Morning Briefing - April 02, 2019
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April 02, 2019

NRC Urges Federal Court to Dismiss Petition on Spent Fuel Storage Ruling

By ExchangeMonitor

The U.S. Nuclear Regulatory Commission on Monday urged a federal appeals court to dismiss an anti-nuclear advocacy group’s motion demanding the agency rule on the legality of two license applications for interim storage of spent nuclear power reactor fuel.

Beyond Nuclear filed its petition for review in December with the U.S. Court of Appeals for the District of Columbia Circuit. It argued the commission should have ruled on its motion to dismiss the licensing proceedings rather than kicking the question to the NRC’s quasi-judicial Atomic Safety and Licensing Board.

The same three-person board is considering petitions by Beyond Nuclear and other groups to intervene in the license applications for Holtec International’s planned used fuel storage facility in Lea County, N.M., and an Orano-Waste Control Specialists project in Andrews County, Texas.

The NRC reaffirmed Monday that those proceedings are the appropriate place to consider Beyond Nuclear’s core case against the license applications: That allowing temporary storage would be illegal because U.S. law requires the Department of Energy to assume ownership of the used fuel to transport it to storage from nuclear power plants, but only when a permanent repository is available.

While the Hobbs Act allows the court to rule on “final orders” from the NRC, the decision Beyond Nuclear opposes does not constitute a final order, according to Monday’s filing. The “legal arguments that Beyond Nuclear has raised challenging the Commission’s authority to issue the underlying licenses have been channeled into the agency’s adjudicatory process, the Board is considering them, and the Commission itself will have the opportunity to consider them at a later date in the event of an appeal.”

Related to that, the Beyond Nuclear petition to the court is not ripe given that the legality question will be considered by both the Atomic Safety and Licensing Board and potentially the commission on appeal, the NRC said.