ML24023A417

Final Brief for Federal Respondents

ML24023A417
Person / Time
Issue date:	01/23/2024
From:	Andrew Averbach, Brooke Clark, Heminger J, Kim T NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:	US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
Fasken Final Reply Brief(ML24023A416)
Download: ML24023A417 (1)

Text

USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 1 of 103

ORAL ARGUMENT NOT YET SCHEDULED

No. 20-1187 (consolidated with Nos. 20-1225, 21-1104, and 21-1147)

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BEYOND NUCLEAR, et al.,

Petitioners, v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents,

HOLTEC INTERNATIONAL, Respondent-Intervenor.

On Petition for Review of Orders by the Nuclear Regulatory Commission

FINAL BRIEF FOR FEDERAL RESPONDENTS

TODD KIM BROOKE P. CLARK Assistant Attorney General General Counsel

JUSTIN D. HEMINGER ANDREW P. AVERBACH Senior Litigation Counsel Solicitor Environment and Natural Office of the General Counsel Resources Division U.S. Nuclear Regulatory Commission U.S. Department of Justice 11555 Rockville Pike Post Office Box 7415 Rockville, MD 20852 Washington, D.C. 20044 (301) 415-1956 (202) 514-5442 andrew.averbach@nrc.gov justin.heminger@usdoj.gov USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 2 of 103

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

In accordance with Circuit Rule 28(a)(1), Respondents United

States Nuclear Regulatory Commission and the United States of

America submit this certificate as to parties, rulings, and related cases.

(A) Parties, Intervenors, and Amici

Petitioners are (1) Beyond Nuclear; (2) Sierra Club; (3) Dont

Waste Michigan; Citizens Environmental Coalition; Citizens for

Alternatives to Chemical Contamination; Nuclear Energy Information

Service; San Luis Obispo Mothers for Peace; and Sustainable Energy

and Economic Development Coalition; and (4) Fasken Land and

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

Holtec International has been granted leave to intervene.

The City of Fort Worth is an amicus.

(B) Rulings under Review

Petitioners identify the following documents as the rulings under

review:

(1) Nuclear Regulatory Commission Order, Holtec International

and Interim Storage Partners LLC, Docket Nos. 72-1051 and 72-1050

(Oct. 29, 2018);

USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 3 of 103

(2) Nuclear Regulatory Commission Memorandum and Order,

Holtec International, CLI-20-4, 91 N.R.C. 167 (Apr. 23, 2020);

(3) Nuclear Regulatory Commission Memorandum and Order,

Holtec International, CLI-21-4, 93 N.R.C. 119 (Feb. 18, 2021); and

(4) Nuclear Regulatory Commission Memorandum and Order,

Holtec International, CLI-21-7, 93 N.R.C. 215 (Apr. 28, 2021).

(C) Related Cases

One petition for review is pending in the United States Court of

Appeals for the Fifth Circuit that is related to this case. It was brought

by one of the groups of Petitioners in this case, Fasken Land and

Minerals, Ltd. and the Permian Basin Land and Royalty Owners. That

petition challenges the issuance of the license that was the subject of

the agency adjudicatory decisions under review in this case. See Fasken

Land and Minerals, Ltd. v. NRC, No. 23-60377 (5th Cir.).

/s/ Andrew P. Averbach ANDREW P. AVERBACH Counsel for Respondent Nuclear Regulatory Commission

ii USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 4 of 103

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, .......................................... i

AND RELATED CASES ............................................................................ i

TABLE OF CONTENTS ......................................................................... iii

TABLE OF AUTHORITIES ..................................................................... vi

GLOSSARY ............................................................................................ xiii

INTRODUCTION ...................................................................................... 1

STATEMENT OF JURISDICTION .......................................................... 2

STATEMENT OF THE ISSUES ............................................................... 3

PERTINENT STATUTES AND REGULATIONS ................................... 4

STATEMENT OF THE CASE .................................................................. 5

I. Statutory and regulatory background ............................................. 5

A. The NRCs regulation of spent nuclear fuel ........................... 5

B. Avenues for participation in NRCs licensing proceedings .... 9

II. Factual background ........................................................................ 12

III. Procedural background .................................................................. 16

A. Adjudicatory proceedings before the Licensing Board and Commission ........................................................................... 16

