ECA Staff | 8/27/23
The 5th Circuit Court of Appeals in a broad ruling clarifies current law – specifically the Nuclear Regulatory Commission (NRC)
does not have the legal authority to license an interim nuclear waste storage facility for the disposal of spent nuclear fuel (SNF) at a private facility. The Court ruled that the law only permits a geologic repository or storage at the current licensed reactor sites (or at a federal facility for operating reactors that do not have space to store the SNF).
The result of the ruling - over 35 states remain de facto nuclear waste storage sites unless the federal government takes action. The closed or closing reactor sites along with the DOE HLW
sites have no path forward unless the federal government follows the current law or changes the law.
Specifically, the State of Texas and others challenged the NRC ability to license an interim storage facility and the 5th Circuit ruled on Friday (25 August):
“The Atomic Energy Act does not confer on the [NRC] the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power
generation, thereby foreclosing the Commission’s claim of authority.” (emphasis added)
This ruling is a blow to how nuclear waste will be managed in the United States. This is also a punch in the stomach to all of the local communities which host the sites that have called on the federal government to address the issue for the past 30+ years and were looking at interim storage as a possible step to moving the spent nuclear fuel and high-level waste at a centralized site
prior to the SNF and HLW going to a geologic repository.
Over 13 years ago the then current Administration ended licensing of the selected US geologic repository. The NY Times reported the “Death of Yucca
Mountain Caused by Political Maneuvering” At the time a committee (the Blue Ribbon Commission) was formed to create a recommendation for a path forward if the
Nuclear Waste Policy Act (the current law) was not going to be followed. Over a decade later – no progress- the communities that host these facilities are the de facto long term storage sites for nuclear waste in the United States.
Spent nuclear fuel – over 85,000 metric tons (and growing) - is stored at over 70 sites in 35 states. In addition, over 90 million gallons of radioactive waste from the nation's nuclear weapons program is stored primarily in Washington, South Carolina and Idaho.
No movement forward at all is how the communities look at the actions of the federal government – despite a law to the contrary each community is going to
remain the repository as no one is willing to move forward with a centralized site – in accordance with the law.
Although the hope of interim storage sites (similar to ones throughout the world) would be developed, the Court said
that the United States government needs to follow the law. The Court is clear:
“Nuclear power generation produces thousands of metric tons of nuclear waste each year. And such waste has been accumulating at nuclear power plants throughout the United States for decades. Congress has mandated that such waste be permanently stored in a geologic repository. But the development, licensing, and construction of that repository has stalled.”
To address this problem, [NRC] has asserted that it has authority
under the Atomic Energy Act to license temporary, away-from-reactor storage facilities for spent nuclear fuel. Based on that claim of authority, the Commission has issued a license for Interim Storage Partners, LLC, a private company, to operate a temporary storage facility on the Permian Basin, in Andrews County, Texas.
“The Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the
Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority. Accordingly, we grant the petition for review and vacate the license.”
This decision directly impacts the potential private interim nuclear storage facilities in Andrews County, TX (which is the subject of the case) and the newly NRC licensed a Consolidated Interim Nuclear Storage
Facility (HI-STORE CISF) in Lea County.
What Next?
The path forward for nuclear waste remains:
1) Follow current law (note below we identify limited ability of DOE to create an interim storage facility for SNF at a federal site – see Consent Based Siting section)
2) Pass a new law – amending the current law – to permit interim storage at private sites and federal sites.
3) Do nothing and leave the spent nuclear fuel and high-level waste in over 35 states – none of which are
licensed to store waste for the long term.
Energy Communities Alliance Suggestions are here
Although the NRC may appeal the ruling – a key quote in the case refers to the 2022 Supreme Court case that specifically identifies that federal
agency authority is limited to the statute where the law is unambiguous:
In sum, the Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And the Nuclear Waste Policy Act doesn’t permit it. Accordingly, we hold that the Commission doesn’t have authority to issue the license challenged here.
