ML24204A159

28j (Holtec Cert Petition) as Filed

ML24204A159
Person / Time
Site:	HI-STORE
Issue date:	07/01/2024
From:	Andrew Averbach NRC/OGC
To:	Langer M US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
USCA Case #20-1187 Document #2062325
Download: ML24204A159 (1)

Text

USCA Case #20-1187 Document #2062325 Filed: 07/01/2024 Page 1 of 2

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001

July 1, 2024

BY ELECTRONIC FILING

Mark Langer, Clerk of Court United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave., NW Washington, DC 20001

Re: Beyond Nuclear v. NRC, No. 20-1187 (consolidated),

oral argument held March 5, 2024 panel: Judges Rao, Walker, Garcia

Dear Mr. Langer:

In these consolidated petitions for review, Petitioners challenge the Nuclear Regulatory Commissions orders denying them intervention in an adjudication that concluded with the Commission issuing an Atomic Energy Act materials license to Holtec International. Two Petitioners Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Ownersalso filed a petition for review in the Fifth Circuit directly challenging the license. In March 2024, the Fifth Circuit granted that petition and set aside the license. See Fasken v. Nuclear Regulatory Commission, No. 23-60377 (5th Cir. Mar. 27, 2024) (per curiam).

In Fasken, the Fifth Circuit held that the outcome was dictated by its decision in Texas v. Nuclear Regulatory Commission, 78 F.4th 827 (5th Cir. 2023), rehearing en banc denied, 95 F.4th 95 (2024). As the government reported to this Court, on June 12, 2024, the government filed a petition for a writ of certiorari to review the judgment in Texas.

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M. Langer

See June 13, 2024 Letter, Doc. No. 2059619. Since then, on June 25, 2024, the government has filed a petition for a writ of certiorari to review the judgment in Fasken. See Attachment (Docket No. 23-1341).

Respectfully,

/s/ Andrew P. Averbach Solicitor Counsel of Record for U.S.

Nuclear Regulatory Commission

Attachment

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No. XX-XX In the Supreme Court of the United States

UNITED STATES NUCLEAR REGULATORY COMMISSION, ET AL., PETITIONERS v.

FASKEN LAND AND MINERALS, LTD., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR Solicitor General Counsel of Record TODD KIM Assistant Attorney General MALCOLM L. STEWART Deputy Solicitor General NICOLE FRAZER REAVES Assistant to the Solicitor General JENNIFER S. NEUMANN BROOKE P. CLARK MICHAEL T. GRAY General Counsel JUSTIN D. HEMINGER ANDREW P. AVERBACH Attorneys Solicitor Department of Justice U.S. Nuclear Regulatory Washington, D.C. 20530-0001 Commission SupremeCtBriefs@usdoj.gov Washington, D.C. 20555 (202) 514-2217

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QUESTIONS PRESENTED

1. Whether the Hobbs Act, 28 U.S.C. 2341 et seq.,

which authorizes a party aggrieved by an agencys fi-nal order to petition for review in a court of appeals, 28 U.S.C. 2344, allows nonparties to obtain review of claims asserting that an agency order exceeds the agencys statutory authority.

2. Whether the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq., permit the Nuclear Regu-latory Commission to license private entities to tempo-rarily store spent nuclear fuel away from the nuclear-reactor sites where the spent fuel was generated.

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PARTIES TO THE PROCEEDING Petitioners were the respondents in the court of ap-peals. They are the United States Nuclear Regulatory Commission and the United States of America.

Respondents include the petitioners in the court of appeals. They are Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Owners. Respond-ents also include Holtec International, an intervenor-respondent in the court of appeals.

RELATED PROCEEDINGS United States Court of Appeals (5th Cir.):

Fasken Land and Minerals v. Nuclear Regulatory Commission, No. 23-60377 (Mar. 27, 2024)

United States Court of Appeals (D.C. Cir.):

Beyond Nuclear, Inc. v. Nuclear Regulatory Commis-sion, Nos. 20-1187, 20-1225, 21-1104, 21-1147 (ar-gued Mar. 5, 2024)

(II)

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TABLE OF CONTENTS Page Opinion below................................................................................ 1 Jurisdiction.................................................................................... 1 Statutory and regulatory provisions involved........................... 2 Statement:

A. Legal background............................................................. 2 B. Factual and procedural background............................... 6 Reasons for granting the petition............................................... 8 Conclusion..................................................................................... 8 Appendix A Court of appeals opinion (Mar. 27, 2024)..... 1a Appendix B Holtec license for independent storage of spent nuclear fuel and high-level radioactive waste (May 9, 2023)................. 3a Appendix C Statutory and regulatory provisions............ 9a

TABLE OF AUTHORITIES

Cases:

Dairyland Power Coop. v. United States, 645 F.3d 1363 (Fed. Cir. 2011)............................................. 4 Energy Nw. v. United States, 641 F.3d 1300 (Fed. Cir. 2011)............................................. 4 General Elec. Co., In re, 15 N.R.C. 530 (1982)..................... 4 Holtec Intl, In re:

91 N.R.C. 167 (2020).......................................................... 6 93 N.R.C. 215 (2021).......................................................... 6 Pacific Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Commn, 461 U.S. 190 (1983)...... 2, 3 Texas v. Nuclear Regulatory Commission:

78 F.4th 827 (5th Cir. 2023), petitions for cert.

pending, Nos. 23-1300 and 23-1312 (filed June 12, 2024)................................................. 6, 7 95 F.4th 935 (5th Cir. 2024).............................................. 7

(III)

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IV

Statutes and regulations: Page Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq............... 2 42 U.S.C. 2013(a)............................................................... 2 42 U.S.C. 2013(b)............................................................... 2 42 U.S.C. 2013(d)............................................................... 2 42 U.S.C. 2014(e)............................................................... 2 42 U.S.C. 2014(z)............................................................... 2 42 U.S.C. 2014(aa)............................................................. 2 42 U.S.C. 2073(a)....................................................... 2, 10a 42 U.S.C. 2092............................................................ 2, 16a 42 U.S.C. 2093(a)....................................................... 2, 16a 42 U.S.C. 2111(a)....................................................... 2, 18a 42 U.S.C. 2133.................................................................... 2 42 U.S.C. 2134.................................................................... 2 42 U.S.C. 2201(b)............................................................... 3 42 U.S.C. 2201(h)............................................................... 3 42 U.S.C. 2239(a)(1)(A)............................................. 5, 20a 42 U.S.C. 2239(b)(1).................................................. 5, 21a Hobbs Act, 28 U.S.C. 2341 et seq........................................... 5 28 U.S.C. 2342.................................................................... 5 28 U.S.C. 2342(4)............................................................... 5 28 U.S.C. 2343.............................................................. 6, 9a 28 U.S.C. 2344.......................................................... 5, 6, 9a Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq........................................................... 3 42 U.S.C. 10131-10145....................................................... 4 42 U.S.C. 10151-10157....................................................... 4 42 U.S.C. 10155(h)..................................................... 4, 25a 10 C.F.R.:

Pt. 2:

