ML22028A319

1-26-22 Motion for Leave to Intervene Filed by American Centrifuge Operating LLC (DC Cir.)(Case No. 21-1162)

ML22028A319
Person / Time
Site:	07007004
Issue date:	01/26/2022
From:	Fagg B American Centrifuge Operating
To:	Andrew Averbach, Eric Michel NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1932320, 21-1162
Download: ML22028A319 (18)

Text

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 1 of 18 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OHIO NUCLEAR-FREE NETWORK, et al.

Petitioners, Case No. 21-1162 v.

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

UNOPPOSED MOTION OF AMERICAN CENTRIFUGE OPERATING, LLC FOR LEAVE TO INTERVENE, AND FOR LEAVE TO FILE OUT OF TIME Pursuant to Federal Rules of Appellate Procedure 26(b) and 15(d) and D.C. Circuit Rule 15(b), American Centrifuge Operating, LLC (ACO) respectfully moves for leave to intervene as a party-respondent in the above-captioned matter, and for leave to file this motion out of time. Respondent U.S. Nuclear Regulatory Commission (NRC), by its counsel Andrew P. Averbach, has indicated that the NRC does not oppose ACOs motion. Respondent United States of America, by its counsel DB1/ 127051506.2

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 2 of 18 Justin Heminger, has indicated that the United States of America does not oppose ACOs motion. (The United States and the NRC will be referred to as the Federal Respondents.) Petitioners Ohio Nuclear-Free Network and Beyond Nuclear have indicated, through counsel Terry Lodge, that Petitioners do not oppose.

Although ACO ultimately became aware of this case after it was filed, ACO was not served with the petition in this Court, nor with other procedural filings. ACO understood that the Federal Respondents were filing a threshold motion to dismiss, which ACO believed to be meritorious. That threshold motion remained pending for some four months, until this Court, in an order dated January 20, 2022, directed that the motion to dismiss be deferred to the merits panel to which the petition for review is assigned. Order, ECF No. 1931568 (January 20, 2022). ACO became aware of that order shortly after it was issued and, promptly upon learning that the case would proceed to the merits briefing stage, prepared and filed this motion. No party opposes, and no party would be prejudiced by the requested intervention.

DB1/ 127051506.2 2

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 3 of 18 In further support of the motion, ISP states as follows:

Background

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

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

2. ACO is the holder of a license issued by the NRC, Materials License SNM-2011. By letter dated December 5, 2019, as subsequently supplemented, ACO sought approval by the NRC of an amendment of that license to allow possession of certain radioactive materials for the purpose of demonstrating production of up to 600 kilograms of High Assay Low Enriched Uranium (HALEU) in the form of uranium hexafluoride for the U.S. Department of Energy (DOE). ACO had a contract with DOE to deploy and operate a cascade of 16 uranium enrichment centrifuges, and to produce HALEU at the American DB1/ 127051506.2 3

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 4 of 18 Centrifuge Plant in Piketon, Ohio, although the scope of that contract was recently revised to encompass deployment, but to exclude operation, of the cascade, due to COVID-related supply chain delay in the DOE-supplied HALEU storage cylinders.1 The NRC posted notice of the license amendment request on its website on January, 2, 2020.

3. Pursuant to its standard procedures, NRC staff prepared a safety evaluation report, involving a thorough review of safety, security, safeguards, and financial matters, and concluded that ACOs application satisfied all applicable regulations. A public version of the safety evaluation report was made available on the NRCs website, https://adamswebsearch2.nrc.gov/webSearch2/main.jsp?AccessionNumb er=ML21148A291.

4. The NRC also prepared an Environmental Assessment prior to issuing the license amendment, consistent with the agencys regulations implementing the National Environmental Policy Act, 10 C.F.R. Part 51. That report assessed and disclosed potential 1 Gas centrifuge technology involves placing uranium hexafluoride gas in a cylinder that rotates at high speed. The centrifugal force separates lighter and heavier uranium isotopes, and the gas enriched in the lighter isotope (uranium-235) is then fed into additional centrifuges until the desired level of enrichment is achieved. The interconnected centrifuges are referred to as cascades.

DB1/ 127051506.2 4

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 5 of 18 environmental impacts associated with the requested license amendment, and concluded that a finding of no significant impact was appropriate. The Environmental Assessment was eventually published in the Federal Register in June 2021. America Centrifuge Operating, LLC; American Centrifuge Plant, 86 Fed. Reg. 31,539 (June 14, 2021).

5. The Atomic Energy Act and its implementing regulations provide the opportunity for parties to seek a hearing on an NRC licensing action. E.g., 10 C.F.R. § 2.309. Such requests, or any hearing if one were granted, are procedures in which ACO, as the applicant, would have been involved.

6. Petitioners in this proceeding, however, did not seek such a hearing. Rather, they, together with a number of other additional organizations, sent a letter to an NRC staff member on March 30, 2021, requesting additional reviews and assessments by the agency. See NRC Motion to Dismiss, ECF No. 1914862 (September 20, 2021), Exhibit 2.

