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NEW MEXICO-TEXAS...
Nuclear Waste Connection?

Since August 2003, European nuclear companies have been saying that a new uranium enrichment plant near Eunice, New Mexico to provide fuel for nuclear power plants would be good for the local economy and provide a "domestic" source for nuclear fuel. The plant, proposed by Louisiana Energy Services (LES), is going through a Nuclear Regulatory Commission (NRC) licensing process, which is supposed to result in a license by early 2006. New Mexicans are concerned not only about the large amounts of LES waste, but about whether NRC is more concerned about a fast-track schedule to promote nuclear industry than allowing effective public participation and protecting public health and safety. The NRC staff also seems willing to support taking waste out of New Mexico by having it disposed literally just across the state line in Texas, about two miles from the enrichment plant site.

While much of the licensing process is out of public view, virtually all information about the proposal is now unavailable, as the NRC electronic public document system has been taken off line since October 25 because of "a security review." Thus, the LES license application and other documents related to the proposed facility are unavailable to the public, and even to the parties involved in the licensing proceedings.

NRC'S LICENSING PROCEEDING

LES's license application is being heard by an NRC Atomic Safety and Licensing Board (ASLB), composed of three men who act as judges in a court-like proceeding. In addition to LES's lawyers and expert witnesses, the NRC staff have lawyers and experts. The other parties to the proceeding are the New Mexico Attorney General (NMAG), New Mexico Environment Department (NMED), and the Nuclear Information and Resource Service and Public Citizen (NIRS/PC).

In order to be parties, the NMAG, NMED, and NIRS/PC had to demonstrate that they had "standing" - a direct interest that could be harmed by the LES plant - and that they were raising specific technical issues ("contentions") that were relevant to the licensing and were adequately supported by experts. The NMAG and NMED together submitted more than a dozen contentions, but in its ruling on July 19, 2004, the ASLB disallowed all but three. NMED's contention that the LES application did not provide an adequate radiation protection program was admitted. The admitted NMAG contentions related to whether the actual cost of disposing of the wastes would be more than $5.50 per kilogram of uranium and whether the facility decommissioning costs were correctly estimated.

On August 27, 2004, New Mexico Governor Bill Richardson wrote NRC Chairman Nils Diaz to strongly object to the decision to exclude "critical environmental and national security issues, such as the management and disposal or deconversion of waste from the facility and the adequacy of proliferation safeguards related to foreign ownership" raised by NMED. The governor further stated: "the NRC decision deprives the NRC of state information and involvement that by all rights should be considered crucial to its decision process." The NRC has not changed its position, and in late November, the ASLB denied NMED's motion to supplement its contentions.

Most of the NIRS/PC contentions were admitted, though the scope of several of them was reduced. Admitted contentions challenge the impacts on ground and surface water, impacts on local water supplies, the "plausible strategy" to dispose of the waste, the environmental impacts of a conversion plant to process the waste for disposal, the decommissioning costs, the costs of managing and disposing the waste, the need for the facility, and the risks posed by natural gas accidents. In October, NIRS/PC filed additional contentions based on the NRC draft Environmental Impact Statement (DEIS), some of which were admitted.

Written testimony by NIRS/PC on the "environmental contentions" regarding water, impacts of a conversion plant, and the need for the facility is to be submitted on December 30, 2004. LES and the NRC staff are to file their rebuttal testimony on January 13, 2005. A hearing with cross-examination is scheduled for February 7-16, 2005. The ALSB's initial decision on those matters will be by June 3, 2005.

The submission of written testimony by NMED, NMAG, and NIRS/PC on the other "technical/safety contentions" is scheduled for September 16, 2005. LES and NRC staff are to file their rebuttal testimony on October 3, 2005. A hearing with cross-examination of expert witnesses is scheduled for October 24 - November 7, 2005. The ASLB's decision on those matters is scheduled for February 27, 2006.

WHAT'S THE WASTE AND WHERE WILL IT BE DISPOSED?

The LES plant would use thousands of centrifuges to "enrich" uranium hexafluoride gas from about 0.7 percent uranium-235 to about three to five percent uranium-235. The enriched uranium in solid form can be fabricated at another facility into nuclear fuel rods for use in commercial nuclear power plants.

More than 90 percent of the enrichment feed material is depleted uranium hexafluoride (DUF6) waste that is stored in "uranium byproduct cylinders" (UBC). Each UBC holds about 12.5 metric tons of solid DUF6. During its 25-year operating lifetime, LES estimates that it could produce about 197,000 metric tons of DUF6, which will be stored in 15,727 UBCs on a concrete pad at the LES site.