Section 2.309(a).................................................... 5, 26a Section 2.309(d).................................................... 5, 29a

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RegulationsContinued: Page Section 2.309(f).................................................... 5, 31a Section 2.309(f)(1)(vi).......................................... 5, 32a Pt. 72................................................................................... 3 Section 72.3................................................................... 3

Miscellaneous:

45 Fed. Reg. 74,693 (Nov. 12, 1980)....................................... 3 56 Fed. Reg. 57,539 (Nov. 12, 1991)....................................... 4 71 Fed. Reg. 10,068 (Feb. 28, 2006)....................................... 4 83 Fed. Reg. 32,919 (July 16, 2018)........................................ 6 88 Fed. Reg. 30,801 (May 12, 2023)....................................... 6 Nuclear Regulatory Commission, U.S. Independent Spent Fuel Storage Installations (ISFSI)

(Apr. 22, 2021), https://www.nrc.gov/docs/ML2111/

ML21116A041.pdf................................................................. 4

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In the Supreme Court of the United States

No. XX-XX UNITED STATES NUCLEAR REGULATORY COMMISSION, ET AL., PETITIONERS v.

FASKEN LAND AND MINERALS, LTD., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States Nuclear Regulatory Commission and the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case.

OPINION BELOW The opinion of the court of appeals (App., infra, 1a-2a) is unreported.

JURISDICTION The judgment of the court of appeals was entered on March 27, 2024. The jurisdiction of this Court is in-voked under 28 U.S.C. 1254(1) and 2350(a).

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STATUTORY AND REGULATORY PROVISIONS INVOLVED Relevant statutory and regulatory provisions are re-produced in the appendix. App., infra, 9a-35a.

STATEMENT A. Legal Background

1. a. Congress enacted the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq., to encourage[] the private sector to develop atomic energy for peaceful purposes under a program of federal regulation and licensing.

Pacific Gas & Elec. Co. v. State Energy Res. Conserva-tion & Dev. Commn, 461 U.S. 190, 207 (1983); see 42 U.S.C. 2013(a), (b), and (d). As amended, the Act gen-erally prohibits certain activities absent a license issued by the Nuclear Regulatory Commission (Commission),

while authorizing the Commission to license such activ-ities as long as they comply with the Commissions health, safety, common defense, and security standards.

The Act authorizes the Commission to issue licenses to possess three types of nuclear material: (1) source ma-terial, such as natural uranium, 42 U.S.C. 2092; see 42 U.S.C. 2093(a); (2) special nuclear material, such as enriched uranium and plutonium, that can be used to sustain nuclear fission, 42 U.S.C. 2073(a); and (3) by-product material, which includes other radioactive ma-terial produced by nuclear fission, 42 U.S.C. 2111(a). See 42 U.S.C. 2014(e), (z), and (aa) (defining those terms).

Licenses under those three provisions are known as materials licenses.*

• Congress has separately authorized the Commission to issue facilities licenses, which are necessary for private entities to own or operate facilities, including nuclear-power reactors, that produce or utilize nuclear material. See 42 U.S.C. 2133, 2134.

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Once fuel in a nuclear reactor is no longer useful, it must be removed from the reactor and cooled in a spent-fuel pool for as long as five years, after which it can ei-ther remain in the pool or be placed into dry storage.

Such spent nuclear fuel consists of source material, spe-cial nuclear material, and byproduct material. See 10 C.F.R. 72.3. To possess any amount of spent nuclear fuel, an individual or entity must obtain from the Com-mission a materials license to possess each of its compo-nents. The Commission can issue a single license au-thorizing the possession of all three components. See 42 U.S.C. 2201(h).

The Commission is authorized to establish by rule, regulation, or order, such standards and instructions to govern the possession and use of those three compo-nents as the Commission may deem necessary or de-sirable to promote the common defense and security or to protect health or to minimize danger to life or prop-erty. 42 U.S.C. 2201(b). In the 1970s, the Commission recognized that the nuclear-power industry would need more space to temporarily store spent fuel. 45 Fed.

Reg. 74,693, 74,693 (Nov. 12, 1980). In 1980, following notice-and-comment rulemaking, see ibid., the Com-mission issued regulations that establish licensing re-quirements for interim storage of spent fuel, including dry storage as an alternative to pool storage, both at and away from the site of the nuclear-reactor facility where the fuel was generated. See 10 C.F.R. Pt. 72; see also Pacific Gas & Elec. Co., 461 U.S. at 217 (noting those regulations).

b. Two years later, Congress enacted the Nuclear Waste Policy Act of 1982 (Policy Act), 42 U.S.C. 10101 et seq. The Policy Act created a program for the federal government to establish a deep geologic repository to

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permanently dispose of spent fuel from commercial nu-clear reactors. See 42 U.S.C. 10131-10145. The Policy Act also directed the Department of Energy to provide limited interim storage of spent fuel if certain condi-tions were met. See 42 U.S.C. 10151-10157. The Policy Act further provided that, [n]otwithstanding any other provision of law, nothing in the Act shall be construed to encourage, authorize, or require the private or Fed-eral use, purchase, lease, or other acquisition of any storage facility located away from the site of any civilian nuclear power reactor and not owned by the Federal Government on January 7, 1983. 42 U.S.C. 10155(h).

The Policy Act did not modify the Atomic Energy Act provisions that authorized the Commission to license temporary possession of spent nuclear fuel, nor did it disturb the Commissions 1980 regulations.

c. In the four decades since Congress enacted the Policy Act, the Commission has issued materials li-censes for spent-fuel storage installations both at, and away from, reactor sites. See, e.g., In re General Elec.

Co., 15 N.R.C. 530 (1982) (offsite); 71 Fed. Reg. 10,068 (Feb. 28, 2006) (offsite); 56 Fed. Reg. 57,539 (Nov. 12, 1991) (storage at decommissioning reactor); see also Nuclear Regulatory Commission, U.S. Independent Spent Fuel Storage Installations (ISFSI) (Apr. 22, 2021) (map of spent-fuel storage installations), https://

www.nrc.gov/docs/ML2111/ML21116A041.pdf. Tempo-rary storage of spent fuel remains necessary to facili-tate ongoing operation of nuclear reactors and the de-commissioning of retired reactors. See, e.g., Energy Nw. v. United States, 641 F.3d 1300, 1303-1304 (Fed.

Cir. 2011) (storage facility that allowed continued gen-eration of power); Dairyland Power Coop. v. United

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States, 645 F.3d 1363, 1367-1368 (Fed. Cir. 2011) (stor-age facility necessary to complete decommissioning).

2. When adjudicating a request for a license to store spent nuclear fuel, the Commission shall grant a hear-ing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. 42 U.S.C. 2239(a)(1)(A). Under the Commissions regula-tions, leave to intervene will be granted if a person pro-vide[s] sufficient information to show that a genuine dis-pute exists with the applicant/licensee on a material is-sue of law or fact and satisfies other requirements. 10 C.F.R. 2.309(f)(1)(vi); see 10 C.F.R. 2.309(a), (d), and (f).

