ML21067A061

3-5-21 Motion to Intervene (DC Cir.)(Case No. 21-1048)

ML21067A061
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	03/05/2021
From:	Fagg B, Lighty R Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OGC, US Federal Judiciary, District Court for the District of Columbia
References
1888541, 21-1048, 21-1056
Download: ML21067A061 (16)

Text

DB1/ 119429916 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DONT WASTE MICHIGAN, et al.

Petitioners,

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

Case No. 21-1048 Consolidated with Case No. 21-1056 UNOPPOSED MOTION OF INTERIM STORAGE PARTNERS, LLC FOR LEAVE TO INTERVENE Pursuant to Federal Rule of Appellate Procedure 15(d) and D.C.

Circuit Rule 15(b), Interim Storage Partners, LLC (ISP) respectfully moves for leave to intervene as a party-respondent in the above-captioned matter. Respondent U.S. Nuclear Regulatory Commission (NRC), by its counsel Andrew P. Averbach, has indicated that the NRC does not oppose ISPs intervention. Respondent United States of America, by its counsel Justin Heminger, has indicated that the United States of America does not oppose ISPs intervention. Petitioners Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 1 of 16

DB1/ 119429916 2

Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition (SEED), and Leona Morgan (collectively DWM Petitioners), and Petitioner Beyond Nuclear, Inc.

(Beyond Nuclear, and collectively with DWM Petitioners, the Petitioners) have indicated, through Counsel for Beyond Nuclear, Diane Curran, that the Petitioners do not oppose ISPs intervention.

In support of the motion, ISP states as follows:

=

Background===

1.

The NRC was created to regulate the activities addressed in the Atomic Energy Act of 1954 (AEA) and to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. NRC, About NRC (Feb. 8, 2021),

https://www.nrc.gov/about-nrc.html. In this role, the NRC issues, amends, and oversees licenses for nuclear materials.

2.

By letters dated June 8, 2018, and July 19, 2018, ISP applied to the NRC (the Application) for a specific license to construct and operate a Consolidated Interim Storage Facility to store spent nuclear fuel and other radiological waste (the Facility). The Facility would be USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 2 of 16

DB1/ 119429916 3

located adjacent to an existing radiological waste facility in Andrews County, Texas.

3.

On August 29, 2018, the NRC published a notice in the Federal Register providing the public, pursuant to the NRCs Rules of Practice and Procedure at 10 C.F.R. § 2.309, an opportunity to (1) request a formal evidentiary hearing to challenge the Application, and (2) petition for leave to intervene in the proceeding. See 83 Fed. Reg.

44,070 (Aug. 29, 2018).

4.

On September 14, 2018, Beyond Nuclear submitted to the NRC a document styled as a Motion to Dismiss Licensing Proceedings asking the NRC to dismiss and terminate its review of the Application (Extraprocedural Motion).1

5.

On October 3, 2018, Beyond Nuclear separately submitted to the NRC a Hearing Request and Petition to Intervene in the proceeding, proposing one contention that incorporated by reference Beyond 1

Beyond Nuclear also requested in the Extraprocedural Motion that the NRC dismiss and terminate its review of a separate application from a different applicant, Holtec International, seeking a license to construct and operate a different facility for storage of spent nuclear fuel in New Mexico.

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 3 of 16

DB1/ 119429916 4

Nuclears substantive arguments from the Extraprocedural Motion (Beyond Nuclear Hearing Request).

6.

On November 13, 2018, the DWM Petitioners also submitted to the NRC a Hearing Request and Petition to Intervene in the proceeding, proposing multiple contentions (DWM Hearing Request, and collectively with the Beyond Nuclear Hearing Request, the Hearing Requests).

7.

On October 29, 2018, the Secretary of the Commission issued an order denying the Extraprocedural Motion on procedural grounds. See Beyond Nuclear Pet., Ex. A (Procedural Order).2

8.

