[Federal Register Volume 67, Number 72 (Monday, April 15, 2002)]
[Notices]
[Pages 18253-18255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9081]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 72-22-ISFSI]


In the Matter of Private Fuel Storage L.L.C. (Independent Spent 
Fuel Storage Installation)

CLI-02-11

Memorandum and Order

    This order concerns two documents filed by the State of Utah on 
February 11, 2002, relating to the pending license application 
submitted by Private Fuel Storage, L.L.C. (PFS). Utah's ``Suggestion of 
Lack of Jurisdiction'' argues that the Nuclear Waste Policy Act of 
1982, as amended (NWPA),\1\ deprives the Commission of ``jurisdiction'' 
over PFS's application for a license to construct and operate an 
independent spent fuel storage installation (ISFSI) on the reservation 
of the Skull Valley Band of Goshute Indians. In its ``Petition to 
Institute Rulemaking and to Stay Licensing Proceeding,'' Utah asks the 
Commission to amend its regulations in accordance with this theory, and 
to suspend related proceedings while the rulemaking is pending.
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    \1\ 42 U.S.C. Sec. 10101 et. seq.
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    For the reasons set forth below, we deny the request for stay, set 
a schedule for interested parties to submit briefs on the substantive 
issue whether the NRC has authority under Federal law to issue a 
license for the proposed privately-owned, away-from-reactor spent fuel 
storage facility, and defer a decision on the rulemaking petition until 
we have had the opportunity to decide this threshold legal question.

I. Background

    In 1980, the NRC promulgated its regulations allowing for licensing 
of ISFSIs, 10 CFR part 72, under its general authority under the Atomic 
Energy Act (AEA) to regulate the use and possession of special nuclear 
material.\2\ This was two years before Congress enacted the NWPA.
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    \2\ See 45 FR 74,693 (Nov. 12, 1980).
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    In both its Petition for Rulemaking and ``Suggestion of Lack of 
Jurisdiction,'' Utah argues that the NWPA contemplates a comprehensive 
and exclusive solution to the problem of spent nuclear fuel and does 
not authorize private, away-from-reactor storage facilities such as the 
proposed PFS facility. Utah rests its argument on the following 
provision:

    Notwithstanding any other provision of law, nothing in this act 
shall be construed to encourage, authorize, or require the private 
or Federal use, purchase, lease, or other acquisition of any storage 
facility located away from the site of any civilian nuclear power 
reactor and not owned by the Federal Government on the date of the 
enactment of this Act.\3\

    \3\ NWPA Sec. 135(h).
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    Thus, says Utah, the NWPA cannot be said to ``authorize'' a 
private, away-from-reactor ISFSI like the proposed the PFS facility. 
Utah claims that because the NWPA established a comprehensive system 
for dealing with spent nuclear fuel, it is the only possible source for 
NRC's jurisdiction over spent fuel storage and overrides the 
Commission's general authority under the AEA to regulate the handling 
of spent fuel.
    PFS opposes Utah's petitions, and argues that nothing in the NWPA 
expressly repeals the NRC's general, AEA-based licensing authority over 
spent fuel. PFS emphasizes that the NWPA provision on which Utah relies 
does not explicitly prohibit a private, away-from-reactor facility. The 
NRC Staff opposes Utah's petitions on procedural grounds.

II. Discussion

A. Request for Stay of Proceedings Pending Review

    We find that Utah's request does not meet the four-part test for a 
stay of Board proceedings. In determining

[[Page 18254]]