3. The Hobbs Act, 28 U.S.C. 2341 et seq., vests the courts of appeals with exclusive jurisdiction to review (among other things) any final order of the Commis-sion entered in any proceeding granting, suspend-ing, revoking, or amending a license. 42 U.S.C.

2239(a)(1)(A) and (b)(1); see 28 U.S.C. 2342(4). The Hobbs Act also gives the courts of appeals exclusive ju-risdiction to review final orders and rules issued by many other federal agencies, including the Federal Communications Commission, the Department of Agri-culture, the Department of Transportation, the Federal Maritime Commission, and the Surface Transportation Board. 28 U.S.C. 2342.

The Hobbs Act specifies that [j]urisdiction is in-voked by filing a petition as provided by section 2344 of this title. 28 U.S.C. 2342. Section 2344, in turn, provides that [a]ny party aggrieved by the final order of a Hobbs Act agency may, within 60 days after its entry, file a petition to review the order in the court of appeals for the judicial circuit in which the petitioner resides or

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has its principal office, or the D.C. Circuit. 28 U.S.C.

2343, 2344.

B. Factual And Procedural Background

1. In 2018, the Commission gave public notice that Holtec International had applied for a license to store spent nuclear fuel in Lea County, New Mexico, away from any reactor. 83 Fed. Reg. 32,919 (July 16, 2018).

The notice explained that interested persons could re-quest a hearing and seek leave to intervene as parties to the proceeding. Id. at 32,920-32,921.

Several groups, including respondents Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Owners (collectively, Fasken), sought to inter-vene as parties. The Commission denied those inter-vention requests, and it issued the license in May 2023.

88 Fed. Reg. 30,801, 30,801-30,802 (May 12, 2023); see In re Holtec Intl, 93 N.R.C. 215 (2021); In re Holtec Intl, 91 N.R.C. 167 (2020).

2. Fasken pursued litigation related to Holtecs li-cense in two courts of appeals. First, Fasken and other putative intervenors petitioned in the D.C. Circuit for review of the Commissions orders denying their re-quests to intervene. See Beyond Nuclear, Inc. v. Nu-clear Regulatory Commission, No. 20-1187 (argued Mar. 5, 2024). The D.C. Circuit held argument in March 2024, and it has not yet issued a decision.

Second, Fasken petitioned for review of the license itself in the Fifth Circuit.

3. While that petition was pending, another Fifth Circuit panel issued its decision in Texas v. Nuclear Regulatory Commission, 78 F.4th 827 (5th Cir. 2023),

petitions for cert. pending, Nos. 23-1300 and 23-1312 (filed June 12, 2024). Texas involved another Commis-sion license for the temporary offsite storage of spent

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nuclear fuel. Id. at 831, 833-835. Nonparties to the ad-ministrative proceedingincluding Fasken, which was also denied leave to intervene in that proceedingfiled petitions for review of the license. Id. at 834. The court in Texas held that it could review the putative interve-nors claim that the Commission had exceeded its stat-utory authority, based on a judge-made ultra vires ex-ception to the Hobbs Acts party -aggrieved limitation.

Id. at 837-840. The court further held that the Atomic Energy Act does not authorize the Commission to li-cense temporary offsite storage of spent nuclear fuel, and that the Policy Act separately bars such licenses.

Id. at 840-844.

The Fifth Circuit denied the governments petition for rehearing en banc by a 9-7 vote. Texas v. Nuclear Regulatory Commission, 95 F.4th 935 (2024). The gov-ernment and the licensee in Texas have filed petitions for writs of certiorari. See Nuclear Regulatory Commis-sion v. Texas, No. 23-1300 (filed June 12, 2024); Interim Storage Partners, LLC v. Texas, No. 23-1312 (filed June 12, 2024).

4. After the Fifth Circuit denied en banc rehearing in Texas, the panel in this case issued an unpublished, per curiam decision vacating Holtecs license. App., in-fra, 1a-2a. The court found that [t]he parties, correctly, agree that Texas v. NRC involved a materially identical license in a materially identical procedural posture, and that the panels consideration of this case [is] con-trolled by Texas v. NRC. Id. at 2a (brackets omitted; emphases altered). The court then granted Faskens petition for review and vacated Holtecs license, ex-plaining that the Fifth Circuits holding in Texas v.

NRC dictates the outcome here. Ibid.

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REASONS FOR GRANTING THE PETITION This case presents the questions (1) whether the Hobbs Acts party-aggrieved requirement is subject to a judge-made ultra vires exception, and (2) whether the Commission is authorized to license private entities to temporarily store spent nuclear fuel away from the nuclear-reactor sites where the spent fuel was generated.

The government has filed a petition for a writ of certiorari in Nuclear Regulatory Commission v. Texas, No. 23-1300 (filed June 12, 2024), seeking this Courts review of those two questions, see Pet. at I, Texas, supra (No. 23-1300).

The Court should therefore hold this petition pending the Courts disposition of the petition in Texas. If the Court grants that petition, it should continue to hold this petition pending the decision in Texas and then dispose of this petition as appropriate in light of that decision.

CONCLUSION The petition for a writ of certiorari should be held pending this Courts disposition of Nuclear Regulatory Commission v. Texas, No. 23-1300 (filed June 12, 2024),

and then disposed of as appropriate.

Respectfully submitted.

ELIZABETH B. PRELOGAR Solicitor General TODD KIM Assistant Attorney General MALCOLM L. STEWART Deputy Solicitor General BROOKE P. CLARK NICOLE FRAZER REAVES General Counsel Assistant to the Solicitor General ANDREW P. AVERBACH JENNIFER S. NEUMANN Solicitor MICHAEL T. GRAY U.S. Nuclear Regulatory JUSTIN D. HEMINGER Commission Attorneys JUNE 2024

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APPENDIX

TABLE OF CONTENTS Page Appendix A Court of appeals opinion (Mar. 27, 2024)......................................... 1a Appendix B Holtec license for independent storage of spent nuclear fuel and high-level radioactive waste (May 9, 2023)............ 3a Appendix C Statutory and regulatory provisions:

28 U.S.C. 2343......................................... 9a 28 U.S.C. 2344.......................................... 9a 28 U.S.C. 2348........................................ 10a 42 U.S.C. 2073........................................ 10a 42 U.S.C. 2092........................................ 16a 42 U.S.C. 2093........................................ 16a 42 U.S.C. 2111........................................ 18a 42 U.S.C. 2239(a)(1)(A) and (b)............ 20a 42 U.S.C. 10151...................................... 22a 42 U.S.C. 10155(a) and (h).................... 23a 10 C.F.R. 2.309 (a)-(f), (h)..................... 26a

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APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 23-60377 Summary Calendar FASKEN LAND AND MINERALS, LIMITED; PERMIAN BASIN LAND AND ROYALTY OWNERS, PETITIONERS v.

NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, RESPONDENTS

[Filed: Mar. 27, 2024]

Appeal from the Nuclear Regulatory Commission Agency No. 72-1051

Before JONES, ELROD, and WILSON, Circuit Judges.

