ML23199A032

7-14-13 Amended Docketing Statement (DC Cir.)(Case No. 20-1187)

ML23199A032
Person / Time
Site:	HI-STORE
Issue date:	07/14/2023
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
20-1187, 2007999
Download: ML23199A032 (1)

Text

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 1 of 55 USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 2 of 55 Addendum to Petitioners Docketing Statement for Beyond Nuclear v. NRC, No. 20-1187, consolidated with Nos. 20-1225, 21-1104, 21-1147 Question 1: CASE NO.

Case No. 20-1187, consolidated with Nos. 20-1225, 21-1104, 21-1147 Question 6(e): Identify the basis of appellants/petitioners claim of standing.

To establish standing in a case brought under the Hobbs Act, 28 U.S.C. § 2344, a party filing suit in federal court must demonstrate both associational and prudential standing. Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1278 (D.C.

Cir. 2004) (citing Hunt v. Wash. State Apple Adver. Commn, 432 U.S. 333, 343 (1977); Reytblatt v. U.S. Nuclear Regulatory Commn, 105 F.3d 715, 720 (D.C.

Cir. 1997)). As demonstrated by the attached declarations of its members1 and explained below, Petitioner Beyond Nuclear, Inc. (Beyond Nuclear) has both types of standing to challenge final orders of the Nuclear Regulatory Commission (NRC) in a licensing proceeding for the construction and operation of a nuclear waste (often described as spent nuclear fuel) storage facility in Lea County, New Mexico (the Holtec facility).

1 See Affirmation of Daniel C. Berry III (Ex. 1); Affirmation of Elizabeth Berry (Ex.

2); Affirmation of Keli Hatley, (Ex. 3); Affirmation of Margo Smith (Ex. 4); and Affirmation of Gene Harbaugh (Ex. 5). These Affirmations confirm and update the information provided in standing declarations previously filed with this Court on July 9, 2020. Beyond Nuclear is no longer relying upon Jimi Gadzia or Nick King to establish standing.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 3 of 55 A. Associational Standing Beyond Nuclear has associational standing to bring this petition for review as a representative of its members. See Nuclear Energy Inst., 373 F.3d at 1265.

An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organizations purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Center for Sustainable Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir. 2015) (quoting Hunt, 432 U.S. at 343).

1. As demonstrated by the attached declarations, Beyond Nuclears members have standing to sue in their own right. Each demonstrates the irreducible constitutional minimum for standing: injury-in-fact, causation, and redressability. Nuclear Energy Inst., 373 F.3d at 1265 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injuries to Beyond Nuclears members arise from (i) their proximity to the significant quantity of radioactive material to be stored at the proposed Holtec facility, (ii) their exposure to normal and accidental doses of radiation during transportation of spent fuel to the facility, and (iii) the depression of their property values.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 4 of 55 First, as demonstrated in the attached declarations, Beyond Nuclear establishes standing by virtue of its members proximity to a significant source of radiation. See, e.g., Nuclear Energy Inst., 373 F.3d at 1266 (finding standing for an environmental organization to challenge nuclear waste disposal facility licensing because one of its members lives adjacent to the land where the Government plans to bury 70,000 metric tons of radioactive wastea sufficient harm in and of itself). Spent nuclear fuel is and will remain highly radioactive and dangerous to humans for hundreds of thousands of years. Id. at 1267. Here, Holtec proposes to store an astronomical quantity of this extremely dangerous and long-lived radioactive wasteup to 100,000 metric tons, more than twice the total amount of commercially generated spent nuclear fuel existing in the United States today and nearly fifty percent more than the amount found sufficient to satisfy the injury-in-fact requirement in Nuclear Energy Inst.adjacent to where Beyond Nuclears members live, work, and own property.

Second, Beyond Nuclear establishes standing by virtue of the radiological injuries to its members who live, work, and travel on or along routes on which Holtec plans to transport spent nuclear fuel. As demonstrated in the attached declarations, these injuries include radiological exposure received during normal transportation operations, radiological exposure received during a transportation accident, and limitation on the right to travel. Such injuries from a proposed license 3

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 5 of 55 activity need not be large to establish standing: even minor radiological exposure, within regulatory limits, can be sufficient. Duke Power Co. v. Carolina Envtl.

