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Skull Valley Band of Goshute Indians and Private Fuel Storage Seek Reversal of Interior Department Rulings On July 17, 2007, PFS and the Skull Valley Band of Goshute Indians filed a complaint, in U.S. District Court in Salt Lake City, against officials of the U.S. Department of Interior for their decisions of September 2006 disapproving the PFS-Goshute lease and the use of public lands for an Intermodal Transfer Facility. The Claim asks the Court to vacate the DOI decisions and require DOI to reconsider both issues on a strict timetable, this time adhering to the Department's own regulations as well as other federal laws and policies. Read full text of the complaint (PDF). PFS Receives License On February 21, 2006, the Nuclear Regulatory Commission issued a license to Private Fuel Storage to build and operate its proposed temporary storage facility for spent nuclear fuel on the Skull Valley Goshute reservation in Skull Valley, Utah. This is the first nuclear facility to receive a license in more than 20 years. “We’re very pleased that the 8 1/2 year long licensing process has resulted in a license,” said John Parkyn, Chairman and CEO of PFS. “It has been a very rigorous process in which PFS proved that the facility will be built and operated in compliance with Federal regulations designed to protect public health and safety.” NRC Approves PFS License SALT LAKE CITY (Sept. 9, 2005) - The Commissioners of the Nuclear Regulatory Commission (NRC) this morning made two milestone decisions on the proposed Private Fuel Storage (PFS) facility in Utah on the Skull Valley Goshute Reservation in Tooele County, UT, including a decision authorizing the issuance of the license for the facility. First, the Commissioners unanimously voted to deny the state of Utah’s petition for review of Commission and Atomic Safety and Licensing Board (ASLB) rulings, which found that cruise missile testing and accidental crashes of military aircraft do not pose credible hazards to the proposed facility. Those were the last outstanding issues before the Commission concerning the state and intervenor challenges to the proposed facility. Second, the Commissioners by a 3 to 1 vote authorized the NRC Staff to issue the license authorizing the construction and operation of the PFS facility. Read the PFS news release issued 9/9/05. ASLB Give PFS a Green Light On Thursday, February 24, 2005, the Atomic Safety and Licensing Board ruled on the last two issues raised by intervenors in the PFS licensing process. The ASLB ruled that the chance of an accidental military airplane hitting the facility and causing a breach of a storage cask is less than one in a million. In a second ruling, the ASLB denied the state of Utah's request to admit a late contention related to the US Department of Energy's obligation to take spent fuel from the PFS site to a permanent repository. With these two favorable rulings, all issues brought by intervenors to the Licensing Board have been decided in PFS's favor. This means that the NRC Commissioners may now review the case and decide whether or not to issue a license. Read the PFS news release issued 2/24/05. Tenth Circuit Court Rejects Utah Appeal On August 4, 2004, the U.S. Court of Appeals for the Tenth Circuit issued a decision unanimously upholding the ruling by District Court Judge Tena Campbell, that the Utah state laws intended to stop the PFS project are preempted under Federal law. The Court, in a lengthy decision written by Judge Robert Henry, rejected the State's procedural challenges to the district court decision, as well as the State's attempt to overturn the district court's substantive preemption determination. After the State passed a series of laws in 1998 - 2000, which attempted to outlaw the storage of spent nuclear fuel in the state and to penalize anyone who in any way benefited from or supported such storage, Private Fuel Storage and the Skull Valley Band of Goshute Indians filed a lawsuit asking the court to rule the state laws unconstitutional. The U.S. District Court under Judge Campbell agreed, finding that the state laws are preempted by federal law. The Tenth Circuit's decision is in response to the state's appeal of Judge Campbell's ruling. "We are pleased that the Appeals Court has upheld the District Court decision," said PFS Chairman John Parkyn. "This decision again validates the established legal way for the state to raise concerns about the project is through the NRC licensing process, not by passing its own laws intended to circumvent that legal process. The state has been a full participant in the licensing process for the past seven years and we expect that they will continue in that role until the licensing process is completed." The Tenth Circuit's decision concludes by stating that "it is not denigrating the serious concerns of Utah citizens and lawmakers regarding spent nuclear fuel." But, "in the matter of nuclear safety, Congress has determined