When read alongside each other, we find these statutes unambiguous. And even if the statutes were ambiguous, the Commission’s interpretation wouldn’t be entitled to
deference.
Last year, the Supreme Court
directed that, “[w]here the statute at issue is one that confers authority upon an administrative agency, that inquiry must be shaped, at least in some measure, by the nature of the question presented—whether Congress in fact meant to confer the power the agency has asserted” and whether there are “reason[s] to hesitate before concluding that Congress meant to confer such authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2607–08 (2022) (quotations
omitted) (adopting the major questions doctrine).”
Disposal of nuclear waste is an issue of great “economic and political significance.” Id. at 2608. What to do with the nation’s ever-growing accumulation of nuclear waste is a major question that—as the history of the Yucca Mountain repository shows—has been hotly politically contested for over a half century. Congress itself has acknowledged that “high-level radioactive waste and spent nuclear fuel have become major subjects of public concern.” 42 U.S.C. § 10131(a)(7)
(findings section of the Nuclear Waste Policy Act). “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” West Virginia, 142 S. Ct. at 2616 (emphasis added). Here, there’s no such clear delegation under the Atomic Energy Act. And the Nuclear Waste Policy Act belies the Commission’s arguments to the contrary. (emphasis added)
This is a key
for the decision and those that say courts have ruled differently in the past – as the Supreme Court in 2022 changed the standard of review of all federal agency actions.
Consent Based Siting and the Communities
The communities around the sites believe that federal government has an obligation to move forward. The planned DOE Nuclear Energy Office Consent Based Siting (CBS) process for an interim storage site would – based on the 5th Circuit ruling- require a change in the law to be implemented as a NRC licensed facility at a federal facility for closed nuclear reactors – but potentially not operating
reactors.
Regardless of this ruling, the federal government (DOE) retains the authority under the Nuclear Waste Policy Act to develop an interim storage facility at a federal facility – if it permits the continued operation of a nuclear reactor that no longer has the capacity to store the spent nuclear fuel. This seems to be a narrow set of operating nuclear sites. Specifically, the law states:
“the Federal Government has the responsibility to provide… not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity at the sites of such reactors when needed to assure the continued, orderly operation of such
reactors.” (emphasis added) See 42 USC §11052.
Many of the communities that are the current storage sites that have closed or closing reactors or that store high level waste and those that want to host future interim storage sites would the like the CBS process to continue to move forward. Regardless of whether Congress and the Administration act to change the law – the input of the communities that host these facilities now or that may host them in the future is
critical.
Communities are looking for action by the federal government (Administration and Congress) to develop a process forward that conforms with the law (either current law or change the law).
The Authority to Manage and Dispose of SNF – A Federal Facility remains permitted
The Fifth Circuit identified that in addition a geologic repository the Nuclear Waste Policy Act also established other measures to deal with spent nuclear fuel. Specifically (1) temporary storage and at the reactor site (2) monitored retrievable storage (reprocessing).
(1) Temporary Storage
The Act places “primary responsibility for providing
interim storage of spent nuclear fuel” on “the persons owning and operating civilian nuclear power reactors.” Id. § 10151(a)(1). It tasks the Commission and the Secretary of Energy to “take such actions as . . . necessary to encourage and expedite the effective use of available storage, and the necessary additional storage, at the site of each civilian nuclear power reactor.” Id. § 10152 (emphasis added). See also id. § 10153 (“The establishment of such procedures shall not preclude the
licensing . . . of any technology for the storage of civilian spent nuclear fuel at the site of any civilian nuclear power reactor.”) (emphasis added).
The law also task DOE with “provid[ing] . . . capacity for the storage of spent nuclear fuel from civilian nuclear power reactors.” Id. § 10155(a)(1). Moreover, the Act provides that “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear
fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. § 10151(a)(3).
