energys (DOEs) policy requiring evaluation of same and further ignores NRCs requirement for such evaluations for NRC licenses operating in the Ninth Circuit, where many shipments to the ISP CISF will originate. 8 Instead, NRC has chosen to arbitrarily assess such risks differently in different regions of the country and maintains that evaluation of potential acts of sabotage and terrorism is only required in the Ninth Circuit. 9 The NRCs unjustifiable position that multiple rounds of transport across the nation will result in absolutely zero possibility of a release, as well as its refusal to conduct any assessment at all for potential terrorist or sabotage attacks relating to the ISP CISF, is unacceptable and unsupportable. As the New Mexico and Texas Governors have repeatedly objected, the NRCs lack of analyses poses unacceptable risks and puts the Permian Basin at grave risk. See e.g., Abbott 2020; Grisham 2020.

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 security sector), the NRC must conduct a risk assessment for potential terrorist attacks and sabotage as required by NEPA and consistent with DOE recommendations and NRCs own policies for the Ninth Circuit. See also Section III below.

6 ISP CISF Final EIS (Sept. 2021) at 3-20, available at: https://www.nrc.gov/docs/ML2120/ML21209A955.pdf.

7 See Id. (citing USGS website).

8 Memorandum from Carol S. Borgstrom, Director, DOE Office of NEPA Policy and Compliance, to DOE NEPA Community, Need to Consider Intentional Destructive Acts in NEPA Documents (Dec. 1, 2006), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-DOE-intentdestructacts.pdf; See San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006) (finding analysis required); c.f. N.J. Dept. of Envtl Protection v. NRC, 561 F.3d 132 (3d Cir. 2009).

9 See NUREG-2157 (Sept. 2014), available at: https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr2157/index.html.

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v. Precious Water and Ecological Resources Because the ISP site is an area that is underlain by concerns for sinkhole development and shallow groundwater that does not provide deep geologic isolation for indefinite SNF storage, and because the flow of groundwater from the ISP site is predominately southwest towards New Mexico. . . if there is any discharge of SNF or any other non-radiological contaminant, New Mexicos water resources will be directly impacted. Grisham 2021. The NRC does not comprehensively assess such potential impacts or mitigation measures to limit adverse effects on New Mexicos waters in violation of NEPA.

Examples of NRCs failure to assess impacts to New Mexicos water resources include:

the misleading characterization of shallow groundwater aquifers below and in the vicinity of the ISP CISF site; misrepresentations as to the source and potential contamination of nearby playas; disregard of known competition for limited water resources and impacts on those resources both from overlapping ISP CISF sites and climate change; and failure to consider the adequacy of groundwater monitoring and NMED or TPDES permitting requirements.

NRCs position on permitting is that New Mexicos water resources are not within NRCs jurisdiction and are not required for an impact determination. See ISP EIS at D-96. But the NRC is tasked with the responsibility of evaluating such impacts in the EIS regardless of the entity that is ultimately responsible for permitting.

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, personnel, equipment, medical facilities, fire departments, and necessary training to mitigate any radiological accidents or exposures during regional transportation and continued storage at the site. This is yet another example of NRC shirking its mandatory responsibilities, claiming that another party or entity will mitigate the risk without evaluating the impacts in violation of NEPA or addressing the lack of community support detailed above. At the same time, the costs incurred by New Mexico and its political subdivisions are not considered in ISP EIS, either in its No Action scenario or in its reasonable alternatives analyses.

Similar to the overwhelming opposition from host communities, the risks, hazards and feasibility of SNF transport to the ISP site are ignored, as are the added infrastructure costs and whether such costs outweigh any alleged economic benefits of the project. Indeed, New Mexico and its political subdivisions are tasked with responding to any accident or disaster without any funding or analysis of New Mexicos resources and training needs. Steinborn 2021. The NRC did not even attempt to investigate or analyze the substantial strain that the ISP CISFs reliance would have on the limited resources of those communities within the region.

Instead, NRC improperly segments the financially and functionally connected activity of transportation in the ISP EIS, in violation of NEPA, relying on untimely and piecemeal evaluations

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that fail to capture actual costs and adverse impacts to New Mexico, its communities and existing industries. Steinborn 2021 (transportation of SNF creates risk anywhere along the transportation routes, but transportation was not considered as a connected activity by the EIS, and improvements to rail lines and rail infrastructure were not evaluated).

In terms of unanalyzed impacts to New Mexico, the ISP CISF will undeniably rely on New Mexico roads and rails. See e.g., ISP EIS at 3-6 (regional access to proposed CISF project area is by New Mexico State Route 18); Id. at 2-11 (shipments of SNF will be transported from locations across U.S. to Monahans, Texas and then transported north to Eunice, New Mexico, on existing rail that the Texas New Mexico Railroad owns and operates).But, NRC failed to conduct an independent investigation into the regional risks of transporting the SNF through New Mexico and sub silentio outsourced the responsibility for emergency response to New Mexico without properly analyzing the risks of permanent storage or of waste repackage or retrieval.. 10 In fact, the ISP CISF License expressly states that the ISP facility does not have repackaging or retrievability capabilities. So, there is incongruity between NRCs assumptions regarding repackaging and irretrievability capabilities at the ISP CISF site and what the ISP CISF site is actually capable of doing. This issue is of paramount significance to the regional communities and local industries, further ignores the acknowledged regional leg of transport into New Mexico.

NRCs segmentation of transportation impacts is largely silent on the reasonably foreseeable cumulative impacts, including (i) potential risks from wear and tear and geologic instability, (ii) adverse impacts on regional industries use of the transportation infrastructure and the inevitable need for infrastructure improvement costs, and (iii) the costs associated with equipping and training first responders and emergency services to respond to a radiological incident or exposure in this rural region (i.e. what the New Mexico Governor refers to as unfunded mandates).

NRC cannot ignore impacts of regional transportation in its site-specific ISP EIS or the associated costs and impacts thrust upon New Mexico to mitigate and accommodate transport of SNF. Because the proposed action involves extensive use of New Mexico rails and roads, the NRC must consider the need for improved infrastructure along railway lines and funding for emergency personnel and equipment to respond to emergency spills. Grisham 2021. Nor can NRC ignore that a permanent repository does not exist, there is no existing plan to build one, and there is no guarantee that a permanent repository for SNF in the [U.S.] will be developed in the foreseeable future. Steinborn 2021. Such disregard for reasonable and relevant opposing viewpoints violate NEPA and NRC implementing regulations, including but not limited to, 10 C.F.R. § 51.91(b).

As acknowledged in the ISP EIS, but left unanalyzed by the NRC in its licensing decision, the CISF has serious and substantial implications for the State:

NRC staff also recognize that the presence of a facility that stores nuclear materials may require additional preparedness of first responders in the event of an incident requiring fire, law enforcement, and health service support. . . detailed analysis of the costs associated with these potential additional resources are not evaluated in detail. . . States are recognized 10 NUREG-2125 (Jan. 2014), available at: https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr2125/index.html.

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as responsible for protecting public health and safety during transportation accidents involving radioactive materials.

. . .NRC staff recognize that if SNF is shipped to a CISF, some States, Tribes, or municipalities along [*largely undisclosed] transportation routes may incur costs for emergency response training and equipment that would otherwise likely be eligible for funding under NWPA Section 180(c) provisions if the SNF were shipped by DOE from existing sites to a repository. Because needs of individual municipalities . . . and the costs of this training and equipment vary widely, quantification of such would be speculative.