that it is the federal government, and not the states, that must address the problem." Finally, the Court observes that many of the State's concerns are being addressed "in the extensive regulatory proceedings before the NRC, as well as in appeals from the NRC's decisions." The Court ends by saying that it is "hopeful" that the State's concerns will receive "fair and full consideration" by the NRC. The State has the right to seek further review, either in the Tenth Circuit (through rehearing or rehearing en banc) or to the US Supreme Court. Hopefully, the Court's well-written and comprehensive decision will dissuade the State from pursuing the case any further. Read the entire court decision published on August 4, 2004. Licensing Board Rules on Wilderness Issue On Dec. 31, 2003, the Atomic Safety and Licensing Board (ASLB) ruled in favor of Private Fuel Storage (PFS) on an issue raised by the Southern Utah Wilderness Alliance (SUWA) regarding the proposed route of a rail line to be built to the PFS facility in Skull Valley. The ASLB found that "contrary to SUWA's claims, none of the alternative routes suggested for that rail line would be better from an environmental standpoint; indeed, all would be worse in terms of creating greater adverse environmental impacts than those associated with the Applicant's proposal." SUWA had challenged the proposed rail route claiming that it could interfere with potential designation of wilderness areas in the North Cedar Mountains. The ASLB ruling further states:
Today's ruling is the last in a series of rulings the ASLB must make regarding issues that were brought before the board in hearings in 2000 and 2002. The ASLB has ruled in favor of PFS on all but one issue potential hazards associated with a hypothetical military aircraft crash at the site. That issue will be explored further in additional hearings before the Board in spring 2004. Licensing Board Denies on a Technicality PFS's "Smaller Site" Proposal In a hearing at Nuclear Regulatory Commission headquarters on May 29, 2003, the Atomic Safety and Licensing Board denied PFS's motion to reconsider a license recommendation conditioned on a 336-cask site rather than a 4,000-cask site that PFS specified in its application. The ASLB did not consider the merits of the argument, but recommended that PFS use different procedures to bring the matter before the Board. ASLB judges requested documentation and testimony supporting PFS's position that a smaller site requires no further examination of environmental or safety-related issues that have already been thoroughly reviewed for the larger site. PFS proposed the smaller site as a way to address ASLB concerns about the probability of an accidental military aircraft crash at the site. A smaller site area, plugged into the mathematical probability formula, yields a probability of less than one in a million, making such an event "non-credible" according to the NRC regulations. If a license were granted for a smaller site, PFS would be able to begin marketing the facility while it continues to pursue its appeal of the aircraft crash ruling and a license for the full 4,000-cask facility. Nuclear Regulatory Commission Defers Review of ASLB Ruling On May 28, 2003, the Nuclear Regulatory Commission (NRC) responded to PFS's petition for review of the Atomic Safety and Licensing Board's March 10 ruling on aircraft crash hazards by saying that they would defer their review until after the ASLB hears further evidence from PFS on the consequences of a hypothetical crash at the proposed storage facility. PFS will present testimony and evidence to support its argument that the consequences of such a crash would not exceed NRC health and safety regulations. Hearings on this issue will be held sometime this fall. The Commission directed the Licensing Board "to make every effort to wind up the consequences hearing no later than December of this year." The Commission authorizes the Board "to use whatever procedural devices it deems necessary to reach a timely decision." Pending the outcome of the consequences hearing, the Commission will hold in abeyance PFS's appeal of the Board's decision on the aircraft crash contention. Licensing Board Says PFS is Financially Qualified On May 27, 2003, Private Fuel Storage (PFS) received three favorable rulings from the Atomic Safety and Licensing Board (ASLB) concluding that PFS is financially qualified to build, operate and decommission the proposed temporary storage facility for spent nuclear fuel. The rulings reflect the license conditions established by the NRC Staff, which require PFS to show it has sufficient funds committed for constructing the facility before commencing construction, and customer contracts sufficient to cover the cost of operating the facility before beginning operation. Read the PFS news release issued 5/27/03. Licensing Board Rules on Earthquake Issue On May 22, 2003, Private Fuel Storage (PFS) received a vote of confidence from the Atomic Safety and