That letter copied various NRC and DOE entities, but not ACO. Id. p. 6 of 11. The NRC responded, directing Petitioners and the other groups to public information regarding the environmental assessment that the NRC planned to complete in June 2021, and the NRC duly placed the DB1/ 127051506.2 5

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 6 of 18 Petitioners letter and the NRCs response on the appropriate publicly-available web page in the Agencywide Documents Access and Management System (ADAMS). See NRC Motion to Dismiss, ECF No.

1914862 (September 20, 2021), Exhibit 3.

7. The NRC, after completing its reviews, issued the requested license amendment (the Amendment) on June 11, 2021. NRC Motion to Dismiss, ECF No. 1914862 (September 20, 2021), Exhibit 1.

8. The next action by Petitioners was the filing of the petition in this Court, in this action, on August 4, 2021. Petitioners did not serve ACO with their Petition, nor with the required docketing statement or any of their other preliminary procedural filings. ACO did subsequently become aware of the lawsuit, as well as the intent of the Federal Respondents to file a threshold dispositive motion to dismiss, based upon lack or jurisdiction and/or failure to exhaust a mandatory statutory requirement. That motion was filed on September 20, 2021, and ACO heard nothing further until it learned of this Court order directing the parties to address the jurisdictional issues in the merits briefing, shortly after the order was issued on January 20, 2022.

DB1/ 127051506.2 6

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 7 of 18

9. This Court has routinely permitted intervention by NRC licensees and license applicants in cases where petitioners seek to challenge license-related approvals by or pending before the NRC. See, e.g., Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Commn, No. 19-1198, Order Granting Mot. to Intervene, ECF No.

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

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

Grounds for Intervention

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

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

Since Rule 15(d) provides no standard for resolving intervention DB1/ 127051506.2 7

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 8 of 18 questions, appellate courts have identified two considerations: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant to Fed. R. Civ. P. 24. State of Tex. v. U.S. Dept of Energy, 754 F.2d 550, 551 (5th Cir. 1985) (internal citation omitted); see also Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 517-18 (7th Cir. 2004).

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

DB1/ 127051506.2 8

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 9 of 18 The Motion Should be Deemed to be Timely, and Leave to File Out of Time Should be Granted

12. Although this motion was not filed within 30 days after the petition for review [was] filed. Fed. R. App. P. 15(d), the motion should nevertheless be deemed timely under the unique circumstances of this case. In particular: (i) ACO was not originally served with the Petition or other filings in this Court by the Petitioners; (ii) when ACO became aware of this proceeding, ACO understood that a threshold dispositive motion would be filed by the Federal Respondents, which ACO reasonably believed would resolve the case; (iii) ACO acted promptly with the filing of this motion upon learning that merits briefing would, in fact, proceed; and (iv) no party opposes, and no party would be prejudiced by the granting of the late-filed request for intervention.

13. Federal Rule of Appellate Procedure 15(c)(1) requires a party seeking review of an agency order to serve, or have served, a copy on each party admitted to participate in the agency proceedings, except for the respondents. Fed. R. App. Proc. 15(c)(2) requires a petitioner to file with the clerk a list of those served.2 Although the Petitioners failure 2 D.C. Circuit Rule 15(a) allows a party to serve only the respondent agency and the United States in cases involving informal agency rulemaking such DB1/ 127051506.2 9

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 10 of 18 to follow the NRCs rules regarding licensing matters may render the identification of the precise agency proceedings here less than clear (indeed, that is part of the problem), there is no basis to consider ACO, the lone party requesting the license amendment itself, as anything other than a party admitted to participate in whatever agency proceedings are deemed to be at issue by Petitioners. As such, ACO should have been served. While ACO does not contend that it had no knowledge whatsoever of this proceeding, the lack of required service on ACO is a factor that should militate in favor of allowing leave for the filing of this motion out of time.

14. Federal Rule of Appellate Procedure 15(d) permits equitable exceptions to the deadline because it does not implement any general jurisdictional statute. Intl Union of Operating Engrs, Local 18 v. Natl Labor Relations Bd., 837 F.3d 593, 596 (6th Cir. 2016). Because the thirty-day filing deadline in Rule 15(d) is a claim-processing rule that does not affect [the Courts] subject matter jurisdiction, courts of appeals can excuse late filed petitions to intervene. Id. at 595, 596.

as, for example, those conducted under 5 U.S.C. § 553, but this case does not involve any such informal rulemaking.

DB1/ 127051506.2 10

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 11 of 18

15. The text of Fed. R. App. P. 26(b) provides that, with exceptions not relevant here, [f]or good cause, the court may extend the time prescribed by these rules or by its order may permit an act to be done after that time expires. Good cause exists here, for reasons that include the lack of service upon ACO, the lack of opposition by any party, and the lack of prejudice to any party resulting from the late-filed motion. E.g.,

Intl Union of Operating Engrs, Local 18, 837 F.3d at 595-96 (failure to serve putative intervenor, and fact that no prejudice [would] result from allowing that potential intervenor to intervene, constituted good cause).