whether to grant a stay of a licensing proceeding, the Commission looks 
at four factors: (1) Whether the petitioner has made a strong showing 
that it is likely to prevail upon the merits; (2) whether the 
petitioner faces irreparable injury if a stay is not granted; (3) 
whether the issuance of a stay would harm other interested parties; and 
(4) where the public interest lies.\4\ The proponent of the stay has 
the burden of demonstrating that these factors are met.\5\
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    \4\ See Sequoyah Fuels Corp., (Gore, Oklahoma Site), CLI-94-9, 
40 NRC 1, 6 (1994); Allied-General Nuclear Services (Barnwell 
Nuclear Fule Plant Separations Facility), ALAB-296, 2 NRC 671, 677-
78 (1975); CF. Private Fuel Storage, L.L.C, (Independent Spent Fuel 
Storage Installation), CLI-02-08, 55 NRC __, slip op. at 3 n. 7 
(2002). This is the same test set forth in our regulations for 
determining whether to grant a stay of the effectiveness of a 
presiding officer's decision. 10 CFR Sec. 2.788(e).
    \5\ See Hydro Resources Inc., CLI-98-08, 47 NRC 314, 323 (1998); 
Alabama Power Co. (Joseph M. Farley Nuclear Power Plant, Units 1 and 
2), CLI-81-27, 14 NRC 795, 797 (1981).
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    First, Utah does not make a strong showing of probable success on 
the merits. The NWPA on its face does not prohibit private, away-from-
reactor spent fuel storage. The NWPA section on which Utah relies, if 
intended to prohibit such storage, certainly does not do so directly. 
It says only that ``nothing in this act * * * encourage[s], 
authorize[s], or require[s]'' the use of such facilities. It does not, 
in terms, prohibit storage of spent nuclear fuel at any privately-
owned, away-from-reactor facility-which is Utah's position. We are 
willing to consider Utah's complex legislative history and statutory 
structure arguments, but we are not prepared to say that Utah's 
arguments are likely to prevail.
    Second, we find no evidence that Utah faces ``irreparable injury'' 
if an immediate stay is not granted. Utah claims that it will suffer a 
loss of ``costs, expenses, and attorneys' fees'' resulting from its 
participation in the PFS licensing proceeding.\6\ It is well-
established in Commission case law, however, that we do not consider 
the incurrence of litigation expenses to constitute irreparable injury 
in the context of a stay decision.\7\ Therefore, the State has failed 
to demonstrate that it would be irreparably harmed if a stay is not 
granted.
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    \6\ Rulemaking Petition at 37-38.
    \7\ See Sequoyah Fuels Corporation and General Atomics, CLI-94-
9, 40 NRC at 6. See also Metropolitan Edison Co. (Three Mile Island 
Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984).
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    We also find that the third and fourth factors of the stay test are 
not met. Utah argues that PFS is not harmed, and will in fact benefit 
by saving litigation costs, if the Commission stays proceedings that 
will ultimately prove futile once we determine that we have no 
authority to issue this license. Although this reasoning is 
imaginative, PFS does not agree and opposes the stay. The proceedings, 
which have gone on for over four years, are at last nearing completion 
and further hearings are imminent. If the other parties are forced to 
reschedule expert and attorney time for some future date, it will cause 
them great inconvenience. The imminence of the hearings is also a 
factor in our determination that the public interest will be served if 
the parties are allowed to wrap up the matters they have been 
litigating for so long.
    For the foregoing reasons, we deny Utah's request for a stay of 
these proceedings.

