ML22139A145
| ML22139A145 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 05/19/2022 |
| From: | Fagg B, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, 10th Circuit |
| References | |
| 010110686545, 21-9593 | |
| Download: ML22139A145 (76) | |
Text
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 1 No. 21-9593 In the United States Court of Appeals FOR THE TENTH CIRCUIT THE STATE OF NEW MEXICO, EX REL. HECTOR H. BALDERAS, ATTORNEY GENERAL; THE NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents.
INTERIM STORAGE PARTNERS, LLC, Intervenor-Respondent.
On Petition for Review of Action by the United States Nuclear Regulatory Commission (Agency Originating Case No. 72-1050)
BRIEF OF INTERVENOR INTERIM STORAGE PARTNERS, LLC ORAL ARGUMENT IS REQUESTED BRAD FAGG TIMOTHY P. MATTHEWS RYAN K. LIGHTY MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com Counsel for Interim Storage Partners, LLC
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 2 DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, Interim Storage Partners, LLC represents as follows:
Interim Storage Partners, LLC is a limited liability company organized and existing under the laws of the State of Delaware with principal offices in Andrews, Texas. The sole purpose of Interim Storage Partners, LLC is to license, design, construct and operate the Consolidated Interim Storage Facility at the Waste Control Specialists site in Andrews County, Texas. Interim Storage Partners, LLC is jointly owned by Orano CIS, LLC (51%) and Waste Control Specialists, LLC (49%). No other publicly held company has 10 percent or more equity interest in Interim Storage Partners, LLC.
Orano CIS, LLC is owned 100% by Orano USA, LLC. Orano CIS, LLC and Orano USA, LLC are both limited liability companies formed in the State of Delaware. Orano USA, LLC is 100% owned by Orano SA, a French entity. Orano SA is ultimately majority (70%) owned and controlled by the French State, through two French government entities.
Two Japanese entities (Mitsubishi and Japan Nuclear Fuel) each own a 5% (non-voting) interest in Orano SA. The remaining 20% interest (non-voting) in Orano SA is held in two (non-voting) trusts, in connection with financing arrangements.
Waste Control Specialists, LLC is wholly-owned by Fermi Holdings, Inc., an investment affiliate of J.F. Lehman & Co. The full ownership chain includes several other privately held J.F. Lehman & Co.
investment affiliates, with no individual shareholders owning more than 25% of any of the entities.
ii
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 3 TABLE OF CONTENTS Page DISCLOSURE STATEMENT ................................................................. ii TABLE OF AUTHORITIES .....................................................................v STATEMENT OF RELATED CASES......................................................x GLOSSARY OF ABBREVIATIONS.......................................................xii INTRODUCTION .....................................................................................1 STATEMENT OF JURISDICTION .........................................................5 STATEMENT OF THE ISSUES ..............................................................6 STATEMENT OF THE CASE..................................................................7 I. Statutory and Regulatory Background..................................7 A. AEA................................................................................7 B. NEPA .............................................................................9 C. NWPA ............................................................................9 II. Factual Background and Procedural History......................13 A. ISPs Application .........................................................13 B. Adjudicatory Proceeding .............................................14 C. NRC Staff Review........................................................18
SUMMARY
OF ARGUMENT ................................................................21 STANDARD OF REVIEW......................................................................24 ARGUMENT...........................................................................................26 I. New Mexicos Claims That Were Not Raised Before the Commission in the Adjudicatory Proceeding Should Be Dismissed on Administrative Exhaustion Grounds ............26 II. New Mexicos NWPA-Based Claims Fail to Demonstrate Any Arbitrary and Capricious Agency Action....................................................................................29 A. The License Does Not Authorize or Allow ISP or DOE to Violate the NWPA ...................................29 B. The License Authorizes Time-Limited SNF Storage, Not De Facto Permanent SNF Disposal....31 iii
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 4 TABLE OF CONTENTS (continued)
Page C. The NWPA Procedures Cited by New Mexico Do Not Apply to Private Projects by Commercial Entities ........................................................................35 III. New Mexicos NEPA-Based Claims Fail to Demonstrate Any Arbitrary and Capricious Agency Action....................................................................................36 A. The NRC Neither Ignored Public Comments Nor Foreclosed Public Participation Prior to Issuing the Draft EIS ..................................................36 B. New Mexicos Claims Regarding the Projected Availability Date for a Permanent Repository Fail to Demonstrate Any APA Violation ............................39 C. New Mexicos Claims Regarding Terrorism Disregard the Record and Fail to Demonstrate Any APA Violation ......................................................44 D. New Mexicos Site Selection Commentary Fails to Establish Any APA Violation..................................50 E. New Mexicos Segmentation Argument Is Meritless Because the EIS Plainly Analyzes Transportation and New Mexico Identifies No Material Deficiency in That Analysis .........................53 IV. New Mexicos Unfunded Mandate Claim Fails to Demonstrate Any Constitutional Violation or Arbitrary and Capricious Agency Action .............................................58 V. License Vacatur Would Not Be a Proper Remedy in Any Event .............................................................................61 CONCLUSION .......................................................................................62 STATEMENT REGARDING ORAL ARGUMENT................................62 CERTIFICATE OF SERVICE................................................................63 CERTIFICATE OF COMPLIANCE .......................................................64 iv
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 5 TABLE OF AUTHORITIES Page(s)
Cases Avocados Plus Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004) ...........................................................26 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87 (1983) ...........................................................................9, 24 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183 (D.C. Cir. 2013) .............................................................14 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004) .....................................................3, 8, 13 Citizens for Alts. to Radioactive Dumping v. DOE ,
485 F.3d 1091 (10th Cir. 2007) ...........................................................25 Citizens Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169 (10th Cir. 2008) ...............................................25, 30, 49 High Country Conservation Advocates v. U.S. Forest Serv.,
951 F.3d 1217 (10th Cir. 2020) ...........................................................61 Idaho v. DOE, 945 F.2d 295 (9th Cir. 1991) ...............................................................10 Ind. Mich. Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005) .............................................................2 Kansas v. SourceAmerica, 874 F.3d 1226 (10th Cir. 2017) ...........................................................28 Lujan v. Natl Wildlife Fedn, 497 U.S. 871 (1990) .............................................................................24 Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991) .............................................................24 McGee v. United States, 402 U.S. 479 (1971) .............................................................................27 N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).....................................................47, 48, 49 New Mexico ex rel. Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009) .......................................................24, 25 v
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 6 TABLE OF AUTHORITIES (continued)
Page(s)
New York v. United States, 505 U.S. 144 (1992) .............................................................................59 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006) .............................................................44 Sims v. Apfel, 530 U.S. 103 (2000) .............................................................................26 Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ..........................................................3, 8 United States v. Mendoza, 464 U.S. 154, 160 (1984) ...............................................................45, 47 United States v. Stauffer Chem. Co.,
464 U.S. 165 (1984) .............................................................................44 Utah Envtl. Cong. v. Troyer, 479 F.3d 1269 (10th Cir. 2007) ...........................................................25 Utahns for Better Transp. v. DOT, 305 F.3d 1152 (10th Cir. 2002) ...........................................................54 WildEarth Guardians v. BLM, 870 F.3d 1222 (10th Cir. 2017) ...........................................................61 Woodford v. Ngo, 548 U.S. 81 (2006) ...............................................................................26 Commission Adjudicatory Decisions Amergen Energy Co. (Oyster Creek Nuclear Generating Station),
CLI-07-8, 65 N.R.C. 124 (2007)...........................................................44 Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station),
CLI-08-9, 67 N.R.C. 353 (2008)...........................................................37 Interim Storage Partners, LLC (WCS CISF),
CLI-20-13, 92 N.R.C. 457 (2020).........................................................17 Interim Storage Partners, LLC (WCS CISF),
CLI-20-14, 92 N.R.C. 463 (2020)................................. 16, 17, 30, 48, 57 Interim Storage Partners, LLC (WCS CISF),
CLI-20-15, 92 N.R.C. 491 (2020).............................................17, 31, 52 vi
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 7 TABLE OF AUTHORITIES (continued)
Page(s)
Interim Storage Partners, LLC (WCS CISF),
CLI-21-9, 93 N.R.C. 244 (2021).........................................16, 17, 49, 52 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-11-11, 74 N.R.C. 427 (2011)...........................................................9 Atomic Safety and Licensing Board Adjudicatory Decisions Interim Storage Partners, LLC (WCS CISF),
LBP-19-7, 90 N.R.C. 31 (2019)............ 15, 16, 17, 30, 33, 40, 48, 51, 57 Interim Storage Partners, LLC (WCS CISF),
LBP-19-9, 90 N.R.C. 181 (2019)..........................................................17 Interim Storage Partners, LLC (WCS CISF),
LBP-19-11, 90 N.R.C. 358 (2019)..................................................17, 36 Interim Storage Partners, LLC (WCS CISF),
LBP-21-2, 93 N.R.C. 104 (2021 WL 8087739) (2021) ... 16, 17, 39, 49, 52 Statutes 5 U.S.C. § 706 ..........................................................................................24 42 U.S.C. § 2239 ......................................................................................14 42 U.S.C. § 4332 ........................................................................................7 42 U.S.C. § 10101.....................................................................................58 42 U.S.C. § 10131.....................................................................................11 42 U.S.C. § 10135.....................................................................................35 42 U.S.C. § 10136.....................................................................................35 42 U.S.C. § 10137.....................................................................................35 42 U.S.C. § 10138.....................................................................................35 42 U.S.C. § 10152.....................................................................................12 42 U.S.C. § 10153.....................................................................................12 42 U.S.C. § 10154.....................................................................................12 42 U.S.C. § 10155.........................................................................11, 13, 58 42 U.S.C. § 10156...............................................................................11, 12 42 U.S.C. § 10157...............................................................................11, 57 vii
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 8 TABLE OF AUTHORITIES (continued)
Page(s) 42 U.S.C. § 10161.....................................................................................11 42 U.S.C. § 10163.....................................................................................58 42 U.S.C. § 10164.....................................................................................58 42 U.S.C. § 10198.....................................................................................12 Regulations 10 C.F.R. § 2.309....................................................................14, 15, 16, 39 10 C.F.R. § 2.315......................................................................................15 10 C.F.R. § 2.326......................................................................................39 10 C.F.R. § 2.341......................................................................................27 10 C.F.R. § 2.1212....................................................................................27 10 C.F.R. Part 51 .......................................................................................9 10 C.F.R. § 51.20........................................................................................9 10 C.F.R. Part 60 .....................................................................................32 10 C.F.R. Part 63 .....................................................................................32 10 C.F.R. Part 72 ...........................................................................8, 20, 32 10 C.F.R. § 72.042....................................................................................32 10 C.F.R. § 72.102....................................................................................52 10 C.F.R. § 72.103....................................................................................52 Federal Register Notices Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352 (Mar. 12, 1984) ................................9 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018)....13, 15 Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 27,447 (May 8, 2020) ........................................19 Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 44,330 (July 22, 2020) ......................................19 viii
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 9 TABLE OF AUTHORITIES (continued)
Page(s)
Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 59,831 (Sept. 23, 2020) .....................................53 Interim Storage Partners LLCs Consolidated Interim Spent Fuel Storage Facility, 83 Fed. Reg. 44,922 (Sept. 4, 2018).........................18 Interim Storage Partners LLCs Consolidated Interim Storage Facility, 83 Fed. Reg. 53,115 (Oct. 19, 2018)......................................19 Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693 (Nov. 12, 1980) .....................................................8 Notice of Request for Information (RFI) on Using a Consent-Based Siting Process To Identify Federal Interim Storage Facilities, 86 Fed. Reg. 68,244 (Dec. 1, 2021)......................................................34 Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 66 Fed. Reg. 32,073 (June 13, 2001) .........33 Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project, 81 Fed. Reg. 79,531 (Nov. 14, 2016) ...........18 Other Authorities Consolidated Appropriations Act, 2021, H.R. 133 (Jan. 3, 2020)...........34 NRC, About NRC, https://www.nrc.gov/about-nrc.html .....................................................8 NRC, Atomic Safety and Licensing Board Panel, https://www.nrc.gov/about-nrc/organization/aslbpfuncdesc.html......16 NRC, NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (2014) .................32, 45, 56 RYAN K. LIGHTY, CIRCUIT-SPLITTING THE ATOM: HOW THE NUCLEAR REGULATORY COMMISSION AND THE DEPARTMENT OF ENERGY REACHED DIFFERENT CONCLUSIONS ON THE NEED TO CONSIDER HYPOTHETICAL TERRORIST ATTACKS UNDER NEPA (Apr. 2014) ..........48 ix
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 10 STATEMENT OF RELATED CASES Pursuant to 10th Cir. R. 28.2(c)(3), Interim Storage Partners, LLC represents as follows:
- There are no prior or related appeals pending before this Court.
