ML22007A331
| ML22007A331 | |
| Person / Time | |
|---|---|
| Issue date: | 01/07/2022 |
| From: | Andrew Averbach, Heminger J, Kim T NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, 10th Circuit |
| References | |
| 010110628692, 21-9593 | |
| Download: ML22007A331 (19) | |
Text
Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 1
No.21-959 3
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
STATE OF NEW MEXICO, ex rel. HECTOR H. BALDERAS, Attorney General and the NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners,
v.
NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.
On Petition for Review of Action by the Nuclear Regulatory Commission
RESPONDENTS REPLY TO PETITIONERS RESPONSE TO 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
Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 2
TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................................... ii
GLOSSARY............................................................................................................. iv INTRODUCTION..................................................................................................... 1 ARGUMENT............................................................................................................. 2 I. New Mexico did not become a party aggrieved by commenting on the draft or final Environmental Impact Statement.................................. 2
Participation in an NRC licensing proceeding requires a request to intervene.................................................................................. 2
New Mexico could have raised its environmental contentions during the agency adjudication.................................................................. 4
The NRC is not divesting the Court of its jurisdictio n.............................. 6
II. Neither the NWPA nor any other source of law provides an alternate basis for the Court to exercise jurisdiction................................ 9 CONCLUSION........................................................................................................12 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Judicial Decisions ACA Int l v. FCC, 885 F.3d 687 (D.C. Cir. 2018)..................................................................... 2, 9
Am. Trucking Assns, Inc. v. I CC, 673 F.2d 82 (5th Cir. 1982)............................................................................. 9
Beyond Nuclear v. NRC,
704 F.3d 12 (1st Cir. 2013).............................................................................. 5
BPI v. Atomic Energy Commn,
502 F.2d 424 (D.C. Cir. 1974)..................................................................... 3, 6
Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)....................................................................... 11
Clark & Reid Co. v. United States,
804 F.2d 3 (1st Cir. 1986)................................................................................ 7
Fleming v. U.S. Dept of Agric.,
987 F.3d 1093 (D.C. Cir. 2021)....................................................................... 9
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)......................................................................................... 8
Gage v. AEC, 479 F.2d 1214 (D.C. Cir. 1973)............................................................... 6, 7, 8
Leedom v. Kyne, 358 U.S. 184 (1958)....................................................................................... 11
Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008)............................................................................ 7
NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016)......................................................................... 3
ii Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 4
NRDC v. NRC, 879 F.3d 1202 (D.C. Cir. 2018)....................................................................... 5
Quivira Mining v. EPA, 728 F.2d 477 (10th Cir. 1984)................................................................... 3, 11
Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983)........................................................................... 2
Union of Concerned Scientists v. NRC,
920 F.2d 50 (D.C. Cir. 1990)....................................................................... 3, 4
Water Transp. Assn v. ICC,
819 F.2d 1189 (D.C. Cir. 1987)....................................................................... 2
Woodford v. Ngo, 548 U.S. 81 (2006)........................................................................................... 6
Statutes 28 U.S.C. § 2344........................................................................................................ 8
42 U.S.C. § 2201........................................................................................................ 2
42 U.S.C. § 2239........................................................................................................ 2
Regulations 10 C.F.R. § 2.309................................................................................................... 2, 4
10 C.F.R. § 51.45....................................................................................................... 4
10 C.F.R. § 51.61....................................................................................................... 4
Federal Register Notices Interim Storage Partners Waste Control Specialists Consolidated Interim Storage
- Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018).............................................................. 3
Adjudicatory Decisions of Nuclear Regulatory Commission Interim Storage Partners LLC,
CLI-20-14, 92 N.R.C. 463 (Dec. 17, 2020)................................................... 11 iii Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 5
GLOSSARY
DOE Department of Energy
EIS Environmental Impact Statement
ISP Interim Storage Partners, L.L.C.
