ML21067A071

3-5-21 Motion to Intervene (DC Cir.)(Case No. 21-1055)

ML21067A071
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, Court of Appeals, for the District of Columbia Circuit
References
1888542, 21-1055
Download: ML21067A071 (13)

Text

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 1 of 13 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SIERRA CLUB, Petitioner,

v. Case No. 21-1055 UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

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. Respondents 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. Petitioner Sierra Club has indicated, through counsel for Beyond Nuclear in related Case No.

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 2 of 13 21-1056 (consolidated with Case No. 21-1048), Diane Curran, that Sierra Club does 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 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 DB1/ 119431266 2

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 3 of 13 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 November 13, 2018, Sierra Club submitted to the NRC a Hearing Request and Petition to Intervene in the proceeding, proposing multiple contentions (Hearing Request).

5. On November 8, 2018, the Secretary of the Commission referred the Hearing Request to the NRCs Atomic Safety and Licensing Board Panel (Panel) for consideration under the NRCs Rules of Practice and Procedure at 10 C.F.R. § 2.309.

6. 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.

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

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 4 of 13

8. 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 granting the Hearing Request and admitting, in part, one of Sierra Clubs proposed contentions. More specifically, the contention, as admitted, alleged that the Application was deficient because it mentioned, but failed to include as attachments, certain reference documents. See Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 N.R.C. 31, 118 (2019) (LBP-19-7).

9. On September 4, 2019, ISP submitted to the NRC, as a supplement to its Application, copies of those reference documents.

10. On September 9, 2019, ISP filed with the Board a motion to dismiss the admitted contention as moot (Motion to Dismiss).

11. On September 13, 2019, Sierra Club filed with the Board a motion to amend the admitted contention (Motion to Amend).

12. On November 18, 2019, the Board issued an order granting ISPs Motion to Dismiss and denying Sierra Clubs Motion to Amend. See Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), LBP-19-9, 90 N.R.C. 181, 192 (2019) (LBP-19-9).

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 5 of 13

13. On December 13, 2019, Sierra Club appealed to the Commission to overturn the Boards decisions in LBP-19-7 and LBP-19-9.

14. On December 17, 2020, the Commission issued an order affirming the Boards decisions in LBP-19-7 and LBP-19-9 because Sierra Club failed to demonstrate any error of law or abuse of discretion. See Pet., [Unnumbered Attachment]; Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), CLI-20-15, 92 N.R.C. __, __ (Dec.

17, 2020) (slip op.) (CLI-20-15).

15. On February 9, 2021, Sierra Club petitioned this Court for review of CLI-20-15 (Case No. 21-1055).

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

17. 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.

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:

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 6 of 13 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

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

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 7 of 13

19. 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

20. 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).

ISP Has A Significant Interest In The Application That Is The Subject Of The Petition

21. ISP is the entity that filed the Application seeking an NRC license to construct and operate the subject facility. ISP has substantial DB1/ 119431266 7

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 8 of 13 interests in whether the NRC approves the Application and issues the requested license.

22. 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

23. 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.

24. 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.

The Federal Agency Respondent May Be Unable To Represent ISPs Unique Interests Adequately

25. A prospective intervenors burden of showing inadequate representation is not onerous, as it need only show that representation DB1/ 119431266 8

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 9 of 13 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)).

26. Although ISP is aligned with the NRC insofar as the NRCs independent Board unanimously determined that Sierra Clubs contentions were inadmissible or moot, 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.

27. 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.

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USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 10 of 13 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 DB1/ 119431266 10

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 11 of 13 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-DB1/ 119431266

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 12 of 13 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 No.

21-1055) are as follows:

• Parties: Sierra Club (Petitioners); U.S. Nuclear Regulatory Commission and the United States of America (Respondents);

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

• Amici: None.

/s/ Brad Fagg Brad Fagg Dated: March 5, 2021 DB1/ 119431266 2

USCA Case #21-1055 Document #1888542 Filed: 03/05/2021 Page 13 of 13 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 DB1/ 119431266