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Bullcreek v. Nuclear Regulatory Commission

February 24, 2004


On Petitions for Review of an Order of the Nuclear Regulatory Commission

Before: Rogers and Garland, Circuit Judges, and Williams, Senior Circuit Judge.

The opinion of the court was delivered by: Rogers, Circuit Judge

Argued January 16, 2004

The issue on appeal is whether § 10155(h) of the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101 et seq., repealed or superseded the authority of the Nuclear Regulatory Commission ("NRC") under the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., to license the storage of private spent nuclear fuel at privately owned awayfrom-reactor storage facilities. The State of Utah and others challenged the NRC's jurisdiction to grant a private license to develop and operate a private away-from-reactor storage facility on the ground that § 10155(h) barred such facilities. The NRC rejected Utah's interpretation of § 10155(h) and declined to institute a rulemaking to amend its regulations. Utah and others seek review of the order denying the petition to institute a rulemaking, contending that the NRC's interpretation is contrary to the plain language of § 10155(h) and to the structure and legislative history of the Nuclear Waste Policy Act. We hold that § 10155(h) does not repeal or supersede the NRC's authority under the Atomic Energy Act to license private away-from-reactor storage facilities, and we therefore deny the petitions for review.


The Atomic Energy Act of 1954 ("AEA"), 42 U.S.C. §§ 2011 et seq., authorized the NRC to regulate the possession, use, and transfer of the constituent materials of spent nuclear fuel, including special nuclear material, source material, and byproduct material. See id. §§ 2073, 2092, 2093, 2111, 2201(b); see also 10 C.F.R. § 72.3 (2003). While the AEA does not specifically refer to the storage or disposal of spent nuclear fuel, it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of such fuel. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 207 (1983); Illinois v. Gen. Elec. Co., 683 F.2d 206, 214- 15 (7th Cir. 1982); Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1112 (3rd Cir. 1985). Pursuant to its AEA authority, the NRC promulgated regulations in 1980 for licensing onsite and away-from-reactor spent nuclear fuel storage facilities for private nuclear generators. See 10 C.F.R. Part 72.

Two years later, Congress enacted the Nuclear Waste Policy Act of 1982 ("NWPA"), 42 U.S.C. §§ 10101 et seq., in response to "a national problem" created by the accumulation of spent nuclear fuel from private nuclear generators, as well as radioactive waste from reprocessing such fuel, activities related to medical research, diagnosis, and treatment, and other sources. Id. § 10131(a)(2). Finding inadequate the federal efforts in the past 30 years to devise a permanent solution, id. § 10131(a)(3), Congress established a schedule for siting, construction, and operation of a permanent federal repository (Subtitle A), id. §§ 10131-10145, and developed a federally monitored retrievable storage program in the event the permanent repository was unavailable by the specified deadline (Subtitle C). Id. §§ 10161-10169. Finding further that the generators and owners of high-level radioactive waste and spent nuclear fuel have "the primary responsibility to provide for, and ... to pay the costs of, the interim storage of such waste and spent fuel," id. § 10131(a)(5); see also id. § 10151(a)(1), Congress, under Subtitle B, id. §§ 10151- 10157, limited the federal government's obligation to assist private nuclear generators with interim storage of spent nuclear fuel. As a precondition of federal interim storage, private generators were required to exhaust onsite options for storage. Id. § 10155(b)(1); see also id. §§ 10151(a)(1), 10152. While the NRC was responsible for the licensing of technology used at the reactor site, id. §§ 10153-10154, and for developing the criteria for eligibility, id. § 10155(g); see also id. § 10155(a)-(b), the Department of Energy ("DOE") was directed to provide, and authorized to enter into contracts for, interim storage of not more than 1,900 metric tons of capacity, but only until January 1, 1990. Id. §§ 10155(a)-(b), 10156(a)(1). That said, Congress provided:

Notwithstanding any other provision of law, nothing in this chapter [108, Nuclear Waste Policy,] 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 January 7, 1983.

Id. § 10155(h).

The dispute over the effect of § 10155(h) on the NRC's authority under the AEA to license private away-from-reactor storage facilities arises in connection with a lease. The Skull Valley Band of Goshute Indians ("Band") entered into a lease with Private Fuel Storage, LLC ("PFS") for the development of a private away-from-reactor spent nuclear storage facility on the Band's reservation located 50 miles west of Salt Lake City, Utah. Pursuant to NRC regulations, see 10 C.F.R. §§ 72.1, 72.16-72.40, PFS filed a license application, and the NRC's Atomic Safety and Licensing Board ("Board") initiated an adjudicatory licensing proceeding. See In the Matter of Private Fuel Storage, LLC, 47 NRC 142 (1998) (hereinafter " Licensing Proceeding" ). After permitting the State of Utah and the Ohngo Gaudadeh Devia ("OGD"), an association consisting primarily of members of the Band, to intervene, id. at 169, the Board concluded that it lacked jurisdiction to decide whether § 10155(h) excluded from the nuclear waste management program the creation and use of private away-from-reactor storage facilities because such argument constituted an attack on the NRC's regulations. Id. at 183-84.

