ROCKVILLE, Md. — Utah won a battle Thursday — at least temporarily — in its war against building a nuclear waste repository at the Skull Valley Goshute reservation.
But the Atomic Safety and Licensing Board (ASLB) made clear it is likely just the first round in one particular fight, and Utah won only because of procedural mistakes by Private Fuel Storage — a consortium of utilities seeking to build the repository.
The ASLB rejected Thursday an attempt by the consortium to reduce the number of casks it proposes to store at the facility from 4,000 to 336.
PFS says that reduction would lower the threat of a fighter crash into casks there to an acceptable level, according to formulas used by the licensing board when it ruled in March that the full-sized facility was too big of a target for a crash and at too much risk
The Skull Valley site is not far from the Utah Test and Training Range, one of the largest bombing and training ranges in the country. It is also where fighters from Hill Air Force Base train.
PFS attempted to reduce the number of the huge casks — which are 20 feet high and 11 feet in diameter — by filing a motion to reconsider the ASLB's earlier decision, contending that the board made a mistake by not automatically approving whatever smaller number of casks it would consider to be safe.
However, the ASLB ruled that PFS had never asked it to consider that, so it was the company's error, and therefore granting its motion to reconsider would be improper.
"In all our deliberations on aircraft issues, none of us ever even considered the notion of licensing a smaller facility. The fact we never once thought of it indicates to us it was not something fairly presented" as an option by PFS, said ASLB Chairman Michael C. Farrar.
So, he said, "We are going to deny the motion on procedural, not substantive, grounds."
Farrar said the company is free to make the same request using a different type of motion, such as a formal amendment to its original license request. In fact, he said he expects the company to do that — and even told Utah to have its technical experts to start preparing assessments of the smaller facility so rulings on it may move quickly.
Assistant Utah Attorney General Denise Chancellor — during three hours of oral arguments — called the attempt to cut the number of casks "an illegal end run" around the board's earlier ruling. She said it amounts to a completely new request, which requires review of its own changed economics, environmental impacts and safety.
However, PFS attorney Paul Gaulkner said all such necessary reviews are essentially already contained within reviews done for the larger facility and should not require extensive new study and review.
Meanwhile, Assistant Utah Attorney General Jim Soper contended the change to 336 casks is "just a ruse" to allow PFS to essentially begin construction on a full 4,000-cask facility in hopes it will lead to approval of a full-sized operation. "They have no intention of building and owning and operating (just) a 336-cask facility," he said.
Jay Silberg, attorney for PFS, confirmed that his company believes "in our heart of hearts that we will get a 4,000-cask facility" after appeals and other issues are heard, and that approval of 336 casks now would give it a head start on building the full facility later.
Silberg told the ASLB he is not sure whether PFS will file a motion to amend its original license request, because that may take years more of legal battles. He also said if PFS is allowed just a 336-cask facility, it may not build it.
The action Thursday follows several other developments during the past week.
The Nuclear Regulatory Commission on Wednesday issued an order to the ASLB to expedite consideration of the consequences of a crash into the full-sized facility and whether it would not create significant spread of radiation. It wants that decided by the end of the year, signaling it wants to end the six-year fight over licensing quickly.
Meanwhile, the ASLB this week also ruled that PFS has enough money to finance the waste repository, rejecting Utah arguments that it did not. Last week, the ASLB also rejected the state's claim that an earthquake could damage or rupture storage casks.
A main issue yet to be decided is whether a rail line to the facility would compromise wilderness values in the proposed Cedar Mountains wilderness.
Also of note, last week the Minnesota Legislature lifted a cap on on-site waste storage at three nuclear power plants operated by Xcel, one of the members of PFS. Xcel had said such caps might force it to close some of its reactors if PFS is not able to open a repository in Utah.
Chancellor argued before the ASLB Thursday that such new development shows the Goshute facility is not needed as much now as PFS has claimed, and that may alter economic and environmental analyses.
E-mail: lee@desnews.com