ML20024D726

1-21-20, Docketing Statement (DC Cir.)(Case No. 19-1240)

ML20024D726
Person / Time
Site:	Nuclear Energy Institute
Issue date:	01/21/2020
From:	Croley S Nuclear Energy Institute
To:	Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1825002, 19-1240
Download: ML20024D726 (6)

Text

USCA Case #19-1240 UNITED Document STATES #1825002 COURT OF A Filed: 01/21/2020 PPEALS Page 1 of 6 DISTRICT OF COLUMBIA CIRCUIT 333 Constitution Avenue, NW Washington, DC 20001-2866 Phone: 202-216-7000 l Facsimile: 202-219-8530 AGENCY DOCKETING STATEMENT Administrative Agency Review Proceedings (To be completed by appellant/petitioner)

1. CASE NO. 19-1240 2. DATE DOCKETED: Nov. 15, 2019

3. CASE NAME (lead parties only) Nuclear Energy Institute v. U.S. Nuclear Regulatory Comm'n, et al

4. TYPE OF CASE: Review Appeal Enforcement Complaint Tax Court

5. IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED? Yes No If YES, cite statute

6. CASE INFORMATION:

a. Identify agency whose order is to be reviewed: U.S. Nuclear Regulatory Commission

b. Give agency docket or order number(s): N/A

c. Give date(s) of order(s): Sept. 16, 2019 letter modifying RIS 2016-11 (issued Nov. 13, 2016)

d. Has a request for rehearing or reconsideration been filed at the agency? Yes No If so, when was it filled? By whom?

Has the agency acted? Yes No If so, when?

e. Identify the basis of appellant's/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2):

See attached.

f. Are any other cases involving the same underlying agency order pending in this Court or any other?

Yes No If YES, identify case name(s), docket number(s), and court(s)

g. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially the same issues as the instant case presents?

Yes No If YES, give case name(s) and number(s) of these cases and identify court/agency:

h. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other alternative for dispute resolution? Yes No If YES, provide program name and participation dates.

Signature /s/ Steven P. Croley Date 1/21/2020 Name of Counsel for Appellant/Petitioner Steven P. Croley Address 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 E-Mail steven.croley@lw.com Phone ( 202 ) 637-2200 Fax ( 202 ) 637 - 2201 ATTACH A CERTIFICATE OF SERVICE Note: If counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the challenged statement.

USCA Form 41 August 2009 (REVISED)

USCA Case #19-1240 Document #1825002 Filed: 01/21/2020 Page 2 of 6 ATTACHMENT TO DOCKETING STATEMENT OF PETITIONER NUCLEAR ENERGY INSTITUTE Nuclear Energy Institute v. U.S. Nuclear Regulatory Commn, Case No. 19-1240 Question No. 6(e) Basis of Petitioners Claim of Standing:

Pursuant to Circuit Rule 15(c)(2), the docketing statement must contain a brief statement of the petitioners claim of standing. Petitioner Nuclear Energy Institute (NEI) has associational standing to bring this suit because at least one of its members would have standing to sue in its own right, the interests NEI seeks to protect are germane to its purpose, and neither the claims asserted nor the relief requested requires that an individual NEI member participate in this suit. See Hunt

v. Wash. State Apple Advert. Commn, 432 U.S. 333, 342 (1977); Sierra Club v. Fed.

Energy Regulatory Commn, 827 F.3d 59, 65 (D.C. Cir. 2016) (quotation marks omitted). This Court has previously recognized NEI as a proper entity to represent the collective interests of the nuclear power industry. See Nuclear Energy Inst., Inc.

v. EPA, 373 F.3d 1251, 1278-80 (D.C. Cir. 2004) (holding that NEI had associational standing to challenge EPA ground water standards on behalf of its members).