PER CURIAM:*

In September 2021 the Nuclear Regulatory Commis-sion (NRC) issued a license to Interim Storage Part-ners, LLC, to establish a facility to store nuclear waste temporarily in Andrews County, Texas. See Texas v.

Nuclear Regul. Commn, 78 F.4th 827, 833-35 (5th Cir.

2023) [hereinafter Texas v. NRC], rehg en banc denied, 2024 WL 1108700 (5th Cir. Mar. 14, 2024). Texas, Fasken Land and Minerals, Ltd., (Fasken), and Per-

• This opinion is not designated for publication. See 5th Cir. R.

47.5.

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2a

mian Basin Land and Royalty Owners (PBLRO) peti-tioned this court to set aside that license. Id. at 834-35.

In that appeal, a panel of this court first held that Fasken and PBLRO had standing under the Constitu-tion and the Hobbs Act to challenge the NRCs actions.

Id. at 835-40. It then held that the NRC lacked statu-tory authority to issue the license. Id. at 840-44. Ac-cordingly, this court granted the petitions for review and vacated the license. Id. at 844. The NRC filed a petition for rehearing en banc on October 24, 2023, which this court denied on March 14, 2024. See Texas

v. Nuclear Regul. Commn, No. 21-60743, --- F.4th ----,

2024 WL 1108700 (5th Cir. Mar. 14, 2024).

Shortly before the panel issued its opinion in Texas

v. NRC, Fasken and PBLRO filed the petition for review at issue in this case. They challenge a different license issued by the NRC in May 2023 to Holtec International to establish a facility to store nuclear waste in Lea County, New Mexico. The parties, correctly, agree that Texas v. NRC involved a materially identical license in a materially identical procedural posture and that absent the [c]ourt granting rehearing en banc in Texas

[v. NRC]..., the panels consideration of this case will be controlled by [Texas v. NRC]. Because this courts holding in Texas v. NRC dictates the outcome here, we GRANT Faskens and PBLROs petition for re-view and VACATE the Holtec license. The NRCs mo-tion to transfer the petition for review to the United States Court of Appeals for the District of Columbia Cir-cuit is DENIED AS MOOT.

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APPENDIX B

LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 (Public Law 93-438), and Title 10, Code of Federal Regulations, Chapter 1, Part 72, and in reliance on statements and representations heretofore made by the licensee, a li-cense is hereby issued authorizing the licensee to re-ceive, acquire, and possess the power reactor spent fuel and other radioactive materials associated with spent fuel storage designated below; to use such material for the purpose(s) and at the place(s) designated below; and to deliver or transfer such material to persons author-ized to receive it in accordance with the regulations of the applicable Part(s). This license shall be deemed to contain the conditions specified in Section 183 of the Atomic Energy Act of 1954, as amended, and is subject to all applicable rules, regulations, and orders of the Nu-clear Regulatory Commission now or hereafter in effect and to any conditions specified herein.

This license is conditioned upon fulfilling the require-ments of 10 CFR Part 72, as applicable, the attached Ap-pendix A (Technical Specifications), and the conditions specified below.

Licensee

1. Holtec International

2. Holtec Technology Center 1 Holtec Blvd Camden, NJ 08104

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3. License No. SNM-2516 Amendment No. 0

4. Expiration Date May 9, 2063

5. Docket or Reference No. 72-1051

6. Byproduct, Source and /or Special Nuclear Material A. Spent nuclear fuel elements from commercial nuclear utilities licensed pursuant to 10 CFR Part 50 and associated radioactive materials re-lated to the receipt, transfer, and storage of that spent nuclear fuel.

7. Chemical and/or Physical Form A. Undamaged fuel assemblies, damaged fuel as-semblies, and fuel debris, as allowed by Certifi-cate of Compliance No. 1040, Amendments 0, 1, and 2, for the HI-STORM UMAX Canister Storage System, and described in Paragraph 9 below.

8. Maximum Amount That Licensee May Possess at Any One Time Under This License A. 8,680 Metric Tons of Uranium (500 loaded can-isters) in the form of undamaged fuel assem-blies, damaged fuel assemblies, and fuel debris.

9. Authorized Use: The material identified in 6.A and 7.A above is authorized for receipt, possession, storage, and transfer in the HI-STORE Consoli-dated Interim Storage (CIS) Facility, as described in the HI-STORE CIS Facility Final Safety Analy-sis Report (FSAR). Storage is authorized only in casks designed in accordance with Certificate of

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Compliance No. 1040, Amendments 0, 1, and 2, for the HI-STORM UMAX Canister Storage System.

10. Authorized Place of Use: The licensed material is to be received, possessed, transferred, and stored at the HI-STORE CIS Facility located in Lea County, New Mexico.

11. The Technical Specifications contained in the Ap-pendix attached hereto are incorporated into the li-cense. The licensee shall operate the HI-STORE CIS Facility in accordance with the Technical Spec-ifications in the Appendix.

12. The design, construction, and operation of the HI-STORE CIS Facility shall be accomplished in ac-cordance with the NRCs regulations specified in Ti-tle 10 of the Code of Federal Regulations. All com-mitments to applicable Commission Regulatory Guides and to applicable engineering and construc-tion codes shall be met.

13. The licensee shall follow the Holtec International

& Eddy Lea Energy Alliance (ELEA) Under-ground Consolidated Interim Storage Facility Emergency Response Plan, HI-2177535, Revision 5, dated November 17, 2022, and as further supple-mented and revised in accordance with 10 CFR 72.44(f).

14. The licensee shall:

(1) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) Underground Con-solidated Interim Storage FacilityPhysical Security Plan, HI-2177559, Revision 3, dated March 2, 2020, as it may be further

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amended under the provisions of 10 CFR 72.44(e) and 72.186; (2) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) Underground Con-solidated Interim Storage Facility Safeguards Contingency Plan, HI-2177560, Revision 3, dated March 2, 2020, as it may be further amended under the provisions of 10 CFR 72.44(e) and 72.186; and (3) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) CISF Security Training and Qualification Plan, HI-2177561, Revision 2, dated March 30, 2019, as it may be further amended under the provisions of 10 CFR 72.44(e) and 72.186.

(4) follow the Additional Security Measures for the Physical Protection of Dry Independent Spent Fuel Storage Installations, dated September 28, 2007.

(5) follow the Additional Security Measures for Access Authorization and Fingerprinting at Independent Spent Fuel Storage Installa-tions, dated February 4, 2016.

15. In accordance with 10 CFR 72.22, the construction program will be undertaken only after a definitive agreement with the prospective customer for stor-ing the used fuel at the HI-STORE CIS Facility has been established. Construction of any addi-tional capacity beyond the initial capacity of 500 canisters shall commence only after funding is fully committed that is adequate to construct such additional capacity.

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16. The licensee shall:

(1) include in its service contracts provisions re-quiring customers to retain title to the spent fuel stored, and allocating legal and financial liability among the licensee and the custom-ers; (2) include in its service contracts provisions re-quiring customers to provide periodically credit information, and, where necessary, ad-ditional financial assurances such as guaran-tees, prepayment, or payment bond; (3) include in its service contracts a provision re-quiring the licensee not to terminate its li-cense prior to furnishing the spent fuel stor-age services covered by the service contract.

