ML22256A139
| ML22256A139 | |
| Person / Time | |
|---|---|
| Issue date: | 09/07/2022 |
| From: | Andrew Averbach NRC/OGC |
| To: | Cayce L US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 00516462927, 21-60743 | |
| Download: ML22256A139 (2) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 September 7, 2022 BY ELECTRONIC FILING Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, Louisiana 70130 Re: State of Texas v. NRC, No. 21-60743
Dear Mr. Cayce:
Federal Respondents respond to Faskens letter of September 1, 2022, asserting that NRCs list of away-from-reactor storage facilities on its website is misleading. Fasken is incorrect, and its arguments confirm that petitioners lack a statutory basis to differentiate between at-reactor and away-from-reactor storage.
While it is true that some of the listed facilities are operated by DOE (and thus licensed pursuant to different statutory authority, see 42 U.S.C. § 5842(3)1), none is currently licensed to operate a nuclear reactor. Moreover, several of the facilities listed (including PFS and GE Morris) never were associated with reactors, and the operating licenses for several former reactor licensees Humboldt Bay, Rancho Seco, and Trojanhave been terminated altogether.
Consistent with the materials license issued to ISP, NRC has issued materials 1 Section 5842 does not separately authorize materials licenses for DOE. It was for this reason (and not a lack of AEA authority to license private storage facilities, as Texas belatedly suggests in its reply) that NRCs Chairman suggested in 1979 that Congress expand NRCs licensing authority.
Case: 21-60743 Document: 00516462927 Page: 1 Date Filed: 09/07/2022
L. Cayce licenses for these facilities pursuant to 42 U.S.C. §§ 2073, 2092, 2093, and 2111, and in accordance with 10 C.F.R. Part 72.
As discussed in our briefs and at oral argument, the NRC has issued these materials licenses based on its determination, reflected in Part 72, that permitting onsite or offsite fuel storage is appropriate to carry out the purposes of the AEA. 42 U.S.C § 2073(a)(4); see also id. § 2093(a)(4) (authorizing source materials licenses for use approved by Commission as aid to industry); Federal Respondents Br. 59-65; Supplemental Br. 8. Petitioners attempt to artificially confine the agencys authority to issuing licenses only for onsite fuel storage, but no statutory language imposes geographic limitations on NRCs plenary and exclusive authority over the possession of this nuclear material.
Petitioners arguments would undermine the basis upon which the agency has been issuing away-from-reactor fuel storage licenses since 1980. And neither Fasken nor Texas presented to the agency any assertion that the agency has acted beyond its authority, thus confirming that the Court has no jurisdiction over such claims.
Respectfully,
/s/ Andrew P. Averbach Solicitor Counsel of Record for U.S. Nuclear Regulatory Commission Case: 21-60743 Document: 00516462927 Page: 2 Date Filed: 09/07/2022