B. Proceedings in the courts of appeals .................................... 18

C. Administrative and judicial proceedings concerning the Interim Storage Partners license .......................................... 20

iii USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 5 of 103

SUMMARY

OF ARGUMENT ................................................................. 22

STANDARD OF REVIEW....................................................................... 25

ARGUMENT ........................................................................................... 27

I. The Commission acted consistently with the NWPA in considering the license application .................................................................... 27

II. The Commission reasonably determined that the contentions that Fasken sought to admit were neither timely raised nor admissible

........................................................................................................ 34

A. The Commission reasonably determined that Faskens assertions were not based on new information and that its contentions were in any event inadmissible......................... 36

B. Fasken presents no arguments undermining the Commissions determination that its contentions were either untimely, not admissible, or both ......................................... 41

III. The Commission reasonably declined to admit Environmental Petitioners contentions .................................................................. 50

A. Environmental Petitioners forfeited their challenge to NRCs statutory authority, and in any event, this Court has correct, binding precedent that NRC has statutory authority to issue this kind of license ................................................................ 50

B. Contrary to the Fifth Circuits recent decision, the AEA authorizes the NRC to license temporary storage of spent nuclear fuel away from reactor sites .................................... 55

C. The Commission properly declined to dismiss the license application when it reasonably concluded that Holtecs license application was accurate ........................................... 61

iv USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 6 of 103

D. The Commission reasonably declined to admit contentions related to seismology and geological and hydrological impacts .................................................................................. 64

E. The Commission reasonably and properly declined to admit contentions related to the volume of low-level waste ........... 73

F. The Commission analyzed the impacts of facility construction and operation on a site-specific basis .............. 77

G. Environmental Petitioners demonstrate no error with respect to the evaluation of the disposition of contaminated canisters ................................................................................ 81

H. The Commission reasonably and properly disclosed transportation routes ............................................................ 83

CONCLUSION ........................................................................................ 88

CERTIFICATE OF COMPLIANCE .......................................................... 1

v USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 7 of 103

TABLE OF AUTHORITIES

Cases

Federal Court Decisions

In re Aiken Cnty.,

725 F.3d 255 (D.C. Cir. 2013)......................................................... 33

Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023) ...................................................... 21

• Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir. 2013) ..................................... 10, 65, 67, 69, 72

Beyond Nuclear v. NRC, No. 18-1340, (D.C. Cir. June 13, 2019) .......................................... 17

• Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183 (D.C. Cir. 2013)............... 10, 26, 27, 43, 64, 68, 72, 80

• Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)................................ 6, 8, 50, 52-54, 59

CTIA-Wireless Ass n v. FCC, 466 F.3d 105 (D.C. Cir. 2006)......................................................... 26

Darby v. Cisneros, 509 U.S. 137 (1993) ........................................................................ 44

Dickinson v. Zurko, 527 U.S. 150 (1999) ........................................................................ 26

• Authorities upon which we chiefly rely are marked with asterisks.

vi USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 8 of 103

• Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023) ...................

.......................................................................... 21, 28, 80, 83, 86, 87

Duncan s Point Lot Owners Ass n Inc. v. FERC, 522 F.3d 371 (D.C. Cir. 2008)......................................................... 27

Ecology Action v. Atomic Energy Comm n, 492 F.2d 998 (2d Cir. 1974) .............................................................. 2

Environmentel, LLC v. FCC, 661 F.3d 80 (D.C. Cir. 2011) .................................................... 44, 52

Indian River Cnty. v. U.S. Dept. of Transp.,

945 F.3d 515 (D.C. Cir. 2019)......................................................... 27

Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ........................................................................ 27

Massachusetts v. NRC, 708 F.3d 63 (1st Cir. 2013) ............................................................. 26

Matson Nav. Co. v. U.S. Dep t of Transp.,

77 F.4th 1151 (D.C. Cir. 2023) ................................................... 3, 12

Nat l Archives & Records Admin. v. Favish,91 541 U.S. 157 (2004) ........................................................................ 31

• New York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016)..................................... 15, 77, 80, 83

New York Rehabilitation Care Mgmt. v. NLRB, 506 F.3d 1070 (D.C. Cir. 2007)....................................................... 60

• Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ................................................ 51, 53

vii USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 9 of 103

Texas v. NRC, 78 F.4th 827 (5th Cir. 2023) .......................................... 22, 50, 56-60

Texas v. United States, 891 F.3d 553 (5th Cir. 2018) ............................................................ 8

Thermal Ecology Must Be Preserved v. Atomic Energy Comm n, 433 F.2d 524 (D.C. Cir. 1970)........................................................... 2

Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)....................................................... 10

• Vermont Dept of Pub. Serv. v. NRC, 684 F.3d 149 (D.C. Cir. 2012)............................................. 43, 52, 86

West Virginia v. EPA, 142 S. Ct. 2587 (2022) .................................................................... 59

WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013)......................................................... 26

viii USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 10 of 103

Administrative Decisions

Decisions of the Nuclear Regulatory Commission

Holtec International, CLI-20-4, 91 N.R.C. 167 (2020) ..........................................................

..................................... 3, 18, 28, 29, 61-63 , 73, 75, 76, 78-81, 84-86

CLI-21-4, 93 N.R.C. 119 (2021) ................................. 3, 18, 67, 69- 72

CLI-21-7, 93 N.R.C. 215 (2021) .......................... 3, 18, 37, 39, 47, 49

Holtec International and Interim Storage Partners LLC, Docket Nos. 72-1051 and 72-1050 (Oct. 29, 2018) ......................... 16

Private Fuel Storage, L.L.C.,

CLI-02-29, 56 N.R.C. 390 (2002) ................................................... 59

CLI-04-22, 60 N.R.C. 125 (2004) .............................................. 81, 82

Decisions of the Atomic Safety and Licensing Board Panel

Holtec International, LBP-19 -4, 89 N.R.C. 353 (2019) ........... 18, 28, 30, 34, 51, 62, 74, 85

LBP-20 -6, 91 N.R.C. 239 (2020) ............ 18, 36, 37, 43, 45, 67, 68-71

LBP-20 -10, 92 N.R.C. 235 (2020) ................................. 18, 37, 38, 46

ix USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 11 of 103

Statutes and Regulations

5 U.S.C. § 704 .......................................................................................... 30

5 U.S.C. § 706 .......................................................................................... 25

28 U.S.C. § 2342 .................................................................................. 2, 12

28 U.S.C. § 2343 ...................................................................................... 12

42 U.S.C. § 2013 ...................................................................................... 57

42 U.S.C. § 2014 ............................................................................ 5, 55, 58

42 U.S.C. § 2073 ............................................................ 5, 6, 25, 55, 57, 58

42 U.S.C. § 2093 ............................................................ 5, 6, 25, 55, 57, 58

42 U.S.C. § 2111 .................................................................. 5, 6, 25, 55, 58

42 U.S.C. § 2201 .................................................................................. 6, 56

42 U.S.C. § 2236 ...................................................................................... 61

42 U.S.C. § 2239 ........................................................................ 2, 9, 12, 25

42 U.S.C. § 2241 ...................................................................................... 17

42 U.S.C. § 5841 ........................................................................................ 5

42 U.S.C. § 10134 ...................................................................................... 7

42 U.S.C. § 10139 .................................................................................... 30

42 U.S.C. § 10141 ...................................................................................... 7

42 U.S.C. § 10143 .................................................................................... 28

42 U.S.C. § 10155 .................................................................................... 54

42 U.S.C. § 10161 ...................................................................................... 7

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42 U.S.C. § 10172 ...................................................................................... 8

42 U.S.C. § 10222 .................................................................................... 28

10 C.F.R. § 2.309 ............................................................................ 9-11, 34

10 C.F.R. § 2.32 6 ............................................................. 11, 35, 37, 39, 43

10 C.F.R. § 2.335 ............................................................................... 51, 77

10 C.F.R. § 2.1212 ................................................................................... 44

10 C.F.R. § 51.23 ..................................................................................... 14

10 C.F.R. § 51.45 ..................................................................................... 10

10 C.F.R. § 51.61 ..................................................................................... 11

10 C.F.R. § 51.97 ..................................................................................... 14

10 C.F.R. § 71.47 ..................................................................................... 82

10 C.F.R. § 72.42 ..................................................................................... 15

10 C.F.R. § 72.54 ..................................................................................... 15

10 C.F.R. § 72.214 ................................................................................... 13

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Federal Register Notices

Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693 (Nov. 12, 1980) ........................................... 6, 56