On November 8, 2018, the Secretary of the Commission referred the Hearing Requests to the NRCs Atomic Safety and Licensing 2

On December 27, 2018, Beyond Nuclear petitioned this Court for review of the Procedural Order (Case No. 18-1340). On June 13, 2019, this Court dismissed that case for lack of jurisdiction. Beyond Nuclear v. U.S. Nuclear Regulatory Commn, No. 18-1340, Order Granting Mot. to Dismiss, ECF No. 1792613 (D.C.

Cir. 2019). On June 4, 2020, Beyond Nuclear again petitioned this Court for review of the Procedural Order (Case No. 20-1187) in the context of the Holtec application, not the ISP Application. See supra note 1. On October 8, 2020, this Court issued an order holding that case (and consolidated Case No.

20-1225) in abeyance pending completion of the agency proceedings. Beyond Nuclear v. U.S. Nuclear Regulatory Commn, Nos. 20-1187 & 20-1225, Order Granting Mot. to Hold Consolidated Cases in Abeyance, ECF No. 1865467 (D.C. Cir. 2020).

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 4 of 16

DB1/ 119429916 5

Board Panel (Panel) for consideration under the NRCs Rules of Practice and Procedure at 10 C.F.R. § 2.309.

9.

The Panel is a separate component of the NRC, independent from the Commission and the NRC Staff, and is composed of administrative judges who are lawyers, engineers, and scientists.

See Atomic Safety and Licensing Board Panel (Feb. 25, 2021),

https://www.nrc.gov/about-nrc/organization/aslbpfuncdesc.html.

10.

On November 16, 2018, the Panels Chief Administrative Judge established a three-judge Atomic Safety and Licensing Board (Board) to consider the Hearing Requests.

11.

On August 23, 2019, following written briefing by the Petitioners, ISP, and the NRC Staffand two days of oral argument the Board issued a 107-page decision denying the Hearing Requests because neither Beyond Nuclear nor the DWM Petitioners had satisfied the criteria in 10 C.F.R. § 2.309 for invoking a formal evidentiary hearing. More specifically, the Board denied the Hearing Requests because, although Beyond Nuclear and SEED (but none of the other DWM Petitioners) had established standing, none had proposed an admissible contention that satisfied the criteria in 10 C.F.R. § 2.309(f)(1).

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 5 of 16

DB1/ 119429916 6

See Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 N.R.C. 31, 118 (2019) (LBP-19-7).

12.

On September 17, 2019, Beyond Nuclear and the DWM Petitioners separately appealed to the Commission to overturn the Boards decision in LBP-19-7.

13.

On October 23, 2019, SEED filed a motion before the Board seeking leave to file a new contention (Motion for Leave).

14.

On December 13, 2019, the Board denied the Motion for Leave. See Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), LBP-19-11, 90 N.R.C. 358, 368 (2019) (LBP-19-11).

15.

On January 7, 2020, SEED appealed to the Commission to overturn the Boards decision in LBP-19-11.

16.

On December 4, 2020, the Commission issued an order affirming the Boards decision in LBP-19-11 because SEED failed to demonstrate any error of law or abuse of discretion. See DWM Pet.,

Ex. B; Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), CLI-20-13, 92 N.R.C. __, __ (Dec. 4, 2020) (slip op.)

(CLI-20-13).

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 6 of 16

DB1/ 119429916 7

17.

On December 17, 2020, the Commission issued an order affirming the Boards decision in LBP-19-7 because both Beyond Nuclear and the DWM Petitioners failed to demonstrate any error of law or abuse of discretion. See DWM Pet., Ex. A & Beyond Nuclear Pet., Ex. B; Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility),

CLI-20-14, 92 N.R.C. __, __ (Dec. 17, 2020) (slip op.) (CLI-20-14).

18.

On February 2, 2021, the DWM Petitioners petitioned this Court for review of CLI-20-13 and CLI-20-14 (Case No. 21-1048).

19.

On February 10, 2021, Beyond Nuclear petitioned this Court for review of the Procedural Order and CLI-20-14 (Case No. 21-1056).

20.

