ML21313A182

11-4-21 2nd Letter to Andrew Averbach from Justin Heminger Re Motion to Dismiss (Case No. 21-60743)

ML21313A182
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/04/2021
From:	Cayce L, Lopez A US Federal Judiciary, Court of Appeals, 5th Circuit
To:	Andrew Averbach, Heminger J NRC/OGC, US Dept of Justice (DOJ)
References
00516080883, 21-60743
Download: ML21313A182 (57)

Text

Case: 21-60743 Document: 00516080883 Page: 1 Date Filed: 11/04/2021 United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK LYLE W. CAYCE TEL. 504-310-7700 CLERK 600 S. MAESTRI PLACE, Suite 115 NEW ORLEANS, LA 70130 November 04, 2021 Mr. Andrew Paul Averbach U.S. Nuclear Regulatory Commission Office of the General Counsel 11555 Rockville Pike Mail Stop 15 D21 Rockville, MD 20852-2738 Mr. Justin Heminger U.S. Department of Justice Environment & Natural Resources Division-Appellate Section P.O. Box 7415 Ben Franklin Station Washington, DC 20044-7415 No. 21-60743 State of Texas v. NRC USDC No. 72-1050

Dear Mr. Averbach,

Mr. Heminger, Your motion to dismiss is deficient for the following reason(s) and must be corrected within 10 days. You need to correct or add:

A certificate of service is required, see Fed. R. App. P. 25(d).

Once you have prepared your sufficient motion, you must email it to: Allison_Lopez@ca5.uscourts.gov for review. If the motion is in compliance, you will receive a notice of docket activity advising you that the sufficient motion has been filed.

Case: 21-60743 Document: 00516080883 Page: 2 Date Filed: 11/04/2021 Sincerely, LYLE W. CAYCE, Clerk By: _________________________

Allison G. Lopez, Deputy Clerk 504-310-7702 cc: Mr. Michael Abrams Mr. Arnold Bradley Fagg Mr. Henry Carl Myers

Case: 21-60743 Document: 00516080699 Page: 1 Date Filed: 11/04/2021 No. 21-60743 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF TEXAS; and TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Petitioners, v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

On Petition for Review of Action by the Nuclear Regulatory Commission RESPONDENTS MOTION TO DISMISS TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Environment and Natural Resources Commission Division 11555 Rockville Pike U.S. Department of Justice Rockville, MD 20852 Post Office Box 7415 andrew.averbach@nrc.gov Washington, D.C. 20044 (301) 415-1956 justin.heminger@usdoj.gov (202) 514-5442

Case: 21-60743 Document: 00516080699 Page: 2 Date Filed: 11/04/2021 CERTIFICATE OF INTERESTED PERSONS Case No. 21-60743 STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF TEXAS; and TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Petitioners, v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Circuit Rule 28.2. have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1. Petitioners

a. State of Texas

b. Greg Abbott, Governor of Texas

c. Texas Commission on Environmental Quality

2. Counsel for Petitioners

a. Michael Abrams

b. Henry Carl Myers

3. Respondents

a. United States Nuclear Regulatory Commission

b. United States of America

Case: 21-60743 Document: 00516080699 Page: 3 Date Filed: 11/04/2021

4. Counsel for Respondents

a. Andrew P. Averbach, U.S. Nuclear Regulatory Commission

b. Todd Kim, U.S. Department of Justice

c. Jennifer Scheller Neumann, U.S. Department of Justice

d. Justin Heminger, U.S. Department of Justice

5. Respondent-Intervenor

a. Interim Storage Partners, LLC

b. Orano CIS, LLC

c. Orano USA, LLC

d. Orano SA, owned by government of France, Mitsubishi, and Japan Nuclear Fuel

e. Waste Control Specialists, LLC

f. Fermi Holdings, Inc.

g. J.F. Lehman & Co.

6. Counsel for Respondent-Intervenor

a. Brad Fagg, Morgan, Lewis & Bockius LLP

/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission ii

Case: 21-60743 Document: 00516080699 Page: 4 Date Filed: 11/04/2021 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii GLOSSARY........................................................................................................... viii INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................2 I. Statutory and regulatory framework .............................................................2 The role of the NRC in licensing facilities ................................................2 Avenues for participation in NRCs licensing proceedings.......................3 II. Factual Background.......................................................................................5 Interim Storage Partners application for a license ....................................5 Texass failure to participate in the adjudicatory proceedings ..................8 ARGUMENT ...........................................................................................................11 I. Dismissal is required because Texas was never a party before the NRC. ......................................................................................................11 II. Texass comments on the draft Environmental Impact Statement and correspondence with the agencys Chairman did not make it a party to the agency proceeding. ............................................................16 CONCLUSION ........................................................................................................20 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D) iii

Case: 21-60743 Document: 00516080699 Page: 5 Date Filed: 11/04/2021 TABLE OF AUTHORITIES Judicial Decisions ACA Intl v. FCC, 885 F.3d 687 (D.C. Cir. 2018).....................................................11, 13, 14, 17 American Trucking Assns v. ICC, 673 F.2d 82 (5th Cir. 1982) .....................................................................12, 14 Baros v. Texas Mexican R.R. Co.,

400 F.3d 228 (5th Cir. 2005) .........................................................................14 Boivin v. U.S. Airways, Inc.,

446 F.3d 148 (D.C. Cir. 2006) ......................................................................20 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)...................................................................3, 12 In re Chicago, Milwaukee, St. Paul & Pac. R.R.,

799 F.2d 317 (7th Cir. 1986) ..................................................................12, 15 Erie-Niagara Rail Steering Comm. v. STB, 167 F.3d 111 (2d Cir. 1999) ..........................................................................14 Fleming v. U.S. Dept of Agric.,

987 F.3d 1093 (D.C. Cir. 2021)...............................................................13, 14 Gage v. AEC, 479 F.2d 1214 (D.C. Cir. 1973).........................................................12, 14, 18 McGee v. United States, 402 U.S. 479 (1971).......................................................................................20 Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911 (5th Cir. 1993) .............................................................................15 Natl Assn of State Util. Consumer Advocates v. FCC, 457 F.3d 1238 (11th Cir. 2006) .....................................................................15 iv

Case: 21-60743 Document: 00516080699 Page: 6 Date Filed: 11/04/2021 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016).......................................................................19 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 207 (1983) ................................................................................ 3 Profl Reactor Operator Socy v. NRC, 939 F.2d 1047 (D.C. Cir. 1991).....................................................................12 Reytblatt v. NRC, 105 F.3d 715 (D.C. Cir. 1997).......................................................................17 Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983).........................................................................12 Steere Tank Lines, Inc. v. ICC, 675 F.2d 763 (5th Cir. 1982) .........................................................................20 Texas v. United States, 749 F.2d 1144 (5th Cir. 1985) .......................................................................13 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)....................................................................... 3 Vermont Dept of Pub. S. v. United States, 684 F.3d 149 (D.C. Cir. 2012).................................................................13, 20 Wales Transp., Inc. v. ICC, 728 F.2d 774 (5th Cir. 1984) ...................................................................12, 14 Water Transp. Assn v. ICC, 819 F.2d 1189 (D.C. Cir. 1987).....................................................................18 v

Case: 21-60743 Document: 00516080699 Page: 7 Date Filed: 11/04/2021 Statutes 28 U.S.C. § 2342 ..............................................................................................1, 5, 11 28 U.S.C. § 2344 ............................................................................................5, 11, 20 42 U.S.C. § 2239 ..............................................................................................3, 5, 11 42 U.S.C. § 2241 ........................................................................................................ 7 42 U.S.C. § 5841 ..................................................................................................2, 11 Regulations 10 C.F.R. Part 2..............................................................................................4, 18, 20 10 C.F.R. § 2.302 .....................................................................................................16 10 C.F.R. § 2.309 .............................................................................4, 6, 7, 15, 18, 19 10 C.F.R. § 2.311 .....................................................................................................19 10 C.F.R. § 2.315 ...................................................................................................4, 8 10 C.F.R. § 2.1213 ...................................................................................................10 10 C.F.R. Part 72........................................................................................................ 3 Federal Register Interim Storage Partners, LLC; WCS Consolidated Interim Storage Facility; Issuance of Materials License and Record of Decision, 86 Fed. Reg. 51,926 (Sept. 17, 2021) ................................................................