NEPA National Environmental Policy Act
NRC Nuclear Regulatory Commission
NWPA Nuclear Waste Policy Act
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INTRODUCTION
We established in our motion to dismiss that (1) participation in agency
proceedings is a prerequisite to judicial review under the Hobbs Act; and (2) with
respect to challenges to NRC license s, participation mean s invocation of the
agencys adjudicatory process via a request to intervene. Although New Mexico
acknowledges the first conclusion, it makes no effort to confront the second. It
likewise ignores the NRCs rules of procedure ensuring that all contentions arising
under NEPA can be raised by putative intervenors through the NRCs adjudicatory
process. New Mexico could have sought to intervene in the adjudicatory
proceeding and raised the issues it now seeks to raise before this Court, and, like
the petitioners before the D.C. Circuit, it could have sought judicial review of the
agencys resolution of its arguments if it was dissatisfied with the result. However,
it chose not to follow this path, and its failure to seek to intervene before the
agency precludes this Courts consideration of its petit ion here.
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ARGUMENT
I. New Mexico did not become a party aggrieved by commenting on the draft or final Environmental Impact Statement.
Participation in an NRC licensing proceeding requires a request to intervene.
New Mexico relies upon its submission of comments on the draft and final
Environmental Impact Statement ( EIS) for the ISP facility to satisfy the
participation requirement. Response at 5-11. But it ignores the decisions we
cited (Motion at 16-17 ) recognizing that p roviding comments to an agency is
sufficient to obtain judicial review only where agency proceedings [] do not
require intervention as a prerequisite to participation. ACA Intl v. FCC, 885 F.3d
687, 711 (D.C. Cir. 2018) ; Water Transp. Assn v. ICC, 819 F.2d 1189, 1192 (D.C.
Cir. 1987); Simmons v. ICC, 716 F.2d 40, 43 (D.C. Cir. 1983).
There is no dispute that in an NRC licensing proceeding unlike a
rulemaking intervention is a condition of participation. To implement
Congress s direction to provide for adjudicatory hearings in licensing proceedings
and pursuant to its general rulemaking authority, 42 U.S.C. §§ 2239, 2201(p), the
NRC requires parties who seek to challenge a license application to submit
contentions in support of their intervention requests. 10 C.F.R. § 2.309(a) (A ny
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
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the contentions which the person seeks to have litigated in the hearing. (emphasis
added)). Courts have repeatedly upheld these contention admissibility
requirements. See BPI v. Atomic Energy Commn, 502 F.2d 424, 426-29 (D.C. Cir.
1974); Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990).
The effect of these requirement s is that, to obtain judicial review of a
licensing decision, a party must have successfully intervened in the proceeding by
submitting adequate contentions under 10 C.F.R. § 2.309. NRDC v. NRC, 823
F.3d 641, 643 (D.C. Cir. 2016) (emphasis added). And the NRC communicated
the intervention requirement to the public in this case. See 83 Fed. Reg. 44,070,
44,071-72 (Aug. 29, 2018) (providing notice of ISP s license application and
explaining that [t]hose permitted to intervene by submitting admissible
contentions become parties to the proceeding ).
New Mexico does not cite to a single case holding, as its argument
necessarily suggests, that petitioners can unilaterally decide to forego the hearing
opportunity that Congress created in Section 189 of the AEA and proceed directly
to the courts of appeals, or that providing comments on a draft or final EIS
somehow takes the place of a request for intervention. Such a ruling would
undermine the exhaustion requirement that Congress carefully included in its
design for the implementation of national nuclear policy, Quivira Mining v. EPA,
3
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728 F.2d 477, 481 (10th Cir. 1984), and New Mexico has offered no basis for
departure from the decades of precedent recognizing this requirement.
New Mexico could have raised its environmental c ontentions during the agency adjudication.
New Mexico asserts that its failure to participate in the adjudicatory
proceeding should be excused because that process closed before the draft EIS for
the ISP facility was published. Response at 6 n.2, 8. But its argument overlooks
the process through which NEPA contentions can be raised before the agency.
