ML22342A935
| ML22342A935 | |
| Person / Time | |
|---|---|
| Issue date: | 11/18/2022 |
| From: | James Adler, Andrew Averbach, Kim T, Marian Zobler NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | |
| References | |
| 20-1498, 1974244 | |
| Download: ML22342A935 (1) | |
Text
No. 20-1489 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OGLALA SIOUX TRIBE, ALIGNING FOR RESPONSIBLE MINING Petitioners,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION, UNITED STATES OF AMERICA, Respondents, and POWERTECH (USA), INC.,
Intervenor.
On Petition for Review of Final Order of the United States Nuclear Regulatory Commission RESPONDENTS OPPOSITION TO PETITION FOR REHEARING EN BANC TODD KIM Assistant Attorney General JUSTIN D. HEMINGER Attorney Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044-7415 (202) 514-5422 justin.heminger@usdoj.gov MARIAN L. ZOBLER General Counsel ANDREW P. AVERBACH Solicitor JAMES E. ADLER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 287-9173 james.adler@nrc.gov USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 1 of 23
TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................................................... ii INTRODUCTION..................................................................................................... 1 BACKGROUND....................................................................................................... 1 ARGUMENT............................................................................................................. 8 I.
The panel decision does not conflict with this Courts precedent.......................................................................................................... 8 The panel decision does not conflict with Oglala I.............................. 8 The panel decision does not conflict with other NEPA decisions by this Court....................................................................... 13 II.
Petitioners do not raise any questions of exceptional importance.................................................................................................... 15 CONCLUSION........................................................................................................ 18 CERTIFICATE OF COMPLIANCE USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 2 of 23
ii TABLE OF AUTHORITIES Judicial Decisions Blue Ridge Environmental Defense League v. NRC, 716 F.3d 183 (D.C. Cir. 2013).............................................................................13 Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338 (1st Cir. 2004)................................................................................13 Friends of the River v. FERC, 720 F.2d 93 (D.C. Cir. 1983)...............................................................................13 Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995)...............................................................................13 Nevada v. Dept of Energy, 457 F.3d 78, (D.C. Cir. 2006)..............................................................................18 NRDC v. NRC, 879 F.3d 1202 (D.C. Cir. 2018).......................................................... 4, 13, 14, 15 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016).............................................................................13 Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018)................................ 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)...............................................................................13 Statutes 5 U.S.C. § 706..........................................................................................................18 42 U.S.C. § 2239..................................................................................................3, 13 42 U.S.C. § 4321........................................................................................................ 1 54 U.S.C. § 306108.................................................................................................... 2 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 3 of 23
iii Rules Federal Rule of Appellate Procedure 35.................................................................... 1 Regulations 10 C.F.R. § 2.1202.................................................................................................3, 4 36 C.F.R. § 800.14...................................................................................................12 36 C.F.R. § 800.4.....................................................................................................12 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 4 of 23
INTRODUCTION The petition for rehearing en banc of the Oglala Sioux Tribe (Tribe) and Aligning for Responsible Mining identifies no actual conflicts with this Courts precedents or exceptionally important questions warranting en banc review. See Fed. R. App. P. 35(a), (b)(1). Petitioners allegations of conflicts with precedent mischaracterize this Courts decisions, most notably Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018) (Oglala I)a collateral-order-doctrine ruling that explicitly did not reach the issues decided by the panel here. And Petitioners other arguments reflect merely routine disagreements with panel rulings applying law to factsrulings that are consistent with applicable laws, well-established precedent, and the administrative recordnot questions of exceptional importance.