Interim Storage Partners Waste Control Specialists Consolidated Interim Storage

Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) ................................................................

vi

Case: 21-60743 Document: 00516080699 Page: 8 Date Filed: 11/04/2021 Adjudicatory Decisions of Nuclear Regulatory Commission Commission Decisions Interim Storage Partners LLC, CLI-20-13 (Dec. 4, 2020) ................................................................................ 8 Interim Storage Partners LLC, CLI-20-14 (Dec. 17, 2020) .............................................................................. 8 Interim Storage Partners LLC, CLI-20-15 (Dec. 17, 2020) .............................................................................. 8 Interim Storage Partners LLC, CLI-21-09 (June 22, 2021) .............................................................................. 8 Licensing Board Decisions Interim Storage Partners LLC, LBP-19-07 (Aug. 23, 2019)............................................................................. 8 Interim Storage Partners LLC, LBP-19-09 (Nov. 18, 2019)............................................................................. 8 Interim Storage Partners LLC, LBP-19-11 (Dec. 13, 2019) ............................................................................. 8 Interim Storage Partners LLC, LBP-21-02 (Jan. 29, 2021) .............................................................................. 8 vii

Case: 21-60743 Document: 00516080699 Page: 9 Date Filed: 11/04/2021 GLOSSARY AEA Atomic Energy Act of 1954 ICC Interstate Commerce Commission ISP Interim Storage Partners, L.L.C.

NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission NWPA Nuclear Waste Policy Act TCEQ Texas Commission on Environmental Quality viii

Case: 21-60743 Document: 00516080699 Page: 10 Date Filed: 11/04/2021 The U.S. Nuclear Regulatory Commission (NRC or Commission1) and the United States of America (together, Respondents) jointly move to dismiss the Petition for Review filed by Petitioners State of Texas; the Governor of Texas, Greg Abbott; and the Texas Commission on Environmental Quality (together, Texas). Counsel for Respondents have contacted all parties to this action concerning this motion. Respondent-Intervenor Interim Storage Partners LLC (ISP) supports dismissal but will not be filing a response; Petitioners oppose this motion and will file a response.

INTRODUCTION Pursuant to the Atomic Energy Act of 1954 (AEA) and the Hobbs Act, only a party aggrieved by a final order entered in a proceeding described in AEA

§ 189 may obtain judicial review in the federal courts of appeals. See 42 U.S.C.

§ 2239(a)(1)(A), (b)(1); 28 U.S.C. §§ 2342(4), 2344. The courts of appeals, including this Court, have consistently held that the party aggrieved requirement means that a petitioner must have been a party to the underlying agency proceeding, or at least sought to have become a party to the agency proceeding, in order to obtain judicial review under Hobbs Act.

1 We use the term NRC to refer to the agency as a whole, and the term Commission to refer to the collegial body that oversees the agency.

Case: 21-60743 Document: 00516080699 Page: 11 Date Filed: 11/04/2021 Texas challenges the NRCs final order in a licensing proceeding. Yet Texas was never a party, and it never sought to become a party, to the NRC licensing proceeding that led to the final order. Instead of seeking an administrative hearing on the application for a licensewhich it is entitled to seek under the AEA and the NRCs implementing procedural regulationsTexas instead submitted two sets of comments on the draft Environmental Impact Statement for the facility and wrote a letter to the NRCs Chairman. Under the NRCs comprehensive rules of adjudicatory procedure, this correspondence did not make Texas a party to the licensing proceeding or constitute a request for a hearing. Thus, the Court should dismiss the Petition for Review, either for lack of jurisdiction or for failure to exhaust a mandatory statutory requirement.

BACKGROUND I. Statutory and regulatory framework The role of the NRC in licensing facilities The NRC is an independent regulatory commission created by Congress.

See Energy Reorganization Act of 1974, 42 U.S.C. § 5841. In accordance with the AEA, 42 U.S.C. §§ 2011-2297h-13, the agency licenses and regulates civilian use of radioactive materials.

Along with regulating the construction and operation of nuclear power plants, the NRC licenses and regulates the storage of high-level nuclear waste and, 2

Case: 21-60743 Document: 00516080699 Page: 12 Date Filed: 11/04/2021 in particular, spent nuclear fuel (i.e., fuel that is still radioactive but is no longer useful in the production of electricity) before its ultimate disposal. See Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 207 (1983); see also Bullcreek v. NRC, 359 F.3d 536, 538-39 (D.C. Cir. 1984) ([I]t has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of such fuel.). The NRCs regulations provide for the issuance of licenses for facilities, located either at the sites of nuclear power plants or at separate locations, for the storage of spent fuel. 10 C.F.R. Part 72; see generally NUREG-2157, Final Report, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, at G-1 to G-2 (Sept. 2014) (explaining the regulatory framework governing the issuance of licenses to operate both on-site and off-site spent fuel storage facilities), available at https://www.nrc.gov/docs/ML1419/ML14196A105.pdf.

Avenues for participation in NRCs licensing proceedings In the AEA, Congress provided interested persons with an opportunity to intervene in NRC licensing proceedings and to object to the issuance of a license.

Specifically, AEA Section 189 enables a person to request a hearing before the agency challenging the legal or factual basis for the agencys licensing decision.

See 42 U.S.C. § 2239(a)(1).

3

Case: 21-60743 Document: 00516080699 Page: 13 Date Filed: 11/04/2021 Hearings are governed by the NRCs regulations. See 10 C.F.R. Part 2. To be admitted as a party to a licensing proceeding, an intervenor must, among other things, establish administrative standing and submit at least one contention setting forth an issue of law or fact to be controverted. See 10 C.F.R. § 2.309(d),

(f)(1). Even if a state or local government does not separately seek admission as a party, it is afforded by regulation a reasonable opportunity to participate in a hearing initiated by another intervenor. Id. § 2.315(c).

A hearing is available with respect to issues that are material to the agencys licensing decision. Union of Concerned Scientists v. NRC, 735 F.2d 1437, 144 (D.C. Cir. 1984). This includes compliance not only with the AEA and the NRCs regulations, but also other statutes governing the agencys issuance of a license.

Thus, intervenors may challenge the NRCs compliance with the National Environmental Policy Act (NEPA) by filing contentions relating to the sufficiency of the analysis in the environmental report that a license applicant must prepare or the environmental impact statement (or in some cases, environmental assessment) that the agency prepares. See 10 C.F.R. § 2.309(f)(2).

If an intervenor does not obtain the relief that it requests through the hearing process, the AEA provides that the party can seek judicial review of the agencys final order in the United States Court of Appeals for the circuit in which the proposed facility is located or in the United States Court of Appeals for the District 4

Case: 21-60743 Document: 00516080699 Page: 14 Date Filed: 11/04/2021 of Columbia Circuit. 42 U.S.C. § 2239(b) (specifying that the courts of appeals must review the agencys decision in accordance with the Administrative Procedure Act and the Hobbs Act); see also 28 U.S.C. § 2342. A party seeking review of a final order issued by the NRC following a hearing must file a petition for review in the court of appeals within 60 days after entry of the final order being challenged. 28 U.S.C. § 2344.

II. Factual Background Interim Storage Partners application for a license The agency action that is the subject of this Petition for Review is the NRCs issuance of a license on September 13, 2021. The license authorizes ISP to operate a facility, known as a consolidated interim storage facility, to store spent nuclear fuel in Andrews County, Texas. See Interim Storage Partners, LLC; WCS Consolidated Interim Storage Facility; Issuance of Materials License and Record of Decision, 86 Fed. Reg. 51,926 (Sept. 17, 2021) (issuing Materials License No.

SNM-2515). Texass Petition for Review references not only the license, but also documents issued by the agency contemporaneously (or nearly contemporaneously) with the license, including the NRC Staffs Final Safety Evaluation Report, which documents the agencys conclusions related to the safety of the proposed facility; and the agencys Record of Decision, which documents 5

Case: 21-60743 Document: 00516080699 Page: 15 Date Filed: 11/04/2021 the agencys environmental analysis and its preparation of an Environmental Impact Statement for the facility.

The NRCs issuance of a license for the facility was the last step in a process that spanned several years and included numerous adjudicatory challenges by parties other than Texas. In July 2018, ISP filed a license application with the NRC. See generally Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018),

corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018). The NRC provided public notice of the license application in the Federal Register and explicitly stated that interested persons had the opportunity to request a hearing and petition for leave to intervene as a party to the proceedings in accordance with the AEA. See id. at 44,070. The notice expressly invoked the requirements of 10 C.F.R. § 2.309(d)

([T]he petition should specifically explain the reasons why intervention should be permitted with particular reference to . . . the nature of the petitioner's right under the Act to be made a party to the proceeding . . . . ) and 10 C.F.R. § 2.309(f)

([T]he petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding.). 83 Fed. Reg. at 44,071. The notice further explained that [t]hose permitted to intervene become parties to the proceeding. Id. Finally, the notice specifically invited governmental units to participate as parties to the proceeding: A State, local governmental body, 6

Case: 21-60743 Document: 00516080699 Page: 16 Date Filed: 11/04/2021 Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 [C.F.R. §] 2.309(h)(1). Id.