Under NRC rules, a n applicant for a license to construct and operate a spent
fuel storage facility must submit to the agency, along with its application, an
Environmental Report containing an analysis of each of the considerations
required by NEPA. 10 C.F.R. § § 51.45, 51.61. Interested parties must raise
contentions arising under NEPA by challenging the analysis in the Environmental
Report. 10 C.F.R. § 2.309(f)(2). If any deficiencies in that analysis are not cured
in the draft or final EIS prepared by the NRC Staff or if those documents contain
new information, participants in the proceedings may seek leave to file new or
amended environmental contentions after the intervention deadline to challenge
the analyses in those documents. Id.; id. § 2.309(c). These requirements have
been upheld on judicial review and been applied in challenge s to the issuance of
licenses. Union of Concerned Scientists v. NRC, 920 F.2d at 56 (rejecting facial
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challenge to NRCs procedural regulations, including the requirement that
intervenors raise contentions arising under NEPA, to the extent possible, based
upon the license applicants Environmental Report); see, e.g., NRDC v. NRC, 879
F.3d 1202, 1208-09 (D.C. Cir. 2018) (recognizing that intervenor that had
previously challenged environmental analysis in the license application could have
shown good cause to pursue a new contention challenging new information
contained in draft EIS) ; Beyond Nuclear v. NRC, 704 F.3d 12, 22 (1st Cir. 2013)
(affirming NRCs denial of admission of contentions challenging applicants
Environmental Report but noting that petitioner could raise new contentions if new
and materially different information became available).
Thus, NRC has created an avenue for intervenors to raise a rguments that the
agency has not properly identified under NEPA the environmental impacts of
proposed licensed activity. It simply requires that these challenges be raised at the
earliest possible time, so that the agency can make licensing decisions based on all
relevant environmental considerations and final decisions on licenses are not
unnecessarily dela yed. Indeed, the jurisdictionally proper petitions currently
before the D.C. Circuit (i.e., th ose brought by petitioners challenging the
Commissions decisions not to admit the m as intervenors ) include numerous
assertions that the evaluation of the environmental impacts of the construction and
operation of the ISP facility does not satisfy NEPA. See Dont Waste Michigan v.
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NRC, No. 21 -2048, Petition for Review, Document No. 1883596 (Feb. 2, 2021);
Sierra Club v. NRC, No. 21-1104, Petition for Review, Document No. 1894902
(Apr. 14, 2021). New Mexico could likewise have challenged the information
contained in (or omitted from) ISPs Environmental Report and pursued its
challenge, as applicable, following publication of the draft and final EIS by the
NRC Staff. It simply chose not to, and its suggestion that it lacked an opportunity
to raise its NEPA arguments in the form of contentions before the agency is
therefore unavailing.
The NRC is not divesting the Court of its jurisdiction.
New Mexico also asserts that an agency cannot strip federal courts of the
power of judicial review. Response at 9. That is correct. But the NRC has done
no such thing. Agencies can define the procedures applicable to requests to
intervene brought by third parties to proceedings. BPI, 502 F.2d at 426-29 ; see
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (recognizing that proper exhaustion
includes compliance with an agencys deadlines and other critical procedural
rules ). Thus, the agencys authority to create procedures does not restrict the
power of federal courts; it enables agencies to specify the avenues that are
appropriate and available to intervenors who may seek to challenge agency
decisions and to insist upon participa tion in accordance with these procedures as a
statutorily prescribed prerequisite to judicial review. Gage v. AEC, 479 F.2d
6 Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 12
1214, 1217-18 (D.C. Cir. 1973). New Mexicos inability to obtain judicial review
is not the result of an alleged attempt by the NRC to strip the federal courts of
power; it is the result of New Mexico s unilateral decision not to intervene in the
NRC proceeding.
New Mexicos reliance upon Massachusetts v. NRC, 522 F.3d 115 (1st Cir.