Proceeding to the NRC, Utah made two filings in 2002. The first was a "Suggestion of Lack of Jurisdiction," claiming that the NRC lacked jurisdiction over PFS's license application. Utah argued that Congress had established in the NWPA a "comprehensive national nuclear waste management system for the storage of [spent nuclear fuel]," and § 10155(h) made clear that the storage of such fuel at privately owned away-from-reactor facilities was prohibited. The second filing was a "Petition to Institute Rulemaking and to Stay Licensing Proceeding" to amend 10 C.F.R. Part 72 in light of § 10155(h)'s repeal or supersession of the NRC's authority under the AEA to regulate private away-fromreactor facilities, and to suspend the licensing proceedings during the rulemaking. The OGD also submitted a brief to the NRC adopting the arguments advanced by Utah's petitions.

The NRC declined to stay the licensing proceeding. See In the Matter of Private Fuel Storage, LLC, 55 NRC 260, 261-62 (2002). The NRC also rejected Utah's argument that it lacked jurisdiction to issue PFS's license, and denied Utah's request for rulemaking. See In the Matter of Private Fuel Storage, LLC, 56 NRC 390 (2002) (hereinafter " Rulemaking Order" ). The NRC interpreted § 10155(h) to have no effect on its licensing authority under the AEA of private awayfrom-reactor storage facilities. Id. at 396-401. Observing that § 10155(h) contains no prohibitory language and "is facially neutral on the question of the NRC's general AEA authority to license [private] away-from-reactor" facilities, id. at 397, the NRC opined that Congress intended § 10155(h) "to recognize and distinguish, not abrogate, existing provisions of law authorizing [away-from-reactor] spent fuel storage." Id. at 401. As each word has its own significance when read in the context of the whole of Subtitle B, the NRC concluded that Congress simply "limited the scope of [§ 10155(h)] to those programs created under the NWPA itself." Id. at 397-98. By providing that the NWPA did not "authorize" the use of a private storage facility, Congress limited DOE's authority. Id. at 398. As DOE's authority to store spent nuclear fuel originated with the NWPA, § 10155(h) ensured that DOE would not take over a private facility to fulfill DOE's obligations under the NWPA. Id. The NRC's authority, on the other hand, to license private generators to store spent nuclear fuel, originated with the AEA, and hence the NWPA's failure to "authorize" storage at private facilities had no effect on this pre-existing authority. Id. The NRC pointed out that Congress did not need to provide that the NWPA did not "encourage" or "require" DOE to use private facilities, but did need to use those terms in describing the NWPA's conditions on private generators' use of federal interim storage. Id. Subtitle B included several provisions that "encourage[d]" private generators to expand onsite storage, see 42 U.S.C. §§ 10152-10154, and through § 10155(h), the NRC reasoned, Congress made clear that such provisions were not also encouraging the expansion of private away-from-reactor storage. Id. Context and legislative background further explained why Congress would specify that the NWPA did not "require" private away-fromreactor storage: such a requirement appeared early in the legislative process and in prior bills. Id. at 398-99. By contrast, the NRC noted, Utah's interpretation of § 10155(h) as repealing or superseding the NRC's authority under the AEA provided no role for "encourage" and "require" to play. Id. at 397-98. The NRC thus concluded that neither the text of § 10155(h) nor the NWPA's structure or legislative history indicated that Congress intended to repeal or supersede the NRC's authority under the AEA to license and regulate private away-from-reactor spent fuel storage facilities. Id. at 396-411.


Utah, the OGD, and nine individual Goshute members petition for review of the NRC's Rulemaking Order, renewing the arguments before the NRC in challenging the NRC's interpretation of § 10155(h). The petitioners read § 10155(h) to prohibit the creation or use of private away-from-reactor storage facilities, and thus to repeal or supersede prior statutory authority authorizing private away-from-reactor storage facilities for spent nuclear fuel. Contending that the plain text, structure, and legislative history of the NWPA support their interpretation of § 10155(h), the petitioners seek to have the court direct the NRC to ...

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