States distribution of funding for first-responder training and equipment to local municipalities is not within NRCs authority [and it][] is beyond the scope.

The impacts of using these other modes to supplement rail transportation of SNF was previously evaluated by DOE (DOE, 2008; 2002) and found to not significantly change the minor radiological impacts from a national mostly-rail SNF transportation campaign and therefore are not evaluated further in this impact analysis.

[M]itigation measures for the avoidance of potential adverse impacts that . . . would be required under . . .State permits or processes.

III. FLAWED ANALYSIS OF ENVIRONMENTAL JUSTICE CONCERNS NRCs faulty cost and benefit analyses omits key information and misleadingly overstates an alleged beneficial socioeconomic impact while discounting adverse impacts to communities that have historically been overlooked or disadvantaged. Moreover, NRCs skewed environmental justice review turns a blind eye to existing minority and low-income populations in the region and along undisclosed transportation routes. Minority population density in this region far exceed the national average, and the NRC improperly downplays the disproportionate impacts on these communities by not including an analysis of those impacts in its evaluation. Disparate impacts on populations residing in so-called Nuclear Alley will only be compounded by the proposed action. See NMED 2020 (the Proposed Action [ISP CISF] threaten[s] human health and the environment in New Mexico where minority and low-income populations have already suffered disproportionately high adverse human health and environmental effects from nuclear energy and weapons programs of the United States.) See also, Lone Star Legal Aid Joint Comments on Draft EIS for ISP CISF (Nov. 3, 2020); Texas Rio Grande Legal Aid Comments on Final EIS for ISP CISF (Sept. 10, 2021).

CONCLUSION Based on the foregoing, the State of New Mexico requests the ISP CISF License be revoked and the licensing action be stayed or suspended until (i) NRCs assessment of cumulative and environmental impacts and unfunded mandates imposed on the State are adequately analyzed, and (ii) NRC can demonstrate compliance with reasonable siting evaluation factors, NEPA and NRC implementing regulations.

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Respectfully submitted by:

HECTOR H. BALDERAS NEW MEXICO ATTORNEY GENERAL

/s/ Zachary E. Ogaz Zachary E. Ogaz Assistant Attorneys General zogaz@nmag.gov P.O. Drawer 1508 Santa Fe, NM 87504 T. (505) 717-3536

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RECORD OF DECISION U.S. NUCLEAR REGULATORY COMMISSION RECORD OF DECISION INTERIM STORAGE PARTNERS LLC LICENSE APPLICATION FOR A CONSOLIDATED INTERIM STORAGE FACILITY, ANDREWS COUNTY, TEXAS Introduction The U.S. Nuclear Regulatory Commission (NRC) staff prepared this record of decision (ROD) for the proposed Interim Storage Partners LLC (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas. This ROD satisfies Section 51.102(a) of Title 10 of the Code of Federal Regulations (10 CFR), which states that [a] Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision.

In July 2021, the NRC staff issued a final Environmental Impact Statement (FEIS) (NRC, 2021b) for ISPs license application to construct and operate a proposed Waste Control Specialists (WCS) CISF (ISP, 2018a, 2018b, 2020a, 2020b, and 2021). In the FEIS, the NRC staff, in accordance with 10 CFR 51.91(d), sets forth its recommendation, pursuant to the National Environmental Policy Act of 1969, as amended (NEPA), regarding the proposed action.

The NRC staff recommended that, subject to the determinations in the staffs safety review of the application, the proposed license be issued to ISP to construct and operate a CISF at the proposed location to temporarily store up to 5,000 metric tons of uranium (MTUs) [5,500 short tons] of spent nuclear fuel (SNF) for a licensing period of 40 years (NRC, 2021b). The NRC staff has prepared this ROD in accordance with NRC regulations at 10 CFR Sections 51.102(b) and 51.103(a)(1)-(4). In addition, in accordance with 10 CFR Section 51.103(c), this ROD incorporates by reference the materials contained in the FEIS (NRC, 2021b).

The Decision This ROD documents the NRC staffs decision to issue a license to ISP for the proposed WCS CISF in Andrews County, Texas (NRC, 2021a). The license authorizes ISP to construct and operate its facility as proposed in its license application and under the conditions in its NRC license.

After weighing the impacts of the proposed action and comparing them to the No-Action alternative, the NRC staff, in accordance with 10 CFR 51.91(d), set forth its NEPA recommendation regarding the proposed action. The NRC staff recommended that, subject to the determinations in the staffs safety review of the application, the proposed license be issued to ISP to construct and operate a CISF at the proposed location to temporarily store up to 5,000 MTUs [5,500 short tons] of SNF for a licensing period of 40 years. The staff based its conclusion on (i) review of the ISP license application, which includes the Environmental Report (ER) and supplemental documents (ISP, 2018a, 2018b, 2020a, 2020b, and 2021), and ISPs responses to the NRC staffs requests for additional information (RAIs) (ISP, 2019a and 2019b);

(ii) consultation with Federal, State, tribal, and local agencies and input from other stakeholders, including public comment on the draft EIS; (iii) independent NRC staff review; and (iv) the assessments provided in the FEIS.

In its safety and security review, the NRC staff determined that the application met the applicable NRC regulations in 10 CFR Part 72, Licensing Requirements for the Independent Attachment 1

Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than Class C Waste. In issuing a materials license to ISP for the WCS CISF, the NRC determined that there is reasonable assurance that: (i) the activities authorized by the license can be conducted without endangering the health and safety of the public; and (ii) these activities will be conducted in compliance with the applicable regulations of 10 CFR Part 72.

The NRC further determined that issuance of the license will not be inimical to the common defense and security.

Background

In accordance with the NRCs NEPA-implementing regulations in 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions, the NRC staff prepares a site-specific EIS for the issuance of a license pursuant to 10 CFR Part 72 for the storage of spent fuel in an independent spent fuel storage installation (ISFSI) at a site not occupied by a nuclear power reactor (10 CFR 51.20(b)(9)). In this instance, the NRCs major Federal action is to decide whether to issue a license authorizing ISP to construct and operate the WCS CISF for a 40-year license term.

The WCS CISF would store up to 5,000 MTUs [5,500 short tons] of SNF and Greater-Than-Class-C (GTCC) waste, along with a small quantity of mixed oxide (MOX) fuel (collectively referred to as SNF in the FEIS and in this ROD), which would originate from commercial nuclear reactor facilities in the United States, for a 40-year period at the site in Andrews County, Texas.

During operation, the WCS CISF would receive SNF from decommissioned and decommissioning reactor sites, as well as from operating reactors prior to decommissioning (NRC, 2021b).

The WCS CISF would be built and operated on an approximately 130-hectare (ha) [320-acre (ac)] project area within a 5,666-ha [14,000-ac] parcel of land that is controlled by ISP joint venture member WCS in Andrews County, Texas. In addition, construction of the rail sidetrack, site access road, and construction laydown area would contribute an additional area of disturbed soil such that the total disturbed area for construction of the WCS CISF would be approximately 133 ha [330 ac]. The project area would be located north of WCSs existing waste management facilities and controlled by ISP through a long-term lease from WCS (NRC, 2021b).