17. The licensee shall submit a Startup Plan to the NRC at least 90 days prior to receipt and storage of spent fuel at the HI-STORE CIS Facility.

18. The licensee shall have insurance coverage as spec-ified in Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISFFinancial Assurance & Project Life Cycle Cost Estimates, HI-2177593, Revision 2, effective 30 days before first fuel arrival.

19. Prior to receipt of the material identified in sections 6.A and 7.A of this license, the Licensee shall have a decommissioning financial assurance instrument, in a form of one or more of the methods described in 10 CFR 72.30(e), reflecting the current decommis-sioning cost estimate.

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20. This license is effective as of the date of issuance shown below.

FOR THE NUCLEAR REGULATORY COMMISSION

/s/ SHANA R. HELTON [5/9/23]

SHANA R. HELTON, Director Division of Fuel Management Office of Nuclear Material Safety and Safeguards

Date of Issuance: May 9, 2023

Attachment:

Appendix ATechnical Specifications for the HI-STORE Consolidated Interim Storage (CIS)

Facility

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APPENDIX C

1. 28 U.S.C. 2343 provides:

Venue The venue of a proceeding under this chapter is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.

2. 28 U.S.C. 2344 provides:

Review of orders; time; notice; contents of petition; ser-vice On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules.

Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of (1) the nature of the proceedings as to which re-view is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.

The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency.

The clerk shall serve a true copy of the petition on the

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agency and on the Attorney General by registered mail, with request for a return receipt.

3. 28 U.S.C. 2348 provides:

Representation in proceeding; intervention The Attorney General is responsible for and has con-trol of the interests of the Government in all court pro-ceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to re-view the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceed-ing to review the order. The Attorney General may not dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any inter-venor may prosecute, defend, or continue the proceed-ing unaffected by the action or inaction of the Attorney General.

4. 42 U.S.C. 2073 provides:

Domestic distribution of special nuclear material (a) Licenses The Commission is authorized (i) to issue licenses to transfer or receive in interstate commerce, transfer, de-liver, acquire, possess, own, receive possession of or title to, import, or export under the terms of an agreement

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for cooperation arranged pursuant to section 2153 of this title, special nuclear material, (ii) to make special nuclear material available for the period of the license, and, (iii) to distribute special nuclear material within the United States to qualified applicants requesting such material (1) for the conduct of research and development activities of the types specified in section 2051 of this title; (2) for use in the conduct of research and devel-opment activities or in medical therapy under a li-cense issued pursuant to section 2134 of this title; (3) for use under a license issued pursuant to section 2133 of this title; (4) for such other uses as the Commission deter-mines to be appropriate to carry out the purposes of this chapter.

(b) Minimum criteria for licenses The Commission shall establish, by rule, minimum criteria for the issuance of specific or general licenses for the distribution of special nuclear material depend-ing upon the degree of importance to the common de-fense and security or to the health and safety of the pub-lic of (1) the physical characteristics of the special nu-clear material to be distributed; (2) the quantities of special nuclear material to be distributed; and (3) the intended use of the special nuclear mate-rial to be distributed.

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(c) Manner of distribution; charges for material sold; agreements; charges for material leased (1) The Commission may distribute special nuclear material licensed under this section by sale, lease, lease with option to buy, or grant: Provided, however, That unless otherwise authorized by law, the Commission shall not after December 31, 1970, distribute special nu-clear material except by sale to any person who pos-sesses or operates a utilization facility under a license issued pursuant to section 2133 or 2134(b) of this ti-tle for use in the course of activities under such license; nor shall the Commission permit any such person after June 30, 1973, to continue leasing for use in the course of such activities special nuclear material previously leased to such person by the Commission.

(2) The Commission shall establish reasonable sales prices for the special nuclear material licensed and dis-tributed by sale under this section. Such sales prices shall be established on a nondiscriminatory basis which, in the opinion of the Commission, will provide reasona-ble compensation to the Government for such special nu-clear material.

(3) The Commission is authorized to enter into agreements with licensees for such period of time as the Commission may deem necessary or desirable to distrib-ute to such licensees such quantities of special nuclear material as may be necessary for the conduct of the li-censed activity. In such agreements, the Commission may agree to repurchase any special nuclear material li-censed and distributed by sale which is not consumed in the course of the licensed activity, or any uranium re-maining after irradiation of such special nuclear mate-rial, at a repurchase price not to exceed the Commis-

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sions sale price for comparable special nuclear material or uranium in effect at the time of delivery of such ma-terial to the Commission.

(4) The Commission may make a reasonable charge, determined pursuant to this section, for the use of spe-cial nuclear material licensed and distributed by lease under subsection (a)(1), (2) or (4) and shall make a rea-sonable charge determined pursuant to this section for the use of special nuclear material licensed and distrib-uted by lease under subsection (a)(3). The Commission shall establish criteria in writing for the determination of whether special nuclear material will be distributed by grant and for the determination of whether a charge will be made for the use of special nuclear material li-censed and distributed by lease under subsection (a)(1),

(2) or (4), considering, among other things, whether the licensee is a nonprofit or eleemosynary institution and the purposes for which the special nuclear material will be used.

(d) Determination of charges In determining the reasonable charge to be made by the Commission for the use of special nuclear material distributed by lease to licensees of utilization or produc-tion facilities licensed pursuant to section 2133 or 2134 of this title, in addition to consideration of the cost thereof, the Commission shall take into consideration (1) the use to be made of the special nuclear ma-terial; (2) the extent to which the use of the special nu-clear material will advance the development of the peaceful uses of atomic energy;

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(3) the energy value of the special nuclear mate-rial in the particular use for which the license is is-sued; (4) whether the special nuclear material is to be used in facilities licensed pursuant to section 2133 or 2134 of this title. In this respect, the Commission shall, insofar as practicable, make uniform, nondis-criminatory charges for the use of special nuclear material distributed to facilities licensed pursuant to section 2133 of this title; and (5) with respect to special nuclear material con-sumed in a facility licensed pursuant to section 2133 of this title, the Commission shall make a further charge equivalent to the sale price for similar special nuclear material established by the Commission in accordance with subsection (c)(2), and the Commis-sion may make such a charge with respect to such material consumed in a facility licensed pursuant to section 2134 of this title.

(e) License conditions Each license issued pursuant to this section shall con-tain and be subject to the following conditions (1) Repealed. Pub. L.88-489, § 8, Aug. 26, 1964, 78 Stat. 604.

(2) no right to the special nuclear material shall be conferred by the license except as defined by the license; (3) neither the license nor any right under the li-cense shall be assigned or otherwise transferred in violation of the provisions of this chapter;

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(4) all special nuclear material shall be subject to the right of recapture or control reserved by section 2138 of this title and to all other provisions of this chapter; (5) no special nuclear material may be used in any utilization or production facility except in accord-ance with the provisions of this chapter; (6) special nuclear material shall be distributed only on terms, as may be established by rule of the Commission, such that no user will be permitted to construct an atomic weapon; (7) special nuclear material shall be distributed only pursuant to such safety standards as may be es-tablished by rule of the Commission to protect health and to minimize danger to life or property; and (8) except to the extent that the indemnification and limitation of liability provisions of section 2210 of this title apply, the licensee will hold the United States and the Commission harmless from any dam-ages resulting from the use or possession of special nuclear material by the licensee.

