ML21287A645
| ML21287A645 | |
| Person / Time | |
|---|---|
| Site: | 07007004 |
| Issue date: | 10/12/2021 |
| From: | Lodge T, Taylor W Beyond Nuclear, Law Office of Terry Jonathan Lodge, Law Offices of Wallace L. Taylor, Ohio Nuclear Free Network (ONFN) |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1917780, 21-1162 | |
| Download: ML21287A645 (22) | |
Text
USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 1 of 22 ORAL ARGUMENT NOT YET SCHEDULED Case No. 21-1162 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OHIO NUCLEAR-FREE NETWORK and BEYOND NUCLEAR, Petitioners, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents On Petition for Review of Action by the Nuclear Regulatory Commission PETITIONERS MEMORANDUM IN OPPOSITION TO RESPONDENTS MOTION TO DISMISS Terry J. Lodge, Esq. Wallace L. Taylor, Esq.
316 N. Michigan St., Suite 520 Law Offices of Wallace L. Taylor Toledo, OH 43604-5627 4403 1st Ave. S.E., Suite 402 (419) 205-7084 Cedar Rapids, Iowa 52402 Fax: (419) 932-6625 319-366-2428 Emails: tjlodge50@yahoo.com Fax: 319-366-3886 lodgelaw@yahoo.com E-mail: wtaylorlaw@aol.com Co-Counsel for Petitioners
USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 2 of 22 TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND 1 II. ARGUMENT 4 A. Petitioners Are Parties Under The Hobbs Act Who Participated By Commenting 4 B. Exclusion Of Public Participation From A NEPA Proceeding Cannot Subsequently Be Raised To Deny Party Status Under The Hobbs Act 10 C. Whether The NRC Has Sufficient Reasons To Exclude Public Participation From Its EA/FONSI Decision Is A Substantive NEPA Issue Which Must Be Considered And Determined Under The APA 12 III. CONCLUSION 15 CERTIFICATE OF SERVICE 18 CERTIFICATE OF COMPLIANCE 18
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USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 3 of 22 TABLE OF AUTHORITIES Judicial Decisions Page ACA Intl. v. FCC, 885 F.3d 687 (D.C.Cir. 2018) 9 ACLU v. FCC, 774 F.2d 24 (1st Cir. 1985) 5 Brodsky v. NRC, 704 F.3d 113 (2d Cir. 2013) 12, 13, 14 City of Angels Broadcasting, Inc. v. FCC, 240 U.S. App. D.C. 280, 745 F.2d 656 (D.C.Cir. 1984) 15 Clark & Reid Co. v. United States, 804 F.2d 3 (1st Cir. 1986) 5 Easton Utilities Commission v. AEC, 424 F.2d 847 (D.C.Cir. 1970) 11 Friends of Ompompanoosue v. FERC, 986 F.2d 1549 (2d Cir. 1992) 13 Gage v. AEC, 479 F.2d 1214 (D.C.Cir. 1973) 10, 11 Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008) 6, 7 North American Savings Association v. Federal Home Loan Bank Board, 755 F.2d 122 (1985) 11 NRDC v. NRC, 666 F.2d 595 (D.C.Cir.1981) 11 Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C.Cir. 1974) 11 Reyblatt v. NRC, 105 F.3d 715 (D.C.Cir. 1997) 5 Simmons v. ICC, 230 U.S.App.D.C. 236, 239, 716 F.2d 40 (1983) 6 Water Transp. Assn v. ICC, 819 F.2d 1189 (D.C.Cir. 1987) 5
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USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 4 of 22 Administrative Decisions Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-12, 59 NRC 237 (2004) 8 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-20, 68 NRC 272 (2008) 8 Statutes 28 U.S.C. § 2344 5, 6, 7, 8, 9, 10 Regulations 10 CFR § 2.105 17 10 CFR § 2.309 2, 5, 7, 8, 10, 16 10 CFR § 51.10 13 40 CFR § 1501.4 4, 13 40 CFR § 1501.5 13 40 CFR § 1501.6 13
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USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 5 of 22 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OHIO NUCLEAR-FREE )
NETWORK and BEYOND NUCLEAR, ) Case No. 21-1162 Petitioners, )
- v. )
UNITED STATES NUCLEAR )
REGULATORY COMMISSION and the UNITED STATES OF )
- AMERICA,
)
Respondents.