ISP would store SNF in six existing dual-purpose canister-based dry cask storage systems (DCSS) designed by TN Americas or NAC International. The 6 DCSS (3 from TN Americas and 3 from NAC International) consist of 11 different SNF canisters and 5 different GTCC waste canisters stored in 5 overpacks. SNF is stored horizontally in the TN Americas systems and vertically in the NAC International systems. The TN Americas and NAC International DCSS listed in the FEIS have been previously approved by the NRC for independent storage of SNF, GTCC, and a small amount of MOX fuel, pursuant to requirements in 10 CFR Part 72.

In addition, the NRC approved both the TN Americas and NAC International systems for storage of SNF transported in canisters pursuant to the requirements in 10 CFR Part 71, Packaging and Transportation of Radioactive Material.

Public Comments On November 14, 2016 (81 FR 79531), the NRC staff published in the Federal Register a notice of intent to prepare an EIS and to conduct an environmental scoping process. The NRC staff invited potentially affected Federal, State, tribal, and local governments; organizations; and 2

members of the public to provide comments in the environmental scoping process and review.

The initial scoping period closed on April 28, 2017. During this time, the NRC staff hosted four public scoping meetings, one in Hobbs, New Mexico, on February 13, 2017; a second in Andrews, Texas, on February 15, 2017; and two in Rockville, Maryland, on February 23, 2017 and April 6, 2017. Following a suspension of NRCs review at the applicants request, ISP submitted a revised license application in June and July 2018 (ISP, 2018a). On September 4, 2018 (83 FR 44922), the NRC staff reopened the scoping period for the ISP license application.

The reopened scoping period closed on November 19, 2018. The NRC staff issued a scoping summary report in October 2019 (NRC, 2019).

On May 4, 2020, the NRC staff issued the draft Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas (NRC, 2020).

A 120-day comment period began on May 8, 2020, when the U.S. Environmental Protection Agency (EPA) published a Notice of Availability in the Federal Register (85 FR 27412) of the draft EIS to allow members of the public and agencies time to comment on the results of the draft EIS. On July 22, 2020. the NRC staff extended the comment period an additional 60 days to close on November 3, 2020 (85 FR 44330). Additionally, the NRC staff held public meetings on October 1, 6, 8, and 15, 2020, to discuss the preliminary findings in the draft EIS, with transcripts of these meetings available at the NRC public project webpage:

https://www.nrc.gov/waste/spent-fuel-storage/cis/waste-control-specialist.html.

Responses to all public comments received during the draft EIS comment period are included in Appendix D to the FEIS.

Alternatives Considered In its environmental review, the NRC staff evaluated the environmental consequences of the proposed action (i.e., authorizing the construction and operation of the WCS CISF), and the environmental consequences of the No-Action alternative (i.e., not licensing the WCS CISF).

FEIS Chapter 2, Proposed Action and Alternatives, and Chapter 4, Environmental Impacts, present the NRC staffs evaluation and analysis of the environmental impacts of the proposed action and the No-Action alternative that were considered, as well as those alternatives that were eliminated from detailed study (NRC, 2021b). The NRC staff discusses the reasons for eliminating these alternatives in Section 2.3 of the FEIS. These alternatives included (1) storage of SNF at a government-owned CISF operated by the U.S. Department of Energy (Section 2.3.1); (2) alternative design or storage technologies (Section 2.3.2); and (3) alternative CISF locations (Section 2.3.3).

After weighing the impacts of the Proposed Action, comparing them to the No-Action alternative, and conducting a safety and security review of the Proposed Action, the NRC staff determined that the NRC should issue a license for the proposed WCS CISF project. The NRC staff based its decision on: (i) review of ISPs license application (ISP, 2018a, 2018b, 2020a, 2020b, and 2021), which includes the ER and supplemental documents, and ISPs responses to the NRC staff RAIs (ISP, 2019a and 2019b); (ii) consultation with Federal, State, tribal, and local agencies and input from other stakeholders, including public comment on the draft EIS (see Appendix D in the FEIS); (iii) independent NRC staff review; (iv) the assessments in the FEIS (NRC, 2021b); and (v) the NRC staffs assessments in the Final Safety Evaluation Report (NRC, 2021c) for the WCS CISF.

3

Mitigation Measures The NRC has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the proposed action (license issuance). The applicant has committed to a number of mitigation measures as described in Table 6.3-1 of the FEIS (NRC, 2021b).

As documented in the FEIS, the NRC determined that impacts to most resource areas would be SMALL (i.e., not detectable or minor), with SMALL to MODERATE beneficial impacts for local finance and MODERATE impacts (i.e., sufficient to alter noticeably, but not to destabilize, important attributes of the resource) for vegetation, population growth, and employment (NRC, 2021b). The NRC is not imposing any license conditions in connection with mitigation measures for the licensing of the WCS CISF. ISP is subject to requirements including permits, authorizations, and regulatory orders imposed by other Federal, State, and local agencies governing facility construction and operation. ISPs monitoring programs for the proposed project are described in Chapter 7 of the FEIS (NRC, 2021b).

References 10 CFR Part 51. Code of Federal Regulations, Title 10, Energy, Part 51, Environmental Protection Regulation for Domestic Licensing and Related Regulatory Functions. Washington, DC: U.S. Government Publishing Office.

10 CFR Part 71. Code of Federal Regulations, Title 10, Energy, Part 71, Packaging and Transportation of Radioactive Material. Washington, DC: U.S. Government Publishing Office.

10 CFR Part 72. Code of Federal Regulations, Title 10, Energy, Part 72. Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste. Washington, DC: U.S. Government Publishing Office.

85 FR 44330. Federal Register. Vol. 85, No. 141, pp. 44,330-44,332. Interim Storage Partners Consolidated Interim Storage Facility Project. July 22, 2020.

85 FR 27412. Federal Register. Vol. 85, No. 90, pp. 27,412-27,413. Environmental Impact Statements: Notice of Availability. May 8, 2020.

83 FR 44922. Federal Register. Vol. 83, No. 171, pp. 44,922-44,923, Interim Storage Partners LLCs Consolidated Interim Spent Fuel Storage Facility. September 4, 2018.

82 FR 8771. Federal Register. Vol. 82, No. 18, pp. 8,771-8,773, Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project. January 30, 2017.

81 FR 79531. Federal Register. Vol. 81, No. 219, pp. 79,531-79,534, Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project. November 14, 2016.

ISP. Interim Storage Partners, LLC, Submittal of Revision 5 of the Safety Analysis Report and Revision 4 of the License Application for the WCS CISF. ADAMS Accession No. ML21105A766. Andrews, Texas: Interim Storage Partners LLC. 2021.

4

ISP. WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report, Docket No.

72-1050, Revision 3. ADAMS Accession No. ML20052E144. Andrews, Texas: Interim Storage Partners LLC. 2020a.

ISP. Supplemental Information in Support of NRCs Environmental Review, Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002. ADAMS Accession No. ML20071F153. Andrews, Texas: Interim Storage Partners LLC. 2020b.

ISP. Interim Storage Partners, LLC., Submission of Draft Responses for Several RAls and Associated Document Markups from First Request for Additional Information, Part 2. ADAMS Accession No. ML19252A132 Package. 2019a.

ISP. Submission of RAIs and Associated Document Markups from First Request for Additional Information, Part 3, Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002, Part 3. ADAMS Accession No. ML19337B502. Andrews, Texas: Interim Storage Partners LLC. 2019b.

ISP.

Subject:

Submittal of License Application Revision 2 and Request to Restart Review of Application for Approval of the WCS CISF, Docket 72-1050. ADAMS Accession No. ML18206A482. Letter from J.D. Isakson, Interim Storage Partners LLC to Director, Division of Spent Fuel Management, U.S. Nuclear Regulatory Commission. Andrews, Texas: Interim Storage Partners LLC. 2018a.