- There is a related appeal, challenging the same agency action, pending before the United States Court of Appeals for the Fifth Circuit:
o Case No. 21-60743: State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Ltd.; and Permian Basin Land and Royalty Owners v. Nuclear Regulatory Commission and United States of America.
- There are multiple related appeals, challenging the same agency action, pending before the United States Court of Appeals for the District of Columbia Circuit (consolidated under Case No. 21-1048):
o Case No. 21-1048: Dont Waste Michigan, et al. v. U.S. Nuclear Regulatory Commission and United States of America; o Case No. 21-1055: Sierra Club v. U.S. Nuclear Regulatory Commission and United States of America; o Case No. 21-1056: Beyond Nuclear, Inc. v. U.S. Nuclear Regulatory Commission and United States of America; o Case No. 21-1179: Fasken Land and Minerals Ltd., and Permian Basin Land and Royalty Owners v. U.S. Nuclear Regulatory Commission and United States of America; o Case No. 21-1227: Sierra Club v. U.S. Nuclear Regulatory Commission and United States of America; x
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 11 STATEMENT OF RELATED CASES (continued) o Case No. 21-1229: Sierra Club and Dont Waste Michigan, et al.
- v. U.S. Nuclear Regulatory Commission and United States of America; o Case No. 21-1230: Beyond Nuclear v. U.S. Nuclear Regulatory Commission and United States of America; and o Case No. 21-1231: Dont Waste Michigan, et al. v. U.S. Nuclear Regulatory Commission and United States of America underlying Nuclear Regulatory Commissions Interim Storage Partners, LLC.
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Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 12 GLOSSARY OF ABBREVIATIONS AEA Atomic Energy Act of 1954 APA Administrative Procedure Act Board Atomic Safety and Licensing Board Commission Nuclear Regulatory Commission (multimember body)
CISF Consolidated Interim Storage Facility DOE Department of Energy EIS Environmental Impact Statement ISP Interim Storage Partners, LLC NEPA National Environmental Policy Act of 1969 NRC Nuclear Regulatory Commission (agency as a whole)
NWPA Nuclear Waste Policy Act of 1982 SNF Spent Nuclear Fuel xii
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 13 INTRODUCTION Petitioners (collectively for these purposes, New Mexico) had an opportunity to participate in well-settled, mandatory agency procedures that are required for parties (including States) that wish to contest the issuance of a license for the possession and storage of spent nuclear fuel (SNF), but elected not to do so. For all of the reasons explained by the Federal Respondents at pages 16-22 of their brief, that failure to participate is a fatal defect, and requires dismissal. Even beyond that, however, this appeal would have to be dismissed for a host of additional reasons.
The primary argument by New Mexico on the merits is based upon the Nuclear Waste Policy Act of 1982 (NWPA),1 but New Mexicos arguments impermissibly blur the distinctions between a number of very different entities, laws, and concepts. The U.S. Nuclear Regulatory Commission (NRC) is not the U.S. Department of Energy (DOE). The Atomic Energy Act of 1954 (AEA)2 is not the NWPA. Ownership and 1 Pub. L. No.97-425, 96 Stat. 2201 (codified as amended at 42 U.S.C.
ch. 108 §§ 10101 et seq.).
2 Pub. L. No.83-703, 68 Stat. 919 (codified as amended at 42 U.S.C. ch.
14 §§ 2011 et seq.).
1
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 14 disposition of SNF by the DOE is not the same thing as authorization by the NRC for a private party to possess and store SNF. Permanent disposal of SNF is not time-limited temporary storage of SNF.
Intervenor-respondent Interim Storage Partners, LLC (ISP) is not the DOE, and ISP is not the NRC. ISPs goals, preferences, and business plans are not those of either the DOE or the NRC.
New Mexicos NWPA-based arguments wrongly conflate these entities and propositions, and for that fundamental reason those arguments must be rejected. It is important for these purposes to recall what the NWPA actually does, which is to impose statutory and contractual obligations upon the DOE for the acceptance and permanent disposal of SNF. No one disputes that DOE has partially breached those obligations. Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1372 (Fed. Cir. 2005) (partial breach). Nor does anyone dispute that those breaches have stretched on for far longer than anyone would have desiredand continue to this day. Indeed, the circumstances have resulted in the need for private parties to deal with DOEs continuing breach as best they can, including with the interim storage of SNF. But, beyond those self-apparent facts, at the end of the day the NWPA, and 2
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 15 the DOE, do not have anything to do with this case. As this Court has held, the NRC has long had authority to authorize the temporary away-from-reactor storage of SNF, Skull Valley Band of Goshute Indians v.
Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004), and the NRC has routinely exercised that authority, both before and after passage of the NWPA, and both before and after DOEs breach. Bullcreek v. NRC, 359 F.3d 536, 543 (D.C. Cir. 2004). This case is no different. New Mexicos invocation of the NWPA and its reliance on the duties and obligations imposed by that statute upon DOE provide no grounds for reversal.
With regard to the various alleged violations of the National Environmental Policy Act of 1969 (NEPA)3 and the Administrative Procedure Act (APA),4 New Mexico falls far short of making the required showing of agency action that was arbitrary and capricious or an abuse of discretion, even if such claims were properly before this Court (which they are not). The extensive record in this case, including the 3 Pub L. No.91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321 et seq.).
4 Pub. L. No.79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. ch. 5, subch. I §§ 500 et seq.).
3
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 16 NRCs 684-page Environmental Impact Statement (EIS), R125,5 confirms that the NRC more than discharged its duties under NEPA, and New Mexicos mere disagreements with the technical determinations and well-founded discretionary judgments by the agency do not come close to establishing reversible error under the highly deferential standards that would apply.
Finally, New Mexico claims the issuance of a federal license for a facility to a private commercial entity (which is hardly an unusual or 5 See Joint Stipulation Concerning Filing of and Citation to Administrative Record and Motion to Set Briefing Schedule at 2 (Jan. 18, 2022) (Document No. 010110632956) (The parties have agreed that their briefs will cite to the materials in the record using the Record ID number in the [Certified Index of the Record that the NRC filed on December 7, 2021 (Document No. 010110615671)],
together with the page of the .pdf file being cited. Thus, page 6 of the document with Record ID 157 would be cited as R157.6. For any materials that are stored in an ADAMS package (a collection of documents stored in the NRCs database under one Record ID number), the parties will designate which sub-document within the package is being cited with a number separated from the Record ID by a period, along with the ML number of the sub-document in parentheses. Thus, page 12 of the third document in the package bearing Record ID 19 would be cited as R19.3(ML17058A026).12. The record that the NRC submits to the Court will be paginated in this format, without any ML number (i.e., 157.6 or 19.3.12).). See also Order at 2 (Jan. 18, 2022) (Document No. 010110633515) (approving this citation format).
4
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 17 uncommon occurrence) somehow constitutes an unfunded mandate, contrary to the Tenth Amendment, because the state might incur emergency response costs associated with the licensed activity. That claim misses the mark, however, for reasons that include (1) the fact that the License does not directly or indirectly mandate that New Mexico do anything, much less require New Mexico to enact or administer a federal regulatory program, and (2) the record clearly shows that funding to cover hypothetical emergency response costs is, in any event, potentially available.
For all of these reasons, New Mexicos petition should be denied, if it is not dismissed on jurisdictional grounds.
STATEMENT OF JURISDICTION ISP agrees with Federal Respondents arguments regarding jurisdiction. Resp. Br. at 16-22. ISP will not repeat those arguments here, but will instead address New Mexicos claims assuming, for arguments sake, that jurisdiction exists.
5
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 18 STATEMENT OF THE ISSUES
- 1. Whether the jurisprudential doctrine of administrative exhaustion requires dismissal of New Mexicos new claims that were never raised before the Commission in the ISP adjudicatory proceeding.
- 2. Whether a miscellany of allegations regarding argued non-compliance with the APA and NEPA, all of which were or should have been raised under the mandatory NRC adjudicatory scheme, would, even if true, rise to the level of arbitrary and capricious action by the NRC on the record in this case.