)
PETITIONERS MEMORANDUM IN OPPOSITION TO RESPONDENTS MOTION TO DISMISS Come now the Petitioners, Ohio Nuclear-Free Network and Beyond Nuclear, and for their opposition to the Motion to Dismiss (Doc. #1914862) filed by Respondents U.S. Nuclear Regulatory Commission and the United States (collectively, NRC), state as follows:
I. INTRODUCTION AND BACKGROUND American Centrifuge Operating, LLC (ACO) submitted an application to the NRC for a license amendment in May 2021. The purpose of the license USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 6 of 22 amendment was to allow ACO to enrich uranium up to 25% to manufacture high-assay low-enriched uranium (HALEU) at the U.S. Department of Energys facility near Piketon, Ohio. The 25% level of enrichment would be over twice the current maximum allowable enrichment level of 10%. There is no indication in the Respondents Certified Index to the Record a/k/a Administrative Record (Doc.
- 1914865) that the NRC ever published an initial Federal Register announcement of ACOs license amendment application, nor was there an NRC public notice via the Federal Register that interested parties could intervene to contest the license amendment application pursuant to provisions of 10 CFR § 2.309. The first notification to the public that the license amendment was submitted by ACO to the NRC was the NRCs issuance of its Environmental Assessment and Finding of No Significant Impact (EA/FONSI) on June 14, 2021 in which the NRC stated:
Based on its review of the proposed action in the EA, in accordance with the requirements in 10 CFR part 51, the NRC has concluded that the proposed action, amendment of NRC license SNM-2011 for the American Centrifuge Co., LLC, located in Piketon, Ohio, will not significantly affect the quality of the human environment. Therefore, the NRC has determined, pursuant to 10 CFR 51.31, that preparation of an EIS is not required for the proposed action and a FONSI is appropriate.
American Centrifuge Operating, LLC; American Centrifuge Plant, 86 Fed. Reg.
31,539 (June 14, 2021).
The NRC issued the amended license to ACO, in unredacted and redacted USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 7 of 22 form, on June 11, 2021. (Docs. #88 and # 89, ADAMS Nos. ML21138A828 and ML21138A829).
The EA/FONSI was a final determination under the National Environmental Policy Act (NEPA). The June 14 public notice contained no mention that the public could petition the NRC for leave to intervene in the license amendment proceeding. Nonetheless, Petitioners attempted to participate in the proceeding by sending a five-page, 2,250-word comment letter cosigned by some 100 environmental, social justice and nuclear weapons abolition organizations to the NRC on March 30, 2021, two and a half months before the EA/FONSI was issued.
(Doc. #55, ADAMS No. ML21090A056). Petitioners stated in the letter that the proposed license amendment to allow ACO to use centrifuge arrays to manufacture high-assay low enrichment uranium (HALEU) infringed upon and/or violated United States treaty commitments, U.S. federal law and various sections of NEPA and NRC regulations. The Petitioners and other commenters requested that the NRC review the nuclear weapons proliferation implications of the proposal and that international and domestic terrorism, theft and vandalism potential be considered. They further asked the NRC prepare a Programmatic Environmental Impact Statement (PEIS) to comply with NEPA. The NRC did not seriously consider the request. On May 28, 2021, the agency sent an email to USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 8 of 22 Petitioners counsel stating its intention to issue an EA. (Doc. #62, ADAMS No.
The NRC is not required by its regulations to prepare a draft EA, but U.S.
Council on Environmental Quality (CEQ) regulations clearly promote public involvement. 40 CFR § 1501.4(b) states that in preparing an EA, the agency shall involve environmental agencies, applicants, and the public, to the extent practicable. (emphasis added). Likewise, 40 CFR § 1506.6 provides in part:
Agencies shall:
(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.
(b) Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected. (emphasis added).
In this case, it appears that the NRC made no effort to provide for public notice or participation. There is no way that the Petitioners could have approached the NEPA process other than in the way they did. Petitioners exhausted their administrative remedies and participated in the agency proceedings to the extent allowed by the NRCs closed proceeding prior to seeking this review.