DOE may be able argue that it is creating interim storage sites on federal facilities for interim storage – but the case identifies the requirements which provide that the interim storage is only where the operating facility does not have adequate storage – not where a
facility is shut down and currently storing such spent nuclear fuel - “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. § 10151(a)(3) (emphasis added).
(2) Monitored Retrievable Storage
The Fifth Circuit identified that the “other measure is monitored retrievable storage. See id. § 10161– 10169. See also id. § 10101(34) (defining “monitored retrievable storage facility”). Under the statute, “[t]he Secretary [of Energy] is authorized to site, construct, and operate one monitored retrievable storage facility subject to the conditions described [in the relevant sections of statute].” Id. § 10162(b). Case: 21-60743
Document: 00516873781 Page: 24 Date Filed: 08/25/2023 No. 21-60743 25 And one of those conditions is that “[a]ny license issued by the Commission for a monitored retrievable storage facility under [the statute] shall provide that . . . construction of such facility may not begin until the Commission has issued a license for the construction of a repository [i.e., Yucca Mountain].” Id. § 10168(d)(1).
The Court clearly holds that a federal site is
permissible for interim storage – if it meets the requirements of the Act. The conclusion of the Court is (emphasis added):
Reading these provisions together makes clear that the Nuclear Waste
Policy Act creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation. The scheme prioritizes construction of the permanent repository and limits temporary storage to private at-the-reactor storage or at federal sites. It plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility.
ECA's Message to DOE and NRC
ECA has been consistent in the message for the consent-based siting process must include Hanford, Idaho, and Savannah River Sites and
the HLW at DOE facilities and the process must include:
1. Trust between the parties is paramount. DOE will need to focus on rebuilding trust after years of fits and starts, after failing to follow the existing Nuclear Waste Policy Act, and in the absence of assured funding or a dedicated entity responsible for HLW and SNF management and disposal.
2. Decisions must be perceived as fair and based on sound science. “Risk” (real or perceived) must be addressed and there must be transparency at each step of the process.
3. There must be early, meaningful and ongoing engagement with potential host communities as “partners” in the consent-based siting process. Without local support, these projects will fail.
4. Consent-based siting will require “informed” consent which can only be reached if affected local governments and their communities fully understand the benefits and risks associated with siting, constructing, operating and hosting a nuclear waste storage or disposal facility. Financial resources must be provided to support outreach and education programs and
allow local governments to hire their own third-party experts to undertake independent analyses, develop educational materials for distribution and to create/participate in opportunities for public comment.
5. There
is no one-size fits all model for a consent-based siting agreement, but any agreement will ultimately need to be legally enforceable and outline specific oversight roles. This can help offset changing political winds at the federal, state and local level, and provide long-term continuity and consistency in leadership and programmatic priorities that, as a GAO report recently noted, is “critical for the success of projects spanning multiple decades.”
The Fifth Circuit Decision
We suggest that everyone read the decision as it outlines the history of SNF, NRC, Atomic Energy Act and the Nuclear Waste
Policy Act. We listed so of the key paragraphs below (we did not include in the standing of the parties bringing the action in the summary).
This case is the latest development in a decades-long debate over nuclear power and waste regulation. Accordingly, we provide a brief overview of relevant historical and technical background before delving into the specifics of the licensing proceedings challenged here.
The United States began producing nuclear waste in the 1940s, first as a byproduct of nuclear weapons development and then as a byproduct of the commercial nuclear power industry. Blue Ribbon Commission on America’s Nuclear Future, Report to the Secretary of Energy (Jan. 2012) [hereinafter BRC Report]. The first nuclear reactor was demonstrated in 1942, and Congress authorized civilian application of atomic power through the Atomic Energy Act of 1946. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206 (1983).
The Act granted regulatory authority over nuclear energy to the Atomic Energy Commission. See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 n.1 (D.C. Cir. 1984). But the Energy Reorganization Act of 1974 disbanded that agency and redistributed its
authority, as relevant here, to the Nuclear Regulatory Commission. Id. After Congress passed the Atomic Energy Act, commercial production of nuclear energy boomed.