NEI seeks judicial review of the Nuclear Regulatory Commissions (NRC) adherence to and substantive and material alteration of Regulatory Issue Summary 2016-11 (RIS 2016-11) without notice, as expressed in the September 16, 2019 Letter from John Lubinski, Director of the Office of Nuclear Material Safety and

USCA Case #19-1240 Document #1825002 Filed: 01/21/2020 Page 3 of 6 Safeguards, U.S. Nuclear Regulatory Commission, to NEI (Lubinski Letter). See Petition for Review, Exhibit B. Neither RIS 2016-11 nor the Lubinski Letter were published in the Federal Register, nor did NRC seek either pre- or post-promulgation comments on the seemingly new regulatory requirement imposed by the Lubinski Letter.

Before RIS 2016-11 was issued, licensees in Agreement States only needed to seek approval from the state, not NRC, before disposing of very low-level radioactive waste. See U.S. Nuclear Regulatory Commn, Information Notice (IN)

No. 86, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986). RIS 2016-11 appeared to alter NRCs long-standing position on this issue, but explicitly stated that the RIS requires no action or written response, and was strictly voluntary. See Petition for Review, Ex. A.

Nevertheless, two years after its issuance, NRC found one of NEIs members, the South Texas Project Nuclear Operating Company, in violation of RIS 2016-11, but ultimately exercised discretion not to proceed with an enforcement action. See Petition for Review, Ex. D. On September 16, 2019, in response to an NEI letter seeking clarification, NRC confirmed that it was substantively reinterpreting the guidance in RIS 2016-11 to justify enforcement actions. See Petition for Review, Ex. B. NEI now petitions for review of NRCs adherence to and substantive alteration of RIS 2016-11, as expressed in the Lubinski Letter.

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USCA Case #19-1240 Document #1825002 Filed: 01/21/2020 Page 4 of 6 NEI is a trade association for the nuclear technologies industry with over 300 members, and its members include companies that own or operate nuclear power plants and fuel service companies, among others.1 NEI is responsible for developing and representing industry positions on legal, regulatory, and policy matters affecting the nuclear energy industry, with the purpose of promoting the use and growth of nuclear energy and effective nuclear energy policy.2 NEI has members that can demonstrate that an injury-in-fact is imminent and fairly traceable to the challenged action, and that a favorable decision will redress these members concerns. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

NEIs members have and will suffer several injuries as a result of NRCs decisionabsent proper notice and comment, and in violation of NRCs own rules and regulationsto rely on RIS 2016-11 as an enforcement mechanism. For example, members who wish to dispose of very low-level radioactive waste in Agreement States now have to alter their waste disposal procedures, and expend additional time and manpower in order to seek approval from NRC in addition to existing Agreement State approvals, or else face potential enforcement proceedings.

This results in additional regulatory risk and compliance costs for NEI members. A favorable decision here would redress those injuries by preserving the status quo that 1

See Nuclear Energy Institute, About NEI, https://www.nei.org/about-nei.

2 Id.

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USCA Case #19-1240 Document #1825002 Filed: 01/21/2020 Page 5 of 6 existed before NRC indicated its intent to rely on RIS 2016-11 as an enforcement mechanism.

NEIs interest in litigation to clarify NRC rules and regulations, and to require NRC to follow proper procedure before enacting a new enforcement rule, is germane to NEIs purpose of advancing the policy interests of the nuclear power industry. Cf.

Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1279 (D.C. Cir. 2004) (finding that pursuing litigation to speed the licensing of a permanent repository [for nuclear waste] is germane to [NEIs] purpose) (quotation marks omitted)). NEIs petition for review seeks to vacate NRCs adherence to and substantive alteration of RIS 2016-11, as manifested in the Lubinski Letter; neither NEIs claims nor the relief requested require the participation of any individual NEI member in this lawsuit. Cf.

id.

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USCA Case #19-1240 Document #1825002 Filed: 01/21/2020 Page 6 of 6 CERTIFICATE OF SERVICE I, Steven P. Croley, hereby certify that on January 21, 2020, the foregoing has been electronically filed with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the CM/ECF system. I further certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Steven P. Croley Steven P. Croley 5