II. ARGUMENT A. Petitioners Are Parties Under The Hobbs Act Who Participated By Commenting The Respondents argue that the Petitioners are not parties as contemplated USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 9 of 22 by the Hobbs Act, 28 U.S.C. § 2344 because the Petitioners did not intervene or petition for a hearing pursuant to 10 C.F.R. § 2.309. (Motion to Dismiss (MTD) at pp. 4-6). However, it is not up to the NRC to decide who is a party to a Hobbs Act petition for review.
While indeed under the Hobbs Act only a party aggrieved by a final order may petition for review in the Courts of Appeals, the determination of whether an entity is an aggrieved party is not dependent upon the agency's labeling of an entity as a party. Clark & Reid Co. v. United States, 804 F.2d 3, 6 (1st Cir. 1986)
(this Court does not equate the regulatory definition of a party in an [agency]
proceeding with the participatory party status required for judicial review under the Hobbs Act.). If an agency's labeling of participants were controlling, as the NRC ventures here, any agency could cut off a person's right to judicial review by simply not calling such person a party. Obviously, this cannot be the case. Rather, under the Hobbs Act, the courts, not the agencies, construe the term party to encompass those who directly and actually participated in the administrative proceedings. Id. at 5; ACLU v. FCC, 774 F.2d 24, 26 (1st Cir. 1985); Reyblatt v.
NRC, 105 F.3d 715, 720 (D.C.Cir. 1997). Participation can include tendering comments if that avenue is available for participation. Id.; Water Transp. Assn v.
ICC, 819 F.2d 1189, 1192-1993 (D.C.Cir. 1987) (An entity becomes a party USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 10 of 22 aggrieved under the Hobbs Act by presenting its views to the agency, typically through a comment or other written submission on a proposed rule) (citing Simmons v. ICC, 230 U.S.App.D.C. 236, 239, 716 F.2d 40, 43 fn. 26 (1983)).
Interested persons who participate by comment are § 2344 parties.
In Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008), the state was concerned about the management of spent fuel rods at two nuclear reactors.
The state wanted to participate directly in the relicensing proceedings as a party in a formal adjudicatory proceeding. The state had also filed a separate rulemaking petition. The NRC denied the states request to intervene and seek a formal hearing. The NRC argued that the state should not be a formal party in the licensing proceedings, but instead should participate as an interested governmental entity. The First Circuit decided that the state could participate as an interested governmental entity.
En route to making that decision, the First Circuit discussed the NEPA procedure with respect to nuclear relicensing proceedings. First, the court said:
In such a situation, the regulations provide channels through which the agencys staff may receive new and significant information, namely from a license renewal applicants environmental report or from public comments on the draft SEIS, . . . . (emphasis added).
Id. at 127. If commenting on a draft supplemental EIS is a recognized way to USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 11 of 22 participate in the NEPA process in a nuclear relicensing case, it follows that commenting on an EA would also comprise participation in the NEPA phase of licensing.
The Massachusetts court further explicitly discussed who is a party:
Party can both be defined in one context as a term of art, e.g., as one who has demonstrated standing and whose contention has been admitted for hearing in a licensing adjudication, see 10 C.F.R. § 2.309(a),
and deployed in its more general sense of one who participates in a proceeding or transaction, . . . . The NRC has not defined the term party uniformly throughout its regulations.
Id. at 129.
That court then addressed the heart of the issue presented here in Respondents Motion to Dismiss:
This court applies a functional test to determine whether one is a party aggrieved for Hobbs Act purposes. That test asks whether the would-be petitioner directly and actually participated in the administrative proceedings. . . . Because we do not equate the regulatory definition of a party in an [agency] proceeding with the participatory party status required for judicial review, . . . it matters not here whether NRC regulations label the Commonwealth as a party or an interested governmental entity.
The Massachusetts court unequivocally stated that the agencys interpretation of who is a party does not control the court in determining party status for purposes of 28 U.S.C. § 2344.
In the present matter, the NRC did not provide a formal comment period, USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 12 of 22 violating at least the spirit of the above-cited CEQ regulations that require agencies to maximize the opportunity possible for public participation. Despite this obstacle, the Petitioners did submit comments well in advance of the final agency action of EA/FONSI issuance. Although the NRC violated the public-involvement intent expressed in the CEQ regulations, the Petitioners did, in fact, participate in the agency proceedings. That is all § 2344 requires.