ISP. Interim Storage Partners LLC License Application, Docket No. 72-1050, Revision 2.

ADAMS Accession No. ML18206A483. Andrews, Texas: Interim Storage Partners LLC. 2018b.

NRC. Materials License SNM-2515, Interim Storage Partners, WCS Consolidated Interim Storage Facility ISFSI. ADAMS Accession No. ML21188A099. September 13, 2021; Washington, DC: U.S. Nuclear Regulatory Commission. 2021a.

NRC. NUREG-2239, Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas - Final Report. ML21209A955. July 2021; Washington, DC:

U.S. Nuclear Regulatory Commission. 2021b.

NRC. Final Safety Evaluation Report for the WCS Consolidated Interim Storage Facility Independent Spent Fuel Storage Installation Specific Materials License No. SNM-2515.

ML21188A101. September 2021; Washington, DC: U.S. Nuclear Regulatory Commission.

2021c.

NRC. NUREG-2239, Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas - Draft Report for Comment. ML20122A220. May 2020.

Washington, DC: U.S. Nuclear Regulatory Commission. 2020.

5

NRC. Environmental Impact Statement Scoping Process Summary Report, the ISP CISF Environmental Impact Statement Public Scoping Period. ADAMS Accession No. ML19161A150. Washington, DC: U.S. Nuclear Regulatory Commission. 2019.

Dated at Rockville, MD, this 13th day of September 2021, APPROVED BY:

Signed by Tappert, John on 09/13/21 John R. Tappert, Director Division of Rulemaking, Environmental, and Financial Support Office of Nuclear Material Safety and Safeguards 6

INTERIM STORAGE PARTNERS, LIMITED LIABILITY COMPANY DOCKET NO. 72-1050 WCS CONSOLIDATED INTERIM STORAGE FACILITY INDEPENDENT SPENT FUEL STORAGE INSTALLATION MATERIALS LICENSE NO. SNM-2515

1. The Nuclear Regulatory Commission (the Commission) has found that:

A. The application filed by Interim Storage Partners, Limited Liability Company (the applicant),

for a materials license to receive, store, transfer, and possess power reactor spent fuel, associated radioactive material, and greater-than-Class-C radioactive waste at the WCS Consolidated Interim Storage Facility (CISF) Independent Spent Fuel Storage Installation (ISFSI) in Andrews County, TX, meets the standards and requirements of the Atomic Energy Act of 1954, as amended (Act), and the Commissions regulations set forth in 10 CFR Chapter I, Nuclear Regulatory Commission; B. The WCS CISF ISFSI will operate in conformity with the application, as amended, the provisions of the Act, and the rules and regulations of the Commission; C. The applicants proposed ISFSI design complies with the criteria in 10 CFR Part 72, Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste, Subpart F, General Design Criteria; D. The proposed site complies with the criteria in 10 CFR Part 72, Subpart E, Siting Evaluation Factors; E. The proposed ISFSI would not pose an undue risk to the safe operation of the WCS radioactive material disposal facilities; F. The applicant is qualified by reason of training and experience to conduct the operations covered by the regulations in 10 CFR Part 72; G. The applicants operating procedures to protect health and to minimize danger to life and property are adequate; H. The applicant is financially qualified to engage in the activities in accordance with the regulations in 10 CFR Part 72, subject to the conditions specified in the license; I. The applicants quality assurance plan complies with 10 CFR Part 72, Subpart G, Quality Assurance; J. The applicants physical protection provisions comply with 10 CFR Part 72, Subpart H, Physical Protection; K. The applicants personnel training program complies with 10 CFR Part 72, Subpart I, Training and Certification of Personnel; Attachment 2

L. The applicants decommissioning plan and its financing pursuant to 10 CFR 72.30 provide reasonable assurance, subject to the conditions specified in the license, that the decontamination and decommissioning of the WCS CISF ISFSI at the end of its useful life will provide adequate protection to the health and safety of the public; M. The applicants emergency plan complies with 10 CFR 72.32; N. The applicant has satisfied the applicable provisions of 10 CFR Part 170, Fees for Facilities, Materials, Import and Export Licenses, and Other Regulatory Services Under the Atomic Energy Act of 1954, as Amended; O. There is reasonable assurance that (i) the activities authorized by this license can be conducted without endangering public health and safety, and (ii) such activities will be conducted in compliance with the Commissions regulations; P. The issuance of this license will not be inimical to the common defense and security; and Q. The issuance of this license is in accordance with 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions, of the Commissions regulations and all applicable requirements have been satisfied.

2. This license is effective as of the date of its issuance and shall expire at midnight on September 13, 2061.

FOR THE U.S. NUCLEAR REGULATORY COMMISSION Shana R. Helton, Director Division of Fuel Management Office of Nuclear Material Safety and Safeguards

Enclosure:

License SNM-2515 Date of Issuance: September 13, 2021

State of New Mexico Michelle Lujan Grisham Governor November 3, 2020 Office of Administration Mail Stop: TWFN-7-A60M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Program Management, Announcements and Editing Staff Submitted by email to: WCS_CISF_EIS@nrc.gov

Dear Sir or Madam,

As the Governor of the State of New Mexico, I write to express my opposition to the proposed action to issue a license in response to the Interim Storage Partners (ISP) LLCs License Application for a Consolidated Interim Storage Facility (CISF) for Spent Nuclear Fuel (SNF) in Andrews County, Texas. The May 2020 draft Environmental Impact Statement (EIS) is significantly flawed and does not adequately address significant threats to the health and safety of New Mexicans, impacts to our economy, and protection of our environment.

The U.S. Nuclear Regulatory Commission (NRC) proposed approval of the ISP license application to construct and operate a CISF for SNF and Greater-Than-Class C waste and spent mixed oxide fuel at the existing Waste Control Specialists (WCS) site in Andrews County, Texas. If licensed, the facility could store up to 5,000 metric tons of uranium (MTUs) for a license period of 40 years. ISP has indicated that they will seek amendments and extensions of the license to store an additional 5,000 MTUs for each of seven expansion phases over 20 years, resulting in an expanded facility with total storage of up to 40,000 MTUs of spent nuclear fuel.

New Mexicans have a vested interest in this proposed action due to the proximity of the site to the Texas-New Mexico border; the facility is located just .37 miles east of the border and five miles east of Eunice, New Mexico. Additionally, the New Mexico side of the border is more densely populated, meaning that the proposed action would disproportionately impact New Mexicans in the immediate area.

The draft EIS does not adequately address the many safety concerns that siting a CISF in Andrews County, Texas raises. With no active planning for a permanent repository for SNF underway, there is significant risk that this and other facilities proposed as interim storage State Capitol

Room 400

Santa Fe, New Mexico 87501

505-476-2200 Attachment 3

facilities become de facto permanent repositories. Over time, it is likely that the casks storing spent nuclear fuel and high-level waste will lose integrity and will require repackaging. Any repackaging of spent nuclear fuel and high-level waste increases the risk of accidents and radiological health risks. The consequences of a release of radiation due to accidental events (such as fire, flood, earthquakes, ruptures of fuel rods, explosion, lightning, extreme temperatures and more), potential acts of terrorism or sabotage, and the risks associated with aging spent nuclear fuel canisters all pose unacceptable health, safety, and environmental risks that the draft EIS fails to address.