BACKGROUND Powertech (USA), Inc. applied to the U.S. Nuclear Regulatory Commission (NRC) for a license to build and operate a facility that would extract underground uranium using in situ recovery methods. Oglala Sioux Tribe v. NRC, 45 F.4th 291, 295 (D.C. Cir. 2022) (panel decision). During its review of the application, NRCs staff, pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., developed a Draft Environmental Impact Statement (EIS),
issued it for public comment, and subsequently issued a Final EIS. See generally USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 5 of 23
2 JA982-1432 (excerpts from Draft and Final EIS).1 NRCs EIS contained extensive discussion of potential environmental impacts of the Powertech facility. See id.;
see also 45 F.4th at 304-06. This included review of cultural resource impacts and discussion of associated mitigation measures to protect resources at the site.
JA1039-47, JA1069-91, JA1252-82, JA1356-60, JA1403-32; 45 F.4th at 297.
These EIS discussions were informed by surveys of the project site, including cultural resource investigations sponsored by Powertech and a 2013 tribal survey of the site organized by NRC. JA1073-81; JA1084-88. Seven Indian tribes participated in NRCs survey, but the Oglala Sioux Tribe did not, because, as the Court found, the Tribe disapproved of the... Surveys methods and timing, as well as the amount of compensation provided for participating. 45 F.4th at 297; see also JA1046 (Final EISs summary of Tribes objections).
NRC also finalized a programmatic agreement that, among other things, established a protocol for ensuring appropriate protection and evaluation of any potential historic resources discovered only after facility construction begins, consistent with applicable government-wide regulations issued by the Advisory Council on Historic Preservation for implementing § 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. § 306108). 45 F.4th at 297; see also JA1479-1 The site-specific EIS also tiers from a generic EIS that NRC prepared for in situ uranium recovery. See 45 F.4th at 297.
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3 1545 (Programmatic Agreement, including appendices and a letter to NRC from Advisory Council on Historic Preservation concluding that § 106 had been satisfied).
After issuing the Final EIS, finalizing the Programmatic Agreement, and completing the technical review of the application, NRCs staff determined that applicable NRC licensing criteria and statutory requirements were satisfied and issued a license to Powertech on April 8, 2014. 45 F.4th at 297; JA1439-53 (license); JA1433-38 (Record of Decision).
NRCs licensing process includes an opportunity for interested parties to intervene in an NRC licensing proceeding and obtain an administrative hearing before an Atomic Safety and Licensing Board (Board), with accompanying rights to appeal adverse Board rulings to the five-member Commission that is the head of the agency. 45 F.4th at 296; see 42 U.S.C. § 2239(a)(1)(A). Petitioners did, in fact, successfully intervene, proffering numerous contentions (i.e., claims) for adjudication by the Board that challenged NRCs environmental and technical review of the application, and the Board conducted evidentiary hearings on several of the contentions. Id. at 297-98; Oglala I, 896 F.3d at 520, 522-23. Consistent with NRC hearing regulations, the hearing process continued even after NRCs staff issued Powertechs license, but the pendency of the hearing process rendered the license effectively provisional and subject to change or revocation. See 10 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 7 of 23
4 C.F.R. § 2.1202(a); JA696 n.104; see also NRDC v. NRC, 879 F.3d 1202, 1210 (D.C. Cir. 2018) (explaining this aspect of NRC procedures).
The Board, and the Commission on appeal, resolved most of Petitioners contentions in favor of NRCs staff. 45 F.4th at 297. See generally JA329-72 (Commissions 2016 decision). But in 2015, the Board ruled in favor of Petitioners on two contentions involving NRCs consideration of cultural and historic resources under NEPA and the NHPA, and the Commissions 2016 decision upheld these Board rulings. 45 F.4th at 297-98; 896 F.3d at 525-26; JA352-54; JA356-61; JA700-16. In the Boards view, the Tribes connection to the project area required NRCs staff to engage the Tribe individually under NEPA and NHPA, rather than as one of many tribes. JA711-16; see also 45 F.4th at 297; 896 F.3d 524-25. The Board ruled that, to resolve this deficiency, which the Board considered significant, NRCs staff needed to attempt again to arrange a project-site survey that would include the Tribe, this time through individualized consultations with the Tribe. JA715-16.