On February 10, 2021, this Court, sua sponte, consolidated Case Nos. 21-1048 and 21-1056.

21.

As of the date of this Motion, ISPs Application for a license to construct and operate the Facility remains pending before the NRC.

22.

This Court has routinely permitted intervention by NRC licensees and license applicants in cases where petitioners seek to challenge license applications approved by or pending before the NRC.

See, e.g., Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Commn, No. 19-1198, Order Granting Mot. to Intervene, ECF No.

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 7 of 16

DB1/ 119429916 8

1814533 (D.C. Cir. 2019); Safe Energy Coalition of Mich. v. U.S. Nuclear Regulatory Commn, 866 F.2d 1473 (D.C. Cir. 1989); see also In re:

Friends of the Earth, et al., No. 16-1189, Order Granting Mot. to Intervene, ECF No. 1620139 (D.C. Cir. 2016). ISP respectfully requests that it be allowed to intervene here.

Grounds for Intervention

23.

Rule 15(d) states that a motion to intervene must be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention. Fed. R. App. P. 15(d). To satisfy this rule, a prospective intervenor must simply... file a motion setting forth its interest and the grounds on which intervention is sought. Synovus Fin. Corp. v. Bd.

of Governors of Fed. Reserve Sys., 952 F.2d 426, 433 (D.C. Cir. 1991).

Since Rule 15(d) provides no standard for resolving intervention questions, appellate courts have identified two considerations: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant to Fed. R. Civ. P. 24. State of Tex. v. U.S. Dept of Energy, 754 F.2d 550, 551 (5th Cir. 1985) (internal USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 8 of 16

DB1/ 119429916 9

citation omitted); see also Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 517-18 (7th Cir. 2004).

24.

Under Federal Rule of Civil Procedure 24, this Court has held that qualification for intervention as of right depends on the following four factors: (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest; and (4) whether the applicants interest is adequately represented by existing parties. Fund For Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Fed. R. Civ. P. 24(a)(2)); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-34 (D.C. Cir. 2003). ISP satisfies these requirements, as explained below.

The Motion Is Timely

25.

This motion is timely because it has been filed within 30 days after the petition for review [was] filed. Fed. R. App. P. 15(d); see also Ala. Power Co. v. I.C.C., 852 F.2d 1361, 1367 (D.C. Cir. 1988).

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 9 of 16

DB1/ 119429916 10 ISP Has A Significant Interest In The Application That Is The Subject Of The Petition

26.

ISP is the entity that filed the Application seeking an NRC license to construct and operate the subject facility. ISP has substantial interests in whether the NRC approves the Application and issues the requested license.

27.

NRC approval of the Application and issuance of the requested license will allow ISP to proceed with its business objective of constructing and operating the Facility. As a result, ISP clearly has a significant interest in the Application that is the subject of Petitioners challenges.

Disposition Of The Petitions May As A Practical Matter Impair Or Impede ISPs Ability to Protect That Interest

28.

Petitioners seek, in their respective petitions, a review of NRC rulings and processes relating to the Application. If this Court were to overturn or forestall these actions or find the NRCs processes improper, the NRCs review of the Application would be affected.

29.

As discussed above, if this Court were to grant the relief Petitioners seek, it would, as a practical matter, adversely affect the benefits that ISP expects to realize in the future as a result of the license to construct and operate the facility.

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 10 of 16

DB1/ 119429916 11 The Federal Agency Respondent May Be Unable To Represent ISPs Unique Interests Adequately

30.

A prospective intervenors burden of showing inadequate representation is not onerous, as it need only show that representation of [its] interest may be inadequate, not that representation will in fact be inadequate. Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C.

Cir. 1986) (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).

31.

Although ISP is aligned with the NRC insofar as the NRC Secretary denied the Extraprocedural Motion, the NRCs independent Board unanimously denied the Hearing Requests, and the NRC Commissioners unanimously affirmed the Boards rulings, ISP may have a unique perspective to offer beyond that of the NRC insofar as it would be the licensed owner and operator of the Facility. ISP may have different interests from the NRC in this litigation, beyond the shared interest of preserving the NRC regulatory framework and decision-making process, particularly with respect to whether the Application is ultimately approved and the regulatory conditions imposed in connection with the same. As a result, the NRC may not adequately represent ISPs interests.