Further, the ISP project would place unfunded safety mandates on local communities.

Transporting spent nuclear fuel across the nation is complex and extremely dangerous. Safe transportation of spent nuclear fuel requires both well-maintained infrastructure and highly specialized emergency response equipment and personnel that can respond quickly to an incident at the facility or on transit routes. New Mexico residents cannot afford and should not be expected to bear the costs associated with transporting material to the proposed CISF or responding to an accident on transport routes or near the facility.

The proposed CISF also poses unacceptable economic risk to New Mexicans, who look to southeastern New Mexico as a driver of economic growth in our state. New Mexicos agricultural industry contributes approximately $3 billion per year to the states economy, $300 million of which is generated in Eddy and Lea Counties, adjacent to the West Texas site. Further, the site is located in the Permian Basin, which is the largest inland oil and gas reservoir and the most prolific oil and gas producing region in the world. New Mexicos oil and natural gas industry contributed approximately $2 billion to the state last year, driven by production in Lea and Eddy County. Any disruption of agricultural or oil and gas activities as a result of a perceived or actual nuclear incident would be catastrophic to New Mexico, and even taking steps toward siting a CISF in the area could cause a decrease in investment in two of our states biggest industries.

Recognizing the risks outlined above, a broad range of businesses, state, local, and tribal leaders have expressed their opposition to this project and to a similar project in New Mexico proposed by Holtec International. That opposition includes both myself and Governor Abbott of Texas, who similarly recognizes the risk a CISF in this region poses to Texas residents.

The ISP proposal poses unacceptable risk to New Mexicos citizens, communities, and economy, and I urge you to deny the ISP license application.

Sincerely, Michelle Lujan Grisham Governor State Capitol

Room 400

Santa Fe, New Mexico 87501

505-476-2200

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NEW MEXICO ENVIRONMENT DEPARTMENT Harold Runnels Building 1190 Saint Francis Drive, PO Box 5469 Santa Fe, NM 87502-5469 Michelle Lujan Grisham Telephone (505) 827-2855 James C. Kenney Governor www.env.nm.gov Cabinet Secretary Howie C. Morales Jennifer J. Pruett Lt. Governor Deputy Secretary November 3, 2020 Office of Administration Mail Stop: TWFN-7-A60M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Program Management, Announcements and Editing Staff Submitted by email to: WCS_CISF_EIS@nrc.gov

Dear Sir or Madam,

On behalf of the New Mexico Environment Department (NMED), attached please find comments on the May 2020 draft Environmental Impact Statement (EIS) for the Interim Storage Partners LLCs (ISPs)

License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas.

As discussed in our attached technical comments, the ISP site is on the New Mexico-Texas border, and NMED is very concerned that contaminants released to air and water at the site will migrate into New Mexico and create threats to human health and the environment.

Please do not hesitate to contact me to discuss further.

Sincerely, James C. Kenney Cabinet Secretary Environment Department Attachment (1) cc: Courtney Kerster, Director of Federal Affairs, Office of Governor Michelle Lujan Grisham Sara Cottrell Propst, Cabinet Secretary, Energy Minerals and Natural Resources Department Sandra Ely, Director, NMED Environmental Protection Division Rebecca Roose, Director, NMED Water Protection Division Stephane Stringer, Director, NMED Resource Protection Division Attachment 6 SCIENCE l INNOVATION l COLLABORATION l COMPLIANCE

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020 Comments Introduction The U.S. Nuclear Regulatory Commission (NRC) proposes approval of the Interim Storage Partners, LLC (ISP) license application to construct and operate a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF) and Greater-Than-Class C waste and spent mixed oxide fuel at the existing Waste Control Specialists (WCS) site in Andrews County, Texas, very close to the New Mexico state line. The NRC proffers a draft environmental impact statement (EIS) 1 to support the proposed action, which would authorize storage of up to 5,000 metric tons of uranium (MTUs) for a license period of 40 years. The ISP admits it will seek amendments and extensions of the license to store an additional 5,000 MTUs for each of seven expansion phases over 20 years, resulting in an expanded facility with total storage of up to 40,000 MTUs of SNF. New Mexico opposes the proposed action as the EIS is significantly flawed, and the proposed action presents threats to the health and environment of New Mexico and its citizens.

The New Mexico Environment Department (NMED) has considerable experience and interaction with the WCS facility, due to its location along the Texas-New Mexico border, and is familiar with the operations and environmental issues of this site. Furthermore, prevailing wind direction is generally from the proposed site towards New Mexico, groundwater flow beneath the existing waste cells at the site is predominantly to the southwest towards New Mexico, and surface water flow from the site is directed through outfalls that flow directly into New Mexico.

Contaminants released to air and water at the ISP site, therefore, have the potential to migrate into New Mexico and create threats to human health and the environment. As a result of the potential for existing operations at the WCS site to affect groundwater quality in New Mexico, NMED required WCS to obtain a Groundwater Discharge Permit (DP-1817) for WCSs waste disposal operations in Texas. WCS submits groundwater monitoring reports to NMED as required by DP-1817 and is currently in compliance with DP-1817.

Overall, the technical analysis in the draft EIS is inadequate and does not support the proposed alternative. The EIS fails to properly characterize the site, which is geologically unsuitable. Similarly, the numerous technical site deficiencies preclude thorough evaluation of the site or the proposed project. Furthermore, the draft EIS lacks all applicable state regulatory oversight and environmental impact controls. Additionally, the draft EIS omits a full assessment of environmental justice concerns or analysis of the effects of the proposed project. These deficiencies all contribute to a draft EIS that fails to meet the requirements of Section 102(2)(c) of the National Environmental Policy Act (NEPA).

New Mexico disagrees strongly with the recommended action of approving the Interim Storage Partners LLCs License and recommends the No Action Alternative.

1. Moving SNF multiple times creates unnecessary risks to public health, safety, and the environment.

The NRC stated in its Waste Confidence Decision2 that SNF can be stored safely beyond the operating life of a power reactor, at current locations, until a national repository for SNF is established. Moreover, states and regional groups have consistently supported moving fuel only once - from current locations to a national repository. As this project proposes a temporary solution 1 EIS download: https://www.nrc.gov/docs/ML2012/ML20122A220.pdf.

2 SECY-14-0072: Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) https://www.nrc.gov/docs/ML1417/ML14177A474.pdf.

2

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020 to a permanent problem, the SNF of concern may need to be moved multiple times until a permanent solution is established. Ultimately, moving SNF multiple times increases the likelihood of accidents within the State of New Mexico and elsewhere.

2. The proposed ISP CISF site is geologically unsuitable.

Given that a permanent repository for high-level radioactive waste does not exist in the United States and there is no existing plan to build one, any interim storage facility will be an indefinite storage facility, including ISPs CISF. The license life for the application ISP submitted to the NRC is for forty (40) years, and the license life can be extended at every license renewal date. The design life for the storage facility and cask, canisters, and assemblies is for eighty (80) years. The service life for the SNF storage site is one hundred and twenty (120) years. At this time, the NRC cannot guarantee that a permanent repository for SNF in the United States will be developed in 40, 80, or 120 years, or that the proposed ISP CISF facility will not become a permanent repository. Even 80 years of storage at the ISP CISF amounts to impacts beyond the lifetimes of everyone involved in this environmental review and licensing decision.

