ML19179A311
| ML19179A311 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 06/28/2019 |
| From: | Bessette P, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55065 | |
| Download: ML19179A311 (5) | |
Text
DB1/ 104823973 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 June 28, 2019 INTERIM STORAGE PARTNERS LLCS RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS QUESTIONS REGARDING THE U.S. DEPARTMENT OF ENERGYS AUTHORITY UNDER THE NUCLEAR WASTE POLICY ACT Interim Storage Partners, LLC (ISP) submits this response to the questions posed by the Atomic Safety and Licensing Board (the Board) in its June 7, 2019 Order regarding the U.S. Department of Energys authority under the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. §§10101 et seq. (NWPA), and whether any Petitioner has raised an admissible legal contention on this issue. ISP submits this response pursuant to the Boards invitation to file written responses to these questions before oral argument.
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Does the Applicant agree that, absent new legislation, the U.S. Department of Energy could not lawfully assume ownership of the spent nuclear fuel in the proposed interim storage facility?
The U.S. Department of Energy (DOE) has taken the position that it cannot assume title to commercial spent nuclear fuel from civilian nuclear power reactors absent a permanent repository. Accordingly, Applicant agrees that, absent new legislation, the DOE could not lawfully assume ownership of the spent nuclear fuel in the proposed interim storage facility.
Accordingly, as in Holtec Intl (HI-STORE Consol. Interim Storage Facility), LBP-19-4, 89 NRC __ (May 7, 2019) (slip op. at 26-34), there is no admissible contention regarding DOE authority under the NWPA.
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Applicant respectfully makes the following observations, for completeness of the record.
First, as the Board observed in Holtec, DOE has long taken the position that it lacks authority to take title to commercial spent nuclear fuel until commencement of operation of a repository.
E.g., Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793, 21,795 (1995)(quoting NWPA 302(a)(5); Holtec Intl (slip op. at 33 n.169). No court, however, has specifically so held, or addressed that issue in the context of DOE actually seeking to assume title to spent nuclear fuel. Rather, for purposes of the statutory obligations imposed upon DOE by the NWPA, the courts have held that those legal duties are not conditioned upon the existence of such a repository. E.g., Northern States Power Co. v. U.S. Department of Energy, 128 F.3d 764, 756 (D.C. Cir. 1997). Similarly, the courts have held that DOEs contractual duties and liabilities may not be excused upon grounds of the lack of a repository. E.g., Northern States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed. Cir. 2000); Nebraska Pub. Power Dist. v.
United States, 590 F.3d 1357, 1375 (Fed. Cir. 2010).1 Second, courts have held that funds from the Nuclear Waste Fund established and governed by the NWPA may not be used for purposes of interim storage. Alabama Power Co. v.
U.S. Department of Energy, 307 F.3d 1300, 1312-1313 (11th Cir. 2002). At present, Congress has neither otherwise authorized nor appropriated funds for interim storage of commercially generated spent nuclear fuel. Applicant cannot, and would not, enter into a commercial arrangement with a party for possession and storage of spent nuclear fuel without substantial 1
Similarly, no court has ruled on the question of whether any pre-NWPA DOE authority regarding storage of commercially generated spent nuclear fuel continues to exist after passage of that Act. In other contexts, the NWPA has been held not to have implicitly repealed NRCs pre-existing agency authority granted by the Atomic Energy Act. Bullcreek v. Nuclear Regulatory Commn, 359 F.3d 536, 541 (D.C. Cir. 2004).
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assurance regarding the validity of the customers title and source of funds. Given the stated position of DOE, Applicant, as the applicant in Holtec, hopes Congress will change the law and allow it in most instances to contract directly with DOE to store spent nuclear fuel. Holtec, slip op. at 33. However, neither the Applicants hopes for legislative or policy developments, nor its marketing and business strategies, are relevant to this licensing proceeding.
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If the Applicant does not agree, has any petitioner raised an admissible legal issue concerning that issue.
See above. For reasons that include those explained by the Board in Holtec, no Petitioner has raised an admissible contention in this proceeding regarding DOEs legal authority under the NWPA. Those references to DOE contained in the Application are not material to any finding that either NRC or this Board must make, but, rather, acknowledge the possibility that, during the licensed life of the proposed project, there may come a day when title to commercially generated spent nuclear fuel may be held by DOE. As the Board observed in Holtec, if that came to pass, the NRC need not require [the Applicant] to begin the licensing process all over again.
Holtec, slip op. at 28. Moreover, again as the Board correctly held, the availability or unavailability of DOE as a potential customer is ultimately irrelevant to the licensing decision:
the business decision of whether to use a license has no bearing on a licensees ability to safely conduct the activities the license authorizes. As the Commission instructs us, the NRC is not in the business of regulating the market strategies of licensees or determining whether market strategies warrant commencing operations. Holtec, slip op. at 33, quoting La. Energy Servs.
(Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005); Hydro Resources, Inc., CLI-01-4, 53 NRC 31, 48-49 (2001).
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Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 E-mail: timothy.matthews@morganlewis.com E-mail: paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.
this 28th day of June 2019
DB1/ 104823973 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 June 28, 2019 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Response to the Atomic Safety and Licensing Boards Questions Concerning the U.S. Department of Energys Authority Under the Nuclear Waste Policy Act was filed through the E-Filing system.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC