The Nuclear Regulatory Commission this week submitted its last set of arguments against a coalition of anti-nuclear and other groups suing the agency over a proposed interim storage facility for spent nuclear fuel, court documents show.
In its wrap-up brief, filed Monday with the U.S. Court of Appeals for the District of Columbia, NRC doubled down on its argument that the plaintiffs, led by Beyond Nuclear, have no standing to challenge the agency’s September decision to grant a license to Interim Storage Partners’ (ISP) proposed site in Andrews, Texas.
The coalition, which includes environmental groups and local stakeholders, filed suit against NRC last year, claiming the agency unfairly denied requests for a public hearing on the ISP project while it was deliberating on a licensing decision. Among those, Beyond Nuclear, the Sierra Club and Don’t Waste Michigan asked the court to take things a step further and roll back the proposed site’s license altogether.
Because NRC rejected the plaintiffs’ agency-level appeals, the commission said in its final brief, they have “no basis” to challenge the licensing decision. The administrative window for stakeholders to challenge such an order “opens once, and only once, for each petitioner,” NRC said, and that window slammed shut when it denied the anti-nukers’ petitions.
NRC also repeated its argument Monday the proposed ISP site does not violate federal nuclear waste and environmental law, despite claims to the contrary by the plaintiffs.
Although the anti-nuclear coalition has said the project runs afoul of the Nuclear Waste Policy Act’s (NWPA) restrictions on interim storage in the absence of a permanent nuclear waste repository, the commission argues that it is governed by the Atomic Energy Act (AEA), which gives it the authority to license interim storage facilities for spent fuel.
The AEA allows NRC to issue licenses for the possession of “special nuclear material,” including source and byproduct material, the agency said.
“As a consequence of the authority set forth in these provisions, ‘it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of [spent] fuel,’” NRC said, citing a similar case it litigated in 2004 in the D.C. circuit court.
Meanwhile, Beyond Nuclear in its own final brief filed Aug. 5 asked the court to take a particular look at a provision in the ISP site’s license that the group said allows the project to accept and store DOE-owned spent fuel. The anti-nukers argued that such a provision violates NWPA, which holds that DOE cannot take title to spent fuel from reactor sites until a permanent repository is active.
As of Wednesday, the D.C. circuit court had not responded to either party.
The final briefs in this case were filed after Beyond Nuclear in July attempted to link the ISP site’s license to the Supreme Court’s June 30 ruling in West Virginia v. EPA. The anti-nukers argued at the time that the high-court’s decision meant that NRC would need congressional approval to authorize an interim storage facility in Texas. The commission replied that the ruling did not apply to its licensing decision.
The ISP site, if built, could store around 40,000 tons of spent fuel — about half of the country’s total spent fuel inventory of close to 90,000 tons. NRC licensed the site to operate for 40 years.