Study Group, 438 U.S. 59, 74 (1978) ([T]he emission of non-natural radiation into appellees environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from uncertainty about the health and genetic consequences of even small emissions like those concededly emitted by nuclear power plants.).

Third, as demonstrated in the attached declarations, Beyond Nuclear establishes standing by virtue of the proposed facilitys adverse impacts to its members property values. Kelley v. Selin, 42 F.3d 1501, 1509-10 (6th Cir. 1995)

(finding that spent fuel storage near petitioners has the potential to interrupt enjoyment of their lakefront property and to diminish its value).

Such injuries to the health, safety, and property interests of Beyond Nuclears members are directly traceable to the actions challenged here: NRCs conduct of the Holtec licensing proceeding, and its determination that the Nuclear Waste Policy Act of 1982 (NWPA) and Administrative Procedure Act (APA) pose no legal obstacle to licensing the facility. These injuries would be redressed by requiring NRC to order the immediate dismissal of the licensing proceeding and denial of the Holtec license application.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 6 of 55

2. The interests Beyond Nuclear seeks to protect are germane to its purposes: Beyond Nuclear is a nonprofit, nonpartisan membership organization that (a) aims to educate and activate the public about the connections between nuclear power and nuclear weapons and the need to abolish both to protect public health and safety, prevent environmental harms, and safeguard our future; and (b) advocates for an end to the production of nuclear waste and for securing the existing reactor waste in hardened on-site storage until it can be permanently disposed of in a safe, sound, and suitable underground repository.

3. Finally, neither the claim asserted nor the relief requested requires participation in this lawsuit by an individual member of Beyond Nuclear. Nuclear Energy Inst., 373 F.3d at 1265.

Therefore, because Beyond Nuclear satisfies the three-part test set forth in Center for Sustainable Econ., 779 F.3d at 596, it has the associational standing required to bring a case in federal court under the Hobbs Act. See also Nuclear Energy Inst., 373 at 1278-79.

B. Prudential Standing To establish prudential standing, a partys grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. Nuclear Energy Inst., 373 F.3d at 1266 (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)). Beyond Nuclear has 5

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 7 of 55 prudential standing to bring this petition for review. By considering a license application that contemplates federal ownership of spent nuclear fuel in violation of the NWPA, and by concluding it could issue a license with such a provision, the NRC incurred upon the zone of interests protected by the NWPA and APA. See id.

Section 111 of the NWPA, 42 U.S.C. § 10131(b), prohibits transfer of title to spent nuclear fuel from private nuclear reactor licensees to the federal government unless and until a federal repository is operational. It thereby protects the public from the hazards posed by high-level radioactive waste and . . . spent nuclear fuel. 42 U.S.C. §10131(b)(1), 42 U.S.C. § 10222(a)(5)(A). Section 706 of the APA, 5 U.S.C. §§ 706(2)(A) and (C), requires federal agencies to follow the law, thus protecting the publics interest in government accountability. Department of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891, 1905 (2020) (explaining that the APA sets forth the procedures by which federal agencies are accountable to the public (quoting Franklin v. Massachusetts, 505 U.S. 788, 796 (1992)).

Therefore, Beyond Nuclear has the prudential standing required to bring a case under the Hobbs Act in federal court. See Nuclear Energy Inst., 373 F.3d at 1279-80.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 8 of 55 Question 6(f): Are there any other cases involving the same underlying order pending in this Court or any other?

Yes. Like the instant case (No. 20-1187), the three cases that have been consolidated with No. 20-1187 all seek review of NRC Order CLI-20-04: Dont Waste Michigan, et al. v. NRC (No. 20-1225), Sierra Club. v. NRC (No. 21-1104),

and Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners

v. NRC (No. 21-1147).

Question 6(g): Are there any other cases, to counsels knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially the same issues as the instant case presents?

