The Nuclear Regulatory Commission and the U.S. Department of Justice are asking the 5th U.S. Circuit Court of Appeals to review its decision to vacate Interim Storage Partners’ license to build and operate a consolidated interim storage facility (CISF) for commercial spent nuclear fuel in Andrews County, Texas.
In a lawsuit brought by the state of Texas and oil and gas industry groups, the appeals court ruled on August 25 that the NRC does not have the authority to issue a license for a spent fuel storage site that is away from a nuclear reactor. The NRC granted ISP, a joint venture of Orano USA and Waste Control Specialists, a license for its CISF in September 2021.
The NRC and the DOJ filed their petition for an en banc review, with all justices of the court rehearing the case, on October 24.
The arguments: In petitioning for an en banc review, the NRC and DOJ claim the court’s August ruling “raises two serious and lopsided conflicts.”
On the first point, the NRC and DOJ noted that the court’s decision to allow Texas, along with coplaintiffs Fasken Land and Minerals Ltd. and Permian Basin Land and Royalty Owners (together Fasken), to petition the court conflicts with the decisions of four other federal courts. This includes the 10th Circuit Court’s decision in February to dismiss a lawsuit brought by New Mexico challenging ISP’s CISF license.
The 5th Circuit heard arguments by Texas and Fasken under an exception of the Hobbs Administrative Orders Review Act, which requires “any party aggrieved” by certain agency orders to file a petition in a federal court of appeals within 60 days of the final order. The NRC and DOJ argue that since Texas did not seek to intervene in the NRC’s licensing process, and since neither Texas nor Fasken were a party to the NRC’s proceeding, they should not have been exempted from the Hobbs Act requirements.
“The exception incentivizes litigants to avoid an agency’s proceeding and then ambush the agency by attacking its authority—or dressing up a more mundane argument as an attack on agency authority—once the proceeding concludes,” the petition states.
The NRC and DOJ also argue that the court’s decision that the NRC does not have authority to license away-from-reactor spent fuel storage facilities “conflicts with the AEA’s [Atomic Energy Act’s] plain language, contravenes the Commission’s longstanding exercise of that authority, and creates a split with two circuits.”
“This is an exceptionally important question because the panel decision invalidates a core and vital statutory authority the Commission has exercised for many decades,” the agencies add.
The NRC and DOJ note that in the case of Private Fuel Storage’s application to the NRC to build a storage facility in Utah, both the D.C. and 10th Circuit Courts found that the NRC has the authority to license away-from-reactor facilities under the AEA. Further, they continue, nothing in the Nuclear Waste Policy Act precludes that authority.
Conclusions: In concluding their arguments, the NRC and DOJ state, “The panel decision has serious repercussions for the nuclear power industry and the Commission. The panel’s holding upends private, market-based solutions for temporarily storing spent nuclear fuel before a permanent repository is available for disposal. And the panel’s holding undermines the Commission’s authority over spent nuclear fuel, despite Congress’s clear intent in the AEA that the Commission exclusively oversee the safe, temporary storage of that nuclear material.”