16. No party opposes ACOs motion for leave to file out of time, and no party would suffer prejudice by the granting of ACOs late-filed motion to intervene. Had a motion to intervene been filed within 30 days and granted at the very outset of this matter, the circumstances would be the same as they are today. That is, upon the Courts order dated January 20, 2022, the parties and ACO would proceed to address the jurisdictional matters in the merits briefing as directed by the Court.

That is all that ACO seeks with its late-filed request, and no party could credibly claim prejudice by virtue of the delay.

DB1/ 127051506.2 11

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 12 of 18 ACO Has A Significant Interest In The License Amendment That Is The Subject Of The Petition

17. ACO is the entity that is performing the work under the DOE demonstration contract for HALEU production. ACO has committed substantial resources to the performance of that work, and is uniquely situated to provide the important services to DOE. ACO has potential interests in future HALEU production opportunities. Plainly, ACO has a direct, substantial, financial and business interest in the preservation of the Amendment.

18. Preservation of the Amendment will allow ACO to proceed with its business objective of demonstrating the technical, commercial, and economic viability of the domestic production of HALEU at the American Centrifuge Plant. As a result, ACO clearly has a significant interest in the Amendment that is the subject of Petitioners challenges.

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

19. Petitioners seek a review of NRC rulings and processes relating to the Amendment, and, ultimately, that the Amendment be vacated. Petition at p.7. If this Court were to grant such relief, ACOs ability to proceed with any further or related work relating to HALEU would be eliminated.

DB1/ 127051506.2 12

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 13 of 18 The Federal Agency Respondent May Be Unable To Represent ACOs Unique Interests Adequately

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

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

21. Although ACO is aligned with the NRC insofar as ACO supports the NRC processes and assessments that led to the approval of the Amendment, ACO may have a unique perspective to offer beyond that of the NRC. In particular, because it is ACO that is actually performing the demonstration project work contemplated by the Amendment, there may be facts and circumstances that bear on the issues that ACO is uniquely positioned to offer. In other words, ACO may have different interests from the NRC in this litigation, beyond the shared interest of preserving the NRC regulatory framework and decision-making process.

As a result, the NRC may not adequately represent ACOs interests.

22. To ensure that ACOs participation as an intervenor is helpful to the Court, ACO will endeavor to coordinate with the NRC to avoid DB1/ 127051506.2 13

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 14 of 18 duplicative briefing and to ensure that ACO focuses on arguments and/or background facts that the NRC may not address.

WHEREFORE, ACO respectfully requests that the Court grant leave to file this motion out of time, and that ACO be granted leave to intervene as a party-respondent.

Dated: January 26, 2022 Respectfully submitted, By /s/ Brad Fagg Brad Fagg MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-3000 Attorneys for American Centrifuge Operating, LLC DB1/ 127051506.2 14

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 15 of 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) and Circuit Rule 27(a)(2) because it has been prepared in 14-point Century Schoolbook, 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) and Circuit Rule 27(a)(2) because it contains 2,426 words, according to the count of Microsoft Word, excluding the parts of the filing exempt under Fed. R. App. P.

32(f).

By /s/ Brad Fagg Brad Fagg MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-3000 Counsel for American Centrifuge Operating, LLC DB1/ 127051506.2

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 16 of 18 ADDENDUMCERTIFICATE OF PARTIES AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appeal Procedure 26.1 and D.C. Circuit Rule 26.1, American Centrifuge Operating, LLC represents as follows:

American Centrifuge Operating, LLC is a limited liability company organized and existing under the laws of Delaware, involved in uranium enrichment and the nuclear fuel cycle. American Centrifuge Operating, LLC is a wholly owned indirect subsidiary of Centrus Energy Corp.

Other than Centrus Energy Corp., no other publicly held company has 10 percent or more equity interest in American Centrifuge Operating, LLC.

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

• Parties: Ohio Nuclear-Free Network and Beyond Nuclear, Inc.; U.S. Nuclear Regulatory Commission and the United States of America (Respondents);

• Intervenors (Motion Pending): American Centrifuge Operating, LLC; and

• Amici: None.

DB1/ 127051506.2

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 17 of 18

/s/ Brad Fagg Brad Fagg Dated: January 26, 2022 DB1/ 127051506.2 2

USCA Case #21-1162 Document #1932320 Filed: 01/26/2022 Page 18 of 18 CERTIFICATE OF SERVICE I, Brad Fagg, a member of the Bar of this Court, hereby certify that on January 26, 2022, I electronically filed the foregoing UNOPPOSED MOTION OF AMERICAN CENTRIFUGE OPERATING, LLC, FOR LEAVE TO INTERVENE, AND FOR LEAVE TO FILE OUT OF TIME and the Addendum thereto, CERTIFICATE OF PARTIES AND CORPORATE DISCLOSURE STATEMENT with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate ECF system.

/s/ Brad Fagg Brad Fagg Dated: January 26, 2022 DB1/ 127051506.2