ML22208A164
| ML22208A164 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/2022 |
| From: | Andrew Averbach NRC/OGC |
| To: | Langer M US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1956624, 21-1048 | |
| Download: ML22208A164 (2) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 July 27, 2022 Mark Langer, Clerk of Court United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave., NW Washington, DC 20001 Re: Dont Waste Michigan v. NRC, No. 21-1048 (consolidated)
Dear Mr. Langer:
Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, Respondent Nuclear Regulatory Commission (NRC), on behalf of Federal Respondents, responds to Beyond Nuclear, Inc.s citation to West Virginia v. EPA, 142 S. Ct.
2587 (2022), as supplemental authority.
First, West Virginia is inapplicable to any aspect of this case, as confirmed by the Petitioners failure to cite to it in any of their three reply briefs filed on July 20, 2022. No party raised the major questions doctrine in any brief. Indeed, neither Beyond Nuclear nor any of the other Petitioners has even challenged the agencys authority to issue licenses to store spent fuel. Thus, the Court should not address West Virginia or the major questions doctrine at all because the issue is not presented by these cases and has been waived.
Second, Beyond Nuclears letter fails to show that this is an extraordinary case that would require application of the major questions doctrine. The agencys authority to license the storage of spent fuel has long been recognized.
Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004). This authority lies at the core of the agencys mission and expertise and falls clearly within the plain language of Congresss delegation of authority to the agency to issue licenses for USCA Case #21-1048 Document #1956624 Filed: 07/27/2022 Page 1 of 2
M. Langer the possession of source, byproduct, and special nuclear material. Respondents Brief at 6-7; 10 C.F.R. Part 72; Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693, 74,694-96 (Nov. 12, 1980). West Virginia therefore does not affect the Courts analysis of the license at issue. See 142 S. Ct. at 2608-10.
Third, Beyond Nuclears letter misstates the facts when it asserts that the NRC has licensed ISP to store spent fuel owned by the Department of Energy (DOE). To the contrary, the NRC acknowledges that the Nuclear Waste Policy Act prohibits DOE and ISP from doing so. Federal Respondents Brief at 24-30. Beyond Nuclears assertion that the license authorizes illegal conduct is therefore incorrect.
Respectfully,
/s/ Andrew P. Averbach Solicitor USCA Case #21-1048 Document #1956624 Filed: 07/27/2022 Page 2 of 2