2008), and Clark & Reid Co. v. U nited States, 804 F.2d 3 (1st Cir. 1986), is
likewise unavailing. Response at 8 -9. T hese decisions are consistent with
Respondents position that, where such an opportunity is available, seeking to
intervene in a n administrative hearing before the NRC is a mandatory prerequisite
to obtaining judicial review of an NRC licensing decision. Indeed, the court in
Clark & Reid specifically recognized that the party aggrieved requirement
means that a petitioner must have been a party to the agency proceedings.804
F.2d at 5. And unlike the petitioner in Massachusetts, New Mexico did not
participate directly and actually in the adjudication before the agency, 522 F.3d
at 131; it did not participate at all. This failure precludes judicial review here.
Nor does Gage support New Mexicos position (Response at 9 ). While the
court in Gage stated that the AEA and Hobbs Act make no distinction between
orders which promulgate rules and orders in adjudicative proceedings, it did so
only in considering whether to extend the exhaustion (i.e., intervention)
requirement applicable to licensing decisions to rulemaking orders, and it ruled
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that those challenging rulemaking orders also were required to participate before
the agency, albeit through the notice -and -comment process. 479 F.2d at 1218.
Gage did not relax the baseline assumption that those seeking judicial review of a
decision for which a hearing wa s appropriate and available must seek to
intervene in the adjudication before seeking judicial review.
Further, New Mexicos citation to Florida Power & Light Co. v. Lorion, 470
U.S. 729 (1985), to suggest that Congress intended for court s of appeals to review
all final orders in licensing proceedings, Response at 8, does not advance its
position. T he Supreme Courts discussion in that case focused on whether judicial
review was available in the courts of appeals, as opposed to district court, for a
petitioner who filed a request under 10 C.F.R. § 2.206 that the NRC initiate a
proceeding to modify, revoke, or suspend a license. Unlike New Mexico, t he
petitioner in that case had availed itself of the procedures available to it, and the
Court held that the agencys decision denying that request was judicially
reviewable under the Hobbs Act. 470 U.S. at 746. The Court did not interpret or
apply the party aggrieved language in 28 U.S.C. § 2344; it did not even cite the
provision. Nor did the Court suggest, as New Mexico asserts here, that a party
could choose to avoid the necessary and available step of intervening in a
proceeding for the issuance of a license and instead proceed directly to judicial
review.
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Finally, New Mexico appears to contend that it is a party aggrieved
because it purportedly has Article III standing. Response at 11. Although Article
III standing is a necessary prerequisite for federal court jurisdiction, it does not
satisfy the party aggrieved requirement under the Hobbs Act. See, e.g., ACA
Intl, 885 F.3d at 711; see also Am. Trucking Ass ns, Inc. v. ICC, 673 F.2d 82, 85
n.4 (5th Cir. 1982).1
II. Neither the NWPA nor any other source of law provides an alternate basis for the Court to exercise jurisdiction.
We explained in our motion to dismiss that the NRC issued the license to
ISP pursuant to its authority under the AEA to license privately owned spent fuel
storage facilities and that challenges to the license w ere therefore governed by the
judicial review provisions of that statute. Motion at 20- 21 & n.14. We further
noted that New Mexicos challenge had not identified any action that the agency
had taken under the NWPA that would permit judicial review under that statutory
scheme. Id.
1 New Mexico attempts to distinguish Fleming v. USDA, 987 F.3d 1093, 1098-99 (D.C. Cir. 2021), Response at 11-13, but it misses the point of our invocation of that case. We cited Fleming only because of the possibility that the Court might consider the exhaustion requirement of the AEA and the Hobbs Act to be non-jurisdictional. Either way, an attempt to intervene in a licensing proceeding is a prerequisite to judicial review.