Over more than 50 years, three U.S. uranium enrichment plants have produced the fuel for nuclear reactors that created nuclear weapons materials and electricity. Those plants at Oak Ridge, TN; Paducah, KY; and Portsmouth, OH have produced more than 700,000 metric tons of DUF6 that is stored at those sites. DUF6 contains both radionuclides and hydrogen fluoride, and if it is exposed to air creates hydrofluoric acid, which is corrosive and hazardous to humans. Because of that dangerous combination, the waste cannot be disposed. Rather it must first be converted to separate the depleted uranium and the chemical components.

No conversion plant exists in the U.S., although the Department of Energy (DOE) intends to build a plant at Paducah and one at Portsmouth. DOE expects those plants to begin operation in 2006. The Paducah plant would operate for about 25 years to convert 434,000 metric tons of DUF6, while the Portsmouth plant would operate for 18 years to convert 243,000 metric tons of DUF6.

LES President James Ferland promised New Mexico Governor Bill Richardson on August 6, 2003: "LES commits that there will be no disposal or long-term storage (beyond the life of the plant)…in the State of New Mexico." LES further committed to "ensuring that a disposal path outside the State of New Mexico is utilized as soon as possible" and to "put in place as a part of the NRC license a financial surety bonding mechanism that assures funding will be available...for the decontamination of the LES plant as well as the ultimate disposal" of the waste.

In its license application, LES's "preferred plausible strategy" for the wastes is for a private company to convert the waste to a "low level" waste so it could be disposed at "the Cotter mines in Colorado." The application's alternative "plausible strategy" is to give the wastes to the Department of Energy (DOE) which would presumably convert the waste at Paducah or Portsmouth and then dispose of the waste.

In its DEIS, the NRC staff has included another option for the waste - an "adjacent" conversion facility. "Adjacent" is defined as being within four miles of the LES plant. While the DEIS does not identify such an adjacent location, the Waste Control Specialists (WCS) hazardous waste landfill is within two miles of the LES site, just inside the Texas border. WCS has applied for a low-level radioactive waste disposal license and currently is permitted to store low-level and transuranic radioactive wastes.

Thus, NRC in its DEIS is approving a plan for waste generation at LES, conversion could be done nearby, and disposal could be done at WCS. LES and NRC might think that such a strategy might meet the letter of LES's promise to Governor Richardson, but it does not seem to meet the goal of protecting health and safety of New Mexicans. It certainly does not provide any license requirement that all the waste would have to be taken outside of New Mexico by the end of the operational lifetime of the facility.

Since the DEIS was issued, and while the public comment is still open, Congress has changed the law related to DU6 storage and disposal. In the omnibus appropriations bill to fund much of the government, Section 311 states that if LES asks DOE to accept its waste, "the Secretary [of DOE] shall be required to take title to and possession of such depleted uranium at an existing DUF6 storage facility." Because the language was slipped into the bill with no hearing, conference report, or other record, it is not clear whether that language would allow DOE to store the waste at LES (which would be a DUF6 storage facility licensed by the NRC) or at WCS should it by then become a DUF6 storage facility, or only at Paducah or Portsmouth, which are the only DUF6 storage facilities at the time the law is passed.

IS THE LES WASTE "LOW-LEVEL"?

In its contentions, NIRS/PC stated that DUF6 is not "low-level" waste and could not be disposed in the existing shallow-land burial sites. On August 18, the NRC commissioners ruled that the parties should specifically file briefs on whether DUF6 is "low-level" waste.

In their briefs, LES and the NRC staff say that DUF6 is low-level waste. NIRS/PC point out that the NRC has never taken that position, and, in fact, in the NRC EIS when it adopted its rules for low-level waste, it specifically excluded DUF6 from consideration. Thus, NIRS/PC argue that before NRC could rule on whether DUF6 is low-level, it would need to conduct a rulemaking and environmental impact process. Final briefs were filed on September 17, but the Commissioners have not yet issued their decision.

WHAT PUBLIC PARTICIPATION?

The NRC licensing process is not for average citizens, since it requires lawyers and expert witnesses. NIRS/PC are representing nine individuals who live in Eunice and two who live in Hobbs. NMED and NMAG broadly represent New Mexicans, rather than individuals.

The environmental impact statement process requires public participation and NRC is supposed to respond to public comments. A scoping hearing was held in Eunice on March 4, 2004, and written public comments were submitted through March 18.

