District Court Prohibits Proposed Acquisition of Waste Control Specialists by EnergySolutions

On June 21, 2017, the United States District Court for the District of Delaware issued a Judgment and Order in a civil antitrust lawsuit seeking to block the proposed $367 million acquisition of Waste Control Specialists LLC by EnergySolutions.  The United States of America is the plaintiff in the case.  The listed defendants include EnergySolutions, Inc.; Rockwell Holdco, Inc.; Andrews County Holdings, Inc.; and, Waste Control Specialists LLC.

In its order, the district court entered judgment in favor of the plaintiffs and against the defendants, specifically enjoining and restraining the defendants “from carrying out the acquisition of Waste Control Specialists LLC by EnergySolutions, Inc. as memorialized in the merger agreement between Rockwell Holdco, Inc. and Andrews County Holding, Inc. dated November 18, 2015 and any amendments thereto.”

The case—which is listed as United States of America v. EnergySolutions, Inc.; Rockwell Holdco, Inc.; Andrews Country Holdings, Inc.; and, Waste Control Specialists—can be found under civil docket number 16-1056-SLR in the United States District Court for the District of Delaware.

Proposed Acquisition  On November 19, 2015, in separate press releases, it was announced that Rockwell Holdco had signed a definitive agreement to acquire Waste Control Specialists—a wholly owned subsidiary of Valhi, Inc. and operator of a low-level radioactive waste disposal facility located in Andrews County, Texas.  Rockwell Holdco is the parent company of EnergySolutions—which operates low-level radioactive waste disposal facilities in Tooele County, Utah and Barnwell, South Carolina.  Rockwell Holdco is owned by Energy Capital Partners, a private equity firm focused on investing in North America’s energy infrastructure.  According to the companies’ press releases, upon closing, Rockwell Holdco would pay $270 million in cash and $20 million face amount in Series A Preferred Stock.  In addition, Rockwell Holdco would assume approximately $77 million of Waste Control Specialists’ debt, as well as all financial assurance obligations related to the Waste Control Specialists’ business.

Antitrust Lawsuit  On November 16, 2016, the DOJ filed a civil antitrust lawsuit in the U.S. District Court for the District of Delaware seeking to block the proposed $367 million acquisition of Waste Control Specialists by EnergySolutions.  DOJ argued that the proposed transaction “would combine the two most significant competitors for the disposal of low level radioactive waste … available to commercial customers in 36 states, the District of Columbia and Puerto Rico.”  DOJ asserted that the proposed transaction “would deny commercial generators of … [low-level radioactive waste] —from universities and hospitals working on life-saving treatments to nuclear facilities producing 20 percent of the electricity in the United States—the benefits of vigorous competition that has led to significantly lower prices, better service and innovation in recent years.”

Low-Level Radioactive Waste  Low-level radioactive waste is the radioactive byproduct of nuclear power generation, scientific research and certain medical treatments.  Low-level radioactive waste includes such items as personal protective clothing, tools, water purification filters and resins, hardware from nuclear power plants, and equipment from medical and research institutions.  Low-level radioactive waste may only be disposed of in a facility licensed by, or pursuant to an exemption provided by, the U.S. Nuclear Regulatory Commission (NRC) or a state acting under an agreement with the NRC.  Low-level radioactive waste disposal is an essential service for operating nuclear reactors, research laboratories and medical facilities.  Additionally, low-level radioactive waste disposal is a requirement for the safe decommissioning of such facilities when they reach the end of their useful lives.

For additional information about EnergySolutions, please contact Dan Shrum at (801) 649-2000 or at dshrum@energysolutions.com or go to the company’s web site at www.energysolutions.com.  For additional information about Waste Control Specialists, please contact Rodney Baltzer at (972) 450-4235 or at rbaltzer@valhi.net or visit the company’s web site at www.valhi.net.

WCS Files License Application to Operate a Consolidated Interim Storage Facility for Used Nuclear Fuel

On April 28, 2016, Waste Control Specialists LLC (WCS) announced that it has submitted an application to the U.S. Nuclear Regulatory Commission (NRC) for a license to construct and operate a Consolidated Interim Storage Facility (CISF) for used nuclear fuel.  “The application is being led by WCS,” states the company’s press release, “along with its partners AREVA and NAC International, both global industry leaders in the transportation and storage of used nuclear fuel.”

WCS submitted the application after a year of pre-application meetings with NRC and in accordance with a timeline that the company outlined in February 2015.  According to WCS, a CISF could be completed as early as 2021.