In Don't Waste Michigan v. U.S. Nuclear Regulatory Comm'n, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023), this Court decided a case against Beyond Nuclear involving a similar fact pattern and similar legal issues. In Dont Waste Michigan, as in the instant case, Beyond Nuclear challenged the NRCs issuance of a license for construction and operation of a facility to store spent or used nuclear reactor fuel. In this case, the facility licensee is Holtec International. In Dont Waste Michigan, the facility licensee is Interim Storage Partners, L.L.C.

(ISP). In each case, Beyond Nuclear has asserted that the NRCs issuance of the license violated the Nuclear Waste Policy Act (NWPA) and the Administrative Procedure Act (APA).

In Dont Waste Michigan, the Court did not address the asserted NWPA and APA violations, but dismissed Beyond Nuclears petition for review on the ground 7

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 9 of 55 that Beyond Nuclear had failed to amend its hearing request to address a change in the license application. 2023 WL 395030 at *2. In this case, in contrast, Beyond Nuclear amended its hearing request when the license application changed.

The NRCs issuance of a license to ISP has also been challenged in two other circuits. In Texas v. U.S. Nuclear Regulatory Commn, Docket No. 21-60743, the parties filed briefs, and the Fifth Circuit of the U.S. Court of Appeals held an oral argument on August 29, 2022, but a decision has not been issued. In New Mexico ex rel. Balderas v. U.S. Nuclear Regulatory Commn, No. 21-9593, the Tenth Circuit of the U.S. Court of Appeals granted a motion to dismiss for lack of subject matter jurisdiction on February 10, 2023.2 2

See New Mexico ex rel. Balderas v. U.S. Nuclear Regulatory Commn, No. 21-9593 (10th Cir. Feb. 10, 2023),

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110811201.pdf.

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EXHIBIT 1 AFFIRMATION OF DECLARATION OF DANIEL C. BERRY III ATTACHMENT A: DECLARATION OF DANIEL C. BERRY III Page 10 of 55 Filed: 07/14/2023 Document #2007999 USCA Case #20-1187

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 11 of 55 Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 12 of 55 Exhibit 1

Jul 01 20, 02:01 p TV RANCH, LLLP 575-397-2267 p.7 07/01/2020 15:33 USCA Case #20-1187 269--344-7821 FEDEX OFFICE Document #2007999 Filed:0450 07/14/2023 r'Abl:. I Page 13 of 55 ATTACHMENT A Exhibit 1 Declaration of Daniel C. Berry III UNITED STAT <S COURT OF APPEALS FOR THE DISTRIC OF COLUMBIA CIRCUIT

)

BEYOJ.\lJ) NUCLEAR, INC., )

)

Petitioner, ) Case No. 20-1187

)

V. )

)

UNITED STATES N'C'CLEA , )

REGULATORY COMM1SSI@N and the )

UNITED STATES OF AME I CA. )

I

)

Respondents, )

)

DECLARAjION OF DANIEL C. BERRY, Ill Under penalty of perjury, J, D niel C. Berry Ill, declare as follows:

j

1. My name is Daniel C. erry Ill.

• 2. I am a member of Beyond Nuclear, Jnc. ("Beyond Nuclear").

3. I live with my wife, ElJabeth Berry, in Township 21S, Range 33E, Section

2. My home is within 1 miles of the proposed Holtec Consolidated Interim Storage Facility (the" cility).

4. I own and ranch the T ver V Ranch, which is approximately 40,000 acres of a mix of private lan and Bureau of Land Management and state leases.

The T Over V Ranchi located in Township 20S, Range 34E, Sections 22, 27, 28, 34, and 35, To nship 21S, Range 31E, Sections 1 and 12, and Township 21S, Range 2E, Section 6, all within 3 to 15 miles of the Facility.

The T Over V Rancb h s multiple homesteads on it. I have included a map identifying the locatio of my residence md my land in relation to the Facility. See Attachru nt A. l inherited the T Over V Ranch from my family and grew up on this r ch and the surrounding area. My family has lived here since 1932, and r ave lived here since l was boroin 1947.

