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
USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 1 of 23
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 MARIAN L. ZOBLER Assistant Attorney General General Counsel
JUSTIN D. HEMINGER ANDREW P. AVERBACH Attorney Solicitor Appellate Section 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 Commission Washington, D.C. 20044 - 7415 11555 Rockville Pike (202) 514 - 5422 Rockville, MD 20852 justin.heminger@usdoj.gov (301) 287 - 9173 james.adler@nrc.gov USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 2 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 exceptio nal importance.................................................................................................... 15
CONCLUSION........................................................................................................ 18
CERTIFICATE OF COMPLIANCE
USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 3 of 23
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)..............................................................................1 8 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
ii USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 4 of 23
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
iii USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 5 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 Court s 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 facts rulings that are consistent with applicable law s, well-established
precedent, and the administrative record not 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 6 of 23
JA982-1432 (excerpts from D raft 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 programm atic 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.
2 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 7 of 23
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 heari ng 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
3 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 8 of 23
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 m ost of Petitioners
contentions in favor of NRCs staff. 45 F. 4th at 297. S ee 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 the se 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
4 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 9 of 23
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, t his 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 Powertech s 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 th at further consultations
between NRCs staff and the Tribe in 2016 and 2017 had remedied the NHPA
deficiency. 896 F.3d at 527 n.4.
5 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 10 of 23
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 princip al 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 JA 425-27
(summarizing these events) ; JA868-78 (same); JA709-92 (affidavits from Tribe
members, which did not identify specific cultural resources).
6 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 11 of 23
Several NRC hearing decisions were issued between 2017 and 2020
regarding these e fforts. 45 F.4th at 298-99. S ee 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.
7 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 12 of 23
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 Oglal a 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
8 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 13 of 23
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 ha s 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 I s 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 finding s, 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
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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.
10 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 15 of 23
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. T he 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. S ee 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 NEP Awhether
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 ef forts to gather cultural
resources information were reasonable ). And by the time NRCs hearing process
11 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 16 of 23
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 the se 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. T he 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. A nd as the panel in this case correctly recognized, NHPA
regulations... expressly contemplate use of programmatic agreements to support
NHPA compliance for projects like Powe rtechs. 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.
12 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 17 of 23
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 requirement including 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, 15 10-14 (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
13 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 18 of 23
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
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 cu ltural resource information, reflecting the
developments between 2016 and 2019, was already present in NRCs public
hearing record. T he 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
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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.
15 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 20 of 23
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 the m, based on its careful assessment
of the administrative record, which includes extended discussion s in NRC hearing
decisions explaining the basis for NRCs unavailability finding. S ee 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
16 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 21 of 23
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 fa ils 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
17 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 22 of 23
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
18 USCA Case #20-1489 Document #1974244 Filed: 11/18/2022 Page 23 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. 3 5(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