List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM Underground Maximum Capacity Canister Storage System, Certificate of Compliance No. 1040, 80 Fed. Reg. 12,073 (Mar. 6, 2015) ................................................ 13

Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel,

License application; opportunity to request a hearing and to petition for leave to intervene; order, 83 Fed. Reg. 32,919 (July 16, 2018) ......................................... 12, 16

Draft environmental impact statement; public comment meetings, 85 Fed. Reg. 49,396 (Aug. 13, 2020) ................................... 12, 13, 16

Environmental impact statement; issuance, 87 Fed. Reg. 43,905 (July 22, 2022) ............................................... 15

License; issuance, 88 Fed. Reg. 30,801 (May 12, 2023) ............................................... 15

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GLOSSARY

AEA Atomic Energy Act

DOE U.S. Department of Energy

EIS Environmental Impact Statement

EPA U.S. Environmental Protection Agency

NEPA National Environmental Policy Act

NRC U.S. Nuclear Regulatory Commission

NWPA Nuclear Waste Policy Act

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INTRODUCTION

These Petitions for Review challenge decisions of the Nuclear

Regulatory Commission (Commission or NRC 1) denying Petitioners

requests to be admitted as parties to a licensing proceeding. Petitioners

sought a hearing to challenge the issuance of a license to Intervenor

Holtec International (Holtec) to store spent nuclear fuel at a

consolidated interim storage facility in Lea County, New Mexico. Each

Petitioner or group of Petitioners here Beyond Nuclear; Fasken Land

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

(collectively, Fasken); and the remaining Petitioners (Environmental

Petitioners) submitt ed one or more contentions in support of a

request for a hearing. The Commission declined the hearing requests,

reasonably concluding that Petitioners had failed to identify a genuine

legal or factual dispute with respect to the license application, that

some of the proposed contentions were untimely, or both.

1 We use the terms NRC or agency to refer to the agency as a whole, and the term Commission to refer to the collegial body that issued the adjudicatory decisions under review in this case.

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Petitioners provide no basis to overturn the Commissions

reasonable application of its rules governing contention admissibility

and its resulting decisions not to admit Petitioners as parties to the

licensing proceeding. Accordingly, the Petitions for Review should be

denied.

STATEMENT OF JURISDICTION

The Hobbs Act grants the courts of appeals exclusive jurisdiction

to entertain challenges to final orders entered in proceedings

conducted under Section 189.a of the Atomic Energy Act (AEA). 28

U.S.C. § 2342(4); 42 U.S.C. § 2239(a), (b). The term final order

includes final decisions of the Commission not to admit putative

intervenors as parties to an adjudicatory proceeding before the agency.

Ecology Action v. Atomic Energy Commn, 492 F.2d 998, 1000 (2d Cir.

1974); Thermal Ecology Must Be Preserved v. Atomic Energy Commn,

433 F.2d 524, 526 (D.C. Cir. 1970). Here, after thoroughly considering

all of Petitioners contentions, the Commission found the contentions

inadmissible and, in three separate final orders, declined to admit any

2 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 17 of 103

Petitioner to the proceeding. 2 The Court has subject-matter jurisdiction

to consider Petitioners challenges to these orders. See Matson Nav. Co.

v. U.S. Dept of Transp., 77 F.4th 1151, 1159 (D.C. Cir. 2023).

Petitioners timely filed Petitions for Review following issuance of these

orders, and the case was placed in abeyance until the license was issued

to Holtec in May 2023.

Petitioners have submitted detailed declarations to support

standing, and Federal Respondents do not dispute Petitioners standing.