- 3. Whether the NRCs issuance of a license to ISP constitutes the imposition of an unfunded mandate upon New Mexico, in violation of the Tenth Amendment.
6
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 19 STATEMENT OF THE CASE I. Statutory and Regulatory Background Three statutes are implicated by New Mexicos claims in this case.
First, the AEA grants the NRC broad authority to regulate radiological safety. Second, NEPA requires federal agencies, including the NRC, to consider the environmental impacts and possible alternatives to proposed major Federal actions significantly affecting the quality of the human environment. NEPA, § 102(C), 42 U.S.C. § 4332(C). Third, New Mexico also asserts that another statutethe NWPAhas relevance here.
A. AEA Under the AEA as originally enacted, a single agency, the Atomic Energy Commission, had responsibility for the development and regulation of civilian uses of nuclear materials. The Energy Reorganization Act of 19746 split these functions, assigning to one agency, now the DOE, the responsibility for the promotion of nuclear power, and assigning to the NRC the regulatory and licensing function.
As such, the NRC is a neutral arbiter of license applications; it does not 6 Pub. L. No.93-438, 88 Stat. 1233.
7
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 20 promote or build commercial nuclear facilities. One of the NRCs primary functions is to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. NRC, About NRC, https://www.nrc.gov/about-nrc.html (last visited Apr. 22, 2022).
In 1980, the NRC promulgated regulations, codified in 10 C.F.R. Part 72, governing the licensing of SNF storage. See Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693 (Nov. 12, 1980). In doing so, the NRC invoked its AEA-based authority to regulate the possession of special nuclear, source, and byproduct materials. See 10 C.F.R. Part 72 (Authority). The Part 72 regulations expressly permit NRC licensing of away-from-reactor (as well as at-reactor) SNF storage. This Court has confirmed that the NRC has statutory authority under the AEA to issue such licenses to private commercial entities. Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004)
(adopting the analysis in Bullcreek v. NRC, 359 F.3d 536, 538-43 (D.C.
Cir. 2004)).
8
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 21 B. NEPA NEPA requires that the agency take a hard look at the environmental consequences before taking a major action; it does not require agencies to elevate environmental concerns over other appropriate considerations. Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983). The NRCs NEPA-implementing regulations are codified at 10 C.F.R. Part 51.7 The NRC has treated the licensing of away-from-reactor SNF storage as an action requiring an EIS. 10 C.F.R. § 51.20(b)(9).
C. NWPA Congress enacted the NWPA in 1982, two years after the NRC promulgated its Part 72 SNF storage regulations. The Ninth Circuit summarized the genesis of the NWPA as follows:
7 New Mexicos brief cites the Council on Environmental Qualitys NEPA regulations. E.g., Br. at 30, 32, 35, 45. However, as an independent federal agency, the NRCs own regulations govern; NRC is not bound by CEQs regulations unless incorporated by reference in 10 C.F.R. Part 51. See 10 C.F.R. § 51.10(a)(2); see also Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed.
Reg. 9352, 9352 (Mar. 12, 1984); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 N.R.C. 427, 443-44
& n.95 (2011).
9
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 22 Prior to the late 1970s, private utilities operating nuclear reactors were largely unconcerned with the storage of spent nuclear fuel. It was accepted that spent fuel would be reprocessed. Utilities entered contractual agreements for their spent fuel with private reprocessors. In the mid-70s, however, the private reprocessing industry collapsed for both economic and regulatory reasons. As a consequence, the nuclear industry was confronted with an unanticipated accumulation of spent nuclear fuel, inadequate private facilities for the storage of the spent fuel, and no long term plans for managing the nuclear waste.
Because of the dangers of this unanticipated nuclear waste accumulation, Congress enacted the [NWPA]. The [NWPA]
was directed toward both the immediate and long-term problems associated with storage [and disposal] of nuclear waste. Congress settled on a long-term policy of permanent
[disposal in Subtitle A]. Because the construction of permanent nuclear waste repositories would take years and the nuclear waste bottleneck caused by the collapse of the reprocessing industry threatened the continued operation of many reactors, Congress authorized the [DOE] to contract with private utilities for interim storage at existing federal facilities.
Understood in terms of its history, the interim storage provisions of the [NWPA] are not comprehensive regulations governing all federal storage of nuclear waste, but remedial legislation addressed to a specific problem. Congress recognized that federal facilities could provide interim storage for a limited quantity of the spent fuel left unaccounted for by the collapse of the reprocessing industry.
Idaho v. DOE, 945 F.2d 295, 298-99 (9th Cir. 1991) (citations omitted).
Subtitle A of the NWPA, which provided for the permanent federal repository, expresses Congressional policy that the generators and 10
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 23 owners of . . . spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of . . . spent fuel until such . . . spent fuel is accepted by [DOE for permanent disposal]. NWPA, § 111(a)(5), 42 U.S.C. § 10131(a)(5).
Subtitle B of the NWPA established a limited federal program for interim SNF storage for utilities showing they were in need. NWPA, §§ 135-137, 42 U.S.C. §§ 10155-10157. Subtitle C initiated the study and development of another federal program for interim storage which was intended to be available if the permanent federal repository was not available by a specified deadline. NWPA, § 141, 42 U.S.C. § 10161.
Although establishing a federal program, the NWPA severely restricted the federal obligation to assist nuclear plant owners with SNF.
For example, DOE was authorized to provide no more than 1900 metric tons of capacity for the interim storage of SNF from a civilian nuclear power reactor. NWPA, § 135(a)(1), 42 U.S.C. § 10155(a)(1). Section 135(a)(1) authorized DOE to provide this 1900 metric tons of capacity through various onsite storage methods, or by use of available storage capacity at existing facilities owned by the Federal Government on [the date of enactment of the NWPA]. 42 U.S.C. § 10155(a)(1)(A). Moreover, 11
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 24 Congress provided a limited window of opportunity (until January 1, 1990) for reactor owners to enter into contracts for federal interim storage. NWPA, § 136(a)(1), 42 U.S.C. § 10156(a)(1). The federal interim storage option ultimately expired with no generators having taken advantage of the program.
Subtitle B also contains provisions designed to encourage private reactor owners to explore new at-reactor storage options. Section 132 explicitly directs the NRC and DOE to take actions to encourage and expedite the effective use of existing and additional at-reactor storage.
42 U.S.C. § 10152. Section 133 directs the NRC to establish procedures for licensing dry storage technologies developed through a DOE research program established under Section 218(a), 42 U.S.C. § 10198. 42 U.S.C.
§ 10153. And Section 134 establishes an expedited hearing process for NRC licensing of expansions of onsite storage capacity. 42 U.S.C.
§ 10154. Finally, in a provision that received attention in prior challenges to the NRCs authority under the AEA, and which New Mexico invokes again here, Subtitle B provides that notwithstanding any other law, nothing in [the NWPA] shall be construed to encourage, authorize, or require private or federal use of an away-from-reactor storage facility 12
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 25 at a site not already owned by the government. NWPA, § 135(h),
42 U.S.C. § 10155(h). See Bullcreek, 359 F.3d at 543.
II. Factual Background and Procedural History A. ISPs Application By letter dated April 28, 2016, Waste Control Specialists, LLC applied to the NRC for a license to store SNF at a consolidated interim storage facility (CISF) adjacent to its existing low-level radiological waste disposal facility in Andrews County, Texas. R5, R6. On April 18, 2017, Waste Control Specialists, LLC requested that the NRC suspend its review of the application. See Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed.
Reg. 44,070 (Aug. 29, 2018). By letter dated June 8, 2018, ISP, a joint venture between Waste Control Specialists, LLC and Orano CIS, LLC, requested that the NRC resume its review of the application under the new joint venture. Id.
At the time the application was submitted, the project had strong support from the state, regional, and local communities located in west Texas. As noted in the application:
In March 2014, Texas Governor Rick Perry called for a Texas solution for SNF generated at 6 reactor sites located in the 13
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 26 state. On September 19, 2014, the Texas Radiation Advisory Board also issued a position stating it is in the states best interest to request that the federal government consider Texas as a CISF site. On January 20, 2015, the Andrews County Commissioners unanimously approved a resolution in support of establishing [a CISF] in Andrews County, Texas, for the consolidated interim storage of SNF and high level radioactive waste.
R88.3(ML20052E152).19. See also R88.4(ML20052E154).2-9 (providing source documents) (construction of facility will enhance the health, safety, and welfare of the citizens of Andrews County) (I believe it is time for Texas to act.).
B. Adjudicatory Proceeding The NRCs adjudicatory process is the means by which members of the public and interested government entities may participate in a licensing proceeding and raise environmental, safety, or legal challenges.
See AEA, § 189.a, 42 U.S.C. § 2239.a; 10 C.F.R. § 2.309. E.g., Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 196 (D.C. Cir. 2013) (NRC procedural rules consistent with NEPA). On August 29, 2018, the NRC published a notice in the Federal Register providing the public an opportunity to participate in the ISP licensing proceeding by (1) requesting a formal evidentiary hearing to challenge the Application, and (2) petitioning for leave to intervene in that proceeding. See 83 Fed.
14
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 27 Reg. 44,070. That notice also provided States, local government bodies, Federally-recognized Indian Tribes, and agencies thereof, an opportunity to participate in the proceedingeither as a party, under 10 C.F.R.
§ 2.309(h)(1), or as a non-party, under 10 C.F.R. § 2.315(c). Id.
Between September 2018 and November 2018, multiple individuals and organizations (collectively, the Administrative Challengers),
submitted to the NRC various filings, including hearing requests and petitions to intervene in the adjudicatory proceeding, purporting to challenge ISPs license application (Initial Filings). See generally Interim Storage Partners, LLC (WCS CISF), LBP-19-7, 90 N.R.C. 31 (2019). NRC procedural regulations require petitioners to identify the specific contentions they wish to litigate in a hearing. 10 C.F.R.
§ 2.309(a), (f)(1).
New Mexico did not request to participate in the proceedingeither as a party, under 10 C.F.R. § 2.309(h)(1), or as a non-party, under 10 C.F.R. § 2.315(c).
In November 2018, the Commission referred the Initial Filings to the NRCs Atomic Safety and Licensing Board Panel for consideration under the NRCs Rules of Practice and Procedure at 10 C.F.R. § 2.309.