As early as the 1950s, the National Academy of Sciences recommended disposal of long-lived radioactive wastes in deep, geologically stable formations. 3 ISP, however, proposes to store highly radioactive and toxic SNF at the surface in an area that is underlain by shallow groundwater. ISPs proposed CISF site does not provide deep geologic isolation for indefinite SNF storage, and the proposed site is unsuitable for SNF storage over a period of decades. Therefore, the No Action Alternative is recommended.

3. The draft EIS contains numerous technical deficiencies that preclude a thorough evaluation of the radiological and non-radiological environmental impacts of the proposed ISP facility.

Resolving technical deficiencies in the draft EIS and properly evaluating, with all available data, the description of the affected environment, waste transportation, waste characterization, potential contaminant release mechanisms and exposure pathways, potential risks from aging SNF canisters, and site monitoring will further support the No Action Alternative.

a. Deficiencies Related to Hydrogeologic Characterization The draft EIS does not contain a comprehensive and internally consistent hydrologic conceptual site model that includes precipitation, recharge, surface water, groundwater and springs.

Moreover, the draft EIS fails to identify and characterize all groundwater zones that underlie the site with regard to background water and sediment quality, potentiometric surfaces, and directions of groundwater flow. Of particular concern is that the draft EIS does not identify the source of water in Baker Springs in New Mexico, and whether these springs could be affected by contaminant discharges at the proposed ISP site.

These deficiencies preclude the complete and thorough evaluation of contaminant release scenarios, the resulting migration and exposure pathways, and the resulting risks to human and ecological health.

3 National Research Council. 1957. The Disposal of Radioactive Waste on Land. Washington, DC: The National Academies Press. Available at https://doi.org/10.17226/10294.

3

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020

b. Deficient Evaluation of Potential Contaminant Release Scenarios and Exposure Pathways Prevailing wind direction is generally from the proposed site towards New Mexico. Groundwater flow beneath the existing waste cells at the site is predominantly to the southwest towards New Mexico. Surface water flow from the site is directed through outfalls that flow directly into New Mexico. The draft EIS fails to evaluate how contaminant releases to these pathways could directly migrate into, and impact public health and the environment in, New Mexico.

i. The draft EIS fails to evaluate the impacts of a radiological release from a proximal facility.

ISPs Environmental Report, in a section titled Proximity of Hazardous Operations/High-Risk Facilities, erroneously states there are no facilities handling large quantities of hazardous materials, chemicals, or other material in proximity to the site. (See § 2.3.4, Criterion 13, page 2-27). Numerous radiological materials operations are currently occurring in the vicinity of the CISF and are likely to continue or expand in the future. These operations include the Federal Facilities Waste Disposal site, the Compact States Waste Disposal Facility, the By-Products Waste Disposal Facility, and the uranium enrichment occurring at URENCO. A radiological release from one of these proximal facilities could render the ISP CISF unmanageable, at loss of capability to function safely, and at risk for accidents and release of contaminants to the environment.

ii. The draft EIS fails to evaluate the potential impacts of a hydrogen sulfide release from a proposed oil-field waste disposal facility near the site.

ISPs Environmental Report, in a section titled Land Use, erroneously states that there are no other know current, future, or proposed land use plans, including staged plans, for the proposed CISF or immediate vicinity. (See § 3.1, page 3-3). CK Disposal, however, has proposed to construct an oil field waste disposal facility near the ISP site. The draft EIS does not evaluate how releases of hydrogen sulfide from the CK Disposal facility could render the ISP CISF unmanageable, at loss of capability to function safely, and at risk for accidents and release of contaminants to the environment.

iii. The draft EIS fails to evaluate the potential impacts of numerous boreholes on the ISP property that could act as pathways for contaminants to reach groundwater.

Some 600 boreholes are known to be on the WCS property, and the draft EIS does not provide information on how many boreholes have been improperly abandoned. Improperly plugged or cased boreholes could cause a migratory pathway for contaminant migration to groundwater.

c. Seismicity not Adequately Addressed The draft EIS asserts that operation of the proposed CISF project would not be expected to impact or be impacted by seismic events. The draft EIS provides general information about the history of earthquakes in the region, including earthquakes caused by fluid injection by the oil and gas industry, and asserts that CISF infrastructure will be designed to withstand seismic events, but does not provide specific information about these safeguards. On March 26, 2020, a 4

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020 magnitude 5.0 earthquake struck West Texas near the New Mexico border. 4 Since earthquakes of magnitude 5 or greater have already occurred in this area, there is the possibility that more powerful earthquakes may occur, and the ISP facility must be designed to withstand these more powerful seismic events.

d. Deficient Waste Characterization The draft EIS fails to provide details of the radionuclides and activities in the spent fuel rods, and only references metric tons of uranium (MTU) in the fuel rods that were originally placed in the nuclear reactors. Spent fuel rods can be much more radioactive than the original fuel rods due to the presence of a mixture of byproducts from uranium fission. Radionuclide activities in spent fuel rods can depend on age, uranium burnup and decay, and the type of reactor that was used.

Furthermore, the draft EIS does not adequately address the differences in SNF storage (pool storage, dry storage or both) at the commercial reactor sites. These differences are important as they may present challenges for SNF processing and storage at the proposed ISP facility.

The draft EIS fails to discuss non-radiological contaminants that may potentially be discharged to soil, water and air during operation of the site.

e. Deficiencies Regarding Cannisters and CISF Infrastructure

i. SNF cannisters Some of the SNF cannisters that would be shipped to the proposed ISP facility have already been stored for decades. As fuel rods age they are subject to corrosion, damage or cladding, and the potential for explosive levels of hydrogen to build up inside the cannisters. The draft EIS does not adequately address these issues.

The SNF cannisters will be stored on concrete pads on the ground surface exposed to the elements. The draft EIS does not address the temperature rating of the SNF cannisters and if maximum summer temperatures at the site are within this temperature rating.

ii. SNF Concrete Pad The draft EIS does not discuss how the concrete pads used to store SNF cannisters will be protected or repaired from cracking and spalling due to exposure to the elements of the arid Southwest.

4. The draft EIS is significantly incomplete without inclusion of all applicable state regulatory oversite and environmental impact controls.

The draft EIS fails to identify New Mexico water quality regulatory requirements that apply to the proposed ISP facility. As discussed above, contaminants discharged by existing WCS operations, as well as by proposed ISP operations, have the potential to affect water quality in New Mexico.

Discharges onto or below the ground surface at the site, and surface water emanating from the site that flows toward New Mexico, have the potential to infiltrate into the subsurface and into groundwater. Consequently, NMED required WCS to obtain a Groundwater Discharge Permit (DP-1817) for WCSs waste disposal operations. WCS submits groundwater monitoring reports to NMED as required by DP-1817 and is currently in compliance with DP-1817.

The existing Texas Pollutant Discharge Elimination System (TPDES) Permit, and monitoring conducted pursuant to that permit, is not an adequate substitute for New Mexicos groundwater permitting and monitoring requirements. Therefore, ISP must submit a Notice of Intent to Discharge 4 https://www.usgs.gov/news/m50-earthquake-hits-west-texas-new-mexico-border.

5

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020 to NMED in accordance with 20.6.2.1201 New Mexico Administrative Code (NMAC) for proposed CISF operations. The final EIS, and specifically Table 1.6-1, must identify DP-1817, and ISPs requirement to submit a Notice of Intent to Discharge.