(f) Distribution for independent research and develop-ment activities The Commission is directed to distribute within the United States sufficient special nuclear material to per-mit the conduct of widespread independent research and development activities to the maximum extent prac-ticable. In the event that applications for special nu-clear material exceed the amount available for distribu-tion, preference shall be given to those activities which are most likely, in the opinion of the Commission, to con-tribute to basic research, to the development of peace-

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time uses of atomic energy, or to the economic and mili-tary strength of the Nation.

5. 42 U.S.C. 2092 provides:

License requirements for transfers Unless authorized by a general or specific license is-sued by the Commission which the Commission is au-thorized to issue, no person may transfer or receive in interstate commerce, transfer, deliver, receive posses-sion of or title to, or import into or export from the United States any source material after removal from its place of deposit in nature, except that licenses shall not be required for quantities of source material which, in the opinion of the Commission, are unimportant.

6. 42 U.S.C. 2093 provides:

Domestic distribution of source material (a) License The Commission is authorized to issue licenses for and to distribute source material within the United States to qualified applicants requesting such material (1) for the conduct of research and development activities of the types specified in section 2051 of this title; (2) for use in the conduct of research and devel-opment activities or in medical therapy under a li-cense issued pursuant to section 2134 of this title; (3) for use under a license issued pursuant to section 2133 of this title; or

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(4) for any other use approved by the Commis-sion as an aid to science or industry.

(b) Minimum criteria for licenses The Commission shall establish, by rule, minimum criteria for the issuance of specific or general licenses for the distribution of source material depending upon the degree of importance to the common defense and se-curity or to the health and safety of the public of (1) the physical characteristics of the source ma-terial to be distributed; (2) the quantities of source material to be dis-tributed; and (3) the intended use of the source material to be distributed.

(c) Determination of charges The Commission may make a reasonable charge de-termined pursuant to section 2201(m) of this title for the source material licensed and distributed under sub-section (a)(1), (a)(2), or (a)(4) and shall make a reasona-ble charge determined pursuant to section 2201(m) of this title, for the source material licensed and distrib-uted under subsection (a)(3). The Commission shall establish criteria in writing for the determination of whether a charge will be made for the source material licensed and distributed under subsection (a)(1), (a)(2),

or (a)(4), considering, among other things, whether the licensee is a nonprofit or eleemosynary institution and the purposes for which the source material will be used.

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7. 42 U.S.C. 2111 provides:

Domestic distribution (a) In general No person may transfer or receive in interstate com-merce, manufacture, produce, transfer, acquire, own, possess, import, or export any byproduct material, ex-cept to the extent authorized by this section, section 2112 or section 2114 of this title. The Commission is authorized to issue general or specific licenses to appli-cants seeking to use byproduct material for research or development purposes, for medical therapy, industrial uses, agricultural uses, or such other useful applications as may be developed. The Commission may distribute, sell, loan, or lease such byproduct material as it owns to qualified applicants with or without charge: Provided, however, That, for byproduct material to be distributed by the Commission for a charge, the Commission shall establish prices on such equitable basis as, in the opinion of the Commission, (a) will provide reasonable compen-sation to the Government for such material, (b) will not discourage the use of such material or the development of sources of supply of such material independent of the Commission, and (c) will encourage research and devel-opment. In distributing such material, the Commis-sion shall give preference to applicants proposing to use such material either in the conduct of research and de-velopment or in medical therapy. The Commission shall not permit the distribution of any byproduct mate-rial to any licensee, and shall recall or order the recall of any distributed material from any licensee, who is not equipped to observe or who fails to observe such safety standards to protect health as may be established by the Commission or who uses such material in violation of law

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or regulation of the Commission or in a manner other than as disclosed in the application therefor or approved by the Commission. The Commission is authorized to establish classes of byproduct material and to exempt certain classes or quantities of material or kinds of uses or users from the requirements for a license set forth in this section when it makes a finding that the exemption of such classes or quantities of such material or such kinds of uses or users will not constitute an unreasona-ble risk to the common defense and security and to the health and safety of the public.

(b) Requirements (1) In general Except as provided in paragraph (2), byproduct material, as defined in paragraphs (3) and (4) of sec-tion 2014(e) of this title, may only be transferred to and disposed of in a disposal facility that (A) is adequate to protect public health and safety; and (B)(i) is licensed by the Commission; or (ii) is licensed by a State that has entered into an agreement with the Commission under section 2021(b) of this title, if the licensing requirements of the State are compatible with the licensing re-quirements of the Commission.

(2) Effect of subsection Nothing in this subsection affects the authority of any entity to dispose of byproduct material, as de-fined in paragraphs (3) and (4) of section 2014(e) of this title, at a disposal facility in accordance with any Federal or State solid or hazardous waste law, includ-

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ing the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(c) Treatment as low-level radioactive waste Byproduct material, as defined in paragraphs (3) and (4) of section 2014(e) of this title, disposed of under this section shall not be considered to be low-level radioac-tive waste for the purposes of (1) section 2 of the Low-Level Radioactive Waste Policy Act (42 U.S.C. 2021b); or (2) carrying out a compact that is (A) entered into in accordance with that Act (42 U.S.C. 2021b et seq.); and (B) approved by Congress.

8. 42 U.S.C. 2239 provides in pertinent part:

Hearings and judicial review (a)(1)(A) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modi-fication of rules and regulations dealing with the activi-ties of licensees, and in any proceeding for the payment of compensation, an award or royalties under sec-tions 2183, 2187, 2236(c) or 2238 of this title, the Com-mission shall grant a hearing upon the request of any person whose interest may be affected by the proceed-ing, and shall admit any such person as a party to such proceeding. The Commission shall hold a hearing after

So in original. Probably should be section.

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thirty days notice and publication once in the Federal Register, on each application under section 2133 or 2134(b) of this title for a construction permit for a facil-ity, and on any application under section 2134(c) of this title for a construction permit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating li-cense or an amendment to a construction permit or an amendment to an operating license without a hearing, but upon thirty days notice and publication once in the Fed-eral Register of its intent to do so. The Commission may dispense with such thirty days notice and publication with respect to any application for an amendment to a con-struction permit or an amendment to an operating license upon a determination by the Commission that the amend-ment involves no significant hazards consideration.

(b) The following Commission actions shall be sub-ject to judicial review in the manner prescribed in chap-ter 158 of title 28 and chapter 7 of title 5:

(1) Any final order entered in any proceeding of the kind specified in subsection (a).

(2) Any final order allowing or prohibiting a fa-cility to begin operating under a combined construc-tion and operating license.