15
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 28 The Panel is a separate component of the NRC, independent from the Commission and the NRC Staff, and is composed of administrative judges who are lawyers, engineers, and scientists. See NRC, Atomic Safety and Licensing Board Panel, https://www.nrc.gov/about-nrc/organization/
aslbpfuncdesc.html (last visited Apr. 22, 2022). The Panels Chief Administrative Judge then established a three-judge Atomic Safety and Licensing Board (Board) to adjudicate the Initial Filings. See generally LBP-19-7, 90 N.R.C. at 42-45 (procedural history).
The NRCs Rules of Practice and Procedure at 10 C.F.R. § 2.309(c) also permit new parties to seek intervention and new or existing parties to file new or amended contentions after the initial intervention deadline if they are based on materially different information that was not previously available. Certain of the Administrative Challengers proposed such contentions. See Interim Storage Partners, LLC (WCS CISF), CLI-20-14, 92 N.R.C. 463, 475-478 (2020); Interim Storage Partners, LLC (WCS CISF), LBP-21-2, 93 N.R.C. 104, 104-117 (2021)
(2021 WL 8087739 at *1-9); Interim Storage Partners, LLC (WCS CISF),
CLI-21-9, 93 N.R.C. 244, 244-251 (2021).
16
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 29 Following multiple rounds of briefing and oral argument, the Board issued, between 2019 and 2021, a series of orders ultimately denying or dismissing all challenges filed by the Administrative Challengers and terminating the adjudicatory proceeding.8 See LBP-19-7, 90 N.R.C.
at 118 (2019); Interim Storage Partners, LLC (WCS CISF), LBP-19-9, 90 N.R.C. 181 (2019); Interim Storage Partners, LLC (WCS CISF),
LBP-19-11, 90 N.R.C. 358 (2019); LBP-21-2, 93 N.R.C. 104 (2021 WL 8087739).
Each of the Administrative Challengers also appealed certain aspects of the Boards orders to the full Commission. In a series of orders between 2020 and 2021, the Commission affirmed each of those orders because the Administrative Challengers failed to demonstrate any error of law or abuse of discretion by the Board. See Interim Storage Partners, LLC (WCS CISF), CLI-20-13, 92 N.R.C. 457 (2020); CLI-20-14, 92 N.R.C. 463; Interim Storage Partners, LLC (WCS CISF), CLI-20-15, 92 N.R.C. 491 (2020); CLI-21-9, 93 N.R.C. 244.
8 The Board granted Sierra Clubs hearing request and petition to intervene and partially admitted one of its contentions. LBP-19-7, 90 N.R.C. at 118. However, the contention was later mooted and dismissed. LBP-19-9, 90 N.R.C. at 192.
17
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 30 C. NRC Staff Review In parallel with the adjudicatory process, the NRC Staff conducted its own safety and environmental reviews of ISPs application. On November 14, 2016, the NRC staff published in the Federal Register a notice of intent to prepare an EIS and to conduct an environmental scoping process. Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project, 81 Fed. Reg. 79,531 (Nov. 14, 2016).
The NRC staff invited government entities and members of the public to provide comments on that process. Id. The initial scoping period closed on April 28, 2017. Id. The NRC staff initially hosted four public scoping meetings, one in Hobbs, New Mexico, on February 13, 2017; a second in Andrews, Texas, on February 15, 2017; and two nationally webcast sessions from Rockville, Maryland, on February 23, 2017, and April 6, 2017. R16, R17, R21, R26 (Transcripts). Following the suspension and re-initiation of the NRCs review of the application, on September 4, 2018, the NRC staff reopened the scoping process. See Interim Storage Partners LLCs Consolidated Interim Spent Fuel Storage Facility, 83 Fed. Reg. 44,922 (Sept. 4, 2018). The additional scoping period was subsequently extended to November 19, 2018. See 18
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 31 Interim Storage Partners LLCs Consolidated Interim Storage Facility, 83 Fed. Reg. 53,115 (Oct. 19, 2018). The NRC staff then issued a scoping summary report in October 2019 addressing all public comments. R77.
In May 2020, the NRC staff issued a draft EIS. R97. A 120-day comment period began on May 8, 2020, to allow members of the public and governmental entities an opportunity to comment on the draft EIS.
See Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 27,447 (May 8, 2020). On July 22, 2020, the NRC staff extended the comment period an additional 60 days to close on November 3, 2020. See Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 44,330 (July 22, 2020).
Additionally, the NRC staff held public meetings on October 1, 6, 8, and 15, 2020, to discuss the preliminary findings in the draft EIS. R110, R113, R116, R120 (Transcripts).
As noted, New Mexico did not elect to participate in the licensing proceeding; instead, Governor Lujan-Grisham (R1295) and two state agencies (R1386, R1432, R1484) submitted letters in response to the NRCs solicitation of comments on the draft EIS. Responses to all public comments, written and oral, received during the draft EIS comment 19
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 32 period were included in an appendix to the final EIS, which was issued in July 2021. R125.491-680.
On September 13, 2021, based on its robust, multi-year environmental and safety reviews, the NRC issued Materials License No.
SNM-2515 to ISP, pursuant to 10 C.F.R. Part 72. R130.
New Mexico submitted two other letters purporting to provide comments. However, those letters were submitted 10 months after the close of the comment periodone, the day the NRC issued the License, and the other, the day after the License was issued. Compare R131.1 (letter dated Sept. 13, 2021) and R132.1 (letter dated Sept. 14, 2021) with R130.1(ML21188A097) (issuing license on Sept. 13, 2021).
20
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 33
SUMMARY
OF ARGUMENT
- 1. Beyond the jurisdictional defects explained by the Federal Respondents (Resp. Br. at 16-22), the well-established doctrine of administrative exhaustion also dictates dismissal of several of New Mexicos claims because they were not raised before the Commission in the ISP adjudicatory proceeding, by New Mexico or any other party.
Those claims are being argued here, improperly, for the very first time on appeal. This Court should not permit New Mexico to simply side-step the well-settled and fulsome agency adjudicatory participation process.
- 2. Several other claims raised by New Mexico here simply repeat claims that were raised by other parties in the adjudicatory proceeding before the agency. Yet, New Mexico does not cite, quote, acknowledge, or otherwise engage with the relevant agency orders resolving those claims.
To justify a claim of arbitrary and capricious action on those exact same issues, New Mexico must do more than simply ignore the relevant agency decisions underlying the challenged action. It must show that the agency erred under the applicable standards, and New Mexico has not done so here.
21
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 34
- 3. New Mexicos NWPA-based claims are meritless. Contrary to New Mexicos assertion, the License does notdirectly or indirectly authorize ISP to permanently dispose of SNF. By its own terms, the License authorizes only time-limited storage. And no finding of de facto permanent disposal can be justified on this record. Also, contrary to New Mexicos claims, the License does not authorize any party to enter contracts that would violate the NWPA. No violation of the NWPA procedural requirements cited by New Mexico has occurred because the cited provisions, by their own plain terms, apply only to the DOE (not ISP or the NRC), and relate solely to DOEs obligation to establish federal (not private) SNF storage facilities.
- 4. New Mexicos various NEPA-based challenges also are meritless for multiple and overlapping reasons. Contrary to New Mexicos counterfactual portrayal, the NRC thoroughly analyzed the potential impacts of the licensing action in a 684-page EIS that responded to all timely public comments. For example, New Mexico repeatedly claims the NRC ignored its comments on the draft EIS, but the administrative record plainly proves otherwise. Similarly, New Mexico claims the agency improperly segmented the transportation analysis 22
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 35 out of the EIS, but the EIS very clearly contains a detailed analysis of transportation activities connected to the proposed action. New Mexicos other NEPA claims suffer from a litany of factual and legal errors that render those claims meritless. At best, those claims represent policy disagreements and generalized objections, but they fail to demonstrate any action by the NRC that was arbitrary and capricious or an abuse of discretion. For these and all of the other reasons explained below, New Mexico has no valid complaint under the APA or NEPA.
- 5. New Mexicos unfunded mandate argument is unavailing.
The ISP License does not mandate that New Mexico do anything, much less impermissibly enact or administer a federal regulatory program.
And, New Mexico has misunderstood, or disregarded, the relevant portions of the record, which contain a discussion regarding funding for emergency response activities. These circumstances present no valid basis for an unfunded mandate claim under the Constitution or the APA.
23
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 36 STANDARD OF REVIEW This court reviews federal agency decisions under the standard of review established by the Administrative Procedure Act, 5 U.S.C. § 706.
Applying that standard, this Court will affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir. 2009) (citation omitted). Licensing decisions such as the one challenged in this appeal are generally entitled to the highest judicial deference, Massachusetts v. NRC, 924 F.2d 311, 324 (D.C. Cir. 1991), and that is especially true where, as here, the agency decision is based upon evaluation of complex scientific data within the agencys technical expertise. Balt. Gas & Elec. Co., 462 U.S. at 103.
NEPA provides no cause of action against federal agencies for alleged noncompliance with the statute; nor does it provide a basis for subject matter jurisdiction over such claims. Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 872 (1990). Accordingly, it is well established that a petitioner alleging NEPA noncompliance must base its cause of action on the Administrative Procedure Act. Richardson, 565 F.3d at 704. As 24
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 37 this Court has explained, an agency decision is arbitrary and capricious only if the agency:
(1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.
Id. at 704 (quoting Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007) (quotation marks omitted)).
In reviewing NEPA challenges, a courts task is not to flyspeck the EIS for minor deficiencies. Citizens for Alts. to Radioactive Dumping v.
DOE, 485 F.3d 1091, 1098 (10th Cir. 2007) (citation omitted).
A presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action. Citizens Comm. to Save Our Canyons (CCSOC) v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (citation omitted).
25
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 38 ARGUMENT I. New Mexicos Claims That Were Not Raised Before the Commission in the Adjudicatory Proceeding Should Be Dismissed on Administrative Exhaustion Grounds The Supreme Court has consistently endorsed the doctrine of administrative law that, [i]n most cases, an issue not presented to an administrative decisionmaker cannot be argued for the first time in federal court. Sims v. Apfel, 530 U.S. 103, 112 (2000) (OConnor, J.,
concurring in part and concurring in the judgment). The administrative exhaustion requirement serves the important purposes of giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies expertise, and compiling a record adequate for judicial review. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (citation and brackets omitted).
[A]s a general rule[,] courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice.
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted). The Supreme Court has recognized that it is improper and inefficient to permit a litigant to side-step[] a corrective process which might have cured or 26
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 39 rendered moot the very defect later complained of in court. McGee v.
United States, 402 U.S. 479, 483 (1971). This Court should not permit New Mexico to do so here.