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New Mexico provides no meaningful response. Instead, it contends that the
issuance of the license to ISP is inextricably linked to actions that the federal
government (and, specifically, DOE) might take under the NWPA. Response at
13-14. Its assertion is neither relevant nor correct. Although the EIS considers
actions that would be undertaken in connection with the construction by DOE of a
permanent spent fuel repository, that flows from the agencys responsibility under
NEPA to identify direct and indirect environmental impacts of a proposed action
here, issuance of the license. But the NRCs analysis in an EIS of anticipated
impacts from separate (and independently licensed) actions undertaken pursuant to
the NWPA does not mean that issuance of the license to ISP depends upon NWPA
activities or somehow takes the issuance of the license outside the ambit of the
AEA.
New Mexico relatedly notes that a provision of the ISP license requires ISP
to enter into contracts with the entities (including, potentially, DOE) that own title
to the fuel to be stored, calling for these entities to bear responsibility for providing
operational funding for the facility, and it asserts that the license therefore
contemplate s federal government use of a privately-owned ISFSI. Response at
14, 15-16 (citing ISP License, Motion Exh ibit 5 at ¶ 19). However, New Mexico
fails to mention that the license requires a contract with DOE or the private entities
that hold title to the spent fuel being stored, and that during the adjudicatory
10 Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 16
proceeding before the NRC ( which New Mexico ignored), ISP disclaimed reliance
on DOE being the title -holder of the fuel involved unless and until Congress
passed legislation permitting such an arrangement. Interim Storage Partners LLC,
CLI-20-1 4, 92 N.R.C. 463, 467-69 (Dec. 17, 2020). The license thus does not
permit activity that the government would undertake pursuant to the NWPA; it
contemplates the storage by a private company of spent fuel owned by private
entities in accordance with the AEA, see Bullcreek v. NRC, 359 F.3d 536, 542
(D.C. Cir. 2004), and it preserves the possibility of the facility accepting DOE-
titled fuel in the event of a change in legis lation. This issue was addressed in the
adjudicatory proceeding conducted before the Commission pursuant to the AEA
and is now before the D.C. Circuit pursuant to the Hobbs Act. It does not
implicate the NWPAs judicial review provisions.
Finally, New Mexico asserts that the Court should ignore the participation
requirement because the NRC acted outside the scope of its authority. Response at
17 (citing Leedom v. Kyne, 358 U.S. 184 (1958) ). Its argument is unavailing. As
New Mexico acknowledges, Response at 17 & n. 3, the Leedom exception serves to
protect parties aga inst absolutely uncontrolled and arbitrary action a condition
refuted by the availability (and pursuit by other parties) of adjudicatory remedies
before the Commission and the courts of appeals. See Quivira Mining, 728 F.2d at
484. Moreover, invocation of the Leedom exception based on New Mexicos bare
11 Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 17
allegation that the NRC acted not in accordance with the law, Response at 17,
would swallow the rule and incentivize litigants to evade the proper path for
administrative exhaustion and judicial review set forth in the AEA and the Hobbs
Act.
CONCLUSION
The petition should be dismissed for lack of subject-matter jurisdiction.
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
January 7, 2022
12 Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 18
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 2,586 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
Appellate Case: 21-9593 Document: 010110628692 Date Filed: 01/07/2022 Page: 19
CERTIFICATE OF SERVICE
I certify that on January 7, 2022, I served a copy of RESPONDENTS REPLY TO PETITIONERS RESPONSE TO MOTION TO DISMISS upon counsel for the parties in this action by filing the document electronically through the CM/ECF system. Th is method of service is calculated to serve counsel at the following e-mail addresses:
Bruce C. Baizel bruce.baizel@state.nm.us
William Gregory Grantham wgrantham@nmag.gov, swright@nmag.gov
Justin Heminger justin.heminger@usdoj.gov; efile_app.enrd@usdoj.gov
P. Cholla Khoury ckhoury@nmag.gov
Zachary E. Ogaz zogaz@nmag.gov
Arnold Bradley Fagg brad.fagg@morganlewis.com
Ryan Kennedy Lighty ryan.lighty@morganlewis.com
/s/ Andrew P. Averbach Andrew P. Averbach
Counsel for Respondent U.S. Nuclear Regulatory Commission