STATEMENT OF THE ISSUES

1. Whether the Commission reasonably declined to admit

Beyond Nuclears contention challenging the issuance of a license for

the storage of spent nuclear fuel, when it found that the license could be

exercised in a manner that is consistent with the Nuclear Waste Policy

Act and it credited the licensees representation that, absent a change

2 Holtec International, CLI-20 -4, 91 N.R.C. 167 (Apr. 23, 2020)

(Commission 2020 Order) (JA0676); Holtec International, CLI-21 -4, 93 N.R.C. 119 (Feb. 18, 2021) (Commission February 2021 Order)

(JA1060); Holtec International, CLI-21-7, 93 N.R.C. 215 (Apr. 28, 2021)

(Commission April 2021 Order) (JA1072).

3 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 18 of 103

in legislation, the licensee would not store fuel to which the U.S.

Department of Energy owns title?

2. Whether the Commission reasonably denied Faskens motion

to reopen the adjudicatory proceeding to address late-filed contentions

concerning mineral rights under the surface of the proposed facility,

when the contentions were based on information previously available to

Fasken and in any event provided no evidentiary basis to contest the

issuance of the license?

3. Whether the Commission reasonably denied admission of

Environmental Petitioners contentions, when Environmental

Petitioners do not address or rebut the Commissions rationales for

declining to admit them and did not provide a legal or factual basis to

contest issuance of the license?

PERTINENT STATUTES AND REGULATIONS

All pertinent statutes and regulations are set forth in the separate

Addendum of Statutes and Regulations filed contemporaneously with

this Brief.

4 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 19 of 103

STATEMENT OF THE CASE

I. Statutory and regulatory background

A. The NRCs regulation of spent nuclear fuel

The NRC is an independent regulatory commission created by

Congress. See Energy Reorganization Act of 1974, 42 U.S.C. § 5841. In

the Atomic Energy Act (AEA), Congress conferred broad authority on

the agency to license and regulate the civilian use of radioactive

materials. See 42 U.S.C. §§ 2011-2296b -7. The AEA authorizes the

NRC to license the construction and operation of facilities that produce

or use nuclear material, including nuclear power plants. The AEA also

authorizes the NRC to license and regulate the storage of nuclear

material that poses radiological hazards, including the storage of spent

nuclear fuel (fuel that is still radioactive but is no longer useful in the

production of electricity) before its ultimate disposal.

Congress granted the NRC authority to license parties to possess

spent nuclear fuel in three AEA provisions governing the three types of

nuclear material contained in spent fuel. 42 U.S.C. §§ 2073(a), 2093(a),

2111(a); see also id. § 2014 (defining each term). First, the AEA

authorizes the NRC to issue licenses for the possession of special

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nuclear material such as plutonium. Id. § 2073(a). Second, it

authorizes the issuance of licenses to possess source material. Id.

§ 2093(a). And third, it authorizes the issuance of licenses for the

possession of byproduct material. Id. § 2111(a). As a consequence of

the authority set forth in these provisions, it has long been recognized

that the AEA confers on the NRC authority to license and regulate the

storage and disposal of [spent] fuel. Bullcreek v. NRC, 359 F.3d 536,

538 (D.C. Cir. 2004); see also 42 U.S.C. § 2201(b) (permitting the NRC

to promulgate rules and regulations governing the possession of source,

byproduct, and special nuclear material).

Consistent with this statutory authority, the agency has

promulgated regulations allowing it to issue materials licenses

permitting the storage of spent fuel both at the site of nuclear reactors

and away-from-reactor locations. See 10 C.F.R. Part 72; Licensing

Requirements for the Storage of Spent Fuel in an Independent Spent

Fuel Storage Installation, 45 Fed. Reg. 74,693, 74,694, 74,696 (Nov. 12,

1980). The agency has issued several such licenses pursuant to Part 72,

both at and away from the site of reactors, in the ensuing 43 years. As

discussed below, the proceedings in this case pertain to a license that

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the agency issued pursuant to authority granted under the AEA and in

accordance with its regulations in Part 72.

Temporary storage of spent fuel under the AEA is distinct from

disposal. The Nuclear Waste Policy Act (NWPA) establishes the

federal governments policy to permanently dispose of high-level

radioactive waste in a deep geologic repository. See 42 U.S.C. §§ 10101-

10270. In the NWPA, Congress designated the U.S. Department of

Energy ( DOE) as the agency responsible for designing, constructing,

and operating a repository, id. § 10134(b); the U.S. Environmental

Protection Agency (EPA) as the agency responsible for developing

radiation protection standards for the repository, id. § 10141(a); and the

NRC as the agency responsible for developing regulations to implement

EPAs standards and for licensing and overseeing construction,

operation, and closure of the repository, id. §§ 10134(c)-(d), 10141(b).