As noted above, New Mexico had an opportunity to participate in the NRC adjudicatory proceeding, either as a party or as a non-party, but chose not to do so. New Mexico commented, but did not object to any aspect of the agencys action in the adjudicatory proceeding, and did not pursue any administrative appeal before seeking judicial review, as required by the agencys procedural rules. 10 C.F.R. §§ 2.341(b)(1),
(b)(2)(iii), 2.1212. Several claims pursued by New Mexico here were not raised by any party in that proceeding, including arguments regarding:
NWPA procedures (Br. at 25-26; see infra Part II.C), NEPA procedures (Br. at 12-13, 46-49; see infra Part III.A), the projected availability date for a permanent repository (Br. at 33; see infra Part III.B), and an alleged unfunded mandate (Br. at 26-29; see infra Part IV). Each of these claims is being improperly argued by New Mexico for the first time in federal court.
New Mexico cannot demonstrate any reason why this Court should depart from its longstanding jurisprudential exhaustion doctrine.
27
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 40 Although this Court recognizes a narrow non-jurisdictional exhaustion exception, it does not apply here. That exception allows parties to seek early judicial review of a constitutional claim related to agency action upon demonstrating that (a) exhaustion would result in irreparable harm and (b) exhaustion would be futile. Kansas v. SourceAmerica, 874 F.3d 1226, 1250 (10th Cir. 2017). But three of these four new claims do not even purport to be constitutional. With regard to the unfunded mandate claim, New Mexico is not seeking early judicial review, and has no colorable basis to assert that participating in the adjudicatory process would have caused it irreparable harm.
New Mexico apparently made a tactical decision to eschew the well-settled and mandatory agency processes. There is, however, no exception to the exhaustion requirement for that. Accordingly, if this Court does not dismiss the entire Petition on jurisdictional grounds (as it should do for all of the reasons explained in the Federal Respondents Brief at 14-22), it should at a minimum nevertheless dismiss the four inarguably new claims on separate jurisprudential exhaustion grounds.
28
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 41 II. New Mexicos NWPA-Based Claims Fail to Demonstrate Any Arbitrary and Capricious Agency Action A. The License Does Not Authorize or Allow ISP or DOE to Violate the NWPA New Mexico correctly notes that the NWPA currently prohibits the federal government from taking title to SNF or entering contracts for its interim storage until a permanent SNF repository has opened. Br. at 24.
The ISP License contains an important restriction providing that, prior to accepting any SNF from a customer (either DOE or a private owner),
ISP must have a contract with the entity. R130.3(ML21188A099).3¶19.
New Mexico asserts that this condition of the ISP License violates the NWPA because DOE cannot enter such a contract. Br. at 24. According to New Mexico, the condition disregards the current NWPA prohibition on DOE entering into interim storage contracts and purports to allow[]
DOE to disregard that prohibition. Br. at 24. That is not correct, as the administrative record confirms.
Indeed, this claim was raisedand rejectedin the adjudicatory proceeding before the agency, and is being litigated right now in the D.C.
Circuit. Dont Waste Michigan, et al. v. NRC, No. 21-1048 (D.C. Cir.). As a threshold matter, New Mexico has not met its burden of proof, see 29
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 42 CCSOC, 513 F.3d at 1176, because it fails to acknowledge, engage with, or dispute the agencys decision-making on this issue as articulated in the relevant adjudicatory orders.
And, the record (as confirmed by the agency orders ignored by New Mexico) requires rejection of New Mexicos arguments. The Board noted ISPs acknowledgement, and DOEs public statements, that DOE cannot contract for private interim storage without violating the NWPA as currently in effect. LBP-19-7, 90 N.R.C. at 58. Given that clarity, the Board concluded that [t]here is no credible possibility that such contracts will be made in violation of the law. Id. at 59; see also id.
at 109-110 (rejecting same argument by different party).
On administrative appeal, the Commission affirmed the Boards conclusion, noting that any assertion that the ISP License purports to allow DOE to enter illegal contracts simply misunderstands the nature of the [ISP License] and its conditions. CLI-20-14, 92 N.R.C. at 468. In fact, the Commission confirmed the oppositethat the ISP License does not authorize ISP to enter into illegal contracts and does not grant any rights to DOE. Id. at 468-69. It also noted that the license condition (requiring ISP to enter into a contract with DOE as a prerequisite to 30
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 43 storing any DOE-owned SNF) could not be satisfied by a contract made in violation of the NWPA [b]ecause an illegal contract is unenforceable.
Id. Finally, and removing any possible doubt, the Commission reiterated that nothing in the ISP License purports to authorize ISP or the DOE to enter such contracts and confirmed that the subject license condition merely expresses a limitation on ISPs operating authority. CLI-20-15, 92 N.R.C. at 499 (emphasis added).
Given all of this, it is readily apparent that New Mexico has not established arbitrary and capricious action or an abuse of discretion by merely asserting, incorrectly and without any support, that the NRCs action violates the NWPA and the APA because the License allegedly authorizes illegal activity.
B. The License Authorizes Time-Limited SNF Storage, Not De Facto Permanent SNF Disposal New Mexico further argues that Congress did not give the NRC authority to license private SNF storage for an indefinite period of time, and that the NRC violated the NWPA because the ISP License authorizes de facto permanent disposal of SNF. Br. at 21-24. However, New Mexico misreads or misunderstands the scope of agency action here.
31
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 44 Time-limited interim storage of SNF and permanent disposal of SNF are quite different things. Indeed, they are governed by separate statutory and regulatory provisions. Compare, e.g., 10 C.F.R. Part 72 (licensing provisions for SNF storage), with id., Parts 60 and 63 (licensing provisions for SNF disposal). The ISP License authorizes only the former. R130.3(ML21188A099).2¶9. And the authorization is for a defined period of 40 years. R130.3(ML21188A099).1¶4. Thus, New Mexicos assertion that the License authorizes indefinite storage or disposal is meritless on its face.
Even if renewed for one or more terms under 10 C.F.R. § 72.42 (which renewals would trigger additional safety and environmental reviews, public comment solicitations, and adjudicatory hearing opportunities),9 the temporary storage licenseon a scale of tens or hypothetically even a hundred years or morecannot accurately be 9 See also NUREG-2157, Vol. 1, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel at B-25 (2014) [hereinafter NUREG-2157], available at https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr2157/
index.html (The current regulatory framework for storage of spent fuel allows for multiple license renewals, subject to aging management analysis and planning.).
32
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 45 characterized as anything like permanent disposalwhich contemplates a time frame of tens to hundreds of thousands of years.
Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 66 Fed. Reg. 32,073, 32,087 (June 13, 2001)
(emphasis added). The record establishes that the unambiguous scope of authorized activity in the ISP License lies squarely within the NRCs statutory authority under the AEA. New Mexico cannot evade that controlling fact just by saying that it is not so.
More broadly, New Mexico says there are no credible plans from Congress and the DOE (notably separate entities from ISP and the NRC) to provide a federal facility for permanent disposal of SNF. Br. at 23.
Therefore, according to New Mexico, the ISP facility should be regarded as a de facto permanent disposal facility. Br. at 23. This claim was also raised in the adjudicatory proceeding. LBP-19-7, 90 N.R.C.
at 66-67, 100-101, 109-111. Again, New Mexico has not met its burden of proof, because it fails to acknowledge, engage with, or dispute the agencys conclusions on this claim. Moreover, New Mexico cites no support for the notion that otherwise-lawful agency action must be deemed unlawful based upon speculation, by a litigant, that non-party 33
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 46 government actors, many decades in the future, will lawlessly choose never to comply with their statutory obligations.
ISP does not dispute that there have been substantial delays associated with the federal governments efforts to establish a permanent repository for SNF disposalindeed they are a factor behind the need for private interim storage options. See R125.51 (EIS discussing the purpose and need for the project). However, project delays do not justify a finding that the DOE will never fulfill its obligationsno court has ever so held, in any of the many, many lawsuits involving DOEs continuing breach. Indeed, recent and relevant government action on this issue contradicts speculation of no solution, ever. For example, the Congress recently provided funding for the DOE to carry out the purposes of the NWPA. See Consolidated Appropriations Act, 2021, H.R. 133 at 185 (Jan. 3, 2020). And the DOE recently restarted its consent-based siting process for federally-owned storage facilities. Notice of Request for Information (RFI) on Using a Consent-Based Siting Process To Identify Federal Interim Storage Facilities, 86 Fed. Reg. 68,244 (Dec. 1, 2021).
New Mexicos arguments depend upon this Court explicitly holding that the ISP site will, in fact, become a de facto permanent disposal 34
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 47 facility. The record in this case simply will not support such an extraordinary and unprecedented finding.
C. The NWPA Procedures Cited by New Mexico Do Not Apply to Private Projects by Commercial Entities New Mexico claims the NWPA establishes certain procedural rights and protections for States . . . relating to the siting of a permanent repository and interim storage facilities. Br. at 25. New Mexico then suggests the NRCs action here circumvent[s] these requirements. Br.
at 26. Not so. New Mexico incorrectly conflates: (1) the NRC with the DOE (which are different agencies); and (2) private interim storage (which the ISP License authorizes, pursuant to the AEA) with federal interim storage and permanent disposal (which the NWPA addresses).
The plain language of the statutory provisions cited by New Mexico prescribe procedural requirements for the Secretary (i.e., DOE, not the NRC) applicable to the establishment of federally-owned (not private) interim storage and permanent disposal facilities, e.g., 42 U.S.C.
§§ 10135-10138. Those provisions applicable to DOE do not direct the NRC to do anything; and they have no bearing on private commercial activity. Thus, if the Court does not dismiss this claim on jurisdictional or non-jurisdictional exhaustion grounds (see supra Part I), it should hold 35
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 48 that New Mexicos misreading of the NWPAs plain text does not identify any arbitrary and capricious action by the NRC.
III. New Mexicos NEPA-Based Claims Fail to Demonstrate Any Arbitrary and Capricious Agency Action A. The NRC Neither Ignored Public Comments Nor Foreclosed Public Participation Prior to Issuing the Draft EIS New Mexico suggests that the NRCs action is invalid due to procedural irregularities under NEPA. Specifically, New Mexico alleges that the NRC closed the ISP administrative proceeding and administrative record before the draft EIS was issued for comment. Br.
at 12-13. New Mexico also claims that its comments in the ISP proceeding were ignored. E.g., Br. at 46, 47, 48, 49. Both assertions are belied by the record.