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 14 of 55 Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 15 of 55 Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 16 of 55 Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 17 of 55 Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 18 of 55 Declaration of Daniel C. Berry III Attachment A Exhibit 1

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 19 of 55 Declaration of Daniel C. Berry III Exhibit 1 Attachment B New Mexico Department of Transportation, New Mexico State Rail Plan, 2-23 (Mar. 27, 2014)

(Holtec Facility and Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad added)

EXHIBIT 2 AFFIRMATION OF DECLARATION OF ELIZABETH BERRY ATTACHMENT A: DECLARATION OF ELIZABETH BERRY Page 20 of 55 Filed: 07/14/2023 Document #2007999 USCA Case #20-1187

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 21 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 22 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 23 of 55 ATTACHMENT A Declaration of Elizabeth Berry Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 24 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 25 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 26 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 27 of 55 Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 28 of 55 Attachment A Declaration of Elizabeth Berry Exhibit 2

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 29 of 55 Declaration of Elizabeth Berry Exhibit 2 Attachment B New Mexico Department of Transportation, New Mexico State Rail Plan, 2-23 (Mar. 27, 2014)

(Holtec Facility and Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad added)

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 30 of 55 EXHIBIT 3 AFFIRMATION OF DECLARATION OF KELI HATLEY ATTACHMENT A: DECLARATION OF KELI HATLEY

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 3 31 of 55

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 32 of 55 Exhibit 3

ATTACHMENT A USCA Case #20-1187 Declaration Document of Keli Hatley

1. 2007999 Filed: 07/14/2023 Exhibit Page 33 of 553

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 34 of 553

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 35 of 553

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 36 of 55 Attachment A Declaration of Keli Hatley Exhibit 3

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 37 of 55 Declaration of Keli Hatley Exhibit 3 Attachment B New Mexico Department of Transportation, New Mexico State Rail Plan, 2-23 (Mar. 27, 2014)

(Holtec Facility and Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad added)

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 38 of 55 EXHIBIT 4 AFFIRMATION OF DECLARATION OF MARGO SMITH ATTACHMENT A: DECLARATION OF MARGO SMITH

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 39 of Exhibit 4 55

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 40 of 55 Exhibit 4

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 PageExhibit 41 of 455

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 PageExhibit 42 of455 ATTACHMENT A Declaration of Margo Smith UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

BEYOND NUCLEAR, INC., )

)

Petitioner, ) No. 20-1187,

) consolidated with No. 20-1225

v. )

)

UNITED STATES NUCLEAR )

REGULATORY COMMISSION and the )

UNITED STATES OF AMERICA, )

)

Respondents. )

)

DECLARATION OF MARGO SMITH Under penalty of perjury, I, Margo Smith, declare as follows:

1. I am a member of Beyond Nuclear, Inc. (Beyond Nuclear).

2. I live with my husband, daughter, and grandchild at 258 Smith Ranch Road, Hobbs, New Mexico, 88240, located on the Smith Ranch and approximately seven miles from the Holtec Consolidated Interim Storage Facility (the Facility). I have attached a map identifying the location of my home and the Facility. See Attachment A.

3. My family is comprised of fourteen members, including my three daughters, four grandsons ages 3, 10, 15, and 16, sons-in-law, and mother-in-law. My family and I all frequently and regularly spend time within 7 miles of the Facility because we live, recreate, and work on the Smith Ranch. The Facility will lie in the center of the Smith Ranch.

4. Every day my family and I spend time managing our cattle. As my cattle currently range on the land where the Facility will be built, I am currently able to enter this land. Once the Facility is built, I will be able to travel along its fence line.

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 43 of 55 Exhibit 4

5. I drive on Highway 62/180 at least two times a week to visit my daughters, Keli Hatley and Stephanie Logan. My daughter Keli Hatley lives at 307 Laguna Road, Hobbs, New Mexico, 88240, a mile from the Facility. My daughter Stephanie Logan lives at 111 Goathead Road, Hobbs, New Mexico, 88240, a little over two miles from the Facility. From Highway 62/180, I take Laguna Road/County Road 55 to get to Kelis house, and it is my understanding that the construction of the Facility will require moving a section of this road.