In addition to setting a policy of deep geologic disposal of spent

nuclear fuel, the NWPA created two avenues for DOE to operate

interim storage facilities prior to repository operations. Id. §§ 10151-

10157 (interim storage program), 10161-10169 (monitored retrievable

storage program). As this Court has recognized, these forms of federal

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interim storage by DOE were designed to operate in parallel with, and

not to supplant, the operation of privately owned temporary fuel storage

facilities, both at and away from the sites of nuclear reactors,

authorized by the AEA and specifically contemplated by 10 C.F.R. Part

72. See Bullcreek, 359 F.3d at 543.

Although Congress designated Yucca Mountain, Nevada, as the

site for a first spent fuel repository, 42 U.S.C. § 10172, DOE announced

in 2010 that it considered the site untenable and attempted to

withdraw its license application (a request that the NRC did not grant).

Since that time, Congress has not provided additional funding for the

Yucca Mountain project and, while the NRC has spent substantially all

the appropriated funds it has received and has completed its safety and

environmental review of the repository, the project has stalled. See

generally Texas v. United States, 891 F.3d 553, 565 (5th Cir. 2018)

(dismissing petition for writ of mandamus brought by Texas, which

sought to compel completion of proceedings for licensure of Yucca

Mountain repository).

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B. Avenues for participation in NRCs licensing proceedings

In the AEA, Congress provided interested persons with an

opportunity to attempt to intervene in NRC licensing proceedings and

to object to the issuance of a license. Specifically, Section 189.a of the

AEA enables a person to request to intervene in the proceeding and

request a hearing contesting the legal or factual basis for the agencys

licensing decision. See 42 U.S.C. § 2239(a)(1).

Adjudicatory hearings are governed by the NRCs regulations. See

10 C.F.R. Part 2. To be admitted as a party to such a proceeding, a

putative intervenor must, among other things, establish administrative

standing and timely submit at least one contention setting forth an

issue of law or fact to be controverted. See id. § 2.309(d), (f)(1). The

proponent of a contention must provide sufficient information to show

that a genuine dispute exists with the applicant/licensee on a material

issue of law or fact, id. § 2.309(f)(1)(vi), supported by a concise

statement of the alleged facts or expert opinions which support [its]

position . . . , together with references to the specific sources and

documents on which [it] intends to rely. Id. § 2.309(f)(1)(v). Materials

cited as the basis for a contention are subject to scrutiny . . . to

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determine whether they actually support the facts alleged; otherwise,

the aims of the rules and of Congress would be thwarted. Beyond

Nuclear v. NRC, 704 F.3d 12, 21 (1st Cir. 2013) (alteration and citation

omitted); see also Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183,

198-99 (D.C. Cir. 2013) (contentions must be supported by

particularized information identifying specific matter to be resolved at

hearing).

An admissible contention also must raise an issue that is within

the scope of the licensing proceeding and is material to the agencys

licensing decision. See 10 C.F.R. § 2.309(f)(1)(iii), (iv); Union of

Concerned Scientists v. NRC, 735 F.2d 1437, 1443 (D.C. Cir. 1984).

Thus, intervenors may challenge the NRCs compliance with NEPA

through the NRCs adjudicatory process. See, e.g.¸ Beyond Nuclear, 704

F.3d at 20-23 (reviewing Commission disposition of contentions raised

under NEPA).

Under the NRCs rules, an applicant for a license to construct and

operate a spent fuel storage facility must submit to the agency, along

with its application, an Environmental Report containing an analysis

of each of the considerations required by NEPA. 10 C.F.R. §§ 51.45,

10 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 25 of 103

51.61. So as to bring any NEPA deficiencies to the agencys attention as

soon as possible, and thus to facilitate the prompt resolution of

assertions that the agency has not acted or is not acting in compliance

with NEPA, putative intervenors seeking to raise contentions arising

under NEPA must challenge the analysis in the Environmental Report.

See id. § 2.309(f)(2).