In September 2018, two entities lodged with the Commission motions to dismiss the ISP application. See Exhibit 1. The motions contended that the NRCs consideration of the applications violated the Nuclear Waste Policy Act (NWPA). See id. The Commission denied the motions, explaining that the agencys rules do not provide for the filing of motions to dismiss license applications, but it referred the underlying arguments about the NWPA to the Commissions Atomic Safety and Licensing Board (Licensing Board),2 which had convened to adjudicate hearing requests that had already been filed. Id. One of the entities that filed a motion to dismiss, Beyond Nuclear, appealed the Commissions order to the U.S. Court of Appeals for the D.C. Circuit, which dismissed the petition because the order did not constitute a final order reviewable under the Hobbs Act. Exhibit 2.

Meanwhile, the Licensing Board considered the contentions filed by the two entities, as well as by several other organizations, largely based on the NWPA and NEPA. This administrative process led to four decisions by the Licensing Board 2

The Licensing Board is a panel of administrative judges, appointed by the Commission, that is authorized by Section 191 of the AEA to conduct hearings. 42 U.S.C. § 2241.

7

Case: 21-60743 Document: 00516080699 Page: 17 Date Filed: 11/04/2021 resolving contentions and motions to submit amended contentions, and seven separate appeals to the Commission from those Licensing Board decisions. 3 The Commission issued four orders resolving those appeals,4 and the organizations filed four petitions for review of those decisions in the D.C. Circuit, which consolidated the petitions.5 Briefing on those petitions is expected to take place during the first half of 2022.

Texass failure to participate in the adjudicatory proceedings Unlike the petitioners litigating issues concerning the ISP license in the D.C.

Circuit, Texas did not attempt to obtain party status by requesting a hearing on any contention. Nor did it seek to as an interested governmental unit in the adjudicatory proceedings initiated by others. See 10 C.F.R. 2.315(c).

3 Interim Storage Partners LLC, LBP-19-07 (Aug. 23, 2019); Interim Storage Partners LLC, LBP-19-09 (Nov. 18, 2019); Interim Storage Partners LLC, LBP-19-11 (Dec. 13, 2019); Interim Storage Partners LLC, LBP-21-02 (Jan. 29, 2021).

Decisions of the NRCs Licensing Board are available at https://www.nrc.gov/reading-rm/doc-collections/aslbp/orders/.

4 Interim Storage Partners LLC, CLI-20-13 (Dec. 4, 2020); Interim Storage Partners LLC, CLI-20-14 (Dec. 17, 2020); Interim Storage Partners LLC, CLI 15 (Dec. 17, 2020); Interim Storage Partners LLC, CLI-21-09 (June 22, 2021).

Decisions of the Commission are available at https://www.nrc.gov/reading-rm/doc-collections/commission/orders/.

5 Dont Waste Michigan v. NRC, D.C. Cir. No. 21-1048 (consolidated with Sierra Club v. NRC, D.C. Cir. No. 21-1055; Beyond Nuclear v. NRC, D.C. Cir. No. 21-1056; and Fasken Land and Minerals, Ltd. v. NRC, D.C. Cir. No. 21-1179).

8

Case: 21-60743 Document: 00516080699 Page: 18 Date Filed: 11/04/2021 Outside the adjudicatory process, however, Texas did make its views known to the agency. Both the Texas Commission on Environmental Quality (TCEQ) and Governor Abbott submitted comments on the draft Environmental Impact Statement that the NRC prepared. In November 2020,TCEQ submitted a comment indicating that it had significant policy concerns as they pertain to the adjacent low-level radioactive waste disposal facility and that the proposed facility has unprecedented implications as it has created significant unease with the public.

Exhibit 3. TCEQ nonetheless acknowledged that it had no regulatory authority over the licensing of this proposed consolidated interim storage facility, [and that such] authority resides with the federal government, specifically the Nuclear Regulatory Commission. Id. Later that same month, Governor Abbott submitted a three-page letter to the NRC as a comment on the draft Environmental Impact Statement, which concluded, In light of the grave risks associated with the proposed ISP facility, the absence of a permanent geologic repository, and the importance of the Permian Basin to the countrys energy security and economy, I respectfully and emphatically request that the NRC deny ISPs license 9

Case: 21-60743 Document: 00516080699 Page: 19 Date Filed: 11/04/2021 application. Exhibit 4. The NRC responded to these comments in its Final Environmental Impact Statement.6 On September 10, 2021, Governor Abbott wrote a letter to the Chairman of the NRC, Christopher Hanson, asserting that the proposed facility was illegal under a Texas statute that had been passed the day before. Exhibit 5. Neither the Governor, nor Texas, nor TCEQ sought to raise a contention related to this statute or sought a stay of the issuance of the license through the agencys adjudicatory process.7 Three days later, on September 13, 2021, the agency issued the license to ISP.

6 The final Environmental Impact Statement for the ISP facility is available at https://www.nrc.gov/docs/ML2120/ML21209A955.pdf. Responses to the comments are set forth in Appendix D. Governor Abbott is designated as commenter 193; TCEQ is designated as commenter 194.

7 Under the procedures applicable to the ISP licensing proceeding, a party may seek to stay the effectiveness of a decision, such as the issuance of a license, by the NRC Staff. See 10 C.F.R. § 2.1213.

10

Case: 21-60743 Document: 00516080699 Page: 20 Date Filed: 11/04/2021 ARGUMENT I. Dismissal is required because Texas was never a party before the NRC.

Texass failure to seek a hearing before the NRC requires dismissal of the Petition for Review, either as a matter of jurisdiction or because aggrieved party status is a mandatory, statutory prerequisite to obtaining judicial review.

The Hobbs Act vests exclusive jurisdiction in the federal courts of appeals to review and determine the validity of certain agency actions. 28 U.S.C. § 2342.

With respect to the NRC,8 this includes all final orders that are made reviewable by Section 189 of the AEA, including final orders for the granting, suspending, revoking or amending of any license. Id. § 2342(4); 42 U.S.C. § 2239(a)(1)(A),

(b)(1). The Hobbs Act provides that any party aggrieved by such an orderand only such a partymay file a petition for review in the federal courts of appeals within 60 days of entry of the final order. See 28 U.S.C. § 2344.

The courts of appeals, including this Court, have consistently held that the party aggrieved language in the Hobbs Act, 28 U.S.C. § 2344, requires that petitioners have been parties to the underlying agency proceedings. ACA Intl v.

8 The Hobbs Act still refers to final orders of the Atomic Energy Commission, the NRCs predecessor. The Energy Reorganization Act of 1974 abolished the Atomic Energy Commission and transferred all licensing and related regulatory functions to the newly created NRC. 42 U.S.C. § 5841(a), (f).

11

Case: 21-60743 Document: 00516080699 Page: 21 Date Filed: 11/04/2021 FCC, 885 F.3d 687, 711 (D.C. Cir. 2018) (citing Simmons v. Interstate Commerce Commn, 716 F.2d 40 (D.C. Cir. 1983)); Wales Transp., Inc. v. ICC, 728 F.2d 774, 776 n.1 (5th Cir. 1984) (citing American Trucking Assns v. ICC, 673 F.2d 82, 84 (5th Cir. 1982) (per curiam) (To be an aggrieved party, one must have participated in the agency proceeding under review.)). The Hobbs Act limits review to petitions filed by parties, and that is that. In re Chicago, Milwaukee, St.

Paul & Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986).

In the context of the AEA, participating in the appropriate and available administrative procedure is the statutorily prescribed prerequisite to invocation of the Courts jurisdiction, and petitioners who were never parties (or who never sought to become parties) to the underlying AEA proceeding cannot obtain judicial review under the Hobbs Act. Gage v. AEC, 479 F.2d 1214, 1217-18 (D.C.

Cir. 1973), cited in Wales Transp., 728 F.2d at 776 n.1; see also Bullcreek v. NRC, 359 F.3d 536, 540 (D.C. Cir. 2004) (The Hobbs Act requires that a party participate in the underlying agency proceeding . . . .); Profl Reactor Operator Soc. v. NRC, 939 F.2d 1047, 1049 n.1 (D.C. Cir. 1991) (petitioners who did not participate in NRC rulemaking proceeding were not parties aggrieved).

Texas was never a party to the licensing proceeding, and never sought to become a party under the NRCs rules of adjudicatory procedure, and thus it is jurisdictionally barred from challenging the NRCs action. And even if this Court 12

Case: 21-60743 Document: 00516080699 Page: 22 Date Filed: 11/04/2021 were to determine that dismissal of the Petition for Review is not required as a matter of its jurisdiction,9 the same result is nonetheless required as a matter of non-jurisdictional, mandatory exhaustion. The recent decision in Fleming v.