Regarding the NRCs insistence that the Petitioners must have sought to participate in the NRCs adjudicatory process pursuant to 10 C.F.R. § 2.309, that hollow assertion belies long-standing NRC interpretation of its own regulations. A person cannot intervene in an NRC proceeding before the issuance of a notice of hearing or a notice of proposed action, which is a prerequisite to the initiation of a proceeding. Petitions filed prior to this issuance are clearly premature and may be rejected by the Secretary of the Commission. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-12, 59 NRC 237, 239-40 (2004); U.S. Dept of Energy (High-Level Waste Repository),
CLI-08-20, 68 NRC 272, 275 (2008).
Under the circumstances, Petitioners submission of a petition to intervene purportedly based on 10 CFR § 2.309 would obviously have been a futile exercise, especially given the NRCs determination not to solicit public comment nor even USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 13 of 22 notify the public of its decision until it was final. The June 14, 2021 Federal Register notification of the EA/FONSI appeared three days after the license amendment was finalized by an amended license issuance to ACO.
Notably, the precedent cited by the NRC does not support the Respondents argument. The decision in ACA Intl. v. FCC, 885 F.3d 687 (D.C.Cir. 2018),
involved an FCC decision concerning so-called robocalls. The FCC issued a declaratory order granting certain exemptions, including for healthcare-related calls. Rite Aid Pharmacy challenged that exemption, but it did not formally petition the FCC in proceedings before the agency. It participated only by commenting on another partys petition, rather than filing one of its own. The court held that commenting on another partys petition made Rite Aid a party aggrieved pursuant to 28 U.S.C. § 2344. The D.C. Circuit further stated that for agency proceedings that do not require intervention as a prerequisite to participation, submitting comments is sufficient to confer party status. Here, by contrast, although the NRC claims that formal intervention was a prerequisite to participation, there was no opportunity to intervene. The NRC cannot require an aggrieved party to pursue an option the NRC in its sole discretion declined to provide.
Furthermore, the Petitioners claim is governed by NEPA, not the Atomic USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 14 of 22 Energy Act (AEA). As the Respondents make clear in their motion, the requirement for intervention is established by the AEA, which cannot limit the NRCs obligations under NEPA to the public. Petitioners comments on the NRCs proposal to issue an EA made them parties to the NEPA process.
The Respondents also cited Gage v. AEC, 479 F.2d 1214 (D.C.Cir. 1973).
There, the petitioners challenged a rulemaking decision of the Atomic Energy Commission wherein they had neither filed comments nor taken any other action while the matter was before the agency. The petitioners argued that the Hobbs Act only applies to appeals from adjudicative proceedings. The court disagreed, holding that the Hobbs Act also applies to proceedings where persons can, or must, participate only by commenting. The NRCs own recitation fatally undermines its insistence that a 10 CFR § 2.309 petition to intervene is the exclusive means to become a party under 28 U.S.C. § 2344.
B. Exclusion Of Public Participation From A NEPA Proceeding Cannot Subsequently Be Raised To Deny Party Status Under The Hobbs Act The NRC (1) did not put the EA up for formal public comment before rending the FONSI; (2) did not seek formal public comment on the EA/FONSI as a proposed decision prior to its finalization; and (3) did not solicit public participation in the form of petitions to intervene while the NEPA decision was USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 15 of 22 non-final. In other words, there was no affirmative opportunity for public participation extended by the NRC whatsoever. Where the petitioners had no opportunity to participate in the agencys proceedings because those proceedings were circumscribed by the agencys exercises of discretion, the term parties aggrieved has been liberally construed so as to afford a forum wherein the agency's actions can be challenged.