6. I also regularly use Highway 62/180 between my home and Carlsbad where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad that Holtec plans to use to transport spent nuclear fuel to the Facility. See Attachment B. I use this Highway regularly to go grocery shopping, and to attend and participate in rodeos in Carlsbad. I also drive from Highway 62/180 to Highway 360 to visit Artesia. Highway 360 intersects with the railroad that Holtec plans to use to transport spent nuclear fuel to the Facility. When I am driving on these highways and roads, I notice rail cars near me.

7. I am concerned about the risks to my home, my health and safety, the health and safety of my family, and my environment posed by the construction and operation of the Facility, and by transportation of spent nuclear fuel to the Facility.

8. I am concerned about the radiation risks to me and my family posed by living next to a facility housing such an enormous inventory of radioactive material as the Facility. I am especially concerned how the Facility could impact my children and young grandchildren. I am also concerned that an accident involving spent nuclear fuel at the Facility will harm my family and home due to radiological exposure.

9. I am also concerned about the impact the Facility will have on the value of my home and the Smith Ranch because I am concerned that the Facility will deter people from wanting to live in this area. It is my understanding that property values near a nuclear facility can be reduced as early as when it receives its license to operate due to real or perceived risks of exposure to radiation releases from the nearby facility. It is also my understanding that property values may continue to decrease as the facility is constructed and operating.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 44 of 55 Exhibit 4

10. I am also concerned that if no solution is found to the problem of nuclear waste, it may wind up at the Facility indefinitely and cause severe economic impacts to the Smith Ranch and my local economy due to our proximity to the nations de facto permanent nuclear waste dump.

11. I am also concerned that the additional traffic from the Facility will harm myself or my family, especially because I have young family members who are currently driven to school on these roads, and who will soon be learning to drive on these roads. The roads in this area are already dangerous because they are overused by the oil and gas industry and were not constructed to withstand the amount of traffic that the industry entails. The roads contain many potholes and are extremely narrow. For example, I have been in an accident in which a passing vehicles mirror and my cars mirror hit each other because of how narrow the road is. It is my understanding that there have already been multiple vehicular deaths in the area and that the Holtec application projects 2.9 deaths from transportation of spent nuclear fuel to the Facility. It is my understanding that the oil and gas industry have proposed the installation of helicopter pads for medical evacuations related to industry operations, as well as 600-800 man camps to house workers, which will only exacerbate the traffic and worsen road conditions.

12. I am also concerned that my family and I will not be able to avoid small doses of unwanted radiation from driving next to rail cars carrying shipments of spent nuclear fuel, including radiation from potential contamination on the outside of the casks, which will harm our health and safety. I am also concerned that we cannot avoid higher doses of unwanted radiation should Holtec transport the spent nuclear fuel by truck along Highway 62/180, Highway 176/243, and other roads in the area that we frequent.

13. I am also concerned my grandsons cannot avoid doses of unwanted radiation from passing next to the Facility while being bused to and from school.

14. I am also concerned with the impacts to my interest and right to travel near my home posed by Holtecs proposed transportation routes for spent nuclear fuel. We will not be able to avoid highways and roads that are involved with transporting spent nuclear fuel to the Facility in order to ensure myself and my family travel on the safest roads to avoid unwanted doses of radiation or potential accidents involving the transportation of spent nuclear fuel because 3

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 45 of 55 Exhibit 4 these highways and roads are our primary routes to access work, school, and recreational activities.

15. Finally, I am concerned that Holtecs license application is inadequate and illegal as written, and that my interests will not be adequately represented in this action without the opportunity for Beyond Nuclear to intervene as a party in the NRC proceeding on my behalf.