If any deficiencies in that analysis are not cured in the draft or

final Environmental Impact Statement (EIS) prepared by the NRC, or

if those documents contain new and materially different information

from the information contained in the Environmental Report, these

putative intervenors may seek leave to file new or amended

environmental contentions after the intervention deadline to challenge

the analyses in those later documents. Id. § 2.309(c)(1) (permitting

filing of contentions after original deadline based on demonstration of

good cause); see also id. § 2.326 (permitting the reopening of an

otherwise closed adjudicatory proceeding, prior to issuance of license, to

raise contentions based on stricter good-cause requirements).

If a putative intervenor is denied admission to the proceeding, the

AEA provides for judicial review of the agencys final order denying

11 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 26 of 103

admission, either in the United States Court of Appeals for the circuit

in which the petitioner is located or in this Court. 42 U.S.C. § 2239(b)

(specifying that the courts of appeals must review the agencys decision

in accordance with the APA and the Hobbs Act); 28 U.S.C. § 2342(4)

(providing jurisdiction in the courts of appeals under the Hobbs Act); see

also id. § 2343 (establishing venue for Hobbs Act cases); Matson, 77

F.4th at 1159.

II. Factual background

Petitioners challenges relate to a Part 72 materials license the

Commission issued to Holtec in May 2023. All the orders under review

relate to Petitioners requests to be admitted as parties to the

adjudication, the last of which was denied in April 2021.

In March 2017, the NRC received an application for a license that

would permit construction of a consolidated interim spent fuel storage

facility (at times referred to as a CISF) in Lea County, New Mexico.

See Holtec Internationals HI-STORE Consolidated Interim Storage

Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919

(July 16, 2018). The facility, as proposed, would consist of an in-ground

system for the storage of sealed canisters containing spent nuclear fuel

12 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 27 of 103

in vertical modules. Environmental Report Rev. 0 at 2-13 (diagram)

(JA0006). The NRC has certified this system as safe for use in storing

spent nuclear fuel. See Holtec Internationals HI-STORE Consolidated

Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83

Fed. Reg. at 32,919 (referencing HI-STORM UMAX Canister Storage

System); 10 C.F.R. § 72.214 (including UMAX system among list of

certified systems); List of Approved Spent Fuel Storage Casks: Holtec

International HI-STORM Underground Maximum Capacity Canister

Storage System, Certificate of Compliance No. 1040, 80 Fed. Reg.

12,073 (Mar. 6, 2015).

Holtec submitted an Environmental Report (JA0001) and a Safety

Analysis Report (JA0035) with its March 2017 application, and it

prepared numerous revisions of each document (JA0042, 0398, 0428,

0431, 0605, 0825) (revisions to Environmental Report); (JA0051, 0415,

0429, 0831) (revisions to Safety Analysis Report). In August 2020, the

NRC published a draft EIS (Draft EIS) evaluating the impacts of the

proposed facility. Holtec International HI-STORE Consolidated Interim

Storage Facility Project, 85 Fed. Reg. 49,396 (Aug. 13, 2020); (JA0657).

13 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 28 of 103

Holtecs Environmental Report and the Draft EIS addressed the

potential environmental impacts of constructing and operating the

Holtec facility during the term of the proposed license. Environmental

Report Rev. 0 at 1-1 (JA0003); Draft EIS at 1-5 (JA0661).

The Environmental Report and Draft EIS also incorporated the

agencys analysis of the potential effects of continued storage, i.e., the

effects of storing fuel after the licensed term of the facility, as set forth

in the agencys Generic Environmental Impact Statement for Continued

Storage of Spent Nuclear Fuel (Continued Storage Generic EIS).

Environmental Report Rev. 0 at 1-5 (JA0004); Draft EIS at 1-4

(JA0661); see 10 C.F.R. § 51.23(b) (The impact determinations in [the

Continued Storage Generic EIS] regarding continued storage shall be

deemed incorporated into the environmental impact statements for

affected licenses); id. § 51.97(a) (specifically incorporating the agencys

generic analysis into EISs for spent fuel storage facilities licensed under

10 C.F.R. Part 72).3 The Continued Storage Generic EIS documents the

agencys evaluation of the reasonably foreseeable environmental

3 The Continued Storage Generic EIS is available in its entirety at https://www.nrc.gov/docs/ML1419/ML14196A105.pdf.

14 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 29 of 103

impacts of storing the spent fuel after a facilitys license term ends,

including in a scenario in which a repository is not available. See New

York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016) (upholding legal challenge

to NRC rule adopting Continued Storage Generic EIS).