U.S. Department of Agriculture, 987 F.3d 1093 (D.C. Cir. 2021), explained the difference between jurisdictional exhaustion, which a court must enforce regardless of whether it is raised by a party, and non-jurisdictional, mandatory exhaustion, which constitutes an affirmative defense that, once raised by the government, must be enforced. Id. at 1098-99 (citing Ross v. Blake, 136 S. Ct.

1859, 1857 (2016); Union Pac. R.R. Co. v. Bhd. of Locomotive Engrs, 558 U.S.

9 In Vermont Department of Public Service v. United States, 684 F.3d 149, 156 (D.C. Cir. 2012), the D.C Circuit stated that the language of the Hobbs Act does not impose a jurisdictional exhaustion requirement, albeit in a different context issue exhaustion. In that case, which concerned the renewal of a nuclear power plant license, the petitioners had in fact sought an administrative hearing before the NRC and pursued judicial review after its conclusion. However, the petitioners raised a claim before the court that had never been raised before the agency. The court held that, although the Hobbs Act did not state in clear, unequivocal terms that consideration of the new claim was statutorily barred, the discretionary doctrine of non-jurisdictional exhaustion nonetheless warranted denial of the petition for review. Id. at 157-60. Because Vermont Department of Public Service only addresses whether there are jurisdictional boundaries on what claims a party aggrieved can raise in federal court, it remains fully consistent with the determination in ACA Intl, 885 F.3d at 711, that party aggrieved status constitutes a jurisdictional requirement. Cf. Texas v. United States, 749 F.2d 1144, 1146 (5th Cir. 1985) (observing that the Hobbs Act provides that a party aggrieved . . . must file a petition for judicial review within sixty days and observing that this limitation is jurisdictional and cannot be judicially altered or expanded).

13

Case: 21-60743 Document: 00516080699 Page: 23 Date Filed: 11/04/2021 67, 82 (2009); and Jones v. Bock, 549 U.S. 199, 212 (2007)). Since participation as a party in the underlying agency proceedings is a statutory prerequisite to judicial review under the Hobbs Act, Wales Transp., 728 F.2d at 776 n.1; ACA Intl, 885 F.3d at 711; Gage, 479 F.2d at 1217, the Court must dismiss this Petition for Review, given that Federal Respondents have raised this mandatory requirement at the earliest possible stage. Fleming, 987 F.3d at 1099.

Finally, any attempt by Texas to seek an exception to the aggrieved party requirement should be rejected. When addressing review of orders by the Interstate Commerce Commission (ICC) under the Hobbs Act, this Court in dicta identified two rare instances a person may appeal an agency action even if not a party to the original agency proceeding: (1) if the agency action is attacked as exceeding the power of the Commission; or (2) if a person, not a party to the agency proceeding, challenges the constitutionality of the statute conferring authority on the agency. American Trucking, 673 F.2d at 85 n.4. As this Court later observed, that exception has been squarely rejected by some of [the Courts]

sister circuits. Baros v. Texas Mexican R.R. Co., 400 F.3d 228, 238 n.24 (5th Cir.

2005); see Erie-Niagara Rail Steering Comm. v. STB, 167 F.3d 111, 112 (2d Cir.

1999) (noting that in American Trucking, the statement is dictum and rests upon the pre-1975 cases cited above, without any acknowledgement of the intervening change in governing procedure, and that Wales Transportation simply cites the 14

Case: 21-60743 Document: 00516080699 Page: 24 Date Filed: 11/04/2021 first); In re Chicago, 799 F.2d at 334-35 (rejecting American Trucking); Natl Assn of State Util. Consumer Advocates v. FCC, 457 F.3d 1238, 1249 (11th Cir.

2006) (declining to follow American Trucking).

At a minimum, this Court appears to have only considered this exception in the context of reviewing ICC orders. And even as to ICC orders, this Court has held that the Wales [or American Trucking] exception to the requirement that one seeking review must be an aggrieved party is exceedingly narrow. Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922 (5th Cir. 1993). Indeed, this Court held that the exception did not apply to a challenge to the ICCs authority when the ICC has authority to determine its own jurisdiction, i.e. whether the transportation at issue is interstate in character. Id. at 922. So here. The NRCs authority to issue the ISP facility license is being challenged in the D.C. Circuit by petitioners who did properly exhaust their administration remedies, and who asserted before the agency that issuance of a license to ISP would violate the NWPA. Having failed to follow the administrative exhaustion required by Congress, Texas cannot evade the plain requirements in the Hobbs Act and AEA.

15

Case: 21-60743 Document: 00516080699 Page: 25 Date Filed: 11/04/2021 II. Texass comments on the draft Environmental Impact Statement and correspondence with the agencys Chairman did not make it a party to the agency proceeding.

Nor can it reasonably be asserted that Texass correspondence with the NRC, whether in the form of comments on the Draft Environmental Impact Statement or correspondence to the NRC Chairman from Governor Abbott, conferred upon it party status or constituted a request for party status. With respect to the issuance of licenses, NRC regulations are clearanyone whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing that satisfies the NRCs admissibility requirements. 10 C.F.R. § 2.309(a) (emphasis added). There is no dispute that neither the State of Texas, the Governor, nor TCEQ filed such a request.

To be sure, the Texas Petitioners did correspond with the Commission by providing comments on the draft Environmental Impact Statement and through direct correspondence with the Chairman of the NRC. But the NRC did not treat these forms of correspondence as a request for an AEA Section 189 hearing, and for good reason. The correspondence made no mention of such a request, made no reference to the admissibility requirements in 10 C.F.R. § 2.309, and was not submitted through the NRCs E-Filing system for adjudicatory hearings (see 10 C.F.R. § 2.302). The NRC treated the communications for what they were:

correspondence from interested stakeholders and comments on the draft 16

Case: 21-60743 Document: 00516080699 Page: 26 Date Filed: 11/04/2021 Environmental Impact Statement issued by the agency (to which it responded in the final Environmental Impact Statement), not hearing requests filed under the NRCs rules of procedure. And the Texas Petitioners never suggested otherwise before the agency.

Further, in other contexts merely submitting comments or otherwise making a full presentation of views to the agency may confer party aggrieved status on litigants whose positions are then later rejected. See ACA Intl, 885 F.3d at 711 (commenting in support of a petition filed by another party is sufficient to obtain party aggrieved status). But [t]he degree of participation necessary to achieve party status varies according to the formality with which the proceeding was conducted. Water Transport Assn v. ICC, 819 F.2d 1189, 1192 (D.C. Cir.

1987). As a result, this less formal processwhere merely providing comments or correspondence to an agency is sufficient to confer party status for purposes of judicial review is reserved for agency proceedings that do not require intervention as a prerequisite to participation. ACA Intl, 885 F.3d at 711 (emphasis added).10 And in AEA Section 189 proceedings for the issuance of a 10 Thus, submission of comments is sufficient to confer party aggrieved status in an NRC rulemaking proceeding that is reviewable under the Hobbs Act. Reytblatt

v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997). Submission of comments, rather than 17

Case: 21-60743 Document: 00516080699 Page: 27 Date Filed: 11/04/2021 license (where, as here, an opportunity for a hearing in accordance with the procedures set forth in 10 C.F.R. Part 2 is available), participating in the appropriate and available administrative procedurethat is, submitting a request for a hearingis a statutorily prescribed prerequisite. Gage, 479 F.2d at 1217; see also Water Transp. Assn v. ICC, 819 F.2d 1189, 1192 (D.C. Cir. 1987)

(judicial review of the outcome of agency proceeding will be denied to those who did not seek to intervene when intervention is prerequisite to participation).

Because the ISP licensing proceeding is an AEA Section 189 proceeding, Texass informal correspondence was insufficient to give it status as a party aggrieved.

Nor can Texas reasonably claim ignorance of this statutory requirement.

The NRC informed the public at large in no uncertain terms that the way to intervene in the ISP licensing proceedingand to become a party capable of seeking judicial review of the agencys licensing decisionwas to submit a request for a hearing. See, e.g., 83 Fed. Reg. at 44,071 (explaining that intervenors formal intervention, is the means by which members of the public participate in informal rulemaking. This is distinguishable from a licensing proceeding in which an adjudicatory hearing is available and NRC regulations specify the mechanism through which outsiders can obtain party status. See 10 C.F.R. § 2.309(a) (Any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing. (emphasis added)).

18

Case: 21-60743 Document: 00516080699 Page: 28 Date Filed: 11/04/2021 seeking to participate should submit a hearing request containing admissible contentions and that [t]hose permitted to intervene become parties to the proceeding.). If Texas was concerned with the consistency of the license application with the AEA or other applicable law or with the scope of the NRCs environmental review under NEPA, it could have sought a hearing on those bases.