B. Commission Consideration of NWPA Issue on the Merits

    Both the NRC staff and PFS argue that the Commission should not 
consider the NWPA issue at this time because the Suggestion of Lack of 
Jurisdiction is untimely. They maintain that the ``suggestion'' 
constitutes an untimely interlocutory appeal of a 1998 Atomic Safety 
and Licensing Board decision ruling on Contention Utah A.\8\
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    \8\ See ``NRC Staff's Response to the State of Utah's (1) 
Request to Stay Proceeding, and (2) Suggestion of Lack of 
Jurisdiction,'' (Feb. 26, 2002), at 7-8; ``Applicant's Response to 
Utah's Suggestion of Lack of Jurisdiction'' (Feb. 21, 2002), at 4-7.
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    Utah first made its NWPA argument in 1997 in its Contention Utah A 
in the proceedings before the Licensing Board.\9\ On April 22, 1998, 
the Board rejected the contention as an impermissible challenge to the 
Commission's regulations.\10\ Utah's newly-filed ``suggestion'' could 
be viewed as merely a misnamed interlocutory appeal of the 1998 Board 
ruling, particularly because NRC's rules of practice have no provision 
for a pleading or motion called a ``Suggestion of Lack of 
Jurisdiction.'' A petition for interlocutory Commission review, if 
desired, should have come 15 days after the Board entered the 
ruling.\11\ Otherwise, interlocutory rulings must wait for resolution 
until a final decision is entered.
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    \9\ See ``State of Utah's Contentions on the Construction and 
Operating License Application by Private Fuel Storage L.L.C. for an 
Independent Spent Fuel Storage Facility,'' (Nov. 23, 1997). 
(``Congress has not authorized the NRC to issue a license to a 
private entity for a 4,000 cask, away-from-reactor, centralized, 
spent nuclear fuel storage facility.'')
    \10\ Private Fuel Storage, L.L.C. (Independent Spent Fuel 
Storage Installation), LBP-98-7, 47 NRC 142, 183 (1998).
    \11\ See 10 C.F.R. Sec. 2.786(b).
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    Despite the reasonableness of the staff and applicant's timeliness 
argument, we find countervailing concerns that make immediate merits 
consideration appropriate. The issue presented here raises a 
fundamental issue going to the very heart of this proceeding. If in 
fact NRC has no authority to issue PFS a license, completion of the 
licensing process would be a waste of resources for all parties as well 
as the Commission. In addition, Utah has filed a petition for 
rulemaking, arguing that NRC's regulations must be amended in 
accordance with the state's legal theory. The underlying legal 
question, whether the law requires a rule change, must be resolved 
before NRC can accept or deny that petition.
    We have decided that the legal issue is better resolved in an 
adjudicatory format--i.e., through legal briefs--than in a rulemaking 
format. We therefore take review in the exercise of our inherent 
supervisory authority over adjudications and rulemakings.\12\
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    \12\ See, e.g., North Atlantic Energy Service Corporation 
(Seabrook Station, Unit 1), CLI-98-18, 48 NRC 129 (1998); Baltimore 
Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 
2), CLI-98-15, 48 NRC 45, 52-53 (1998); Cf. Kansas Gas and Elec. 
Co., (Wolf Creek Generating Station, Unit 1), CLI-99-05, 49 NRC 199 
(1999).
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    The parties to this adjudication are intimately concerned and 
eminently well-informed about the legal question raised in Utah's 
petition. These litigation parties, as opposed to the general public, 
are likely to be the source of the most pertinent arguments and 
information. Public comment is likely to be less useful here, in a 
situation calling for pure legal analysis, than in the usual situation 
where the rulemaking proceeding raises scientific, policy or safety 
issues. We do consider, however, that persons outside this litigation 
should have an opportunity to weigh in on the NWPA issue and therefore 
invite any interested persons to submit amicus curiae briefs.
    We conclude that the rulemaking process should be put on hold until 
the Commission rules on the threshold issue of whether the NWPA 
deprives it of authority to license a private, away-from-reactor spent 
fuel storage facility. If the legal issue is ultimately resolved in 
Utah's favor, then a formal revision clarifying Part 72 could be issued 
at that time.

III. Briefs

    We already have before us extensive arguments by Utah (in its 
Suggestion and Rulemaking Petition) and PFS (in its Response to Utah's 
Suggestion of

[[Page 18255]]

Lack of Jurisdiction and attachments). We will consider the legal 
arguments set forth in those documents.
    If these parties wish to supplement the arguments made therein, 
they may submit further briefs to the Commission by May 15. In 
addition, interested persons are invited to submit amicus curiae briefs 
by May 15. Briefs should be no longer than 30 pages and should be 
submitted electronically (or by other means to ensure that receipt by 
the Secretary of Commission by the due date), with paper copies to 
follow. Briefs in excess of 10 pages must contain a table of contents, 
with page references, and a table of cases (alphabetically arranged), 
statutes, regulations, and other authorities cited, with references to 
the pages of the brief where they are cited. Page limitations are 
exclusive of pages containing a table of contents, table of cases, and 
any addendum containing statutes, rules, regulations, and like 
material.

IV. Conclusion

    For the foregoing reasons, the request for a stay of proceedings is 
denied, the petition for rulemaking is deferred, Commission review of 
the NWPA issue is granted, and the adjudicatory parties and any 
interested amicus curiae are authorized to file briefs as set out 
above.

    It is so ordered.

    Dated at Rockville, MD this 3rd day of April, 2002.

    For the Commission.\13\
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    \13\ Commissioner Diaz was not present for the affirmation of 
this Order. If he had been present, he would have approved it.
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Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 02-9081 Filed 4-12-02; 8:45 am]
BILLING CODE 7590-01-P