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 11 of 16

DB1/ 119429916 12

32.

To ensure that ISPs participation as an intervenor is helpful to the Court, ISP will endeavor to coordinate with the NRC to avoid duplicative briefing and to ensure that ISP focuses on arguments and/or background facts that the NRC may not address.

WHEREFORE, ISP respectfully requests that the Court grant ISP leave to intervene as a party-respondent.

Dated: March 5, 2021 Respectfully submitted, By /s/ Brad Fagg Brad Fagg Ryan K. Lighty MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-3000 Attorneys for Interim Storage Partners, LLC USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 12 of 16

DB1/ 119429916 ADDENDUMCERTIFICATE OF PARTIES AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appeal Procedure 26.1 and D.C. Circuit Rule 26.1, Interim Storage Partners, LLC represents as follows:

Interim Storage Partners, LLC is a limited liability company organized and existing under the laws of the State of Delaware with principal offices in Andrews, Texas. The sole purpose of Interim Storage Partners, LLC is to license, design, construct and operate the Consolidated Interim Storage Facility at the Waste Control Specialists site in Andrews County, Texas. Interim Storage Partners, LLC is jointly owned by Orano CIS, LLC (51%) and Waste Control Specialists, LLC (49%). No other publicly held company has 10 percent or more equity interest in Interim Storage Partners, LLC.

Orano CIS, LLC is owned 100% by Orano USA, LLC. Orano CIS, LLC and Orano USA, LLC are both limited liability companies formed in the State of Delaware. Orano USA, LLC is 100% owned by Orano SA, a French entity. Orano SA is ultimately majority (70%) owned and controlled by the French State, through two French government entities.

Two Japanese entities (Mitsubishi and Japan Nuclear Fuel) each own a 5% (non-voting) interest in Orano SA. The remaining 20% interest (non-USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 13 of 16

DB1/ 119429916 2

voting) in Orano SA is held in two (non-voting) trusts, in connection with financing arrangements.

Waste Control Specialists, LLC is wholly-owned by Fermi Holdings, Inc., an investment affiliate of J.F. Lehman & Co. The full ownership chain includes several other privately held J.F. Lehman & Co.

investment affiliates, with no individual shareholders owning more than 25% of any of the entities.

In addition, pursuant to Circuit Rules 27(a)(4) and 28(a)(1)(A), the undersigned counsel certifies that no parties appeared before a district court; and all parties, intervenors, or amici in this Court (Case Nos.

21-1048 and 21-1056) are as follows:

• Parties: Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition, Leona Morgan (Petitioners in Case No. 21-1048), and Beyond Nuclear, Inc.

(Petitioners in Case No. 21-1056); U.S. Nuclear Regulatory Commission and the United States of America (Respondents);

USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 14 of 16

DB1/ 119429916 3

• Intervenors (Motion Pending): Interim Storage Partners, LLC; and

• Amici: None.

/s/ Brad Fagg Brad Fagg Dated: March 5, 2021 USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 15 of 16

DB1/ 119429916 CERTIFICATE OF SERVICE I, Brad Fagg, a member of the Bar of this Court, hereby certify that on March 5, 2021, I electronically filed the foregoing UNOPPOSED MOTION OF INTERIM STORAGE PARTNERS, LLC, FOR LEAVE TO INTERVENE and the Addendum thereto, CERTIFICATE OF PARTIES AND CORPORATE DISCLOSURE STATEMENT with the Clerk of the Court for the United States Court of Appeals for the D.C.

Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate ECF system.

/s/ Brad Fagg Brad Fagg Dated: March 5, 2021 USCA Case #21-1048 Document #1888541 Filed: 03/05/2021 Page 16 of 16