New Mexico notes that the Board terminated the adjudicatory proceeding after every contested matter pending before the Board had been resolved. Br. at 13. That is true. LBP-19-11, 90 N.R.C. at 368. But, according to New Mexico, the Boards adjudicatory action had the effect of also closing the administrative record for the entire licensing proceeding before the draft EIS had been issued for public comment.
Br. at 13. That is not true. As a procedural matter, the Commission has 36
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 49 explained that closing an adjudicatory record and terminating an adjudicatory proceeding is simply a ministerial act performed by the Board when its adjudicatory work is done, [b]ut the administrative record (and the hearing process) remains open until the conclusion of the proceeding. Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station), CLI-08-9, 67 N.R.C. 353, 354-55 (2008). New Mexico simply misconstrues and misstates the effect of closing the adjudicatory record.
It does not, as New Mexico suggests, mean that the agency stopped considering public input before the draft EIS was issued. Indeed, the fact that New Mexico submitted comments after the close of the adjudicatory record demonstrates that New Mexico understands the difference.
Furthermore, the Record of Decision erases any doubt. The agency plainly states that it considered, among other things, public comment on the draft EIS. R129.1. Contrary to New Mexicos claims that its comments were ignored, [r]esponses to all public comments received during the draft EIS comment period are included in Appendix D to the
[Final] EIS. R129.3. That appendix confirms that the NRC, in fact, responded to each and every timely comment submitted by New Mexico.
See R125.670 (identifying Governor Lujan-Grishams comments (R1295) 37
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 50 as Correspondence ID 81); R125.673 (identifying Secretary Kenneys comments (R1386) as Correspondence ID 155); R125.675 (identifying Ms.
McDills comments (R1432) as Correspondence ID 60-22); R125.676 (identifying Secretary Propsts comments (R1484) as Correspondence ID 152); R125.497-498, 519-521, 538-541, 603-604, 642-643, 644-645, and 649-650 (addressing Correspondence ID 81, i.e., Governor Lujan-Grishams comments); R125.497-498, 500, 501, 528-529, 530-532, 542-543, 581-583, 584-585, 587-588, 588-589, 589-592, 598-599, 605-608, 609-613, 614-615, 639-641, 642-644, 645-646, 649-651, and 661 (addressing Correspondence ID 155, i.e., Secretary Kenneys comments); R125.497-498, 530-532, 535-536, 542-543, 571-573, 574-575, and 641-642 (addressing Correspondence ID 152, i.e., Secretary Propsts comments); R125.500, 519-521, 581-583, 605-608, 609-613, 639, 642-643, and 649-650 (addressing Correspondence ID 60-22, i.e.,
Ms. McDills comments).
Finally, to the extent New Mexicos complaint about termination of the adjudicatory proceeding implies that, after that point, members of the public and government entities were unable to raise new or amended adjudicatory challenges based on new information, that claim is false.
38
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 51 The NRCs adjudicatory rules expressly allow for such challenges. See 10 C.F.R. §§ 2.309(c), 2.326. Indeed, one of New Mexicos lawyers in this appeal invoked those provisions (albeit on behalf of another party to the adjudicatory proceeding) to file a new adjudicatory challenge after the draft EIS was issued. See LBP-21-2, 93 N.R.C. at 104-117 (2021 WL 8087739 at *1-9) (adjudicating that challenge); id. at 108 (2021 WL 8087739 at *3-4) (identifying Mr. Kanner as counsel).10 Ultimately, New Mexicos vague assertions regarding alleged procedural improprieties and inadequate opportunities for public and governmental participation are counterfactual. Thus, if the Court does not dismiss this claim on jurisdictional or non-jurisdictional exhaustion grounds (see supra Part I), it should conclude that New Mexico has failed to establish any procedural deficiency under the APA or NEPA.
B. New Mexicos Claims Regarding the Projected Availability Date for a Permanent Repository Fail to Demonstrate Any APA Violation New Mexico criticizes the EIS because it allegedly relies on an assumption that a permanent federal repository for SNF disposal may be 10 Entry of Appearance of Allan Kanner for Petitioners Hector H.
Balderas and the New Mexico Environment Department (Mar. 16, 2022) (Document No. 010110657963).
39
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 52 available by the year 2048. Br. at 33. New Mexico implies the EIS is flawed because the 2048 projection is impracticable, and it claims the NRC points to no evidence in [the] record to justify this assumption.11 Br. at 33-36. But it is New Mexicos claim that is unsupported by the record.
As a preliminary matter, New Mexico points to no technical evaluation that undermines an assumption that a repository could be licensed and constructed on the challenged timeline. New Mexicos arguments are utterly without record or factual support, and therefore cannot be grounds for reversal.
Even assuming, however, that New Mexico was correct and a permanent repository turns out to be delayed beyond 2048, New Mexico 11 To the extent New Mexico suggests that the NRC failed to perform an environmental analysis on a scenario in which a repository is significantly delayedor never builtthat suggestion is factually incorrect. The Board rejected similar claims in the adjudicatory proceeding because the NRC, in fact, prepared a Generic EIS (which it incorporated into the EIS for the ISP License) that analyzes the impacts of storing SNF for different lengths of time, including the indefinite time scenario where no repository is ever constructed.
LBP-19-7, 90 N.R.C. at 66-67; see also id. at 100-101, 109-111 (same).
None of the Administrative Challengers appealed that finding to the Commission, and New Mexico neither acknowledges nor disputes it here.
40
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 53 fails to identify any portion of the EIS that would be materially impacted.
The EIS mentions the 2048 repository availability date only twice. First, in the context of the purpose and need statement, the NRC references this date for the proposition that a repository will not be available in the near termand thus private interim SNF storage may have a role to play in bridging the gap between now and the date of repository availability.
R125.51. If a repository is not available until after 2048, as New Mexico speculates, that would not undermine the NRCs assertion; indeed, it would strengthen it.
Second, in the description of the proposed action, the NRC projects that SNF stored at the ISP facility will be shipped to a repository by the end of the license term of the proposed CISF, i.e., by the year 2081 (assuming one 20-year renewal period). R125.70. The NRC merely observed that this expectation was consistent with a 2048 repository availability projection in another document. R125.70. But New Mexico does not engage with or dispute the agencys projection in this proceeding that SNF stored at the ISP CISF will be shipped offsite by the year 2081, nor does it explain why that projection is somehow unreasonable.
41
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 54 New Mexico also claims that the NRC points to no evidence in [the]
record to justify the (limited) references to a 2048 projected availability date. Br. at 34. That is false. The NRC plainly references (DOE, 2013),
R125.51, which corresponds to the following item in the references section:
DOE. Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste. ADAMS Accession No. ML13011A138. Washington, DC: U.S.
Department of Energy. 2013.
R125.64. That document remains the most up-to-date guidance from the DOEthe agency responsible for providing the repositoryabout when and how it expects to begin accepting SNF. Quite clearly, the NRCs limited references to 2048 in the EIS were not pulled from thin air, as New Mexico contends. The NRC is doing the best that it canand, more importantly, all that it is legally required to doin the face of the ongoing political stalemate over Yucca Mountain.
New Mexico also highlights a projection in the EIS that SNF could be stored at the ISP facility for 60 to 100 years and claims that is inconsistent with the 2048 repository-availability projection (i.e., 27 years after the License was issued). Br. at 34. But there is no inconsistency. New Mexico appears to believe that the entire inventory 42
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 55 of SNF would disappear from the ISP facility instantaneously upon the opening of a permanent repository. But that would be illogical.
Transporting SNF to a permanent repository will take years and be subject to a systematic prioritization process. The EIS assumes that the ISP facility would continue storing SNF during the transportation campaign,12 which could run through the licensed life of the facility. See, e.g., R125.405 and 481. New Mexico fails to acknowledge, engage with, or dispute those realistic transportation timing projections, or explain why they are arbitrary and capricious.
Finally, New Mexico claims the EISs purported reliance on a 2048 repository availability date caused the NRC to refus[e] to evaluate a single reasonable alternative. Br. at 35. According to New Mexico, a reasonable alternative to issuance of [the License] would be keeping SNF at current storage locations until the permanent repository is ready.
Br. at 34. But the NRC plainly evaluated that exact scenario as a reasonable alternative in the EIS. See, e.g., R125.89 (describing the No-Action Alternative in which SNF would remain at commercial 12 The impacts of transporting SNF from the ISP CISF to a permanent repository were analyzed in the EIS. See R125.233-236.
43
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 56 reactor sites). Contrary to New Mexicos claims, not only did the NRC evaluate reasonable alternativesit evaluated the precise alternative New Mexico identified. Ultimately, if the Court does not dismiss New Mexicos repository-availability claims on jurisdictional or non-jurisdictional exhaustion grounds (see supra Part I), it should find that New Mexicos vague and factually incorrect criticisms (and misreading of the EIS) on this topic do not establish any violation of the APA or NEPA.
C. New Mexicos Claims Regarding Terrorism Disregard the Record and Fail to Demonstrate Any APA Violation In 2006, the Ninth Circuit held that NEPA requires a terrorism analysis in connection with the licensing of a nuclear facility. San Luis Obispo Mothers for Peace (SLOMP) v. NRC, 449 F.3d 1016, 1035 (9th Cir. 2006). But, as a matter of policy, the NRC declined to follow that precedent outside the Ninth Circuit, observing (as to non-D.C. Circuit decisions) that it is not obliged to adhere, in all of its proceedings, to the first court of appeals decision to address a controversial question.
Amergen Energy Co. (Oyster Creek Nuclear Generating Station),
CLI-07-8, 65 N.R.C. 124, 128-29 & n.14 (2007) (citing United States v.
Stauffer Chem. Co., 464 U.S. 165, 173 (1984); United States v. Mendoza, 44
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 57 464 U.S. 154, 160 (1984)). New Mexico criticizes that policy as arbitrary.
Br. at 45. However, New Mexicos differing views do not establish any deficiency under the APA.
To be crystal clear, the NRC has notas New Mexico implies, e.g.,
Br. at 44ignored the safety and security implications of its action. The agency conducted a comprehensive review against stringent NRC safety and security requirements. See generally R134 (Final Safety Evaluation Report). Next, the NRC evaluated the site-specific environmental impacts of a wide range of hypothetical radiological accidents, including:
fire; partial blockage of SNF storage canister basket vent holes; tornado missiles; flood; earthquake; explosion; lightning; complete blockage of air inlet and outlet ducts; cask tipover; cask drop; adiabatic heatup; burial under debris; and accidents at nearby sites.