Overview

The WCS application proposes an initial 40-year storage license for 40,000 metric tons of heavy metal (MTHM) to be built in eight phases.  Each of the eight storage systems would be able to accommodate 5,000 MTHM for an eventual capacity of 40,000 MTHM.  The proposal includes opportunities for 20-year renewals after the initial license period.

According to WCS, Phase 1 of the CISF will require approximately 155 acres, plus an additional 12 acres for administrative and parking facilities.  The entire site through Phase 8 will require approximately 332 acres, which WCS notes is less than 2.5 percent of the company’s site-wide acreage.

As proposed, the primary operations performed at the WCS site would be transferring the sealed canisters of used fuel from a transportation cask into an engineered interim fuel storage system, where it would be monitored until its departure to an offsite permanent disposal location.

“Consolidated interim storage would provide system-wide benefits and flexibilities to strengthen the U.S. Used Nuclear Fuel Management Program and help advance a permanent geologic disposal program,” said Rod Baltzer, President and CEO of WCS.  “It creates a robust opportunity to develop and deploy the repackaging technology to prepare the used nuclear fuel currently in dry storage for final offsite disposal in a geologic repository.”

According to WCS’ press release, other benefits of consolidated interim storage include the opportunity to reduce the risk of further degradation of on-site infrastructure at permanently shut down reactor sites and to address public concerns about transportation by demonstrating successful transport of this material.

Another chief benefit of an accelerated schedule for moving fuel away from shutdown sites, states WCS, is to reduce the liability to taxpayers for the federal government’s failure to meet its contractual obligations to dispose of this material.

Background

Various lawsuits have been filed that allege that the federal government has failed to meet its statutory obligation to take title to used nuclear fuel by 1998.  The government has estimated that its liability will total $13 billion by 2020 and may increase by approximately $500 million per year if a solution is not found by 2022.

The Nuclear Waste Fund’s 2015 Audit Statement found the net value of the fund to be $37.4 billion.  Expenditures over the past five years have been approximately $4 billion.

WCS operates a privately owned facility in Andrews County, Texas that has been licensed to treat, store and dispose of Class A, B and C low-level radioactive waste.  WCS is a subsidiary of Valhi, Inc.—a company that is engaged in the titanium dioxide pigments, component products (security products and high performance marine components), waste management, and real estate management and development industries.

Construction Permit to be Issued for SHINE Medical Isotope Facility

On February 25, 2016, the U.S. Nuclear Regulatory Commission announced that the agency has authorized its staff to issue a construction permit for a first-of-a-kind facility dedicated to medical isotope production.

The Commission, having completed a mandatory hearing, found the staff’s review of the SHINE Medical Technologies, Inc. application sufficient to make the necessary safety and environmental findings.  This will be the first construction permit issued for either a non-power utilization or production facility by the NRC since 1985.

Overview

Once issued, the construction permit will allow SHINE to build a facility for the production of molybdenum-99 (Mo-99) and other radioisotopes.  Mo-99 is used in medicine to create technetium- 99m—an isotope used in millions of diagnostic procedures annually in the United States.

The facility will be located in Janesville, Wisconsin—approximately 40 miles southeast of Madison.  The United States has not commercially produced Mo-99 since 1989.  The facility will support U.S. Government efforts to establish a reliable domestic supply of this isotope.

Background

SHINE submitted its construction permit application in two parts on March 26, 2013 and May 31, 2013.  The NRC staff’s construction permit review process included the examination of the preliminary design and environmental impacts of the SHINE facility.

The Advisory Committee on Reactor Safeguards (ACRS) conducted an independent review of SHINE’s preliminary safety analysis report and the staff’s safety evaluation.  The ACRS, a group of experienced technical experts, advises the Commission—independently from the NRC staff—on safety issues related to the licensing and operation of nuclear power plants, as well as on issues of health physics and radiation protection.

On October 15, 2015, the ACRS recommended that the Commission issue the SHINE construction permit.

Next Steps

SHINE must submit a separate operating license application for NRC approval before it can operate the facility.

The operating license application will consist of a final safety analysis report including SHINE’s final facility design, plans for operation, emergency plan, physical security plan, and technical specifications.

For additional information, please contact Eric Stahl of the NRC at (301) 415-8200.

Ohio Scrap Metal Facilities Receive Shipments Containing LLRW

By press release dated February 24, 2016, the Ohio Department of Health (DOH) announced that “[s]crap metal facilities in Canton, Mansfield and Massillon received shipments containing low-levels of radiation.” The Ohio DOH release stated that the exact source of the radiation that contaminated the scrap metal is being investigated. “The contaminated scrap metal is securely contained and does not pose a health risk to the facilities’ employees or the general public,” states the Ohio DOH release.

