Nuclear Plant May Hinge on a Word

Nuclear Plant May Hinge on a Word

Jun 22 - Albuquerque Journal

Enough lawyers to field two basketball teams, with a couple of subs to spare, converged on a meeting room at the Lea County Events Center last week to argue about what the word "plausible" means.

Radioactive waste, nuclear weapons proliferation and economics have become central issues in the debate over a proposed southeastern New Mexico nuclear fuel factory. But as the legal battle over the plant takes shape, the key fight might be over something that seems a lot simpler -- the definition of that single word.

The question is whether Louisiana Energy Services, the company that wants to build the factory, has presented a "plausible strategy" for dealing with the plant's radioactive waste.

It is the most visible of a number of legal issues involved in an intricate debate among LES, the state of New Mexico, a pair of activist groups and the U.S. Nuclear Regulatory Commission.

Ten months after LES announced that it wanted to build the factory at a site along the Texas border south of Hobbs, the process of determining whether the factory will be built is entering a new phase.

The lawyers gathered in Hobbs to argue their case before the Atomic Safety and Licensing Board, a three-member panel of Nuclear Regulatory Commission judges who will make many of the key decisions over the next two years about whether the plant will be granted a federal license.

Seeking standing

Step one in the process is a decision, due by mid-July, on what issues can legally be raised in hearings before the NRC, and who has the legal standing to raise them.

That was the issue that occupied a long day of courtroom-like proceedings in Hobbs.

Three parties have asked for the opportunity to formally participate in the license proceeding.

The Washington, D.C., activist groups Public Citizen and the Nuclear Information and Resource Service want to intervene jointly, along with the New Mexico Environment Department and the office of Attorney General Patricia Madrid.

All three parties have asked for permission to raise the waste issue during the licensing proceedings.

State Environment Secretary Ron Curry said it is critical that the state be able to raise the waste issue during the licensing proceedings.

"I think we really need to be at the table," Curry said in an interview during a break in the Hobbs meeting.

But it is not clear that the state will have that chance.

NRC regulations only require that LES' license include a "plausible strategy" for getting rid of the waste, and the NRC's idea of what counts as "plausible" appears to be different than the state's.

The factory would treat uranium so that it can be used in nuclear power plant fuel. In the process, large amounts of waste uranium are created that must be thrown away. Over the life of the plant, that amounts to 15,700 steel cylinders of waste, each 4 feet in diameter and 8 feet tall and holding 12 metric tons of highly toxic and mildly radioactive depleted uranium hexafluoride.

That concerns state officials, who in general have supported the plant but want commitments that New Mexico will not end up stuck with all that waste.

2 disposal schemes

LES' license application includes two possible strategies for dealing with the waste. The first, which the company says it prefers, is to contract with a private company to treat and dispose of it.

The second would be to turn it over to the U.S. Department of Energy, which is building a pair of treatment facilities for similar waste accumulated over more than five decades of nuclear weapons manufacturing.

The question now faced by the licensing board is whether those two options are sufficient as now laid out by LES to meet the regulatory definition of "plausible," or whether a hearing should be held to give the state and the activist groups a chance to challenge the company on the issue.

Tannis Fox, attorney for the Environment Department, argued that if the word "plausible" is to have any serious meaning, LES needs to come up with a more concrete and enforceable plan for dealing with the waste.

She noted that no private company currently exists that is capable of taking the waste, and the DOE option is based on treatment plants that also do not yet exist.

"There is no assurance or even likelihood that the depleted uranium generated by LES will be disposed of in a timely fashion," Fox argued.

Fox's argument might be moot for two reasons.

First, the NRC issued a ruling suggesting the DOE option might be sufficient to meet the "plausible strategy" test, and therefore no more discussion may be needed.

In addition, NRC's staff attorneys complained that the state Environment Department's legal filing on the issue was too vague and therefore was not admissible.

Fox, in the June 15 hearing, acknowledged the shortcoming of the Environment Department filing. "I'm sorry the petition was not more specific," Fox told the licensing board's members. "We acknowledge that it should have been."

The filing by Madrid's office faces the same difficulty, with the NRC's attorneys arguing that it also is too vague to be of any use.

Low-level waste?

With the possibility that neither the Environment Department's nor the Attorney General Office's arguments about the waste issue would be taken up in the licensing hearing, much of the argument fell to Lindsay Lovejoy, the Santa Fe attorney representing Public Citizen and NIRS.

Lovejoy attacked the central point raised by the NRC's Feb. 6 order -- the contention that the DOE option could count as a "plausible strategy," foreclosing further discussion.

In order for the DOE option to count as "plausible," according to the NRC, the waste in question has to qualify as "low-level waste." Lovejoy argued there is some question about whether the waste qualifies, which means the issue should be the subject of a full- blown NRC hearing.

LES' lead attorney Jim Curtiss agreed that the waste question is "the most important issue surrounding this facility." But he argued that the way the two disposal options are laid out in the company's license application are sufficient to meet the "plausible strategy" test.

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