Since surface water discharges from the proposed ISP site in Texas may affect surface water quality in New Mexico, the final EIS should include a requirement that the Texas Commission on Environmental Quality consults with NMED as a downstream state during the TPDES Permit process.

The draft EIS fails to commit the NRC to a comprehensive environmental oversight role during operation of the CISF. The final EIS must address possible licensing conditions and the NRCs obligation to evaluate and respond to adverse impacts to environmental media, e.g., soil, surface water, groundwater.

5. The proposed action threatens minority and low-income populations in New Mexico that have already suffered disproportionally high adverse human health and environment effects from nuclear energy and weapons programs of the United States. The Proposed Action must comply with Executive Order 12898 requiring that all federal agencies achieve environmental justice for vulnerable populations that would be disproportionately affected by programs of the United States.

The proposed action for indefinite storage of commercial SNF joins the ranks of uranium mining and milling, legacy contamination at national laboratories, and disposal of defense waste at the Waste Isolation Pilot Plant (WIPP), all of which have long presented risks to public health and the environment in the State of New Mexico that are disproportionately greater than such risks to the general population of the United States.

The draft EIS identifies 58.8 percent of the population in Lea County, New Mexico as Hispanic or Latino (Table 1). New Mexicos general percentages of minority (Hispanic or Latino and American Indian) and low-income populations are significantly greater than in the United States general population (Table 1).

Table 1. New Mexico and United States Demographics.

Demographic United States a New Mexico a Lea County, NM b Hispanic or Latino 18.3% 49.1% 58.8%

American Indian 1.3% 10.9% 0.7 Persons in poverty 11.8% 19.5%

Sources:

a U.S. Census Bureau QuickFacts: https://www.census.gov/quickfacts/fact/table/US/PST045219 b

Draft EIS, Table 3.11-2, https://www.nrc.gov/docs/ML2012/ML20122A220.pdf.

Executive Order 12898, Federal Actions to Address Environmental Justice in Minority and Low-Income Populations, February 11, 1994, stated that . each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionally high and adverse human health or environmental effects of its programs, policies, 6

NEW MEXICO ENVIRONMENT DEPARTMENT INTERIM STORAGE PARTNERS LLCS, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR NRC LICENSE APPLICATION COMMENTS NOVEMBER 3, 2020 and activities on minority populations and low-income populations of the United States. 5 On August 24, 2004, the NRC issued a Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions that stated NRC believes that an analysis of disproportionately high and adverse impacts needs to be done as part of the agency's NEPA obligations to accurately identify and disclose all significant environmental impacts associated with a proposed action. 6 The draft EIS fails to demonstrate that the Proposed Action will achieve environmental justice for the high percentage of minority and low-income populations in the State of New Mexico who have already suffered disproportionately high adverse human health and environmental effects from nuclear energy and weapons programs of the United States. In fact, the draft EIS (pp. 2-28, 2-29) makes repeated, yet unsubstantiated, assertions that the Proposed Action will result in no disproportionately high and adverse human health and environmental effects. Environmental justice deficiencies in the draft EIS include:

a. Failure to identify and evaluate the cumulative history of adverse human health and environmental effects on New Mexicos vulnerable populations; and

b. Failure to quantify specific impacts and health consequences to vulnerable populations in New Mexico that might occur from the various accidents and release scenarios considered in the draft EIS.

The environmental justice deficiencies in the draft EIS must be corrected by preparation of a proper risk assessment that evaluates all potential release scenarios and that quantifies incident-specific and cumulative impacts to vulnerable populations in New Mexico. In accordance with Executive Order 12898, with Council on Environment Quality guidance, and with NRC policy, every aspect of the proposed action must provide the highest level of protection to New Mexico citizens, including use of Best Available Technology in these safeguards. Our concerns about disproportionate impacts are another reason why NMED supports the No Action Alternative.

5 https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf 6 https://www.govinfo.gov/app/details/FR-2004-08-24/04-19305 7

MICHELLE LUJAN GRISHAM JAMES C. KENNEY GOVERNOR CABINET SECRETARY SECRETARY OF THE NEW MEXICO ENVIRONMENT DEPARTMENT JAMES C. KENNEY LETTER IN SUPPORT OF THE STATE OF NEW MEXICOS LETTER OPPOSING THE NUCLEAR REGULATORY COMMISSIONS FINAL ENVIRONMENTAL IMPACT STATEMENTS RECOMMENDATION TO GRANT INTERIM STORAGE PARTNER LLCS LICENSE TO STORE SPENT NUCLEAR FUEL As the Secretary for NMED, I am responsible for preventing and remediating contaminants released to land, air and water that have the potential to migrate into New Mexico and create threats to human health and the environment. I join the New Mexico Attorney Generals Office in opposing the U.S.

Nuclear Regulatory Commissions (NRC) recommendation in its July 29, 2021, final environmental impact statement (EIS) to approve the Interim Storage Partners, LLC (ISP) license application to construct and operate a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF) and Greater-Than-Class C waste, along with a small quantity of spent mixed oxide fuel at the Waste Control Specialists (WCS) site in Andrew County, Texas.

It is my understanding that the NRCs proposed action is the issuance of a license authorizing a CISF to store up to 5,000 metric tons of uranium (MTUs) (5,500 short tons) for a license period of 40 years at the WCS site that can be renewed at the end of every term. The license would allow ISP to subsequently request amendments to the license, that, if approved, would authorize ISP to store an additional 5,000 MTUs (5,500 short tons) for each of seven planned expansion phases of the proposed CISF (a total of eight phases) to be completed over the course of 20 years, to expand the facility to eventually store up to 40,000 MTUs (44,000 short tons) of SNF. This is more than the previously proposed Yucca Mountain site.

NMED is familiar with the WCS site due to its location along the Texas-New Mexico border, and because WCS already submits groundwater monitoring reports to NMED as part of its Groundwater Discharge Permit for WCSs waste disposal operations in Texas. NMED has previously submitted comments on the Draft Environmental Impact Statement (DEIS) and they are incorporated by reference herein. In addition, NRC never contacted my office or staff to discuss the DEIS concerns or any other matter. After review, NMED has concerns with the evaluation and findings of the EIS. NMEDs concerns are set out below.

1. Seismic Activity: The geologic formation (Central Basin Platform) is heavily faulted, and the proposed seismic hazard analysis was deficient. On March 26, 2020, a magnitude 5.0 earthquake struck West Texas near the New Mexico border. More powerful earthquakes may occur and the proposed action fails to account for the potential for geologic activity to impact the proposed facility. See FEIS Section 3.4. The EIS provides general information about the history of earthquakes in the region, including earthquakes caused by fluid injection by the oil and gas industry, and asserts that CISF infrastructure will be designed to withstand seismic events, but Attachment 7 SCIENCE l INNOVATION l COLLABORATION l COMPLIANCE 1190 Saint Francis Drive, PO Box 5469, Santa Fe, New Mexico 87502-5469 l (505) 827-2855 l www.env.nm.gov

does not provide specific information about these safeguards. Further, the proposed SNF canisters will be stored on concrete pads on the ground surface exposed to the elements directly above shallow groundwater sources in an area with recent seismic activity. Seismic activity could pose a threat to SNF canisters and pads over time, putting New Mexicos groundwater at risk.

