The Nuclear Regulatory Commission this week joined the licensee of a proposed interim storage facility for spent nuclear fuel in rejecting arguments that a recent Supreme Court decision invalidated the project’s license, court filings show.
The new argument from local stakeholders and environmental groups center on the so-called major questions doctrine the Supreme Court invoked in its June decision in West Virginia v. EPA. Essentially, the doctrine holds that an agency cannot regulate major economic or political issues if Congress did not pass a law explicitly allowing the agency to do so.
But until now, the plaintiff coalition of stakeholders and the anti-nuclear group Beyond Nuclear had not raised the major questions doctrine in their suit against Interim Storage Partners’ (ISP) proposed spent site in Andrews County, Texas, which NRC licensed in September.
For that reason, the D.C. Circuit Court of Appeals should not address the issue in the lawsuit “because the issue is not presented by these cases and has been waived,” NRC said Wednesday.
In its Wednesday filing, the commission rejected both the relevance and substance of the argument raised by Beyond Nuclear July 13, when the group argued that the government’s decision to license the proposed site was a major question, as described in West Virginia v. EPA.
“Beyond Nuclear’s letter fails to show that this is an “extraordinary” case that would require application of the major questions doctrine,” NRC said Wednesday. Also, NRC said, in the D.C. Circuit suit, “neither Beyond Nuclear nor any of the other Petitioners has even challenged the agency’s authority to issue licenses to store spent fuel”
NRC has argued that the suit, initially filed as a challenge to the commission’s decision to reject requests for a public hearing on the ISP site’s license, cannot also be used to roll back its September decision to license the project, despite the plaintiffs’ claim that it can.
The agency’s authority to license spent fuel storage facilities “lies at the core of the agency’s mission and expertise and falls clearly within the plain language of Congress’s delegation of authority to the agency to issue licenses for the possession of source, byproduct, and special nuclear material,” the letter said.
NRC’s response was similar to one filed Monday by ISP itself.
The company argued that West Virginia has “nothing to do with” the interim storage licensing process, and that even if it did, the circumstances of the issues considered in the high court ruling are different than those in NRC’s interim storage licensing decision.
“[T]he cited linchpin of the Supreme Court’s decision was the ‘newness’ of the rule there challenged,” ISP said, citing the decision. “‘Things changed’ upon promulgation of the new agency rule, and there was a lack of precedent for the challenged agency action.”
Not so in the case of NRC’s and commercial interim storage, the company said. The agency rule relied on to license the proposed ISP project “was openly and publicly promulgated” in 1980, when NRC updated its regulations to allow it to approve independent spent fuel storage installations.
ISP also pushed back on Beyond Nuclear’s assertion that Congress would need to approve NRC’s licensing decision. “Despite Congress being fully ‘aware’ of the NRC’s regulations, Congress never said a word about curtailing that authority,” the company said.
Diane Curran, counsel for Beyond Nuclear, called ISP’s argument a “fallacy” in a phone interview with RadWaste Monitor Tuesday morning. “The question is: did Congress speak on the issue of whether the Nuclear Waste Policy Act should be changed,” she said. “There’ve been a number of attempts to change it and there’ve been a number of attempts to introduce private storage of spent fuel, but they’ve all been turned down.”
The West Virginia ruling “simply confirms what the Supreme Court has already held over and over and over again,” Curran said. “Agencies cannot take action that’s inconsistent with the law, and they can’t get out in front of Congress.”
As of Thursday, the D.C. Circuit court had yet to respond to either party.
Opponents of interim storage in recent weeks have used West Virginia in a new angle of attack against the proposed ISP project, including Texas Attorney General Ken Paxton, who July 5 rolled out the argument in his own suit against NRC in the Fifth Circuit Court of Appeals.
The ISP site, if built, would be able to 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.