16. Therefore, I previously authorized Beyond Nuclear to protect my interests by representing me in both (a) a motion to the NRC to dismiss Holtecs license application and (b) a petition to intervene in the NRCs licensing proceeding for the Facility. When the NRC denied Beyond Nuclears motion to dismiss Holtecs license application, I authorized Beyond Nuclear to appeal that decision to this court. Now that NRC has denied Beyond Nuclears petition to intervene, I authorize Beyond Nuclear to appeal that decision to this court.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 46 of 55 Exhibit 4

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 47 of 55 Attachment A Declaration of Margo Smith Exhibit 4

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 48 of 55 Exhibit 4 Declaration of Margo Smith Attachment B New Mexico Department of Transportation, New Mexico State Rail Plan, 2-23 (Mar. 27, 2014)

(Holtec Facility and Highway 62/180 where it parallels the Burlington Northern Santa Fe Carlsbad Subdivision railroad added)

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 49 of 55 EXHIBIT 5 AFFIRMATION OF DECLARATION OF GENE HARBAUGH ATTACHMENT A: DECLARATION OF GENE HARBAUGH

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 50 of 55 Exhibit 5

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Page 51 of 55 Exhibit 5

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 52 of 555 ATTACHMENT A Declaration of Gene Harbaugh UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

BEYOND NUCLEAR, INC., )

)

Petitioner, ) No. 20-1187,

) consolidated with No. 20-1225

v. )

)

UNITED STATES NUCLEAR )

REGULATORY COMMISSION and the )

UNITED STATES OF AMERICA, )

)

Respondents. )

)

DECLARATION OF GENE HARBAUGH Under penalty of perjury, I, Gene Harbaugh, declare as follows:

1. I am a member of Beyond Nuclear, Inc. (Beyond Nuclear).

2. I live at 601 East Orchard Lane, Carlsbad, New Mexico 88220. My home lies within 250 yards of the Burlington Northern Santa Fe Carlsbad Subdivision railroad and 500 yards of a railyard on which, as I understand, Holtec International (Holtec) proposes to transport spent nuclear fuel to the Holtec Consolidated Interim Storage Facility (the Facility). I have attached a map identifying the location of my house, the railroad, and the railyard. See Attachment A.

3. I am concerned about risks to my health and safety, my environment, and my property value posed by normal and accidental radiation releases during transportation of spent fuel to and from the Facility.

4. Because I live close to the transportation route and regularly drive on roads in the area, I cannot avoid small doses of unwanted radiation from each shipment of spent nuclear fuel during normal operations, including radiation from potential contamination on the outside of the casks, which will harm

USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 53 5 of 55 my health and safety. I am especially concerned with any trains carrying spent nuclear fuel that will wait at the railyard near my home for extended periods of time, exposing me to higher levels of unwanted and unavoidable doses of radiation. I am also concerned my travel interests and rights will be impacted by not knowing which roads are the safest to travel on to avoid these unwanted doses of radiation and avoid potential accidents with trains carrying spent nuclear fuel.

5. I am also concerned that a rail accident of a spent nuclear fuel shipment may occur along this route of rail and harm my health and safety, and my environment (including my property). I believe there is a higher likelihood of an accident occurring near my property than elsewhere because of a combination of two factors: it is my understanding that (i) these railroads are already overburdened from the oil and gas boom in the area and are thus more susceptible to accident, and (ii) every shipment of spent nuclear fuel being sent to the Facility will have to pass along this rail corridor and the likelihood of accident increases in correlation with the number of shipments.

6. I am also concerned about the impact the transportation of spent nuclear fuel on these railroads will have on my property value. It is my understanding that property values along spent nuclear fuel transportation routes can be reduced due to real or perceived risks from the transportation.

7. Finally, I am concerned that Holtecs license application is inadequate and illegal as written and that my interests will not be adequately represented in this action without the opportunity for Beyond Nuclear to intervene as a party in the NRC proceeding on my behalf.

8. Therefore, I previously authorized Beyond Nuclear to protect my interests by representing me in both (a) a motion to the NRC to dismiss Holtecs license application and (b) a petition to intervene in the NRCs licensing proceeding for the Facility. When the NRC denied Beyond Nuclears motion to dismiss Holtecs license application, I authorized Beyond Nuclear to appeal that decision to this court. Now that NRC has denied Beyond Nuclears petition to intervene, I authorize Beyond Nuclear to appeal that decision to this court.

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USCA Case #20-1187 Document #2007999 Filed: 07/14/2023 Exhibit Page 54 of 555

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