See 10 C.F.R. § 2.309(f)(2). And had it sought a hearing, as did the four other groups of petitioners who are litigating ISP-related issues before the D.C. Circuit, the final order concluding that proceeding would have been reviewable in this Court or in the D.C. Circuit.11 But Texas did not follow the path that Congress forged and that the D.C.

Circuit petitioners travelled. Instead, it has brought a judicial challenge to the NRCs issuance of the ISP license without establishing the prerequisite agency adjudicatory record through the Atomic Safety and Licensing Board or the Commission. This is not what Congress envisioned when it channeled judicial review of NRC licensing decisions through the adjudicatory opportunity it provided via Section 189 of the AEA. This Court should not countenance an 11 Even if Texas were denied a hearing request (e.g., failure to propose an admissible contention), such a denial would have been appealable to the Commission (10 C.F.R. § 2.311(c)), and that outcome reviewable in this Court under the Hobbs Act. See, e.g., NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016)

(reviewing the NRCs denial of a hearing request).

19

Case: 21-60743 Document: 00516080699 Page: 29 Date Filed: 11/04/2021 attempt to sidestep the administrative process, McGee v. United States, 402 U.S.

479, 483 (1971); Steere Tank Lines, Inc. v. ICC, 675 F.2d 763, 767 (5th Cir. 1982),

or encourage the flouting or disregard of agency procedures by litigants who voluntarily bypass or choose not to exhaust mandatory administrative remedies.

See Boivin v. U.S. Airways, Inc., 446 F.3d 148, 155 (D.C. Cir. 2006); Vermont Dept of Pub. Serv., 684 F.3d at 157-58. The Texas Petitioners failure to seek a hearing under the NRCs rules of procedure in 10 C.F.R. Part 2 necessitates dismissal of the Petition for Review.

CONCLUSION Petitioners are not parties aggrieved within the meaning of 28 U.S.C.

§ 2344 because they failed to seek a hearing before the NRC prior to filing the Petition for Review in this Court. As such, Respondents respectfully request that this Court dismiss the Petition for Review, either for lack of jurisdiction or failure to exhaust a mandatory statutory requirement.

20

Case: 21-60743 Document: 00516080699 Page: 30 Date Filed: 11/04/2021 Respectfully submitted,

/s/ Justin D. Heminger /s/ Andrew P. Averbach TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Environment and Natural Resources 11555 Rockville Pike Division Rockville, MD 20852 U.S. Department of Justice andrew.averbach@nrc.gov Post Office Box 7415 (301) 415-1956 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442 November 4, 2021 21

Case: 21-60743 Document: 00516080699 Page: 31 Date Filed: 11/04/2021 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)

I certify that this filing complies with the requirements of Fed. R. App. P.

27(d)(1)(E) because it has been prepared in 14-point Times New Roman, a proportionally spaced font.

I further certify that this filing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 4,616 words, excluding the parts of the of the filing exempted under Fed. R. App. P. 32(f), according to the count of Microsoft Word.

/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission

Case: 21-60743 Document: 00516080699 Page: 32 Date Filed: 11/04/2021 EXHIBIT 1

Case: 21-60743 Document: 00516080699 Page: 33 Date Filed: 11/04/2021 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matters of )

)

)

HOLTEC INTERNATIONAL ) Docket No. 72-1051

)

(HI-STORE Consolidated Interim Storage )

Facility) )

)

)

INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050

)

(WCS Consolidated Interim Storage Facility) )

)

_________________________________________ )

ORDER On July 16, 2018, the NRC provided notice in the Federal Register of Holtec Internationals application to construct and operate a consolidated interim storage facility for spent nuclear fuel.1 Separately, on August 29, 2018, the NRC provided notice in the Federal Register of Interim Storage Partners application to construct and operate a consolidated interim storage facility for spent nuclear fuel.2 On September 14, 2018, Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners filed motions to dismiss both the Holtec and Interim Storage Partners applications.3 These groups argue that the NRC cannot, as a threshold matter, issue 1 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,608 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018). Interim Storage Partners is a joint venture of Orano USA and Waste Control Specialists.

3 Beyond Nuclear filed its own motion to dismiss. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14,

Case: 21-60743 Document: 00516080699 Page: 34 Date Filed: 11/04/2021 licenses to Holtec or Interim Storage Partners because both applications are contrary to the Nuclear Waste Policy Act (NWPA). Specifically, the groups argue that both applications contemplate the storage of Department of Energy-titled spent fuel in violation of various NWPA provisions.

The NRCs regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application.

These regulations do not, however, provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. I therefore deny both motions to dismiss on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions.

Beyond Nuclear also filed hearing petitions in the Holtec and Interim Storage Partners proceedings that incorporated by reference the NWPA arguments that it raised in its motion to dismiss and identified those arguments as proposed contentions.4 I am separately referring these hearing requestsas well as other hearing requests challenging the applicationsto the Atomic Safety and Licensing Board Panel (ASLBP) for the establishment of a Board to consider all hearing requests in accordance with the hearing procedures set forth in 10 C.F.R. §2.309.

And, in accordance with 10 C.F.R. § 2.346(i), I am referring the motion from Fasken Land and 2018) (ADAMS Accession No. ML18257A318). Fasken Land and Minerals joined with Permian Basin Land and Royalty Owners to file a motion to dismiss that is substantially similar to Beyond Nuclears motion. Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ML18257A330). Both the NRC Staff and respective applicants filed oppositions to the motions, and Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners then filed replies.

4 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018)

(ML18257A324) (Holtec docket); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Interim Storage Partners docket). Fasken Land and Minerals and Permian Basin Land and Royalty Owners have not filed related hearing petitions in either docket.

Case: 21-60743 Document: 00516080699 Page: 35 Date Filed: 11/04/2021 Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under

§ 2.309.

This Order is issued under my authority in 10 C.F.R. § 2.346(c), (g), (i), and (j).

IT IS SO ORDERED.

For the Commission NRC SEAL /RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October 2018

Case: 21-60743 Document: 00516080699 Page: 36 Date Filed: 11/04/2021 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050-ISFSI

)

(WCS Consolidated Interim Storage Facility) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Order of the Secretary have been served upon the following persons by the Electronic Information Exchange:

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the Secretary of the Commission Mail Stop: T-3F23 Mail Stop: O16-B33 Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket E. Roy Hawkens E-mail: Hearing.Docket@nrc.gov Chief Administrative Judge E-mail: roy.hawkens@nrc.gov U.S. Nuclear Regulatory Commission Joseph McManus, Law Clerk Office of the General Counsel E-mail: joseph.mcmanus@nrc.gov Mail Stop - O-14A44 Washington, DC 20555-0001 Patrick Moulding, Esq.

U.S. Nuclear Regulatory Commission Mauri Lemoncelli, Esq.

Office of Commission Appellate Adjudication Sara Kirkwood, Esq.

Mail Stop: O16-B33 Emily Monteith, Esq.

Washington, DC 20555-0001 Alana Wase, Esq.

E-mail: ocaamail@nrc.gov Joe Gillespie, Esq.

Thomas Steinfeldt E-mail: patrick.moulding@nrc.gov mauri.lemoncelli@nrc.gov sara.kirkwood@nrc.gov emily.monteith@nrc.gov alana.wase@nrc.gov joe.gillespie@nrc.gov thomas.steinfeldt@nrc.gov

Case: 21-60743 Document: 00516080699 Page: 37 Date Filed: 11/04/2021 Docket No. 72-1050-ISFSI Order of the Secretary Counsel for Beyond Nuclear Karen D. Hadden Executive Director, Diane Curran, Esq. Sustainable Energy and Harmon, Curran, Spielberg and Eisenberg Economic Development (SEED) Coalition 1725 DeSales Street NW, Suite 500 605 Carismatic Lane Washington, DC 20036 Austin, TX 78748 E-mail: dcurran@harmoncurran.com E-mail: karendhadden@gmail.com Mindy Goldstein, Esq.

Caroline Reiser, Esq. Counsel for Interim Storage Partners LLC Emory University School of Law Morgan, Lewis & Bockius LLP Turner Environmental Law Clinic 1111 Pennsylvania Avenue NW 1301 Clifton Road Washington, DC 20004 Atlanta, GA 30322 Stephen Burdick, Esq.

E-mail: magolds@emory.edu Timothy Matthews, Esq.

caroline.j.reiser@emory.edu Ryan Lighty, Esq.

Paul Bessette, Esq.

Diane DArrigo E-mail: stephen.burdick@morganlewis.com Nuclear Information and timothy.matthews@morganlewis.com Resource Service (NIRS) ryan.lighty@morganlewis.com 6930 Carroll Avenue paul.bessette@morganlewis.com Suite 340 Takoma Park, MD 20912 Email: dianed@nirs.org Chris Hebner, Esq. Wallace Taylor City of San Antonio, TX Counsel for Sierra Club P.O. Box 839966 118 3rd Avenue SE San Antonio, TX 78283 Suite 326 E-mail: chris.hebner@sanantonio.gov Cedar Rapids, IA E-mail: wtaylorlaw@aol.com Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Robert V. Eye Law Office, L.L.C.