Despite this ruling, the Board did not suspend Powertechs license pending the outcome of the NRC staffs contemplated curative efforts, based on its finding that some of the Tribes own actions had contributed to the NRC staffs lack of NEPA and NHPA compliance. JA714-16. But the Board advised that the Tribe could nonetheless obtain a stay of the licenses effectiveness by demonstrating USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 8 of 23
5 irreparable harm from the license remaining in place during this interim period.
JA716; 896 F.3d at 525-26. The Commission also upheld this aspect of the Boards decision. JA355; 896 F.3d at 526. NRCs hearing proceeding therefore remained open, with Powertechs license in place, pending NRC staffs efforts to resolve the Board-identified NEPA and NHPA issues.
In 2017, the Tribe petitioned this Court for review of the Commissions 2016 decision. 896 F.3d at 526. In Oglala I, this Court held that it lacked jurisdiction to consider most of the Tribes petition, given that NRCs hearing proceeding remained ongoing. 896 F.3d at 527. But the Court exercised limited jurisdiction under the collateral-order doctrine to review NRCs interim treatment of Powertechs licensespecifically, NRCs use of the irreparable harm standard.
Id. at 527-30.
Consistent with collateral-order review, this Court expressly did not (and could not) adjudicate the underlying merits of NRCs NEPA or NHPA reviews or of the Boards finding that the NRC staffs reviews failed to comply fully with those statutes. Id. at 528, 531. This Court also focused its collateral-order review exclusively on whether the irreparable harm standard comported with NEPA, not the NHPA, because the Board, by then, had found that further consultations between NRCs staff and the Tribe in 2016 and 2017 had remedied the NHPA deficiency. 896 F.3d at 527 n.4.
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6 This Court ultimately held, after its limited review, that NRC had erred by requiring an irreparable harm showing as a prerequisite to staying the licenses effectiveness pending completion of NRCs own NEPA-remedial efforts. Id. at 530-37; see also id. at 538 (summarizing holding). This Court decided, however, not to vacate Powertechs NRC license while NRC continued its work to address the Board-identified NEPA deficiency, ruling that leaving the license in place posed no apparent risk of harm, irreparable or otherwise, to the Tribe and that vacatur would undermine Powertechs reliance interests. Id. at 538. On remand, the Commission issued an order imposing a condition on Powertechs use of the license while NRCs proceeding remained pending. 45 F.4th at 298 n.2; JA392-402.
Meanwhile, NRCs staff continued negotiations with the Tribe, between 2016 and 2019, with the principal aim of arranging another cultural-resource survey of the site in which the Tribe would participate. 45 F.4th 297-98; see also JA1823-94 (record excerpts from this period). NRCs staff made multiple survey proposals to the Tribe, which the Tribe rejected, during the 2016-2019 timeframe, and the Tribe otherwise did not provide NRC with any new information identifying specific cultural resources at the site. 45 F.4th at 298, 301-02; see also JA425-27 (summarizing these events); JA868-78 (same); JA709-92 (affidavits from Tribe members, which did not identify specific cultural resources).
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7 Several NRC hearing decisions were issued between 2017 and 2020 regarding these efforts. 45 F.4th at 298-99. See generally JA381-91; JA406-466; JA770-925. NRCs Board, and the Commission on appeal, eventually found that the NRC staffs efforts during this period satisfied the NHPAs consultation requirements and NEPAs reasonableness standards, and that NRCs staff had demonstrated that, under the circumstances, further cultural resource information was not reasonably available to the agency. 45 F.4th at 298; see also JA423-47 (final Commission decision, issued in 2020). These Board and Commission hearing decisions regarding the 2016-2019 curative efforts were not before this Court in Oglala I, as they (and most of the NRC staffs curative efforts they considered) post-dated the Tribes 2017 petition for review.2 Following the Commissions resolution of these issues in 2020, NRC concluded its licensing proceeding, and Petitioners filed the petition for review in this case. The panel properly exercised jurisdiction to review NRCs final Powertech licensing action, including NRCs final resolution of Petitioners various hearing contentions (including those on cultural-resource issues). 45 F.4th at 299. The panel found no NEPA or NHPA violations by NRC and denied the petition for review. Id. at 299-306. The panel also acknowledged the Courts 2 Oglala I did reference one 2017 Board decision, but only for limited purposes related to defining the Courts jurisdiction. See 896 F.3d at 527 & n.4.