Licensing Board, which issued a 372-page decision that the proposed facility for temporarily storing spent nuclear fuel in Skull Valley, Utah, is properly designed to withstand earthquakes that might occur there. The ruling stated "[W]e find that the Applicant has met its burden of proof on all . . . seismic-related issues. Although the State presented thoughtful, valuable evidence that tested many aspects of the Applicant's presentation, the Applicant's position essentially withstood that scrutiny." The Board's decision went on to note that the "extensive exploration of those questions in the hearing should provide reassurance to the State's citizens that the merits of the Applicant's proposal have been thoroughly scrutinized." Read the PFS news release issued 5/22/03. PFS Responds to Licensing Board Ruling On March 31, 2003, Private Fuel Storage filed three documents with the Atomic Safety and Licensing Board (ASLB) and Nuclear Regulatory Commission (NRC) responding to the recent ASLB ruling on the probability of military aircraft crashes at the proposed site in Utah. The documents request an NRC review of the ruling; request reconsideration by the ASLB; and accept the ASLB offer to hear evidence regarding the consequences of a hypothetical aircraft crash at the site. "Our three-pronged approach is based on our need to address licensing concerns as quickly as possible so that we may proceed with construction and operation of our facility," said John Parkyn, PFS Chairman. "The nation's need for safe, cost-effective, temporary storage of spent fuel will increase every year until a federal repository is available." Read the PFS news release issued 3/31/03. Partial Ruling Announced On March 10, 2003, the Atomic Safety and Licensing Board (ASLB) issued an initial partial ruling on one of several issues standing between Private Fuel Storage (PFS) and a license from the Nuclear Regulatory Commission (NRC). The Board found that "PFS has not provided reasonable assurance that F-16 aircraft crash accidents do not pose a significant threat to the facility." The ASLB outlined options PFS may take if it disagrees with the ruling. PFS may choose to go before the Board again and litigate the consequences of an F-16 crash at the facility. It may also appeal the ASLB's decision to the Nuclear Regulatory Commission. PFS is reviewing the ruling and then will decide what action to take. "This partial decision is another indication of the rigorous standards that must be met to build and operate this facility," said Scott Northard, project manager for PFS. "While we are disappointed with this initial partial decision, we continue to believe that our facility meets the federal regulations. We will review the Board's ruling to determine if and how we may address their concerns." For background on PFS's aircraft crash analysis, see Aircraft Crash Hazards Study. Judge Finds State Laws Unconstitutional On July 30, 2002, Judge Tena Campbell of the U.S. District Court of Utah ruled in favor of Private Fuel Storage and the Skull Valley Band of Goshute Indians, finding that various laws passed by the state of Utah, which were intended to prevent the PFS project, are unconstitutional. The judge's decision explained that the laws in question violated the Supremacy Clause of the Constitution since they attempted to regulate activities that are already regulated by the federal government. The court decision means that PFS can continue with the licensing process with some assurance that the project will not be stopped by these particular laws. Yucca Mountain Reaches Approval Milestone The designated site for a federal permanent repository for high level nuclear waste, including spent nuclear fuel rods, passed another major milestone on July 9, 2002, when the U.S. Senate voted to override the state of Nevada's veto of the proposed site at Yucca Mountain, NV. The House of Representatives had already voted in favor of the Yucca Mountain repository. This action gives the U.S. Department of Energy the green light to prepare a license application for submission to the Nuclear Regulatory Commission. The Senate's approval was very encouraging for the nation's nuclear plants which are beginning to run out of on-site storage for spent fuel and have been paying into the Nuclear Waste Fund for a permanent repository since 1983. However, some plants will not be able to wait for Yucca Mountain, but will need to find an interim storage solution, since the most optimistic estimate for Yucca Mountain's opening is 2010. The rigorous licensing process may cause further delays in the federal facility. The approval of Yucca Mountain is good news for Private Fuel Storage since the sooner Yucca Mountain is available, the less time temporary storage at the proposed PFS facility would be needed. Unfortunately, Yucca Mountain cannot be ready in time to negate the need for the PFS facility. Licensing Board to Hold Hearings in Utah The Atomic Safety and Licensing Board, a three-judge panel