Robert Eye, Esq.

Timothy Laughlin 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 E-mail: bob@kauffmaneye.com tijay1300@gmail.com

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 29th day of October, 2018 2

Case: 21-60743 Document: 00516080699 Page: 38 Date Filed: 11/04/2021 EXHIBIT 2

Case: 21-60743 Document: 00516080699 Page: 39 Date Filed: 11/04/2021 USCA Case #18-1340 Document #1792613 Filed: 06/13/2019 Page 1 of 2 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-1340 September Term, 2018 NRC-72-1050 NRC-72-1051 Filed On: June 13, 2019 Beyond Nuclear, Inc.,

Petitioner v.

U.S. Nuclear Regulatory Commission and United States of America, Respondents Holtec International and Interim Storage Partners LLC, Intervenors BEFORE: Pillard, Katsas, and Rao, Circuit Judges ORDER Upon consideration of the motion to dismiss, the response thereto, the reply, and the Rule 28(j) letters; and the motion to hold in abeyance, the response thereto, and the reply, it is ORDERED that the motion to dismiss be granted. This court lacks jurisdiction to review the Nuclear Regulatory Commissions October 29, 2018 order denying without prejudice petitioners motion to dismiss, and referring petitioners petitions to intervene and hearing requests to the Atomic Safety and Licensing Board, because the order is not a final order of the Commission. See 28 U.S.C. § 2342(4) (granting courts of appeals exclusive jurisdiction over all final orders of the [Nuclear Regulatory Commission], including final orders in licensing proceedings). Because the order merely directs petitioner to raise its arguments within ongoing administrative proceedings, it does not mark the consummation of the agencys decisionmaking process, Bennett v. Spear, 520 U.S. 154, 178 (1997), and does not impose[] an obligation, den[y] a right, or fix[] some legal relationship, Blue Ridge Envtl. Def. League

v. Nuclear Regulatory Commn, 668 F.3d 747, 753 (D.C. Cir. 2012) (internal quotation

Case: 21-60743 Document: 00516080699 Page: 40 Date Filed: 11/04/2021 USCA Case #18-1340 Document #1792613 Filed: 06/13/2019 Page 2 of 2 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-1340 September Term, 2018 marks and citation omitted). To the extent petitioner argues that the order is final because it requires petitioner to participate in administrative proceedings that it alleges are invalid, [i]t is firmly established that agency action is not final merely because it has the effect of requiring a party to participate in an agency proceeding. Aluminum Co. of America v. United States, 790 F.2d 938, 941 (D.C. Cir. 1986).

Finally, because the administrative proceedings are ongoing, and petitioners acknowledge that those proceedings may resolve the dispute underlying this petition, the petition is not ripe for judicial review. See Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012) (In the context of agency decision making, letting the administrative process run its course before binding parties to a judicial decision prevents courts from entangling themselves in abstract disagreements over administrative policies, and protects the agencies from judicial interference in an ongoing decision-making process.) (internal quotation marks, citation, and alterations omitted). It is FURTHER ORDERED that the motion to hold in abeyance be denied.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.

P. 41(b); D.C. Cir. Rule 41.

Per Curiam Page 2

Case: 21-60743 Document: 00516080699 Page: 41 Date Filed: 11/04/2021 EXHIBIT 3

Page 1 of 1 Case: 21-60743 Document: 00516080699 Page: 42 Date Filed: 11/04/2021 SUNI Review Complete Template=ADM-013 E-RIDS=ADM-03 ADD: James Park As of: 11/4/20 9:14 AM Comment (62) Received: November 03, 2020 Publication Date 5/8/2020 Status: Pending_Post PUBLIC SUBMISSION CITATION 85 FR 27447 PMD-07201051 Tracking No. kh2-ioec-pk6q Comments Due: November 03, 2020 Submission Type: Web Docket: NRC-2016-0231 Waste Control Specialists LLC's Consolidated Interim Spent Fuel Storage Facility Project Comment On: NRC-2016-0231-0317 Interim Storage Partners Consolidated Interim Storage Facility Project Document: NRC-2016-0231-DRAFT-0373 Comment on FR Doc # 2020-09795 Submitter Information Email: chikaodi.agumadu@tceq.texas.gov Government Agency Type: State Government Agency: TCEQ General Comment On behalf of TCEQ, please find our comments regarding the Notice by the Nuclear Regulatory Commission:

Interim Storage Partners Consolidated Interim Storage Facility Project.

If you have any questions concerning the enclosed comments, please contact Mr. Brad Broussard of the Radioactive Materials Division, at (512)239-6380, or at brad.broussard@tceq.texas.gov.

Thank you, Chikaodi Agumadu Texas Commission on Environmental Quality Intergovernmental Relations Division Attachments NRC Comments_11032020 https://www.fdms.gov/fdms/getcontent?objectId=090000648494986c&format=xml&showorig=false 11/04/2020

Case: 21-60743 Document: 00516080699 Page: 43 Date Filed: 11/04/2021 Jon Niermann, Chairman Emily Lindley, Commissioner Bobby Janecka, Commissioner Toby Baker, Executive Director TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution November 3, 2020 Office of Administration Mail Stop: TWFN-7-A60M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Program Management, Announcements and Editing Staff

Subject:

Draft Environmental Impact Statement for Interim Storage Partners License Application to Construct and Operate a Consolidated Interim Storage Facility for Spent Nuclear Fuel and Greater-Than Class C Waste (Docket ID NRC-2016-0231)

Dear Office of Administration Staff:

The Texas Commission on Environmental Quality appreciates the opportunity to comment on the U.S. Nuclear Regulatory Commission Draft Environmental Impact Statement (EIS) for Interim Storage Partners' License Application to Construct and Operate a Consolidated Interim Storage Facility for Spent Nuclear Fuel and Greater-Than Class C Waste. Enclosed please find the TCEQ's detailed comments relating to the NRCs draft EIS referenced above. If you have any questions concerning the enclosed comments, please contact Mr. Brad Broussard of the Radioactive Materials Division, at (512) 239-6380, or at brad.broussard@tceq.texas.gov.

Sincerely, Toby Baker Executive Director Texas Commission on Environmental Quality AF/bb P.O. Box 13087

• Austin, Texas 78711-3087

• 512-239-1000

• tceq.texas.gov How is our customer service? tceq.texas.gov/customersurvey printed on recycled paper

Case: 21-60743 Document: 00516080699 Page: 44 Date Filed: 11/04/2021 Texas Commission on Environmental Quality (TCEQ) Comments on the U.S.

Nuclear Regulatory Commission (NRC) Draft Environmental Impact Statement (EIS) for Interim Storage Partners (ISP's) License Application to Construct and Operate a Consolidated Interim Storage Facility (CISF) for Spent Nuclear Fuel (SNF) and Greater-Than Class C (GTCC) Waste (Docket ID NRC-2016-0231)

General Comments The Texas Commission on Environmental Quality (TCEQ) is a unique Texas stakeholder as we have subject matter expertise, but no regulatory authority over the licensing of this proposed consolidated interim storage facility (CISF). This authority resides with the federal government, specifically the Nuclear Regulatory Commission (NRC).

The TCEQ has significant policy concerns as they pertain to the adjacent low-level radioactive waste disposal facility. The CISF proposal has unprecedented implications as it has created significant unease with the public. Continuing with this licensing action jeopardizes public consent and presents significant challenges as we carry out our responsibility to regulate the low-level radioactive waste disposal facility.

Specific Comments

1. Page 2-2, Line 4 - The EIS states In its license application, ISP has requested that NRC license the proposed CISF to operate for a period of 40 years (ISP, 2020). ISP stated that it may seek to renew the license for an additional 20 years, for a total 60-year operating life (ISP, 2020). Renewal of the license beyond an initial 40 years would require ISP to submit a license renewal request, which would be subject to an NRC safety and environmental review at that time.

Comment: The TCEQ understands that the initial licensing period for a CISF is 40 years with the ability for an additional renewal period of 40 years. Based on the requirements in 10 Code of Federal Regulations (CFR) Part 72, the applicant is only required to provide technical and design analyses for the term of the license being requested. Because 10 CFR Part 72 appears to only allow one 40-year license renewal term, how will the NRC ensure that interim storage does not extend beyond the second 40-year license term, or in this case a 20-year term? Since the U.S.

Department of Energy has been unsuccessful in developing a permanent geologic repository, the TCEQ is concerned that a CISF in Texas will become the permanent solution for dispositioning the nations spent nuclear fuel (SNF).