Commercial nuclear energy is produced through a series of industrial processes,
which include the mining and processing of nuclear fuel, the use of the fuel in a reactor, and the storage and ultimate disposal or reprocessing of that fuel. BRC Report at 9. Once nuclear fuel has been used in a reactor for about four to six years, it can no longer produce energy and is considered used or spent. Id. at 10. That spent fuel is removed from the reactor. Id.
Spent nuclear fuel is “fuel that has been withdrawn from a nuclear reactor following irradiation, the constituent elements of which have not been separated by reprocessing.” 42 U.S.C. § 10101(23). It’s “intensely radioactive” and “must be carefully stored.” Pac. Gas & Elec. Co., 461 U.S. at 195. The spent fuel is first placed in wet pool storage for
cooling, where it remains for at least five years, but may remain for decades. BRC Report at 11. Once the spent nuclear fuel has cooled sufficiently in wet storage, it’s generally transferred to dry cask storage. Id.
At first, there was little
concern regarding storage for spent fuel. See BRC Report at 19–20; Idaho v. DOE, 945 F.2d 295, 298–99 (9thCir. 1991). There was a widespread belief within the commercial nuclear energy industry that spent fuel would be reprocessed. Idaho, 945 F.2d 295, 298–99 (9th Cir. 1991). But the private reprocessing industry collapsed in the 1970s, id., and growing concerns led President Ford to issue a directive deferring commercial reprocessing and recycling, which President Carter later extended. BRC
Report at 20. Although President Reagan reversed that policy, “for a variety of reasons, including costs, commercial reprocessing has never resumed.” Id.
After years of accumulating spent nuclear fuel in nuclear power plants throughout the
country, see 42 U.S.C. § 10131(a)(3), Congress enacted the Nuclear Waste Policy Act in 1982. That Act sought to “devise a permanent solution to the problems of civilian radioactive waste disposal.” Id. It tasked the Department of Energy with establishing “a repository deep underground within a rock formation where the waste would be placed, permanently stored, and isolated from human contact.” Nat’l Ass’ of Regul. Util. Comm’rs v. DOE, 680 F.3d 819, 821 (D.C. Cir. 2012). Yucca Mountain in Nevada
was chosen as the only suitable site for the repository. See 42 U.S.C. § 10172. The decision drew widespread opposition in Nevada. BRC Report at 22.
Decades of delay ensued. Despite a Congressional mandate that the Department of Energy start
accepting waste from the States by January 31, 1998, see 42 U.S.C. § 10222(a)(5)(B), “by the mid-1990s, the Department of Energy made clear that it could not meet the 1998 deadline, and it came and Case: 21-60743 Document: 00516873781 Page: 4 Date Filed: 08/25/2023 No. 21-60743 5 went without the federal government accepting any waste.” Texas v. U.S., 891 F.3d 553, 555–56 (5th Cir. 2018).
In 2008, the Department of Energy finally submitted its license application for the Yucca Mountain repository to the Commission. In re Aiken Cnty., 725 F.3d 742, 258 (D.C. Cir. 2013). But the Commission “shut down its review and consideration” of the application. Id. By its own admission, the Commission had no intention of reviewing the
application, id., even though the Nuclear Waste Policy Act mandates a decision be made within three years of submission. See 42 U.S.C. § 10134(d).
In light of the delays and controversy, the Obama Administration decided to halt the work on the
Yucca Mountain repository. BRC Report at vi. The Obama Administration instead formed the Blue Ribbon Commission on America’s Nuclear Future, which concluded that a consent-based approach to siting nuclear waste storage facilities would be preferred to the Yucca Mountain policy. See id. at vii–x.