named by the Nuclear Regulatory Commission to oversee the Private Fuel Storage licensing proceeding, will come to Utah for about four weeks of hearings, starting April 8, 2002. "These hearings are important," said Scott Northard, project manager for PFS, "because they provide another opportunity for members of the public to learn more about the proposed facility and to state their opinions - for or against the project - to the Licensing Board. It is also an opportunity for the State and other parties to the proceeding to bring evidence and testimony before the Licensing Board and for PFS to prove why the facility will be safe and environmentally sound." We expect that all of the hearings will be open for public observation, though participation will be limited to lawyers and expert witnesses for the parties. However, two days have been designated for the public to make "limited appearance statements." See full hearing schedule. Approval Process for Permanent Federal Repository Begins With the announcement on January 10, 2002, that Energy Secretary Spencer Abraham will recommend to President Bush that the Yucca Mountain site be approved as the federal repository for high level nuclear waste and spent nuclear fuel, the process for approving and licensing the much needed facility took a major step forward. The sooner a federal repository is built, the less time a temporary facility like the one proposed by Private Fuel Storage will be needed. The PFS facility will provide a temporary, economical storage option for utilities that must move spent fuel from their reactor sites (because of storage limitations or the need to decommission their sites) until the federal repository is licensed, constructed and ready to accept the utilities' spent fuel. Final Environmental Impact Statement Released On January 3, 2002, the Final Environmental Impact Statement (FEIS) on the proposed PFS facility was released by the NRC and the three other federal agencies that participated in the environmental review. The FEIS concludes that of all the alternatives considered by the NRC and other agencies, the preferred alternative is the facility as proposed by PFS, with implementation of mitigation measures recommended by the cooperating federal agencies. The FEIS also concludes that the benefits of the proposed facility outweigh the disadvantages and costs, and that the environmental impacts would be small or small to moderate. The NRC has issued a news release on the FEIS on its web site: www.nrc.gov, along with links to the document itself. Safety Evaluation Supplement on Seismic Issues Released On Dec. 21, 2001, the NRC Staff released a supplement to its Safety Evaluation Report on the PFS facility. The supplement is an updated, independent analysis of earthquake hazards at the proposed facility, performed by the NRC Staff and its consultants. Their conclusion supports that reached by PFS: The design of the facility complies with those federal regulations that are designed to protect the health and safety of the public in the event of an earthquake. This means that the facility would protect the spent fuel and prevent any radiation release to the public if an earthquake occurred at the site. Motions Filed in PFS/Goshutes Vs. Utah On December 12, 2001, PFS and the Skull Valley Band of Goshute Indians filed motions in U.S. District Court asking the court to issue a summary judgment in their lawsuit against the state, declaring unconstitutional recent state laws designed to prohibit spent nuclear fuel storage on the Skull Valley Reservation, and to dismiss counterclaims filed by the state. Follow these links for more information:
Supplement to Safety Evaluation Report Issued On November 13, 2001, the Nuclear Regulatory Commission (NRC) Staff issued a supplement to its Safety Evaluation Report (SER) that re-evaluated data and analysis developed by PFS on aircraft and cruise missile crashes at the proposed facility. The NRC reached the same conclusion PFS reached: the risk of an aircraft or cruise missile crash is less than one in a million and is therefore deemed "not credible." This means that under the regulations the facility need not be designed to withstand such an event. On November 14, the NRC Commissioners issued a decision validating the "one in a million" standard applied to aircraft crash risks at spent fuel storage facilities. The state of Utah had petitioned the Commission to use a "one in ten million" standard, but Commissioners found the one in a million standard appropriate and adequate. In their decision, the Commissioners noted that they did not consider aircraft crashes that are deliberate acts of terrorism, a much broader issue that the NRC Staff is studying to determine whether changes in existing regulations are warranted. PFS will, of course, comply with any regulatory changes that may be made. View the NRC Memorandum (40K PDF).
© 2000-2005 Private Fuel Storage, LLC / All rights reserved
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