The Nuclear Regulatory Commission is trying to kickstart a solution to U.S. nuclear waste storage problems, usurping Congress’ constitutional authority in the process, an anti-nuclear group argued Wednesday in its lawsuit over commercial interim storage.
Beyond Nuclear’s Wednesday comments to the D.C. Circuit Court of Appeals were the latest in the anti-nuclear group’s ongoing struggle with NRC over whether the agency violated the Nuclear Waste Policy Act (NWPA) when it licensed Interim Storage Partners’ (ISP) proposed storage site for spent nuclear fuel in Andrews, Texas.
The anti-nuclear group argued previously that NWPA, which bars the federal government from taking title to spent fuel stored at power plants until a permanent repository exists, prohibited NRC from licensing the project.
In Wednesday’s filing, Beyond Nuclear expanded on that argument, alleging that the agency allowed the proposed site to move forward “to help ISP and others to ‘kickstart progress on the spent fuel quagmire’” in the absence of Congressional action to amend the law.
But Such acts by a federal agency violate the constitution’s separation-of-powers doctrine, Beyond Nuclear said. “[I]f the Nuclear Waste Policy Act is a motorcycle stuck in the mud, only Congress can “kickstart” the legislative machinery to dislodge it, or, determine in what direction it should go,” the group said. NRC “must be held to its role of disinterested regulator.”
NRC, meanwhile, argues that the ISP license does not run afoul of NWPA because it does not grant the ability for the private company to store DOE-owned spent fuel.
The commission “has acknowledged that, under current law, the storage of spent fuel to which [the Department of Energy] owns title would be illegal,” it said in a June court filing. “There is thus no realistic possibility that the license would permit illegal activity.”
As of Thursday, the court had not responded.
Beyond Nuclear’s separation of powers argument followed the anti-nuclear group’s new angle of attack last week — telling the court that the Supreme Court’s June 30 ruling in West Virginia v. EPA eliminated NRC’s authority to license the proposed ISP site. The anti-nuclear group argued that the ruling upheld a legal theory known as major questions doctrine, which says that Congress must approve decisions from federal agencies that bear major political or economic significance.
The ISP site, if it gets built, would be able to store around 40,000 tons of spent fuel — or 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.