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8 Oglala I decision and explained that Oglala I had not adjudicated the NEPA and NHPA merits issues that were before the panel. Id. at 298 & n.2. Petitioners now request en banc review of the panels decision.
ARGUMENT I.
The panel decision does not conflict with this Courts precedent.
A. The panel decision does not conflict with Oglala I.
The pervasive theme of Petitioners request for en banc review is that the panel decision conflicts with this Courts decision in Oglala I. But the only real conflict here is between (1) what Petitioners claim that the two decisions reviewed and decided and (2) what the two decisions actually reviewed and decided.
First, regarding the substantive adequacy of NRCs cultural-resource reviews under NEPA and the NHPA, Petitioners portray Oglala I as deciding these merits issues in a manner contrary to the panels subsequent rulings. See Pet. at 1-3, 5, 8-9, 11, 16-17. But Oglala I, for jurisdictional reasons due to the absence of final agency action, expressly avoided these merits questions altogether. 896 F.3d at 527-28. In Oglala I, with NRCs proceeding still ongoing to address the Boards 2015 NEPA-deficiency finding, this Court exercised only limited jurisdiction under the collateral-order doctrine and reviewed only a single preliminary issue, separate from the merits: specifically, whether NRC permissibly required the Tribe to demonstrate irreparable harm as a prerequisite to NRC USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 12 of 23
9 staying the effectiveness of Powertechs license. 896 F.3d at 527-30. Oglala I stated the limits of its holding in no uncertain terms: To be clear, today we hold only that, once the NRC determines there is a significant deficiency in its NEPA compliance, it may not permit a project to continue in a manner that puts at risk the values NEPA protects simply because no intervenor can show irreparable harm.
Id. at 538. Oglala I also explained that this lone issue it reviewed was separate from the merits and has no bearing on [NRCs] ultimate resolution of the merits of the Tribes multiple contentions, including whether NEPA actually has been (or subsequently will be) satisfied. Id. at 528.
The panel decision did not revisit Oglala Is rejection of NRCs use of the irreparable harm standard. Rather, after the Commissions 2020 final order concluded that the agency had cured the Boards 2015 deficiency findings, the panel reviewed the merits of NRCs licensing action, including the substance of NRCs NEPA and NHPA compliance. 45 F.4th at 299-306. Oglala I did not even review these merits issues, let alone rule on them in a manner at odds with the panel decision.
Relatedly, Petitioners incorrectly contend that Oglala I reviewed and affirmed the NEPA and NHPA significant deficiency findings that NRCs own Board made in 2015. See Pet. at 1-2, 5-6, 8-11, 13, 15-17. But in Oglala I, this Court expressly did not evaluate, let alone affirm, the merits of those findings. 896 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 13 of 23
10 F.3d at 531 (For purposes of our review, we accept the Boards finding... that the agency did not fulfill its NEPA responsibilities. We do not review the merits of that conclusion.); id. at 527 & n.4 (excluding NHPA issues from decisions scope altogether). Indeed, for collateral-order jurisdictional reasons, this Court could not have done so.