Spent nuclear fuel continues to accumulate at reactor sites across the country. Some estimates suggest the U.S. inventory of spent nuclear fuel may exceed 200,000 metric tons by 2050. BRC Report at 14. The commercial nuclear power industry as a whole is estimated to generate between 2,000 and 2,400 metric tons of spent nuclear fuel each year. Id. And there are thousands of metric tons of spent fuel in various sites where commercial reactors no
longer operate. Id.
After the Blue Ribbon Commission embraced a consent-based approach for siting nuclear waste storage facilities, the governments of Texas and New Mexico expressed support for establishing facilities within the states.
Then-Governors Rick Perry of Texas and Susana Martinez of New Mexico wrote letters supporting the establishment of facilities within their respective states. And Andrews County—a rural community located near the Texas-New Mexico border—passed a resolution in support of siting a spent nuclear fuel facility there.
Based in part on these expressions of support, Waste Control Specialists, LLC applied to the Commission for a license to operate a consolidated interim storage facility for high-level spent nuclear fuel in Andrews County. Andrews County is located within the Permian Basin, one of the country’s largest oil basins and a top global oil producer.
The Commission began its environmental review of the proposed facility in accordance with the National Environmental Policy Act. See 42 U.S.C. § 4321 et seq. But the application anticipated that the Department of Energy would take title to the spent nuclear fuel. Some stakeholders
challenged the legality of that provision as prohibited by the Nuclear Waste Policy Act. Waste Control Specialists then asked the Commission to suspend its review.
[Please see the case for the remainder on the standing the history of the NRC decision -the following analyzes NRC and the Plaitiff arguments as to why or why not the NRC has the authority to issue a private interim storage facility license]
The Commission has no statutory authority to issue the license. The Atomic Energy Act doesn’t authorize the Commission to
license a private, away-from-reactor storage facility for spent nuclear fuel. And issuing such a license contradicts Congressional policy expressed in the Nuclear Waste Policy Act. This understanding aligns with the historical context surrounding the development of these statutes.
A.
Under the Atomic Energy Act, the Commission retains jurisdiction over nuclear plant licensing and regulation. See 42 U.S.C. § 5842. It has authority to regulate the construction and operation of nuclear
power plants. See 42 U.S.C. §§ 2011–2297h-13. See also Union of Concerned Scientists, 735 F.2d at 1438–39 (summarizing the two-step licensing procedure for nuclear power plant operation).
The Act also confers on the Commission the authority to
issue licenses for the possession of “special nuclear material,” see 42 U.S.C. § 2073, “source material,” see id. § 2093, and “byproduct material,” see id. § 2111. See also 42 U.S.C. §§ 2014(aa), (z), (e) (defining each term, respectively). Special nuclear material, source material, and byproduct material are constituent materials of spent nuclear fuel. See Bullcreek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004).
The Commission argues that, because it has authority to issue licenses for the possession of these constituent materials, that means it has broad authority to license storage facilities for spent nuclear fuel. Case: 21-60743 Document: 00516873781 Page: 18 Date Filed: 08/25/2023 No. 21-60743 19
But this ignores the fact that the Act authorizes the Commission to issue such licenses only for certain enumerated purposes—none of which encompass storage or disposal of material as radioactive as spent nuclear fuel.
Sections 2073 and 2093 specify that licenses may be issued for various types of research and development, see 42 U.S.C. §§ 2073(a)(1)–(a)(2), 2093(a)(1)–(a)(2). It also permits such other uses that the Commission either “determines to be appropriate to carry out the purposes of th[e]
chapter,” id. § 2073(a)(4), or “approves . . . as an aid to science and industry,” id. § 2093(a)(4). Principles of statutory interpretation require these grants be read in light of the other, more specific purposes listed—namely for certain types of research and development. Cf. U.S. v. Jicarilla Apache Nation, 564 U.S. 162, 185 (2011) (“When Congress provides specific statutory obligations, we will not read a ‘catchall’ provision to impose general obligations that would include those
specifically enumerated.”).
