ML22342B143

11-22-22 Rule 28(j) Letter (10th Cir.)(Case No.21-9593)

ML22342B143
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/22/2022
From:	Kanner A Kanner & Whiteley
To:	Andrew Averbach, Fagg A, Heminger J, Lighty R, Marian Zobler NRC/OGC, US Federal Judiciary, Court of Appeals, 10th Circuit
References
21-9593, 010110772929
Download: ML22342B143 (1)

Text

Appellate Case: 21-9593 Document: 010110772929 Date Filed: 11/22/2022 Page: 1 KANNER & WHITELEY, L.L.C.

701 Camp Street New Orleans, Louisiana 70130 (504) 524-5777 FAX: (504) 524-5763 November 22, 2022 Via CM/ECF Tenth Circuit Court of Appeals Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 10th_Circuit_Clerk@ca10.uscourts.gov Andrew Averbach Marian Zobler Justin Heminger U.S. Nuclear Regulatory Commission Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, MD 20852 Andrew.averbach@nrc.gov marian.zobler@nrc.gov justin.heminger@usdoj.gov Arnold Bradley Fagg Ryan Kennedy Lighty Morgan Lewis & Bockius 1111 Pennsylvania Avenue, NW Washington, DC 20004-2541 brad.fagg@morganlewis.com ryan.lighty@morganlewis.com RE: Balderas, et al v. United States Nuclear Regulatory Commission, et al.

United States Court of Appeals Docket No. 21-9593

Dear Clerk:

The State of New Mexico, by and through counsel, pursuant to FRAP Rule 28(j), hereby responds to Federal Respondents citation to Ohio Nuclear-Free Network v. Nuclear Regulatory Commission, No. 21-1162 (D.C. Cir. 2022) as supplemental authority.

Ohio does not warrant dismissal here. It is not controlling in determining jurisdiction for ultra vires claims or the States claims of a correspondingly tainted and outcome oriented Record of Decision and final EIS, under the unprecedented circumstances here - where the NRC closed its adjudicatory proceeding without admitting a single contention and before publishing its draft EIS with new and material disclosures of unfunded federal mandates. See NM Br. at 26-29.

Appellate Case: 21-9593 Document: 010110772929 Date Filed: 11/22/2022 Page: 2 First, the appropriate and available administrative procedure in the context of the closed ISP proceeding was to participate in the NRCs NEPA proceeding through submission of comments as directed by the NRC. See Ohio, Slip Op. at 7-8; NM Reply Br. at 9-11. Several Circuit Courts have recognized the submission of comments as sufficient to establish party aggrieved status under the Hobbs Act. NM Opp. MTD at 6-7. Under these circumstances, the States comments suffice.

Second, the Ohio Petitioners challenge to a no impact finding for a license amendment to an already existing facility is not comparable with the States challenges to the unlawful initial licensing under conditions that contravene the framework of the Nuclear Waste Policy Act, 42 U.S.C. §§ 10111, et seq., (NWPA) and impose unfunded mandates on the State. See NM Reply Br. at 15-17.

Ohios narrow view of jurisdiction (Slip Op. at 9) is inapposite to review of agency actions that are not in accordance with the law and contrary to Constitutional constructs under the Administrative Procedures Act, 5 U.S.C. §§ 702, 706(2). See NM Opp. MTD at 16-17. Likewise, Ohio is silent on judicial review of an EIS under the NWPA for a license contemplating private storage of DOE-titled waste. See id. at 4.

Respectfully submitted.

KANNER & WHITELEY, L.L.C.

By: /s/ Allan Kanner_____________

Allan Kanner 2