(3) Any final order establishing by regulation standards to govern the Department of Energys gaseous diffusion uranium enrichment plants, includ-ing any such facilities leased to a corporation estab-

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lished under the USEC Privatization Act [42 U.S.C.

2297h et seq.].

(4) Any final determination under section 2297f(c) of this title relating to whether the gaseous diffusion plants, including any such facilities leased to a corporation established under the USEC Privat-ization Act [42 U.S.C. 2297h et seq.], are in compli-ance with the Commissions standards governing the gaseous diffusion plants and all applicable laws.

9. 42 U.S.C. 10151 provides:

Findings and purposes (a) The Congress finds that (1) the persons owning and operating civilian nu-clear power reactors have the primary responsibility for providing interim storage of spent nuclear fuel from such reactors, by maximizing, to the extent practical, the effective use of existing storage facili-ties at the site of each civilian nuclear power reactor, and by adding new onsite storage capacity in a timely manner where practical; (2) the Federal Government has the responsibil-ity to encourage and expedite the effective use of ex-isting storage facilities and the addition of needed new storage capacity at the site of each civilian nu-clear power reactor; and (3) the Federal Government has the responsibil-ity to provide, in accordance with the provisions of this part, not more than 1,900 metric tons of capacity for interim storage of spent nuclear fuel for civilian nuclear power reactors that cannot reasonably pro-

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vide adequate storage capacity at the sites of such re-actors when needed to assure the continued, orderly operation of such reactors.

(b) The purposes of this part are (1) to provide for the utilization of available spent nuclear fuel pools at the site of each civilian nu-clear power reactor to the extent practical and the addition of new spent nuclear fuel storage capacity where practical at the site of such reactor; and (2) to provide, in accordance with the provisions of this part, for the establishment of a federally owned and operated system for the interim storage of spent nuclear fuel at one or more facilities owned by the Federal Government with not more than 1,900 metric tons of capacity to prevent disruptions in the orderly operation of any civilian nuclear power reac-tor that cannot reasonably provide adequate spent nuclear fuel storage capacity at the site of such reac-tor when needed.

10. 42 U.S.C. 10155 provides in pertinent part:

Storage of spent nuclear fuel (a) Storage capacity (1) Subject to section 10107 of this title, the Secre-tary shall provide, in accordance with paragraph (5), not more than 1,900 metric tons of capacity for the storage of spent nuclear fuel from civilian nuclear power reactors.

Such storage capacity shall be provided through any one or more of the following methods, used in any combina-tion determined by the Secretary to be appropriate:

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(A) use of available capacity at one or more facil-ities owned by the Federal Government on January 7, 1983, including the modification and expansion of any such facilities, if the Commission determines that such use will adequately protect the public health and safety, except that such use shall not (i) render such facilities subject to licensing under the Atomic Energy Act of 1954 (42 U.S.C.

2011 et seq.) or the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et seq.); or (ii) except as provided in subsection (c) re-quire the preparation of an environmental impact statement under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)), such1facility is already being used, or has previously been used, for such storage or for any similar purpose.2§

(B) acquisition of any modular or mobile spent nu-clear fuel storage equipment, including spent nuclear fuel storage casks, and provision of such equipment, to any person generating or holding title to spent nu-clear fuel, at the site of any civilian nuclear power re-actor operated by such person or at any site owned by the Federal Government on January 7, 1983; (C) construction of storage capacity at any site of a civilian nuclear power reactor.

(2) Storage capacity authorized by paragraph (1) shall not be provided at any Federal or non-Federal site within which there is a candidate site for a repository.

1 So in original. Probably should be preceded by if.

2 So in original. The period should probably be a semicolon.

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The restriction in the preceding sentence shall only ap-ply until such time as the Secretary decides that such candidate site is no longer a candidate site under consid-eration for development as a repository.

(3) In selecting methods of providing storage capac-ity under paragraph (1), the Secretary shall consider the timeliness of the availability of each such method and shall seek to minimize the transportation of spent nu-clear fuel, the public health and safety impacts, and the costs of providing such storage capacity.

(4) In providing storage capacity through any method described in paragraph (1), the Secretary shall comply with any applicable requirements for licensing or authorization of such method, except as provided in paragraph (1)(A)(i).

(5) The Secretary shall ensure that storage capacity is made available under paragraph (1) when needed, as determined on the basis of the storage needs specified in contracts entered into under section 10156(a) of this title, and shall accept upon request any spent nuclear fuel as covered under such contracts.

(6) For purposes of paragraph (1)(A), the term fa-cility means any building or structure.

(h) Application Notwithstanding any other provision of law, nothing in this chapter shall be construed to encourage, author-ize, or require the private or Federal use, purchase, lease, or other acquisition of any storage facility located away from the site of any civilian nuclear power reactor and not owned by the Federal Government on January 7, 1983.

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11. 10 C.F.R. 2.309 provides in pertinent part:

Hearing requests, petitions to intervene, requirements for standing, and contentions.

(a) General requirements. Any person whose in-terest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing. In a pro-ceeding under 10 CFR 52.103, the Commission, acting as the presiding officer, will grant the request if it de-termines that the requestor has standing under the pro-visions of paragraph (d) of this section and has proposed at least one admissible contention that meets the re-quirements of paragraph (f) of this section. For all other proceedings, except as provided in paragraph (e) of this section, the Commission, presiding officer, or the Atomic Safety and Licensing Board designated to rule on the request for hearing and/or petition for leave to intervene, will grant the request/petition if it deter-mines that the requestor/petitioner has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section. In ruling on the request for hearing/petition to intervene submitted by petitioners seeking to intervene in the pro-ceeding on the HLW repository, the Commission, the presiding officer, or the Atomic Safety and Licensing Board shall also consider any failure of the petitioner to participate as a potential party in the pre-license appli-cation phase under subpart J of this part in addition to the factors in paragraph (d) of this section. If a request for hearing or petition to intervene is filed in response

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to any notice of hearing or opportunity for hearing, the applicant/licensee shall be deemed to be a party.

(b) Timing. Unless specified elsewhere in this chapter or otherwise provided by the Commission, the request or petition and the list of contentions must be filed as follows:

(1) In proceedings for the direct or indirect transfer of control of an NRC license when the transfer requires prior approval of the NRC under the Commissions reg-ulations, governing statute, or pursuant to a license con-dition, twenty (20) days from the date of publication of the notice in the FEDERAL REGISTER.

(2) In proceedings for the initial authorization to construct a high-level radioactive waste geologic repos-itory, and the initial licensee to receive and process high level radioactive waste at a geological repository opera-tions area, thirty (30) days from the date of publication of the notice in the FEDERAL REGISTER.

(3) In proceedings for which a FEDERAL REGISTER notice of agency action is published (other than a pro-ceeding covered by paragraphs (b)(1) or (b)(2) of this section), not later than:

(i) The time specified in any notice of hearing or no-tice of proposed action or as provided by the presiding officer or the Atomic Safety and Licensing Board desig-nated to rule on the request and/or petition, which may not be less than sixty (60) days from the date of publica-tion of the notice in the FEDERAL REGISTER; or (ii) If no period is specified, sixty (60) days from the date of publication of the notice.