R125.308. See also R125.306-309 (discussing environmental impacts of postulated accidents). Finally, the NRC performed a generic analysis of environmental impacts of hypothetical terrorist attacks on SNF storage facilities.13 As the Federal Respondents explained, this combination of site-specific and generic analyses has been found sufficient under NEPA.
13 See, e.g., NUREG-2157 at 4-94 to 4-97, 5-58.
45
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 58 Fed. Resp. Br. at 84 (citing N.J. Dept of Envtl. Prot. (NJDEP) v. NRC, 561 F.3d 132, 134 (3d Cir. 2009).
New Mexico fails to: (1) acknowledge those analyses; (2) identify any deficiencies in those analyses; (3) explain why this extensive range of accident scenarios, evaluated in the environmental review, is inadequate; (4) explain why the environmental impacts of accidents already considered by the agency (e.g., fire or explosion or tornado missile impacts) would materially differ based solely on the triggering event (e.g., a hypothetical terrorist attack, versus a tornado); or (5) identify any record evidence supporting a claim that these analyses are deficient in any way or that the triggering event is material.14 As the record confirms, the agency thoroughly evaluated a broad range of generic and site-specific accidents and impactsfrom safety, security, and environmental perspectivesand New Mexico has not established an obligation under NEPA or the APA to do anything more.
14 New Mexicos silence on these analyses is particularly conspicuous in light of its alarmist claim that the location of the proposed ISP CISF significantly increases the risk and probability of a terrorist attack.
Br. at 46. That assertion also finds no support in the record.
46
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 59 What New Mexico is really challenging is the NRCs discretionary policy determination on how the agency discharges its obligations on a nation-wide basis.15 New Mexico argues it is arbitrary to perform NEPA analyses differently in different regions of the country. Br. at 45. But New Mexico fails to articulate a reason why that is arbitrary. That is not surprising because the Supreme Court has, in fact, encouraged agencies to take the approach adopted by the NRC here. See, e.g., Mendoza, 464 U.S. at 160 (explaining that requiring nationwide agency compliance with the first circuit court decision on an important question is disfavored because it would substantially thwart the development of important questions of law.).
New Mexicos only proffered support is that the DOE has a different policy. Br. at 44-45. However, the mere observation that there are different ways to approach the issue does not, without more, establish that one approach per se violates the APA. The differing policy 15 To the extent New Mexico claims the NRCs policy determination not to follow SLOMP outside of the Ninth Circuit rely[s] on NJDEP, Br. at 45, that claim is inaccurate. The policy announcement pre-dated the Third Circuits decision by approximately two years.
Compare Oyster Creek, CLI-07-8, 65 N.R.C. 124 (issued in 2007), with NJDEP, 561 F.3d 132 (issued in 2009).
47
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 60 approaches by the NRC and DOE can be justified by any number of legitimate reasons.16 Moreover, the NRCs policy is, objectively, reasonable and correct.
A few years after the NRC announced its policy, the Third Circuit considered the same NEPA question and rejected the Ninth Circuits reasoning. NJDEP, 561 F.3d 132. The Third Circuit instead concluded that NEPA does not require terrorism analyses. The Third Circuits analysis, unlike that of the Ninth Circuit in the SLOMP case, is fully consistent with NEPA and causation principles laid down by the Supreme Court, as explained by the Federal Respondents at pages 49-50 of their brief. Given that, the NRCs policy cannot be said to be arbitrary and capricious.
Indeed, similar challenges were raised by multiple participants in the NRC adjudicatory proceeding and rejected by the agency. See LBP-19-7, 90 N.R.C. at 63-66, 107-109; CLI-20-14, 92 N.R.C. at 488-489; 16 See generally RYAN K. LIGHTY, CIRCUIT-SPLITTING THE ATOM: HOW THE NUCLEAR REGULATORY COMMISSION AND THE DEPARTMENT OF ENERGY REACHED DIFFERENT CONCLUSIONS ON THE NEED TO CONSIDER HYPOTHETICAL TERRORIST ATTACKS UNDER NEPA (Apr. 2014),
available at https://dukespace.lib.duke.edu/dspace/handle/10161/8627.
48
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 61 LBP-21-2, 93 N.R.C. at 111, 116 (2021 WL 8087739 at *5, 9); CLI-21-9, 93 N.R.C. at 249. New Mexico neither acknowledges these decisions nor attempts to explain how the agencys conclusions somehow were arbitrary and capricious. Once again, that is a failure to discharge the applicable burden of proof, and the Court should reject New Mexicos claim for that reason, alone. See CCSOC, 513 F.3d at 1176 (burden of proof rests with the appellants who challenge such action.)
Ultimately, New Mexico simply has a policy disagreement with the NRC about how the agency addresses rulings by regional circuit courts on a nation-wide basis. But that is not enough to demonstrate that the NRCs choice among reasonable alternative courses of action violates the APA.17 17 New Mexico makes a one-sentence claim that NEPA per se requires a terrorism analysis here, Br. at 44, but its corresponding discussion appears to challenge only the NRCs policy decision. Notwithstanding, this overarching claim should be rejected for the reasons explained by the Federal Respondents at pages 49-50 of their brief, which establish that the causation principles and generic determinations regarding accident scenarios as reflected in NJDEP, 561 F.3d 132, are correct, in accord with controlling Supreme Court precedent, and require rejection of New Mexicos challenges here.
49
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 62 D. New Mexicos Site Selection Commentary Fails to Establish Any APA Violation New Mexico argues that the NRCs treatment of site selection purportedly disregards NRC NEPA implementing regulations and requirements to consult and collaborate with New Mexico and local agencies. Br. at 46. But, New Mexico then fails to identify even a single allegedly-violated NRC NEPA implementing regulation. In any event, New Mexico has demonstrated no basis for reversal under the applicable standards.
First, New Mexicos claim that the NRC failed to consult with it is, factually, untrue, as the Federal Respondents note. Resp. Br. at 53-54.
For example, the EIS documents specific consultation correspondence between the NRC and the New Mexico Historic Preservation Division.
R125.443-445.
Second, New Mexico has not demonstrated any reversible error in connection with the treatment of site-selection assessments. New Mexico complains about a discussion in ISPs initial application materials stating that, at the time the application was prepared, the host state and county for the proposed site supported the idea of hosting a CISF. Br. at 46-47.
But, that statement wasdemonstrably and indisputablytrue at the 50
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 63 time the application was submitted. Indeed, the supporting documents were attached to the application itself and are part of the record.
R88.4(ML20052E154).2-9. The applicant reasonably relied on then-current information in selecting a site and preparing its license application. And the historical description of the site-selection process leading up to the submission of the application is not, as New Mexico argues, rendered misleading merely because, months or years after that process occurred, and after the application was submitted, certain political figures in the non-host state of New Mexico expressed opposition to the project.18 Br. at 47-48.
Third, New Mexico also fails to acknowledge the proper role of a regulatory agency in reviewing a private applicants site selection process for NEPA purposes. As the NRC has explained, its NEPA regulations do not specify any prescriptive site selection criteria; rather, an applicants preferences are given substantial weight, and site selection criteria are examined primarily for reasonableness. LBP-19-7, 90 N.R.C. at 75.
18 See also R125.606 (Absent Congressional direction to do so, the NRC may not deny a license application for failure to conduct consent-based siting.). New Mexico does not dispute that assertion.
51
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 64 This topic was thoroughly discussed in the adjudicatory proceeding in which various participants raised challenges to ISPs site selection process, and the agency rejected each of those challenges as meritless.
Id.; CLI-20-15, 92 N.R.C. at 504-506; LBP-21-2, 93 N.R.C. at 111, 116 (2021 WL 8087739 at *5, 9); CLI-21-9, 93 N.R.C. at 249-51. New Mexico neither acknowledges nor disputes the associated rulings on this subjectwhich is yet another reason it has not met its burden to establish a violation of the APA.
Fourth, it is simply untrue that the NRC ignored New Mexicos comments alleging geologic unsuitability of the proposed site (across the state line in Texas) and failed to conduct an independent investigation on this topic. Br. at 47, 48. The record clearly shows that the NRC unquestionably performed an independent assessment of the geologic suitability of the proposed site. The NRC has stringent safety requirements for geologic suitability, e.g., 10 C.F.R. §§ 72.102, 72.103, and ISPs application was evaluated against those standards. See generally R134 (Final Safety Evaluation Report). Likewise, the EIS contains over 20 pages of discussion regarding geology and soils, R125.110-122, none of which New Mexico acknowledges or challenges.
52
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 65 And the NRC did not ignore any timely comment submitted by New Mexicoor anyone else.19 The NRC responded to every single timely comment, R125.491-680, including those related to site geology.
R125.588-593. In sum, New Mexico simply disregards, rather than disputes, the relevant information in the record.
For all of these reasons, New Mexicos assertions regarding site selection fail to establish any violation of the APA or NEPA.
E. New Mexicos Segmentation Argument Is Meritless Because the EIS Plainly Analyzes Transportation and New Mexico Identifies No Material Deficiency in That Analysis Segmentation is generally understood in the NEPA context as a decision by an agency to omit from an EIS consideration of the impacts of a connected action, such that significant cumulative impacts are made to appear insignificant by breaking a project down into small component parts. Utahns for Better Transp. v. DOT, 305 F.3d 1152, 1182 19 New Mexico also references R132 as providing comments on this topic.
Br. at 47. However, as noted supra (Statement of the Case § II.C), that letter was submitted to the NRC after the License already had been issued. See also generally Interim Storage Partners Consolidated Interim Storage Facility Project, 85 Fed. Reg. 59,831, 59,832 (Sept. 23, 2020) (Comments received after [the November 20, 2020 comment deadline] will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.).
53
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 66 (10th Cir. 2002). New Mexico claims the NRC has done so here with regard to transportation, Br. at 36-44, but that assertion is incorrect.
Simply put, the EIS does not omit consideration of transportation impacts. It plainly analyzes the impacts of both the proposed action and the impacts of connected transportation activities. R125.106-109 (§ 3.3 Transportation Affected Environment); R125.218-237 (§ 4.3 Transportation Impacts); R125.336-339 (§ 5.3 Transportation Cumulative Impacts).