2. Contaminant Migration: NMED informed the NRC that the draft EIS lacked complete and thorough evaluation of contaminant release scenarios, the resulting migration and exposure pathways, and the resulting risks to human and ecological health, but no changes were made in the final EIS to address these issues. The EISs limited spatial scale in a region of obvious seismic risk, and the evaluation of cumulative impacts to groundwater resources is inadequate and the existing Texas Pollutant Discharge Elimination System (TPDES) Permit, and monitoring conducted pursuant to that permit, is not an adequate substitute for New Mexicos groundwater permitting and monitoring requirements.

The proposed site is in an area that is underlain by concerns for sinkhole development and shallow groundwater that does not provide deep geologic isolation for indefinite SNF storage.

Groundwater flow beneath the existing waste cells at the WCS site is predominantly to the southwest towards New Mexico, and surface water flow from the WCS site is directed through outfalls that flow directly into New Mexico. So, if there is any discharge of SNF at the CISF site, New Mexicos groundwater and surface water will be directly impacted.

Additionally, some 600 boreholes that could cause a migratory pathway for contaminant migration to groundwater are known to be on the WCS property, and the EIS does not provide information on how many boreholes have been improperly abandoned.

3. Transportation: Most, if not all, of the SNF that will be stored at the ISP site will be transported to the site by railroads within New Mexico and on New Mexico roads from nuclear reactor sites all over the country and then transported to a permanent storage site (assuming one is ever created) by the same routes. Moving SNF multiple times through New Mexico only increases the unnecessary risk to public health, safety, and the environment and increases the likelihood of accidents within the State of New Mexico and elsewhere. Moreover, states and regional groups have consistently supported moving spent nuclear fuel only once - from current locations to a national repository.

The transportation of SNF using railways creates risk anywhere along the transportation routes, but transportation was not considered as a connected activity by the EIS, and improvements to rail lines and rail infrastructure were not evaluated. The result is the ISP CISF will rely on New Mexicos limited resources to mitigate any risks of harm from a transportation accident. This avoidable risk was not considered in the no action alternative.

4. Storage Lifespan: The lifespan for the storage facility and cask, canisters, and assemblies is for eighty (80) years and the lifespan for the SNF storage site is one hundred and twenty (120) years. However, a permanent repository for high-level radioactive waste does not exist in the 2

United States and there is no existing plan to build one, so the NRC cannot guarantee that a permanent repository for SNF in the United States will be developed in the foreseeable future, or that the ISP site will not become a permanent repository.

Further, the EIS does not address the temperature rating of the SNF canisters and if maximum summer temperatures at the site are within this temperature rating, and the EIS does not discuss how the concrete pads used to store SNF canisters will be protected or repaired from cracking and spalling due to exposure to the elements of the arid Southwest. New Mexico does not have the luxury of assuming the canisters will be removed or replaced before the canisters have eroded or degraded and contamination is occurring.

In addition, the EIS fails to provide details of the radionuclides and activities in the spent fuel rods, and only references metric tons of uranium (MTU) in the fuel rods that were originally placed in the nuclear reactors. Spent fuel rods can be much more radioactive than the original fuel rods due to the presence of a mixture of byproducts from uranium fission. Radionuclide activities in spent fuel rods can depend on age, uranium burnup and decay, and the type of reactor that was used. As fuel rods age they are subject to corrosion, damage or cladding, and the potential for explosive levels of hydrogen to build up inside the canisters. As the storage lifespan of the canisters and storage site come to an end, the risk to the environment rises dramatically. All issues not discussed in the EIS.

5. Environmental Justice: Failure to identify and evaluate the cumulative history of adverse human health and environmental effects on New Mexicos vulnerable populations and failure to quantify specific impacts and health consequences to vulnerable populations in New Mexico that might occur from the various accidents and release scenarios considered in the EIS are two examples of the insufficiency of the NRCs evaluation of environmental justice. New Mexico is already home to contaminated former uranium mining and milling sites on and near tribal lands, legacy contamination at national laboratories, and disposal of defense waste at the Waste Isolation Pilot Plant (WIPP), which have long created risks to public health and the environment in the State of New Mexico. The proposed action threatens minority and low-income populations in New Mexico that have already suffered disproportionally high adverse human health and environment effects from nuclear energy and weapons programs of the United States.

For the above reasons, NMED disagrees strongly with the recommended action of approving the Interim Storage Partners LLCs License and recommends the No Action Alternative.

Dated: September 14, 2021 James C. Kenney Cabinet Secretary 3

By:AALandgraf H.B.ANo.A7 A BILL TO BE ENTITLED 1 AN ACT 2 relating to the transportation, storage, or disposal of high-level 3 radioactive waste.

4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

5 SECTIONA1.AASection 401.003, Health and Safety Code, is 6 amended by adding Subdivision (12-b) to read as follows:

7 (12-b)AA"High-level radioactive waste" has the meaning 8 assigned by 42 U.S.C. Section 10101(12) and includes spent nuclear 9 fuel as defined by 42 U.S.C. Section 10101(23).

10 SECTIONA2.AASection 401.0525, Health and Safety Code, is 11 amended by adding Subsection (c) to read as follows:

12 (c)AAWith the exception of a permit for a facility located at 13 the site of currently or formerly operating nuclear power reactors 14 and currently or formerly operating nuclear research and test 15 reactors located on university campuses, the commission may not 16 under the authority given to the agency under Section 301, 304, or 17 401 of the Clean Water Act (33 U.S.C. Sections 1311, 1314, and 1341) 18 issue a general construction permit or approve a Stormwater 19 Pollution Prevention Plan under Section 26.040, Water Code, or 20 issue a permit under the Texas Pollutant Discharge Elimination 21 System Program under Section 26.027, 26.028, or 26.121, Water Code, 22 for the construction or operation of a facility that is licensed for 23 the storage of high-level radioactive waste by the United States 24 Nuclear Regulatory Commission under 10 C.F.R. Part 72. Section Attachment 9 87S20879 JAM-D 1

H.B.ANo.A7 1 401.005 does not apply to this subsection.

2 SECTIONA3.AASubchapter C, Chapter 401, Health and Safety 3 Code, is amended by adding Sections 401.072 and 401.073 to read as 4 follows:

5 Sec.A401.072.AATRANSPORTATION OF HIGH-LEVEL RADIOACTIVE 6 WASTE. A person may not transport, or arrange for the 7 transportation of, high-level radioactive waste on the highways or 8 railways in this state.

9 Sec.A401.073.AADISPOSAL OR STORAGE OF HIGH-LEVEL RADIOACTIVE 10 WASTE. With the exception of storage at the site of currently or 11 formerly operating nuclear power reactors and currently or formerly 12 operating nuclear research and test reactors located on university 13 campuses, a person, including the compact waste disposal facility 14 license holder, may not dispose of or store high-level radioactive 15 waste in this state.

16 SECTIONA4.AASection 401.0525(c), Health and Safety Code, as 17 added by this Act, applies only to an application for a permit or 18 permit amendment submitted on or after the effective date of this 19 Act.

20 SECTIONA5.AAIf any provision of this Act or its application 21 to any person or circumstance is held invalid, the invalidity does 22 not affect other provisions or applications of this Act that can be 23 given effect without the invalid provision or application, and to 24 this end the provisions of this Act are declared to be severable.

25 SECTIONA6.AAThis Act takes effect immediately if it receives 26 a vote of two-thirds of all the members elected to each house, as 27 provided by Section 39, Article III, Texas Constitution. If this 2

H.B.ANo.A7 1 Act does not receive the vote necessary for immediate effect, this 2 Act takes effect on the 91st day after the last day of the 3 legislative session.

3 0

ML21362A429

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