2. Page 2-2, Line 9 - The EIS states By the end of the license term of the proposed CISF, the NRC staff expects that the SNF stored at the proposed facility would have been shipped to a permanent geologic repository. This expectation of repository availability is consistent with the NRCs analysis in Appendix B of NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, (NRC, 2014). In that analysis, the NRC concluded that the reasonable period for the development of a repository is approximately 25 to 35 years (i.e., the repository is available by 2048) based on experience in licensing similarly complex

Case: 21-60743 Document: 00516080699 Page: 45 Date Filed: 11/04/2021 NRC Draft EIS ISP CISF Page 2 of 2 facilities in the United States and national and international experience with repositories already in progress (NRC, 2014).

Comment: The NRC did not address an alternative or contingency for stored SNF in the event that a permanent geologic repository is not developed and licensed at the end of a CISF license term. The assumption is speculative and may result in the State of Texas becoming the permanent solution for disposition of SNF.

3. Page 2-2, Line 36 - The EIS states The Federal Waste Disposal Facility. This facility serves the U.S. Department of Energy 36 (DOE) and is also authorized to dispose Class A, B, and C LLRW and Mixed Low-Level Waste (MLLW) under Texas Radioactive Materials License No. R04100, Amendment No. 30 (TCEQ, 2016a).

Comment: The Federal Waste Disposal Facility is authorized to receive both LLRW and MLLW. The MLLW is authorized by both Radioactive Material License R04100 and Hazardous Waste Permit No. 50397. The TCEQ respectfully suggests revising to add the hazardous waste permit number.

4. Page 2-7 line 10 - Southeastern does not match the location of Phase 1 on Figure 2.2-5.

Comment: Suggest revising location to match Figure 2.2-5.

5. Page 2-10 line 16 - Description of rail car movement in Rail Sidetrack paragraph does not match Figure 2.2-1 and Figure. 2.2-5.

Comment: Suggest revising paragraph to match Figures 2.2-1 and 2.2-5.

6. Page 4-22 line 36 - Reference to town of Deaf Smith, Texas should be county of Deaf Smith, Texas.

Comment: Suggest revising reference to read county instead of city.

Page 2 of 2

Case: 21-60743 Document: 00516080699 Page: 46 Date Filed: 11/04/2021 EXHIBIT 4

Page 1 of 1 Case: 21-60743 Document: 00516080699 Page: 47 Date Filed: 11/04/2021 SUNI Review Complete Template=ADM-013 E-RIDS=ADM-03 ADD: James Park As of: 11/4/20 9:04 AM Comment (60) Received: November 03, 2020 Publication Date 5/8/2020 Status: Pending_Post PUBLIC SUBMISSION CITATION 85 FR 27447 Tracking No. kh2-godn-18tm PMD-07201051 Comments Due: November 03, 2020 Submission Type: Web Docket: NRC-2016-0231 Waste Control Specialists LLC's Consolidated Interim Spent Fuel Storage Facility Project Comment On: NRC-2016-0231-0317 Interim Storage Partners Consolidated Interim Storage Facility Project Document: NRC-2016-0231-DRAFT-0371 Comment on FR Doc # 2020-09795 Submitter Information Email: james.sullivan@gov.texas.gov Government Agency Type: State Government Agency: Office of the Governor of Texas General Comment On behalf of Governor Abbott, I hereby submit the attached comment in Docket ID NRC-2016-0231.

James P. Sullivan Deputy General Counsel Office of the Governor of Texas 1100 San Jacinto Boulevard, Fourth Floor Austin, Texas 78701 Attachments NRC Comment of Governor Abbott https://www.fdms.gov/fdms/getcontent?objectId=09000064849497d3&format=xml&showorig=false 11/04/2020

Case: 21-60743 Document: 00516080699 Page: 48 Date Filed: 11/04/2021 G OVER NO R G R EG AB BOTT November 3, 2020 Office of Administration Mail Stop TWFN-7-A60M U.S. Nuclear Regulatory Commission (NRC)

Washington, D.C. 20555-0001 ATTN: Program Management, Announcements, and Editing Staff Re: Interim Storage Partners (ISP) Consolidated Interim Storage Facility Project, Docket ID NRC-2016-0231

Dear Office of Administration Staff:

As Governor of Texas, I strongly oppose ISPs application for a license to construct and operate a consolidated interim storage facility in Andrews County, Texas. Having consulted with numerous state agencies, including the Texas Department of Public Safety, the Texas Commission on Environmental Quality, and the Texas Department of Transportation, I urge the NRC to deny ISPs license application.

If ISPs license application were approved, its proposed facility would store spent nuclear fuel and Greater-Than-Class-C waste, both of which present a greater radiological risk than Texas is prepared to allow. This deadly radioactive waste up to 40,000 metric tons of uranium would sit right on the surface of the facility in dry cask storage systems. Spent nuclear fuel is so dangerous that it belongs in a deep geologic repository, not on a concrete pad above ground in Andrews County. See, e.g., 42 U.S.C.

§ 10101(18); Nevada v. DOE, 457 F.3d 78, 81 (D.C. Cir. 2006). This location could not be worse for storing ultra-hazardous radioactive waste.

Andrews County lies within the Permian Basin Region, which has surpassed Saudi Arabias Ghawar Field as the largest producing oilfield in the world. There are approximately 250,000 active oil-and-gas wells in Texass portion of the Permian Basin. In 2019, oil production in the Permian Basin exceeded 1.5 billion barrels, and the oil-and-gas industry directly employed 87,603 individuals in the region. Also in 2019, the Permian Basin was responsible for $9 billion in severance taxes and royalties to the State of Texas. In 2018, the Permian Basin produced more than 30 percent of total U.S. crude oil and contained more than 40 percent of proved oil reserves. In short, the Permian Basin is a significant economic and natural resource for the entire country.

The proposed ISP facility imperils Americas energy security because it would be a prime target for attacks by terrorists, saboteurs, and other enemies. Spent nuclear fuel is currently scattered across the country at various reactor sites and storage installations. Piling it up on the surface of the Permian POST OFFICE BOX 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES

Case: 21-60743 Document: 00516080699 Page: 49 Date Filed: 11/04/2021 Office of Administration, NRC November 3, 2020 Page 2 Basin, as ISP seeks to do, would allow a terrorist with a bomb or a hijacked aircraft to cause a major radioactive release that could travel hundreds of miles on the regions high winds. Such an attack would be uniquely catastrophic because, on top of the tragic loss of human life, it would disrupt the countrys energy supply by shutting down the worlds largest producing oilfield. The Permian Basin is already a target for Americas enemies, and granting ISPs license application would paint an even bigger bullseye.

Under the National Environmental Policy Act of 1969, the NRC has an obligation to consider the environmental effects of a terrorist attack on the proposed ISP facility. See Mothers for Peace v. NRC, 449 F.3d 1016, 1028-35 (9th Cir. 2006); but see N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 136-43 (3d Cir. 2009) (creating circuit split on issue); New York v. NRC, 589 F.3d 551, 554 n.1 (2d Cir.

2009) (per curiam) (avoiding circuit split because the NRC did sufficiently take into account acts of terrorism). Perhaps recognizing as much, the NRC addressed the risk of terrorism in section 4.19 of its Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel. See 10 C.F.R.

§ 51.23 (cross-referencing NUREG-2157). The Generic Environmental Impact Statement determined (at page 4-97) that terrorisms environmental risk is SMALL during the period beyond a facilitys license term. But see 42 U.S.C. § 2210e (reflecting Congresss judgment that the risk of a terrorist attack on a nuclear facility warrants the NRCs careful attention).

Now, in sections 1.4.4 and 5.1.3 of the Draft Environmental Impact Statement for the license application in Andrews County, the NRC apparently seeks to apply its generic terrorism determination to ISP. The proposed ISP facility, however, would be a uniquely provocative target: The probability of a terrorist attack is higher than for a generic reactor site, because the consequences are higher when a terrorist can disrupt the countrys energy supply with a major radioactive release. So the Generic Environmental Impact Statement does not adequately assess terrorism risk as to ISP in particular, while the Draft Environmental Impact Statement does not speak to that issue at all. Indeed, the word terrorism appears just once, in a mere citation, in the Draft Environmental Impact Statement (at page 2-31).

Although the Draft Environmental Impact Statement repeatedly refers to ISPs construction and operation of a consolidated interim storage facility, it would be naive to believe the highlighted word.

ISPs application seeks a 40-year license, with the possibility of a 20-year renewal. The Draft Environmental Impact Statement simply assumes (at pages xix, 1-3, 2-2, 8-1, 9-16) that a permanent geologic repository will be developed and licensed before those 60 years are up, without addressing any contingency for the spent nuclear fuel if such a repository is not ready when ISPs license expires.