Both these sections also allow the agency to issue licenses “for use under a license issued pursuant to section 2133 of th[e] title.” Id. 42 U.S.C. §§ 2073(a)(3), 2093(a)(3) (same). Section 2133 details the Commission’s
authority to issue licenses for “utilization or production facilities for industrial or commercial purposes.” Id. § 2133(a). Utilization and production have specific definitions under the statute. See id. §§ 2014 (cc) (defining utilization facilities); 2014(v) (defining production facilities). And the definitions of utilization and production facilities are about nuclear reactors and fuel fabrication or enrichment facilities—not storage or disposal, as the Commission admits in its briefing. See
id. Neither § 2073 nor § 2093 confers a broad grant of authority to issue licenses for any type of possession of special nuclear material or source material.
The same is true for § 2111. That section authorizes the Commission “to issue general
or specific licenses to applicants seeking to use byproduct Case: 21-60743 Document: 00516873781 Page: 19 Date Filed: 08/25/2023 No. 21-60743 20 material for research or development purposes, for medical therapy, industrial uses, agricultural uses, or such other useful applications as may be developed.” Id. § 2111(a). It also specifies conditions under which certain types of byproduct material may be disposed. Id. § 2111(b). And the types of byproduct material covered by § 2111(b) emit radiation
for significantly less time than spent nuclear fuel.
That section cross-references the definition of byproduct materials in § 2014(e)(3)–(4), which refers to radium-226 and other material that “would pose a threat similar to the threat posed
by . . . radium-226 to the public health and safety.” That’s important because some of the isotopes in spent nuclear fuel have much longer half-lives than radium-226. The “intensity of radiation from radioactive materials decreases over time” and the “time required for the intensity to decrease by one-half is referred to as the ‘half-life.’” NRC, Frequently Asked Questions (FAQs) Regarding Radium-226 § A.1, https://scp.nrc.gov/narmtoolbox/radium%20faq102008.pdf. Radium-226 has a half-life of
1600 years. Id. Spent nuclear fuel, on the other hand, is composed of a variety of radioactive isotopes of elements produced in the nuclear fission process. NRC, Radioactive Waste Backgrounder 1, https://www.nrc.gov/docs/ML0501/ML050110277.pdf. Some of these isotopes—strontium-90 and cesium-137—have half-lives of about 30 years. But others “take much longer to decay.” Id. One of these isotopes is plutonium239, which “has a half-life of 24,000 years”—fifteen times that of radium226. Id. There’s
no plausible argument that spent nuclear fuel, which contains radioactive isotopes with half-lives much longer than radium-226, is the type radioactive material contemplated in the disposal provision in § 2111(b).
So these provisions do not support the Commission’s claim of authority. In response, the Commission and Interim Storage Partners, LLC point to two cases from sister circuits. Both are unpersuasive. Case: 21-60743 Document: 00516873781 Page: 20 Date Filed: 08/25/2023 No. 21-60743 21
In Bullcreek v. NRC, the D.C. Circuit denied petitions for review of the Commission’s Rulemaking Order and held that the Nuclear Waste Policy Act did “not repeal or supersede the [Commission]’s authority under the Atomic Energy Act to license private away-from-reactor storage facilities.” 359 F.3d at 537–38. The D.C. Circuit essentially assumed that the Atomic Energy Act had granted the Commission authority to license
away-from-reactor storage facilities, despite explicitly recognizing that the Act “does not specifically refer to the storage or disposal of spent nuclear fuel.” Id. at 538. Rather than focus on the text of the statute, it merely noted that “it has long been recognized that the [Atomic Energy Act] confers on the [Commission] authority to license and regulate the storage and disposal of such fuel.” Id. But none of the cases the D.C. Circuit cited provide a textual analysis of the Atomic Energy
Act and whether it allows away-from-reactor spent nuclear fuel storage. Each of those cases dealt with separate questions of preemption and the role of states in this scheme. See generally Pac. Gas. & Elec. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983); Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103 (3d Cir. 1985); Illinois v. Gen. Elec. Co., 683 F.2d 206 (7th Cir. 1982). They are irrelevant to the question before us.