So, with regard to the bullet-list of items that the NRC purportedly fail[ed] to address in the EIS due to the alleged segmentation of the transportation analysis, Br. at 38-39, the record belies such assertions all of these topics are, in fact, addressed in the EIS. E.g., R125.530 (confirming that the License would not authorize or effect any unlawful transfer of title from DOE, and concluding that there are no material differences in the environmental analysis based on the particular entity that owns the SNF); R125.641-642 (explaining why a separate terrorism analysis is not required); R125.285-288 (discussing emergency management training and funding); R125.410-412 (discussing infrastructure improvements in the context of alternatives);
54
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 67 R125.336-339 (cumulative impacts of reasonably foreseeable use of roads and rails by other users); and R125.221-227 (discussing concurrent applicability of NRC and Department of Transportation regulations).
These are but a few examplesthe EIS discusses these topics in various other sections. But, suffice it to say, the NRC clearly did not omit a discussion of these issues as New Mexico contends.
Similarly, New Mexico criticizes the EIS for failing to quantify potential costs, but cost impacts were properly considered by the NRC, and the NRC reasonably determined that further quantification was unwarranted. New Mexico argues that costs should have been quantified specifically with respect to infrastructure improvement and emergency response capabilities, Br. at 40-41, but New Mexico points to no requirement to do so, under NEPA or otherwise.20 Under NEPA, costs may be considered to the extent they may provide information relevant to an agencys evaluation of the relative merits of various alternatives.
R125.401. Here, the NRC evaluated the possibility of quantifying such 20 New Mexico claims these costs amount to an unfunded mandate.
Br. at 40, 41. ISP addresses that mischaracterization separately.
See infra § IV.
55
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 68 costs, but decided against doing so because, inter alia, the costs would accrue under both the proposed action and the no-action alternative.
R125.411. In other words, the quantification would not provide any information useful to the agencys comparison of alternatives. New Mexico does not claim or demonstrate otherwise. Nor does New Mexico explain why NEPAs rule of reason would compel the NRC to expend its limited resources on a quantification that would not meaningfully inform the agencys decision.
New Mexico appears to argue that the transportation analysis in the EIS is not site specific enough because the design of the ISP facility differs from a generic facility analyzed in the NRCs Generic EIS for Continued Storage of SNF (NUREG-2157). Br. at 42-44. New Mexico seems to believe that the transportation analysis in the EIS somehow relies on NUREG-2157. That is not so. NUREG-2157 analyzes storage of SNF, not transportation. And the EIS transportation discussion does noteven oncemention NUREG-2157, much less rely on it. Thus, to the extent New Mexico argues that the EIS transportation analysis is faulty because it relies on a purportedly inapt generic analysis in NUREG-2157, that claim is plainly erroneous as a factual matter.
56
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 69 Notably, a segmentation claim similar to New Mexicos was raised by another party, and rejected as meritless, in the agency adjudicatory proceeding. LBP-19-7, 90 N.R.C. at 87-89; CLI-20-14, 92 N.R.C.
at 479-480. Once again, New Mexicos failure to acknowledge, engage with, or dispute the relevant agency adjudicatory decisions on this topic is another reason it has not met its burden to demonstrate arbitrary and capricious action.
Finally, New Mexico again improperly invokes the NWPA, asserting that the NRC has run afoul of the NWPAs alleged directives to minimize transport of nuclear materials. Br. at 39. As explained above, the NWPA does not apply to this proceeding, nor dictate the duties of the NRC here. The statutory provisions cited by New Mexico merely codify an obligation of the Secretary to provide federal SNF storage capacity (as an alternative to private SNF storage options) under two specific federal programs; they also direct the Secretary (in choosing a method of fulfilling that government obligation) to seek to minimize the transportation [by the government or government-contracted transportation providers, see 42 U.S.C. § 10157] of spent nuclear fuel.
NWPA, § 135(a)(3), 42 U.S.C. § 10155(a)(3) (tying the requirement to the 57
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 70 federal program for interim storage required by 42 U.S.C. § 10155(a)(1));
NWPA, §144(2), 42 U.S.C. § 10164(2) (tying the requirement to the federal program for monitored retrievable storage required by 42 U.S.C.
§ 10163). The Secretary under the NWPA is the Secretary of Energy, and not the NRC (which is defined as the Commission). NWPA, § 2(7) and (20), 42 U.S.C. § 10101(7) and (20). And, the AEA-based License here authorizes private SNF storage as part of a commercial enterprise, not federal storage as part of the government-run programs specifically identified in the NWPA. Contrary to New Mexicos assertion, the cited provisions do not require the NRC to do anything here, and do not apply, at all, to private storage.
IV. New Mexicos Unfunded Mandate Claim Fails to Demonstrate Any Constitutional Violation or Arbitrary and Capricious Agency Action New Mexico claims that, by issuing the ISP License, the NRC has saddled New Mexico with funding emergency response training, staffing, and equipment. Br. at 27. New Mexico calls that an unfunded mandate from the federal government, in violation of the Tenth Amendment. Br. at 26-29. But, the NRC has not mandated that New Mexico do anything and, even if it had, the record does not establish that funding for the complained-of activities would be unavailable.
58
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 71 In New York v. United States, 505 U.S. 144 (1992)the case cited by New Mexico (Br. at 27)the Supreme Court held that the federal government cannot compel a state to enact or administer a federal regulatory program. New York, 505 U.S. at 188. The offending statutory provision there effectively required states either to take title to low level radioactive waste themselves (a provision observed to be unique), or to actually implement legislation enacted by Congress. Id.
at 176. Nothing remotely like that is presented by the agency licensing action at issue herethe challenged license for ISP, granted under AEA authority that has existed and been exercised by the NRC for decades, does not require New Mexico to enact or administer a federal program.
New Mexicos claim is instead based upon the unremarkable acknowledgement in the EIS that States are recognized as responsible for protecting public health and safety during radiological transportation accidents. Br. at 28. But that statement is not a command; it is a general observation. Radiological transportation in a variety of contexts occurs, and has long occurred, all across the country, and states have always had responsibilities for public health and safety. The challenged 59
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 72 license in this case neither orders nor directs any unique action by New Mexico, or anyone else.
Moreover, even if New Mexico incurred expenses related to emergency response activities, New Mexico has failed to demonstrate that those expenses would necessarily be unfunded. Indeed, the EIS explains the opposite:
Federal agencies are prepared to monitor transportation accidents and provide assistance if requested by States to do so. Nationwide, there are many shipments of radioactive material each year for which the States already provide capable emergency response, and a discussion about funding for emergency response is in EIS Section 4.11.
R125.412 (emphasis added). The referenced funding discussion also explains that [a]ffected communities may be able to obtain emergency response financial assistance necessary for training and equipment from Federal programs or other sources. R125.287. New Mexico disregards these facts, which undercut its claim.
In sum, if this Court does not dismiss New Mexicos untimely unfunded mandate claim on jurisdictional or jurisprudential exhaustion grounds, it should reject that claim as factually and legally meritless.
60
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 73 V. License Vacatur Would Not Be a Proper Remedy in Any Event New Mexico repeatedly asks this Court to vacate the ISP License.
Br. at 2, 17, 25, 29, 33 & n.15, 49. But, even assuming that the agencys review was somehow inadequate (and it was not), vacatur would not be required or appropriate. Courts can and do remand action to an agency without vacating it. Indeed, this Court routinely implements remand-without-vacatur remedies for certain APA and NEPA violations based on the courts traditional equitable powers to fashion appropriate relief.
High Country Conservation Advocates v. U.S. Forest Serv., 951 F.3d 1217, 1229 (10th Cir. 2020); see also WildEarth Guardians v. BLM, 870 F.3d 1222, 1240 (10th Cir. 2017) (declining to vacate coal leases notwithstanding NEPA deficiency, and remanding to district court, noting that the lower court may vacate . . ., or it might fashion some narrower form of injunctive relief based on equitable arguments).
Accordingly, even if this Court concludes that the NRCs review was inadequate (which it should not), vacatur is not the proper or automatic remedy. The appropriate measure would be to balance the equities of vacatur.
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Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 74 CONCLUSION For all these reasons, the Court should either dismiss or deny New Mexicos Petition for Review.
STATEMENT REGARDING ORAL ARGUMENT The petitions in this case purport to invoke substantial issues of agency authority, and the unique posture of these appeals implicates questions of jurisdiction, exhaustion, overlapping statutory allegations, and a complex, voluminous, and highly technical agency record.
Accordingly, ISP agrees that oral argument would be appropriate, to help ensure complete and accurate review by the Court.
Dated: May 19, 2022 Respectfully submitted, s/ Brad Fagg BRAD FAGG TIMOTHY P. MATTHEWS RYAN K. LIGHTY MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com Counsel for Interim Storage Partners, LLC 62
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 75 CERTIFICATE OF SERVICE I hereby certify that on May 19, 2022, I electronically filed the foregoing using the courts CM/ECF system which will send notification of such filing to the following:
- Mr. Andrew Averbach: Andrew.averbach@nrc.gov
- Mr. Bruce C. Baizel: bruce.baizel@state.nm.us
- Mr. Arnold Bradley Fagg: brad.fagg@morganlewis.com
- Mr. William Gregory Grantham: wgrantham@nmag.gov, swright@nmag.gov
- Mr. Justin Heminger: justin.heminger@usdoj.gov, efile_app.enrd@usdoj.gov
- Mr. Allan Kanner: a.kanner@kanner-law.com, k.crowell@kanner-law.com, a.tennis@kanner-law.com
- Ms. Cholla Khoury: ckhoury@nmag.gov, fdiaz@nmag.gov
- Mr. Ryan Kennedy Lighty: ryan.lighty@morganlewis.com
- Mr. Zachary E. Ogaz: zogaz@nmag.gov, swright@nmag.gov
- Mr. Marcus J. Rael, Jr.: marcus@roblesrael.com, vanessa@roblesrael.com
- Ms. Marian Zobler: marian.zobler@nrc.gov s/ Brad Fagg BRAD FAGG MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com Counsel for Interim Storage Partners, LLC 63
Appellate Case: 21-9593 Document: 010110686545 Date Filed: 05/19/2022 Page: 76 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of FED. R. APP. P.
32(a)(7)(B) because, excluding the parts of the brief exempted by FED. R.
APP. P. 32(f), this brief contains 11,926 words. This brief also complies with the typeface requirements of FED. R. APP. P. 32(a)(5)(A) and 10th Cir. R. 32(A) and the type-style requirements of FED. R. APP. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Century Schoolbook font.
s/ Brad Fagg BRAD FAGG MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-3000 brad.fagg@morganlewis.com Counsel for Interim Storage Partners, LLC DB1/ 130461151.1 64