On September 17, NRC issued its DEIS, held a public hearing in Eunice on October 14, and provided that public comments could be submitted through November 6. The hearing in Eunice was another session, as had been previous meetings, for "boosters" to say how much they supported LES, whether or not they had read any of the DEIS.

The public comment process was interrupted when the NRC online document library was shut down on October 25 after NBC News reported that activists were able to identify the location of nuclear materials online. Though the "sensitive" documents were not specifically related to LES, all documents related to that proceeding are also unavailable. In response to the lack of necessary information, numerous citizens and government officials requested that the comment period be extended. NRC extended the comment period until December 18, and apparently will further extend it, but there is no certainty when the online library will be available.

IS THE NRC A FAIR JUDGE?

By law, the NRC is to regulate commercial nuclear industries and "to protect health and safety and minimize danger to life or property." The NRC is best known for licensing commercial nuclear power plants. It also licenses many other companies. As regular readers of Voices are aware, in 1998, NRC granted a license for four new uranium mines near Crownpoint and Church Rock, New Mexico. Citizen groups continue to fight the license, because uranium mining would contaminate the drinking water of thousands of people, among many other problems.

In the LES case, as is the usual NRC practice, the NRC staff support the license application, meaning that parties must counter not only LES, but also the NRC staff. For example, the DEIS is virtually a rubber stamp that is based on the license application, and evidences little skeptical or independent research and analysis even though the NRC has never licensed a uranium enrichment plant. The existing enrichment plants were not subject to NRC licensing because they were built before the NRC was created and were initially built for nuclear weapons production, which is not licensed.

One of the three ASLB members is Paul B. Abramson, who was a partner in the Winston & Strawn law firm from 1990 to 1995. Winston & Strawn is the law firm that represents LES in the licensing proceeding. In a court proceeding because of the appearance of bias, a judge would likely not be able to participate if his former law firm was representing one of the parties, but that is not the NRC practice.

Based on its past history and current practice in the LES proceeding, New Mexicans have a strong basis for concern as to whether state officials and citizens will be allowed to effectively participate in the licensing and to whether any NRC decision will actually protect public health and safety. The NRC-sanctioned promotion of WCS, something that was not even in LES's application, also shows the NRC staff as being advocates, not dispassionate technical analysts or independent regulators.

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UPDATE: NRC has released a Redacted version of the DEIS for the LES proceedings. See SRIC's questions to NRC regarding this "redaction."

For additional information:
NRC - www.nrc.gov/materials/fuel-cycle-fac/lesfacility.html
LES - www.nefnm.com
NIRS - www.nirs.org
Public Citizen -
www.citizen.org/cmep/energy_enviro_nuclear/nuclear_power_plants/uranium/
NMED - www.nmenv.state.nm.us/
NMAG - www.nmago.state.nm.us/
WCS - http://www.wcstexas.com
 

NRC'S ON-LINE LIBRARY SHUTDOWN AFFECTS MANY PROCEEDINGS The NRC's October 25, 2004 shut down of the online document library (Agencywide Documents Access and Management System or ADAMS) affects everyone involved with the dozens of current NRC activities. Parties to numerous proceedings have asked for documents to be made available and for schedules to be extended until the library is once again available. Among other organizations, the Union of Concerned Scientists (UCS) has been very concerned about the library shutdown, which it terms in a letter to the NRC on October 26 "an unfair, unwarranted, and unacceptable action." The UCS letter pointed out that after the September 11, 2001 attacks, the NRC ordered a nuclear security review, but it did not shut down any nuclear facilities and it did not shut down the online library. The UCS letter also states: "If 103 nuclear power reactors could operate in the United States as the NRC conducted its top to bottom security review, why can't ADAMS remain accessible to the public while the NRC conducts its documents review? It could, and should. If 103 nuclear power reactors could operate in the United States after the NRC's top to bottom security review identified vulnerabilities that had not yet been remedied, why can't ADAMS remain accessible to the public as the NRC removes documents deemed to contain sensitive information? It could, and should. If the public could have free and unfettered access to ADAMS between 09/11 and yesterday, why can't ADAMS remain accessible to the public during the next few weeks while the NRC reviews and removes documents deemed to contain sensitive information. It could, and should." NRC has yet to answer those and other questions. It has not established a date by which time the online library will again to fully accessible to the public. And it has not stated that its policy will be that proceedings will be delayed to accommodate for the length of time that documents are unavailable.