So the D.C. Circuit provided no textual basis for its assumption that the statute authorized the Commission to issue such licenses. See id. (discussing the Atomic Energy Act). Bullcreek may be correct that the Nuclear Waste Policy Act didn’t repeal portions of the
Atomic Energy Act since “repeals by implication are not favored,” but it doesn’t actually address what authority the Commission had under the Atomic Energy Act. Morton v. Mancari, 417 U.S. 535, 549 (1974).
The other case the Commission
cites—Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)—is just as unhelpful. It merely relies on Bullcreek to “not revisit the issues surrounding the Case: 21-60743 Document: 00516873781 Page: 21 Date Filed: 08/25/2023 No. 21-60743 22 [Commission]’s authority to license away-from-reactor [spent nuclear fuel] storage facilities.” Skull Valley, 376 F.3d at 1232. It too assumes the Commission’s authority without analyzing the statute. B.
Moreover, the Commission’s argument cannot be reconciled with the Nuclear Waste Policy Act.
Spent nuclear fuel wasn’t a concern in the 1940s and 1950s when the Atomic Energy Act was passed and amended. “Prior to the late 1970’s, private utilities operating nuclear reactors were largely unconcerned with the storage of spent nuclear fuel.” Idaho, 945 F.2d at 298. “It was accepted that spent fuel would be reprocessed.” Id. “In the mid-70’s, however, the private reprocessing industry collapsed for both
economic and regulatory reasons.” Id. “As a consequence, the nuclear industry was confronted with an unanticipated accumulation of spent nuclear fuel, inadequate private facilities for the storage of the spent fuel, and no long term plans for managing nuclear waste.” Id. See also BRC Report at 20 (noting these problems and describing passage of the Act as “mark[ing] the beginning of a new chapter in U.S. efforts to deal with the nuclear waste issue”). This led Congress to pass the Nuclear Waste
Policy Act in 1982.
The Nuclear Waste Policy Act provides a comprehensive scheme to address the accumulation of nuclear waste. Congress recognized that “Federal efforts during the [prior] 30 years to devise a permanent solution to the problems
of civilian radioactive waste disposal ha[d] not been adequate” and that “State and public participation in the planning and development of repositories is essential in order to promote public confidence in the safety of disposal of such waste and spent fuel.” 42 U.S.C. § 10131(a)(3), (6). “The Act made the federal government responsible for permanently disposing of spent nuclear fuel and high-level radioactive waste produced by civilian Case: 21-60743 Document: 00516873781 Page: 22 Date Filed:
08/25/2023 No. 21-60743 23 nuclear power generation and defense activities.” Nat’l Ass’n of Regul. Util. Comm’rs v. DOE, 680 F.3d 819, 821 (D.C. Cir. 2012). See also 42 U.S.C. § 10131(a)(4) (“[T]he Federal Government has the responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment.”).
The Act also tasked the Department of Energy with establishing “a repository deep underground within a rock formation where the waste would be placed, permanently stored, and isolated from human contact.” Nat’l Ass’n of Regul. Util Comm’rs, 680 F.3d at 821. See also 42 U.S.C. §§ 100133– 34 (tasking the
Energy Secretary with site characterization and public hearing duties related to the Yucca Mountain site selection). Yucca Mountain was chosen as the only suitable site for the repository when the Act was amended in 1987. See 42 U.S.C. § 10172 (selection of Yucca Mountain site). But the project stalled, even though the Nuclear Waste Policy Act “is obviously designed to prevent the Department [of Energy] from delaying the construction of Yucca Mountain as the permanent facility while using
temporary facilities.” Nat’l Ass’n of Regul. Util. Comm’rs v. DOE, 736 F.3d 517, 519 (D.C. Cir. 2013) (citing 42 U.S.C. § 10168(d)(1)).