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(4) In proceedings for which a FEDERAL REGISTER notice of agency action is not published, not later than the latest of:

(i) Sixty (60) days after publication of notice on the NRC Web site at http://www.nrc.gov/public-involve/

major-actions.html, or (ii) Sixty (60) days after the requestor receives ac-tual notice of a pending application, but not more than sixty (60) days after agency action on the application.

(c) Filings after the deadline; submission of hear-ing request, intervention petition, or motion for leave to file new or amended contentions(1) Determination by presiding officer. Hearing requests, intervention peti-tions, and motions for leave to file new or amended con-tentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demon-strated good cause by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously availa-ble; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

(2) Applicability of §§ 2.307 and 2.323. (i) Section 2.307 applies to requests to change a filing deadline (re-quested before or after that deadline has passed) based on reasons not related to the substance of the filing.

(ii) Section 2.323 does not apply to hearing requests, intervention petitions, or motions for leave to file new or

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amended contentions filed after the deadline in para-graph (b) of this section.

(3) New petitioner. A hearing request or interven-tion petition filed after the deadline in paragraph (b) of this section must include a specification of contentions if the petitioner seeks admission as a party, and must also demonstrate that the petitioner meets the applicable standing and contention admissibility requirements in paragraphs (d) and (f) of this section.

(4) Party or participant. A new or amended con-tention filed by a party or participant to the proceeding must also meet the applicable contention admissibility requirements in paragraph (f) of this section. If the party or participant has already satisfied the require-ments for standing under paragraph (d) of this section in the same proceeding in which the new or amended contentions are filed, it does not need to do so again.

(d) Standing. (1) General requirements. A re-quest for hearing or petition for leave to intervene must state:

(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestors/peti-tioners property, financial or other interest in the pro-ceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/

petitioners interest.

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(2) Rulings. In ruling on a request for hearing or petition for leave to intervene, the Commission, the pre-siding officer, or the Atomic Safety and Licensing Board designated to rule on such requests must determine, among other things, whether the petitioner has an inter-est affected by the proceeding considering the factors enumerated in paragraph (d)(1) of this section.

(3) Standing in enforcement proceedings. In en-forcement proceedings, the licensee or other person against whom the action is taken shall have standing.

(e) Discretionary Intervention. The presiding of-ficer may consider a request for discretionary interven-tion when at least one requestor/petitioner has estab-lished standing and at least one admissible contention has been admitted so that a hearing will be held. A re-questor/petitioner may request that his or her petition be granted as a matter of discretion in the event that the petitioner is determined to lack standing to intervene as a matter of right under paragraph (d)(1) of this section.

Accordingly, in addition to addressing the factors in par-agraph (d)(1) of this section, a petitioner who wishes to seek intervention as a matter of discretion in the event it is determined that standing as a matter of right is not demonstrated shall address the following factors in his/her initial petition, which the Commission, the pre-siding officer or the Atomic Safety and Licensing Board will consider and balance:

(1) Factors weighing in favor of allowing interven-tion (i) The extent to which the requestors/petitioners participation may reasonably be expected to assist in de-veloping a sound record;

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(ii) The nature and extent of the requestors/peti-tioners property, financial or other interests in the pro-ceeding; and (iii) The possible effect of any decision or order that may be issued in the proceeding on the requestors/

petitioners interest; (2) Factors weighing against allowing intervention (i) The availability of other means whereby the re-questors/petitioners interest will be protected; (ii) The extent to which the requestors/petitioners interest will be represented by existing parties; and (iii) The extent to which the requestors/petitioners participation will inappropriately broaden the issues or delay the proceeding.

(f) Contentions. (1) A request for hearing or peti-tion for leave to intervene must set forth with particu-larity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance crite-ria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reason-able assurance of adequate protection of the public health and safety; (ii) Provide a brief explanation of the basis for the contention;

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(iii) Demonstrate that the issue raised in the conten-tion is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the conten-tion is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/

petitioners position on the issue and on which the peti-tioner intends to rely at hearing, together with refer-ences to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must in-clude references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the sup-porting reasons for each dispute, or, if the petitioner be-lieves that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the peti-tioners belief; and (vii) In a proceeding under 10 CFR 52.103(b), the in-formation must be sufficient, and include supporting in-formation showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety. This information must

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include the specific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inaccurate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by §52.99(c)). If the requestor identifies a specific portion of the §52.99(c) re-port as incomplete and the requestor contends that the incomplete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this deficiency prevents the requestor from making the prima facie showing.

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety anal-ysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental report. Participants may file new or amended environ-mental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC envi-ronmental impact statement, environmental assess-ment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.

(3) If two or more requestors/petitioners seek to co-sponsor a contention, the requestors/petitioners shall jointly designate a representative who shall have the au-thority to act for the requestors/petitioners with respect to that contention. If a requestor/petitioner seeks to adopt the contention of another sponsoring reques-tor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the spon-

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soring requestor/petitioner shall act as the representa-tive with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representa-tive who shall have the authority to act for the requestors/

petitioners with respect to that contention.

(h) Requirements applicable to States, local govern-mental bodies, and Federally-recognized Indian Tribes seeking party status. (1) If a State, local governmental body (county, municipality or other subdivision), or Federally-recognized Indian Tribe seeks to participate as a party in a proceeding, it must submit a request for hearing or a petition to intervene containing at least one admissible contention, and must designate a single rep-resentative for the hearing. If a request for hearing or petition to intervene is granted, the Commission, the presiding officer or the Atomic Safety and Licensing Board ruling on the request will admit as a party to the proceeding a single designated representative of the State, a single designated representative for each local governmental body (county, municipality or other sub-division), and a single designated representative for each Federally-recognized Indian Tribe. Where a States constitution provides that both the Governor and another State official or State governmental body may represent the interests of the State in a proceeding, the Governor and the other State official/ government body will be considered separate participants.

(2) If the proceeding pertains to a production or uti-lization facility (as defined in § 50.2 of this chapter) lo-cated within the boundaries of the State, local govern-mental body, or Federally-recognized Indian Tribe

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seeking to participate as a party, no further demonstra-tion of standing is required. If the production or utili-zation facility is not located within the boundaries of the State, local governmental body, or Federally-recognized Indian Tribe seeking to participate as a party, the State, local governmental body, or Federally-recognized In-dian Tribe also must demonstrate standing.

(3) In any proceeding on an application for a con-struction authorization for a high-level radioactive waste repository at a geologic repository operations area under parts 60 or 63 of this chapter, or an applica-tion for a license to receive and possess high-level radi-oactive waste at a geologic repository operations area under parts 60 or 63 of this chapter, the Commission shall permit intervention by the State and local govern-mental body (county, municipality or other subdivision) in which such an area is located and by any affected Federally-recognized Indian Tribe as defined in parts 60 or 63 of this chapter if the requirements of paragraph (f) of this section are satisfied with respect to at least one contention. All other petitions for intervention in any such proceeding must be reviewed under the provi-sions of paragraphs (a) through (f) of this section.

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