§10154 — Title 42 The Public Health and Welfare | U.S. Code

Summary

When someone files, after January 7, 1983, for a license or a license change to increase spent nuclear fuel storage at a reactor site (for example with denser racks, compacted rods, moving fuel to another reactor in the same utility, building more pool or dry storage, or other methods), the Nuclear Regulatory Commission must let any party ask for oral argument on matters the Commission finds disputed. The oral argument must follow the Commission’s discovery rules. At the time of the oral argument every party, including Commission staff, must give a written summary of the facts, data, and arguments they will rely on. During argument the parties may only use sworn testimony or written submissions, and the Commission will only consider facts and data presented that way. After oral argument, the Commission will send any disputed fact questions and leftover legal questions to a formal adjudicatory hearing only if it finds (1) a real, substantial factual dispute that can only be settled by hearing evidence, and (2) the Commission’s decision is likely to depend on that dispute. The Commission must put in writing which facts are in dispute, why the decision depends on them, and why a hearing will likely resolve it. The Commission must not reopen issues about the design, construction, or operation of a reactor already licensed or with a construction permit at that site, or siting/design issues already decided in an earlier permit or license, unless those issues now substantially affect the new action or rules have changed; that limit applies to applications filed before December 31, 2005. This section does not apply to the first application to expand onsite storage using a new technology never before approved by the Commission. A court may not throw out a Commission decision for failing to follow a procedure here unless a timely objection was made (or there are unusual reasons it wasn’t), and the court finds the failure kept the case from getting fair consideration of an important issue.

Title 42, §10154

The Public Health and Welfare — Source: USLM XML via OLRC

(a)In any Commission hearing under section 189 of the Atomic Energy Act of 1954 (42 U.S.C. 2239) on an application for a license, or for an amendment to an existing license, filed after January 7, 1983, to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power reactor, through the use of high-density fuel storage racks, fuel rod compaction, the transshipment of spent nuclear fuel to another civilian nuclear power reactor within the same utility system, the construction of additional spent nuclear fuel pool capacity or dry storage capacity, or by other means, the Commission shall, at the request of any party, provide an opportunity for oral argument with respect to any matter which the Commission determines to be in controversy among the parties. The oral argument shall be preceded by such discovery procedures as the rules of the Commission shall provide. The Commission shall require each party, including the Commission staff, to submit in written form, at the time of the oral argument, a summary of the facts, data, and arguments upon which such party proposes to rely that are known at such time to such party. Only facts and data in the form of sworn testimony or written submission may be relied upon by the parties during oral argument. Of the materials that may be submitted by the parties during oral argument, the Commission shall only consider those facts and data that are submitted in the form of sworn testimony or written submission.

(b)(1)At the conclusion of any oral argument under subsection (a), the Commission shall designate any disputed question of fact, together with any remaining questions of law, for resolution in an adjudicatory hearing only if it determines that—

(A)there is a genuine and substantial dispute of fact which can only be resolved with sufficient accuracy by the introduction of evidence in an adjudicatory hearing; and

(B)the decision of the Commission is likely to depend in whole or in part on the resolution of such dispute.

(2)In making a determination under this subsection, the Commission—

(A)shall designate in writing the specific facts that are in genuine and substantial dispute, the reason why the decision of the agency is likely to depend on the resolution of such facts, and the reason why an adjudicatory hearing is likely to resolve the dispute; and

(B)shall not consider—

(i)any issue relating to the design, construction, or operation of any civilian nuclear power reactor already licensed to operate at such site, or any civilian nuclear power reactor for which a construction permit has been granted at such site, unless the Commission determines that any such issue substantially affects the design, construction, or operation of the facility or activity for which such license application, authorization, or amendment is being considered; or

(ii)any siting or design issue fully considered and decided by the Commission in connection with the issuance of a construction permit or operating license for a civilian nuclear power reactor at such site, unless (I) such issue results from any revision of siting or design criteria by the Commission following such decision; and (II) the Commission determines that such issue substantially affects the design, construction, or operation of the facility or activity for which such license application, authorization, or amendment is being considered.

(3)The provisions of paragraph (2)(B) shall apply only with respect to licenses, authorizations, or amendments to licenses or authorizations, applied for under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) before December 31, 2005.

(4)The provisions of this section shall not apply to the first application for a license or license amendment received by the Commission to expand onsite spent fuel storage capacity by the use of a new technology not previously approved for use at any nuclear powerplant by the Commission.

(c)No court shall hold unlawful or set aside a decision of the Commission in any proceeding described in subsection (a) because of a failure by the Commission to use a particular procedure pursuant to this section unless—

(1)an objection to the procedure used was presented to the Commission in a timely fashion or there are extraordinary circumstances that excuse the failure to present a timely objection; and

(2)the court finds that such failure has precluded a fair consideration and informed resolution of a significant issue of the proceeding taken as a whole.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Atomic Energy Act of 1954, referred to in subsec. (b)(3), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 2011 of this title and Tables.

§10154 Licensing of Facility Expansions and Transshipments