In addition to the establishment of the permanent repository, see 42 U.S.C. §§ 10131–10145, the Nuclear
Waste Policy Act also established other measures to deal with spent nuclear fuel.
One is temporary storage. See id. §§ 10151–10157. The Act places “primary responsibility for providing interim storage of spent nuclear fuel” on “the persons
owning and operating civilian nuclear power reactors.” Id. § 10151(a)(1). It tasks the Commission and the Secretary of Energy to “take such actions as . . . necessary to encourage and expedite the effective use of available storage, and the necessary additional storage, at the site of each civilian nuclear power reactor.” Id. § 10152 (emphasis added). See also id. § 10153 (“The establishment of such procedures shall not preclude the licensing . . . of any technology for the storage of civilian
spent nuclear fuel at the site of any civilian nuclear power reactor.”) (emphasis added). It further tasks the Secretary of Energy with “provid[ing] . . . capacity for the storage of spent nuclear fuel from civilian nuclear power reactors.” Id. § 10155(a)(1). Moreover, the Act provides that “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably
provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. § 10151(a)(3). Moreover, the Act provides that “the Federal Government has the responsibility to provide . . . not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably provide adequate storage capacity” where it is necessary for the “continued, orderly operation of such reactors.” Id. §
10151(a)(3). Here, the license permits storage of at least 5,000 and as much as 40,000 metric tons of nuclear waste.
The other measure is monitored retrievable storage. See id. § 10161– 10169. See also id. § 10101(34) (defining “monitored
retrievable storage facility”). Under the statute, “[t]he Secretary [of Energy] is authorized to site, construct, and operate one monitored retrievable storage facility subject to the conditions described [in the relevant sections of statute].” Id. § 10162(b). Case: 21-60743 Document: 00516873781 Page: 24 Date Filed: 08/25/2023 No. 21-60743 25 And one of those conditions is that “[a]ny license issued by the Commission for a monitored retrievable storage facility under [the statute] shall provide
that . . . construction of such facility may not begin until the Commission has issued a license for the construction of a repository [i.e., Yucca Mountain].” Id. § 10168(d)(1).
Reading these provisions together makes clear that the Nuclear
Waste Policy Act creates a comprehensive statutory scheme for addressing spent nuclear fuel accumulation. The scheme prioritizes construction of the permanent repository and limits temporary storage to private at-the-reactor storage or at federal sites. It plainly contemplates that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite at-the-reactor or in a federal facility.
In sum, the Atomic Energy Act doesn’t authorize the Commission to license a private, away-from-reactor storage facility for spent nuclear fuel. And the Nuclear Waste Policy Act doesn’t permit it. Accordingly, we hold that the Commission doesn’t have authority to issue the license challenged here.
When read alongside each other, we find these statutes unambiguous. And even if the statutes were ambiguous, the Commission’s interpretation wouldn’t be entitled to deference.
Last year, the Supreme Court directed that, “[w]here the statute at issue is one that confers authority upon an administrative agency, that inquiry must be shaped, at least in some measure, by the nature of the question presented—whether Congress in fact meant to confer the power the agency has asserted” and whether there are “reason[s] to
hesitate before concluding that Congress meant to confer such authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2607–08 (2022) (quotations omitted) (adopting the major questions doctrine).
Disposal of nuclear waste is an issue of great “economic and political significance.” Id. at 2608. What to do with the nation’s ever-growing accumulation of nuclear waste is a major question that—as the history of the Yucca Mountain repository shows—has been hotly politically contested for over a half century. Congress itself has acknowledged
that “high-level radioactive waste and spent nuclear fuel have become major subjects of public concern.” 42 U.S.C. § 10131(a)(7) (findings section of the Nuclear Waste Policy Act). “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” West Virginia, 142 S. Ct. at 2616 (emphasis added). Here, there’s no such clear delegation under the Atomic Energy Act. And the Nuclear Waste Policy Act belies the
Commission’s arguments to the contrary