Those rosy assumptions are unsound: Radioactive waste has the capacity to outlast human civilization as we know it, Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1257 (D.C. Cir. 2004) (per curiam),

and any spent nuclear fuel that comes to the proposed ISP facility will be there to stay.

Congress began working on a lasting solution to the spent nuclear fuel problem by passing the Nuclear Waste Policy Act of 1982, which set standards for a permanent geologic repository, and the NWPA Amendments Act of 1987, which designated Yucca Mountain as the only site for it. Today, 38 years later, there is still no permanent geologic repository, with Yucca Mountain effectively having been abandoned. See, e.g., New York v. NRC, 824 F.3d 1012, 1014-15 (D.C. Cir. 2016); In re Aiken County, 645 F.3d 428, 430-33 (D.C. Cir. 2011). Once again, then, [t]he [NRC] apparently has no long-term plan other than hoping for a geologic repository. If the government continues to fail in its quest to establish one, then [spent nuclear fuel] will seemingly be stored on site at nuclear plants on a permanent

Case: 21-60743 Document: 00516080699 Page: 50 Date Filed: 11/04/2021 Office of Administration, NRC November 3, 2020 Page 3 basis. The [NRC] can and must assess the potential environmental effects of such a failure. New York

v. NRC, 681 F.3d 471, 479 (D.C. Cir. 2012).

The Generic Environmental Impact Statement concedes (at page 4-95) that additional security requirements may be necessary in the future if spent fuel remains in storage for a substantial period of time. Under those circumstances, it is reasonable to assume that, if necessary, the NRC will issue orders or enhance its regulatory requirements for ISFSI and DTS security, as appropriate, to ensure adequate protection of public health and safety and the common defense and security. This approach to future terrorist threats essentially, a promise of Ill tell you later is not good enough and does not protect Texas and its citizens.

Finally, safe transportation of spent nuclear fuel would require specialized emergency response equipment and trained personnel, as well as significant infrastructure investments. Texas currently has four counties (Bexar, Dallas, Midland, and Nueces) and one city (San Antonio) that have passed resolutions prohibiting the transportation of spent nuclear fuel and high-level waste. According to the Draft Environmental Impact Statement (at page 3-8), the cargo currently shipped on rail lines through the Permian Basin consists primarily of oilfield commodities such as drilling mud, hydrochloric acid, fracking sand, pipe, and petroleum products, including crude oil, as well as iron and steel scrap. There are also significant agricultural commodities. In the event of a rail accident or derailment, even absent a radiological release, the resources and logistics required to address such an accident would severely disrupt the transportation of oilfield and agricultural commodities, to the detriment of the entire country.

In light of the grave risks associated with the proposed ISP facility, the absence of a permanent geologic repository, and the importance of the Permian Basin to the countrys energy security and economy, I respectfully and emphatically request that the NRC deny ISPs license application.

Sincerely, Greg Abbott Governor GA:jsk cc: The Honorable Dan Brouillette, Secretary, U.S. Department of Energy The Honorable Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security Colonel Steven C. McCraw, Director, Texas Department of Public Safety Mr. Toby Baker, Executive Director, Texas Commission on Environmental Quality Ms. Ashley Forbes, Director, Radioactive Materials Division, TCEQ Mr. James M. Bass, Executive Director, Texas Department of Transportation Mr. Wei Wang, Executive Director, Texas Railroad Commission

Case: 21-60743 Document: 00516080699 Page: 51 Date Filed: 11/04/2021 EXHIBIT 5

Case: 21-60743 Document: 00516080699 Page: 52 Date Filed: 11/04/2021 G OVERNOR G REG ABBOTT September 10, 2021 The Honorable Christopher T. Hanson Chairman U.S. Nuclear Regulatory Commission Mail Stop 0-16 B33 Washington, D.C. 20555-0001 Re: Interim Storage Partners (ISP) Consolidated Interim Storage Facility Project, Docket ID NRC-2016-0231

Dear Chairman Hanson:

In my capacity as Governor of Texas, I previously submitted comments opposing ISPs application for a license to construct and operate a consolidated interim storage facility in Andrews County, Texas. Despite Texass strong opposition, the NRC has been rushing to issue the requested license.

I am writing again to reiterate that the proposed ISP facility is unacceptable to the State of Texas, and to put the NRC on notice of an important legal development.

On September 2, 2021, the Texas Legislature overwhelmingly passed House Bill 7, which bans the storage and disposal of high-level radioactive waste and spent nuclear fuel in Texas. The legislation also prohibits the Texas Commission on Environmental Quality from issuing certain permits for the construction or operation of a facility that stores high-level radioactive waste or spent nuclear fuel.

On September 9, 2021, I signed House Bill 7 and it immediately became law. A copy of the legislation is attached for the NRCs information.

As I wrote on November 3, 2020, the State of Texas has serious concerns with the design of the proposed ISP facility and with locating it in an area that is essential to the countrys energy security.

Now the State has made clear that a consolidated interim storage facility is not only unwelcome here, but illegal. To avoid the potential for costly and protracted litigation, I again urge the NRC to deny ISPs license application.

Sincerely, Greg Abbott Governor GA:cgd POST OFFICE BOX 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES

Case: 21-60743 Document: 00516080699 Page: 53 Date Filed: 11/04/2021 H.B.AANo.A7 1 AN ACT 2 relating to the storage or disposal of high-level radioactive 3 waste.

4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

5 SECTIONA1.AASection 401.003, Health and Safety Code, is 6 amended by adding Subdivision (12-b) to read as follows:

7 (12-b)AA"High-level radioactive waste" has the meaning 8 assigned by 42 U.S.C. Section 10101(12) and includes spent nuclear 9 fuel as defined by 42 U.S.C. Section 10101(23).

10 SECTIONA2.AASection 401.0525, Health and Safety Code, is 11 amended by adding Subsection (c) to read as follows:

12 (c)AAWith the exception of a permit for a facility located at 13 the site of currently or formerly operating nuclear power reactors 14 and currently or formerly operating nuclear research and test 15 reactors operated by a university, the commission may not under the 16 authority given to the agency under Section 301, 304, or 401 of the 17 Clean Water Act (33 U.S.C. Sections 1311, 1314, and 1341) issue a 18 general construction permit or approve a Stormwater Pollution 19 Prevention Plan under Section 26.040, Water Code, or issue a permit 20 under the Texas Pollutant Discharge Elimination System Program 21 under Section 26.027, 26.028, or 26.121, Water Code, for the 22 construction or operation of a facility that is licensed for the 23 storage of high-level radioactive waste by the United States 24 Nuclear Regulatory Commission under 10 C.F.R. Part 72. Section

Case: 21-60743 Document: 00516080699 Page: 54 Date Filed: 11/04/2021 H.B.ANo.A7 1 401.005 does not apply to this subsection.

2 SECTIONA A3.AASubchapter C, Chapter 401, Health and Safety 3 Code, is amended by adding Section 401.072 to read as follows:

4 Sec.A401.072.AADISPOSAL OR STORAGE OF HIGH-LEVEL RADIOACTIVE 5 WASTE. With the exception of storage at the site of currently or 6 formerly operating nuclear power reactors and currently or formerly 7 operating nuclear research and test reactors operated by a 8 university, a person, including the compact waste disposal facility 9 license holder, may not dispose of or store high-level radioactive 10 waste in this state.

11 SECTIONA4.AASection 401.0525(c), Health and Safety Code, as 12 added by this Act, applies only to an application for a permit or 13 permit amendment submitted on or after the effective date of this 14 Act.

15 SECTIONA5.AAIf any provision of this Act or its application 16 to any person or circumstance is held invalid, the invalidity does 17 not affect other provisions or applications of this Act that can be 18 given effect without the invalid provision or application, and to 19 this end the provisions of this Act are declared to be severable.

20 SECTIONA6.AAThis Act takes effect immediately if it receives 21 a vote of two-thirds of all the members elected to each house, as 22 provided by Section 39, Article III, Texas Constitution. If this 23 Act does not receive the vote necessary for immediate effect, this 24 Act takes effect December 5, 2021.



Case: 21-60743 Document: 00516080699 Page: 55 Date Filed: 11/04/2021 H.B. No. 7 Speaker of the House I certify that H.B. No. 7 was passed by the House on August 30, 2021, by the following vote: Yeas 94, Nays 32, 1 present, not voting; and that the House concurred in Senate amendments to H.B.

No. 7 on September 2, 2021, Nays 3, 1 present, not voting.

Chief Clerk of the House I certify that H.B. No. 7 was passed by the Senate, with amendments, on September 1, 2021, by the following vote: Yeas 31, Nays 0.

APPROVED:

FILED IN THE OFFICE OF THE SECRETARY OF STATE

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