The D.C. Circuit authored the leading decision supporting this principle:
In [Gage v. AEC, 479 F.2d 1214 (D.C.Cir. 1973) and Easton Utilities Commission v. AEC, 424 F.2d 847 (D.C.Cir. 1970)], we refused to recognize as parties those who had the opportunity to participate in the underlying Commission proceedings but who had failed to take advantage of it. In this case, however, since the amendments were promulgated without notice and comment, there were no underlying proceedings in which the NRDC could join to obtain party status. To bar a petition for direct review because the petitioner was not a party to proceedings in which, by definition, it could not join would be to exalt literalism over common sense. We have refused to follow this course in the past, see Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 45-46 (D.C.Cir. 1974), and decline to follow it now. Indeed, to bar direct review in such circumstances would create a dangerous precedent, for it would grant agencies the power to remove their regulations from direct review by simply promulgating them without notice and comment. (Emphasis added)
NRDC v. NRC, 666 F.2d 595, 601-02 n. 42 (D.C.Cir.1981); accord, North American Savings Association v. Federal Home Loan Bank Board, 755 F.2d 122, 125-126 (1985) (Petitioner could not and did not participate in Federal Home Loan Bank Board in closed hearing approving branch banks in state where parent USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 16 of 22 company not registered to conduct business).
C. Whether The NRC Has Sufficient Reasons To Exclude Public Participation From Its EA/FONSI Decision Is A Substantive NEPA Issue Which Must Be Considered And Determined Under The APA The question of whether Petitioners were parties in the EA proceedings before the Nuclear Regulatory Commission cannot be determined based on the paucity of factors cited by the NRC in its Motion to Dismiss. The NRC has provided no explanation in its Motion to Dismiss why no public participation was deemed practicable or appropriate. This inquiry is not merely procedural and must be decided based on the evidence that appears in the record of the proceedings before the agency. If no evidence can be found there, the case must be remanded to the NRC.
In Brodsky v. NRC, 704 F.3d 113 (2d Cir. 2013), the NRC issued an EA and FONSI for a fire safety exemption at the Indian Point nuclear reactor. The Second Circuit, following scrutiny of the public participation CEQ regulations discussed supra, acknowledged that they do not clearly define how public involvement requirements apply when the agency issues an EA and FONSI. The court decided that When the exercise of that discretion [over public participation] is challenged on appeal, the reviewing court properly considers whether the lack of public input prevented the agency from weighing all the factors essential to exercising its USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 17 of 22 judgment [under NEPA] in a reasonable manner. Brodsky, 704 F.3d at 121, citing Friends of Ompompanoosue v. FERC, 986 F.2d 1549, 1557 (2d Cir. 1992).
The Second Circuit ruled that the NRC failed to provide any record explanation as to why public participation was deemed impracticable or inappropriate, and remanded the matter to the agency for an explanation.
That circumstance pertains here. The NRC has provided no explanation why public participation in the HALEU license amendment decision was deemed impracticable or inappropriate, and may not escape with the agencys ipse dixit that the Petitioners are not permissible parties to a petition for review. The NRC is required to involve environmental agencies, applicants, and the public . . . to the extent practicable, 40 CFR § 1501.4(b). (Emphasis added).
Notably, the NRC addressed the extent to which it adopts NEPA and the NEPA regulations at 10 CFR § 51.10. At § 51.10(b)(2), the NRC explicitly agrees to [f]ollow the provisions of 40 CFR 1501.5 and 1501.6. . . . Section 1501.5 governs Environmental Assessments, and § 1501.6 addresses Findings of No Significant Impact. Section 1501.5(e), of course, requires that [a]gencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.
And 40 CFR § 1501.6(a)(2)(ii) requires that the agency shall make the finding of USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 18 of 22 no significant impact available for public review for 30 days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin where [t]he nature of the proposed action is one without precedent.
High-assay low-enriched uranium carries the potential for nuclear weapons proliferation, theft and sabotage, and has never been manufactured under the auspices of the U.S. federal government. If it exceeds the 20% enrichment level, the HALEU is classified as highly-enriched uranium and it is deemed to be weapons-usable material. The generation of nuclear reactors for which HALEU is planned to serve as fuel has hardly commenced construction at this point.
HALEU-making is unprecedented. It is possible that the unique nature of the HALEU project should have caused the unusual public participation opportunity of a 30-day pause before finalization of the EA/FONSI. This possibility must be explored further in light of the lack of any opportunity whatsoever for public comment or initiation of litigation over the license amendment prior to finalization of the EA/FONSI on June 14, 2021. The NRCs Motion thus posits a considerably more complex issue than can be resolved with the few facts the NRC cites for its predicate. As the Second Circuit observed in Brodsky:
Certainly, the record does not demonstrate, nor does the government USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 19 of 22 argue, that exigent circumstances made it impracticable to afford public notice or participation in the fifteen months between Entergy's June 2006 application and the NRC's September 2007 publication of the EA and FONSI on the same day that it granted the exemption. Nor does the record reveal a basis for the NRC to conclude that notice and opportunity for public comment would not have been appropriate. Indeed, a contrary conclusion finds support in the record evidence of public interest in the question of how nuclear plants satisfied their fire barrier obligations.