The following day, on February 25, 2016, the Pennsylvania Department of Environmental Protection (DEP) put out a press release stating that it was notified on February 23 “that recycle scrap contaminated with radioactive material was shipped from a PSC Metals, Inc. facility in Beaver Falls, PA, to two facilities in Ohio.” According to the Pennsylvania DEP release, “[a] radium-226 source of unknown origin was accidentally shredded with other materials, then shipped to processing facilities in Ohio.”

The U.S. Nuclear Regulatory Commission (NRC) has been notified of the incident. PCS Metals has hired a licensed decontamination provider to develop a plan for cleanup at the Beaver Falls scrap yard and the Ohio sites, as well as for safe disposal of the contaminated scrap metal.

Ohio DOH radiation protection staff was on-site at all three facilities to conduct radiation testing and to ensure planning for the safe disposal of the contaminated scrap metal. According to the Ohio DOH release, radiation surveys of contaminated scrap metal:

  •   delivered to PCS Metals, Inc. in Canton showed a highest reading of 70 microrem per hour, which is equivalent to less than one-tenth of the radiation dose from a chest x-ray; and,
  •   delivered to PCS Metals, Inc. in Massillon showed a highest reading of 25 millirem per hour, which is equivalent to the radiation dose from two-and-a-half chest x-rays within one hour.

The Ohio DOH release states that contaminated scrap metal delivered to Tube City, Inc. in Mansfield was not unloaded and instead redirected to PCS Metals’ Canton facility. Surveys of employee clothing, locker areas and break rooms at both PCS Metals locations did not show any radiation contamination.

A team from Pennsylvania DEP’s Radiation Protection Program took extensive readings at the Beaver Falls scrapyard. “Elevated readings were found on one large metal shredder and on gloves used by two workers,” states the Pennsylvania DEP release. “DEP is performing additional testing to ensure that there was no skin contamination. Radium-226 can be harmful if ingested.”

The Pennsylvania DEP release goes on to state that preliminary tests on the workers who operated the Beaver Falls machine showed no contamination, but that results are still pending. The Pennsylvania DEP release further states that the shredder has been isolated and that there is no indication that there is any contamination at the site, nor outside the scrapyard property.

LLW Forum Sponsors Panel for Waste Management 2016 Conference

The Low-Level Radioactive Waste Forum, Inc. (LLW Forum) has organized a panel for the Waste Management 2016 Conference titled, Hot Topics and Emerging Issues in US Commercial Low-Level Radioactive Waste Management. Panel 16 will focus on emerging issues in commercial low-level radioactive waste management in the United States from the perspective of representatives of the LLW Forum. State, federal and industry officials will share their views on a variety of timely and significant topics including:

  •   the proposal to license a disposal cell for Greater-than-Class C (GTCC), GTCC-like and Transuranic waste through means other than deep geologic disposal at the Waste Control Specialists (WCS) facility in Texas—Charles Maguire, Director of the Radioactive Materials Division at the Texas Commission on Environmental Quality (TCEQ);
  •   an initiative to develop implementation guidance for the Branch Technical Position on Concentration Averaging and Encapsulation (CA BTP)— Lisa Edwards, Senior Program Manager at the Electric Power Research Institute (EPRI);
  •   status of the proposed rule to amend 10 CFR Part 61, Licensing Requirements for Land Disposal of Radioactive Waste— Gregory Suber, Chief of the Low-Level Waste Branch at the U.S. Nuclear Regulatory Commission (NRC);
  •   the depleted uranium performance assessment, license and permit updates, and current waste disposal volumes and types at the Clive facility in Utah— Dan Shrum, Senior Vice-President of Regulatory Compliance at EnergySolutions; and,
  •   broker and processor perspectives on the management and disposition of disused sources— John McCormick, Vice-President at Bionomics, Inc.

The Waste Management 2016 Conference will be held at the convention center in Phoenix, Arizona from March 6-10, 2016. The LLW Forum-sponsored Panel 16 is scheduled to be held in Room 103AB from 1:30 – 3:10 p.m. on Monday afternoon—March 7, 2016.

As a reminder, registration rates for the Waste Management 2016 Conference are scheduled to increase on February 7, 2016.

Additional information on the Waste Management 2016 Conference can be found at www.wmsym.org or by contacting the Waste Management office at (480) 557-0263.