Further, much of the administrative record before the panel was not before this Court in Oglala I, including documentation of the critical efforts by NRCs staff from 2016 to 2019 to arrange a new survey and obtain cultural-resource information specific to the Tribe and NRCs hearing decisions ruling on the adequacy of those curative efforts. This is because Oglala I adjudicated a 2017 petition challenging an interlocutory 2016 Commission decision, whereas the instant panel decision reviewed the entirety of NRCs proceeding through its conclusion in 2020. Compare 896 F.3d at 526-27, with 45 F.4th at 298; see also JA329-72 (Commissions 2016 decision, which did not evaluate any post-2015 curative efforts); JA423-447 (Commissions 2020 final order reviewed by the panel, which focused principally on the post-2015 curative efforts). Thus, even if Oglala I had ruled upon the substantive merits of NRCs NEPA or NHPA reviews, which it did not, it would have done so based on a materially different administrative record.
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11 Petitioners also suggest that the panel decision runs afoul of Oglala I because it effectively endorses NRCs settled practice of using formal and restrictive adjudications to excuse lack of NEPA analysis, especially of cultural resource information. Pet. at 13. Yet Petitioners inference of a conflict does not square with the facts. The only official determination that NRCs NEPA review of cultural resource impacts was ever inadequate was a product of NRCs hearing process: NRCs own Board made that finding in 2015, and NRCs Commission left that finding undisturbed on appeal. JA711-13; JA715-16; JA356-58. What followed at NRC was several more years of NRCs staff efforts to obtain additional cultural resource information to satisfy the Board and the Commission. See 45 F.4th at 298; see also JA0423-28 (summarizing NRC proceedings history).
Petitioners accusation that NRC uses its hearing process to excuse lack of NEPA analysis turns the fact pattern of this case on its head.
In any event, neither Oglala I nor the panel here found that the substance of NRCs review of cultural resource information was lacking under NEPAwhether as of 2015, when NRCs Board found it lacking, or as of the NRC proceedings conclusion in 2020. 896 F.3d at 527-31 (explaining limitations of the review in Oglala I); 45 F.4th at 298-99, 302 (reviewing NRCs actions through 2020 final Commission decision and finding that the Commissions efforts to gather cultural resources information were reasonable). And by the time NRCs hearing process USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 15 of 23
12 had concluded in 2020, the Board, and the Commission on appeal, had determined that the agency had satisfied all NEPA requirements, based on the efforts by NRCs staff from 2016 to 2019. JA423-47; 45 F.4th at 298. That Petitioners disagree with these NEPA-merits conclusions by NRC and the panel hardly demonstrates that Oglala I, which did not even consider the merits of NRCs NEPA review, somehow conflicts with the panel decision.
Lastly, Petitioners assertion of conflict between the panel decision and Oglala I regarding NRCs use of a programmatic agreement for NHPA-compliance purposes is unpersuasive on its face. The Oglala I panel expressly stated it was not reviewing any NHPA issues in its decision. 896 F.3d at 527 n.4.
Indeed, the Oglala I opinion does not even mention the programmatic agreement once. See generally id. And as the panel in this case correctly recognized, NHPA regulations... expressly contemplate use of programmatic agreements to support NHPA compliance for projects like Powertechs. 45 F.4th at 306 (citing 36 C.F.R.
§§ 800.14(b)(1)(ii) and 800.4(b)(2)).
In sum, Petitioners have not identified any actual conflict between the collateral-order ruling in Oglala I and the merits ruling by the panel. Petitioners allegations of such a conflict do not justify en banc review.
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13 B. The panel decision does not conflict with other NEPA decisions by this Court.
Petitioners assert that this Court criticized NRCs hearing process in NRDC
- v. NRC, 879 F.3d 1202 (D.C. Cir. 2018), and that the panel erred in failing to distinguish that case. Pet. at 11-12; see also id. at 4. But Petitioners assertion that NRCs hearing process, which is mandated by the Atomic Energy Act, 42 U.S.C.
§ 2239(a)(1)(A), is oft-criticized and insular does not show any actual conflict with NRDC or any other precedent. Indeed, this and other Courts of Appeals have previously reviewed and upheld NRCs implementation of this Atomic Energy Act hearing requirementincluding in the NRDC case on which Petitioners rely.