Id.
In the instant matter, the NRC must explain how a 2,250-word comment letter co-signed by 100 environmental, anti-nuclear weapons and peace organizations, filed 2.5 months before the issuance of the EA/FONSI, suggested anything other than the practicability of allowing public participation in this important decision while it was pending before the NRC. Although the Commission enjoys wide discretion in fashioning its own procedures, City of Angels Broadcasting, Inc. v. FCC, 240 U.S. App. D.C. 280, 745 F.2d 656, 664 (D.C.Cir. 1984), it cannot evade its duty to comply with CEQ regulations and its own regulations.
III. CONCLUSION The Respondents NRC would have the Court think that the NRC, not the courts, is solely empowered to decide who participated - or in this case, tried to participate - before the agency as a party. Indisputably, it is the courts which USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 20 of 22 solely possess that power.
The NRC flogged Petitioners for filing comments instead of an intervention. Redundant court decisions do not support that exclusionary position, but instead hold that filing of comments comprises public participation in agency proceedings. The NRC flailed the NRC for failing to file a petition to intervene when the EA proceeding was invisibly being conducted by the agency, knowing, full well that the agency, and only the agency, may open its proceedings up for the receipt of petitions to contest the impending determination. The 10 CFR § 2.309" argument smacks considerably of bad faith. The agency cited the regulation, flailed Petitioners for not seeking to intervene, and cited no supportive authority, whether other regulations, internal interpretive guides or quasi-judicial administrative precedent for its point.
In its expected reply memorandum to Petitioners opposition, the Court should look closely to learn whether the NRC is even candid enough to admit that it insulated the unprecedented HALEU license amendment proceeding from all public scrutiny. There was no initial public Federal Register announcement of the receipt and acceptance of the license amendment request for processing; no public comment opportunity established via Federal Register notice, either at the conclusion of the EA compilation or after the NRC decided that it would issue an USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 21 of 22 EA/FONSI. And there was no 10 CFR § 2.105 hearing announcement.
Each of these decisions is an individual affirmation by the NRC repudiating public participation. Three of the four repudiations occurred after the Petitioners filing of their 2,250-word comment letter with 100 co-signers.
The Motion to Dismiss should be denied. The NRC should be obliged by the Court to come clean as to why this unprecedented nuclear fuel manufacturing project escaped the types of public scrutiny afforded far more conventional regulated actions.
Dated: October 12, 2021 Respectfully submitted,
/s/ Terry J. Lodge Terry J. Lodge, Esq.
316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 205-7084 Fax: (419) 932-6625 Email: tjlodge50@yahoo.com lodgelaw@yahoo.com Wallace L. Taylor, Esq.
Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428 Fax: 319-366-3886 E-mail: wtaylorlaw@aol.com Co-Counsel for Petitioners USCA Case #21-1162 Document #1917780 Filed: 10/12/2021 Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October, 2021, I filed the foregoing Petitioners Memorandum in Opposition to Respondents Motion to Dismiss in the Courts electronic case filing system, which according to its protocols would automatically be served upon all counsel of record.
/s/ Terry J. Lodge Terry J. Lodge Co-Counsel for Petitioners CERTIFICATE OF COMPLIANCE The foregoing Petitioners Memorandum in Opposition to Respondents Motion to Dismiss complies with the typeface requirements of Fed. R. App. P.
32(a)(5); the type-style requirements of Fed. R. App. P. 32(a)(6); the length limitation set forth in F. R. App. P. 27(d)(2)(a); and the applicable rules for the U.S. Court of Appeals for the District of Columbia Circuit. The Memorandum was prepared in 14-point, double spaced Times New Roman font using Wordperfect 4X. The Memorandum contains 3,625 words.
/s/ Terry J. Lodge Terry J. Lodge Co-Counsel for Petitioners