NRDC v. NRC, 879 F.3d at 1212 (holding NRC procedure in question to be permissible); see, e.g., NRDC v. NRC, 823 F.3d 641, 651-55 (D.C. Cir. 2016);
Blue Ridge Environmental Defense League v. NRC, 716 F.3d 183, 196-99 (D.C.
Cir. 2013); Union of Concerned Scientists v. NRC, 920 F.2d 50, 53-57 (D.C. Cir.
1990); Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338, 347-55 (1st Cir.
2004); Kelley v. Selin, 42 F.3d 1501, 1510-14 (6th Cir. 1995).
Regarding the more specific hearing-related issue presented in the instant case, despite Petitioners claim to the contrary (Pet. at 12-13), the panel decision aligns with NRDC. As the panel decision explained, in NRDC, and in another case the panel relied upon, Friends of the River v. FERC, 720 F.2d 93 (D.C. Cir. 1983),
remand was unnecessary... because the agency had remedied the specific NEPA USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 17 of 23
14 failure alleged by the petitioners. 45 F.4th at 301. Similarly, in the instant case, the Tribe alleged a failure to include an unavailability statement in the EIS, and that specific failure was remedied by the Boards publicly accessible orders, which explained the basis for NRCs unavailability finding in detail, making remand unnecessary. Id.; see also JA318-38 (Board ruling on information unavailability); JA428-29 & JA434-36 (Commission upholding Board ruling).
Petitioners contend this reliance on NRDC is misguided because the deficient 2014 EIS was never supplemented in the Powertech proceeding. Pet. at
- 12. But in NRDC, there was also no supplemental EIS on the relevant issue; rather, the Board determined that NRC staff testimony in the record before it from the hearing process served to supplement the [Final EIS], thus making it adequate. NRDC, 879 F.3d at 1208 (emphasis added). Given those circumstances, this Court held in NRDC that requiring a literal EIS supplement was unnecessary. Likewise, in this case, the updated documentation discussing the unavailability of additional Tribe cultural resource information, reflecting the developments between 2016 and 2019, was already present in NRCs public hearing record. The panels conclusion that NRC need not reiterate this hearing-record information in a supplemental EIS is thus aligned with the fact pattern in NRDC, not a basis for distinguishing that case. The panels decision both relied on USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 18 of 23
15 and is consistent with NRDC and thus presents no compelling reason for en banc review.3 II.
Petitioners do not raise any questions of exceptional importance.
Petitioners remaining arguments for en banc review effectively amount to (1) mischaracterizations of the panels decision; and (2) attempts to relitigate the panels careful review of the voluminous administrative record from NRCs decade-long proceedings.
Petitioners appear to argue that the panel incorrectly held NRC was exempt from the Council on Environmental Qualitys NEPA regulations based on NRCs independent regulatory agency status. Pet. at 10-11. Yet, the panel expressly declined to (and did not) reach this thorny question, 45 F.4th at 300, and Petitioners fail to explain how a question the panel declined to reach warrants en banc review.
Petitioners additionally argue that information unavailability does not exempt NRC from NEPAs EIS requirements. Pet. at 13-15. But the panel held no such thing. The panel held, consistent with this Courts precedent, that it had no reason to remand to NRC for preparation of a supplemental EIS explaining the unavailability of additional cultural resource information when NRCs public 3 Petitioners also include a string citation of cases to identify purported conflicts with binding precedent related to NEPA, Pet. at 3-4, but Petitioners do not meaningfully define any specific conflicts there.
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16 hearing record already contained that explanation. 45 F.4th at 300-01; see supra at 13-15.
Petitioners also take issue with the panels holding that NRCs efforts to obtain cultural resource information were reasonable, asserting that the unavailability finding was factually incorrect. Pet. at 14. But the panel considered the same arguments and rejected them, based on its careful assessment of the administrative record, which includes extended discussions in NRC hearing decisions explaining the basis for NRCs unavailability finding. See 45 F.4th at 301-02; JA886-906 (NRC Board decision finding, among other things, that NRC did hire a qualified contractor to coordinate a survey of the Powertech site, but that the Tribe objected anyway); JA428-29 & JA434-36 (Commission upholding Board ruling on appeal); see also JA1709-92 (Tribe member affidavits cited by Petitioners, Pet. at 14, which the panel correctly explained did not identify specific resources, 45 F.4th at 302). These fact-bound determinations by the panel, which the administrative record supports, raise no questions of exceptional importance for en banc review.
Petitioners accuse the panel of showing disregard of NHPA mandates.
Pet. at 17-18. But the panel reviewed and applied the applicable NHPA implementing regulations to the record facts and found no legal shortcomings by NRC. 45 F.4th at 306. While Petitioners assert that NRC did not provide the USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 20 of 23
17 Tribe any reasonable opportunity under the NHPA to identify historic properties and provide associated input, Pet. at 15, the panel expressly found that NRC did provide the statutorily required opportunity, inviting the Tribe to participate in site surveys not even strictly required by the NHPA, but that the Tribe rejected this opportunity when offered. 45 F.4th at 306. Petitioners recounting of certain facts relating to survey negotiations between the Tribe and NRCs staff (Pet. at 15-18) likewise does not demonstrate any disregard of NHPA mandates by the panel, let alone an exceptionally important question warranting en banc review.
Finally, Petitioners argue that vacatur is an appropriate remedy. Pet. at 10.
But it is unclear what vacatur would remedy here, as the panel never found that NRC violated NEPA, the NHPA, or any other legal requirements. See 45 F.4th at 306 (In sum, the Tribe fails to demonstrate any NEPA deficiencies that require setting aside the Commissions decisions.); id. (The Tribe raises a series of challenges under the NHPA, but these do not merit remand because the Commission satisfied its statutory obligations.). Further, the panels conclusion that remand would be pointless was not a remand-without-vacatur determination, as the petition (Pet. at 10) tries to suggest. Rather, the panel applied this Courts precedent to hold that remand (of any kind) to require redundant documentation in an EIS would be unwarranted. 45 F.4th at 300-01; see supra at 13-15; see also Pet.
at 10 (conceding that Administrative Procedure Act contains harmless error USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 21 of 23
18 provision (at 5 U.S.C. § 706)); Nevada v. Dept of Energy, 457 F.3d 78, 90 (D.C.
Cir. 2006) (applying that provision in NEPA case).
CONCLUSION For the foregoing reasons, the petition for rehearing en banc should be denied.
Respectfully submitted, TODD KIM MARIAN L. ZOBLER Assistant Attorney General General Counsel s/ Justin D. Heminger s/ Andrew P. Averbach JUSTIN D. HEMINGER ANDREW P. AVERBACH Attorney Solicitor Appellate Section s/ James E. Adler Environment and Natural JAMES E. ADLER Resources Division Senior Attorney U.S. Department of Justice Office of the General Counsel P.O. Box 7415 U.S. Nuclear Regulatory Washington, D.C. 20044-7415 Commission (202) 514-5422 11555 Rockville Pike Justin.heminger@usdoj.gov Rockville, MD 20852 (301) 287-9173 james.adler@nrc.gov November 18, 2022 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 22 of 23
CERTIFICATE OF COMPLIANCE I hereby certify that this response complies with the length limitation under Circuit Rule 35(d) and Fed. R. App. P. 35(b)(2), because it was produced using a computer and contains 3,891 words, excluding the parts exempted by Fed. R. App.
P. 32(f). This response also complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it was prepared using Microsoft Word in 14-point Times New Roman font.
s/ James E. Adler JAMES E. ADLER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 301-287-9173 james.adler@nrc.gov USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 23 of 23