The NRC issued its final EIS for the Holtec facility in July 2022,

after the completion of the adjudicatory proceeding under review in this

case. Holtec International HI-STORE Consolidated Interim Storage

Facility Project, 87 Fed. Reg. 43,905 (July 22, 2022). In May 2023, the

agency issued the materials license to Holtec, along with a Final Safety

Evaluation Report and a Record of Decision documenting its NEPA

review. Holtec International; HI-STORE Consolidated Interim Storage

Facility, 88 Fed. Reg. 30,801, 30,801- 02 (May 12, 2023).4 The license

authorizes Holtec to store spent nuclear fuel for a term of 40 years, with

the possibility of renewal, prior to the ultimate decommissioning of the

site in accordance with NRC regulations. Id. at 30,801; see 10 C.F.R.

§§ 72.42(a), 72.54.

4 These documents, including a copy of the license, as issued, are available at https://www.nrc.gov/docs/ML2307/ML23075A179.html.

15 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 30 of 103

III. Procedural background

A. Adjudicatory proceedings before the Licensing Board and Commission

In July 2018, the NRC published a notice in the Federal Register

announcing that Holtec had applied for a license to construct and

operate a consolidated interim storage facility and requiring that

requests to intervene in the proceeding be submitted within 60 days.

Holtec Internationals HI-STORE Consolidated Interim Storage Facility

for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,919-

20 (July 16, 2018). In September 2018, Fasken and Beyond Nuclear

lodged with the Commission motions to dismiss Holtecs application.

Fasken and Beyond Nuclear asserted that the application violated the

NWPA because it sought authorization to store spent fuel to which

DOE, rather than private parties, held title. 5

The Commission denied the motions, explaining that the agencys

rules do not provide for the filing of motions to dismiss license

applications. Commission October 2018 Order at 2 (JA393). But the

5 Order of the Commission at 1-2, Holtec International and Interim Storage Partners LLC, Docket Nos. 72-1051 and 72-1050 (Oct. 29, 2018)

(Commission October 2018 Order) (JA392-93 ).

16 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 31 of 103

Commission referred the underlying arguments about the NWPA to the

Commissions Atomic Safety and Licensing Board Panel 6 as

contentions. Id. at 2-3 (JA393-94 ). Beyond Nuclear petitioned for

review of the Commission October 2018 Order in this Court, which

dismissed the petition because the referral of the arguments to the

Licensing Board Panel was not a final order reviewable under the

Hobbs Act. Order, Beyond Nuclear v. NRC, No. 18-1340, Document

1. 1792613 (D.C. Cir. June 13, 2019).

Meanwhile, the Licensing Board that had been established for the

Holtec proceeding considered the contentions filed by Fasken and

Beyond Nuclear, as well as by Dont Waste Michigan (and its co-

petitioners, to whom the Licensing Board and the Commission referred

as Joint Petitioners) and Sierra Club. 7 The Licensing Board issued

6 The Licensing Board Panel is a panel of administrative judges, appointed by the Commission, that is authorized by the AEA to conduct hearings. 42 U.S.C. § 2241. When the Panel receives a petition for action, the Chief Administrative Judge establishes a three-judge Board (Licensing Board) to adjudicate the matter, generally comprised of one legal and two technical judges.

7 Sierra Club and Dont Waste Michigan and its co-petitioners have submitted a combined brief here; we refer to them collectively as Environmental Petitioners, including when discussing contentions

17 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 32 of 103

three orders ruling on the admission of the proposed contentions and

motions to submit amended contentions that were filed after the

original contention deadline. 8 The Licensing Board declined to admit

the contentions, and it denied intervenor status to each Petitioner here.

The organizations appealed to the Commission from those Licensing

Board decisions, and the Commission issued three orders affirming the

Board. 9

B. Proceedings in the courts of appeals

After the Commission affirmed the dismissal of the contentions

raised by Beyond Nuclear, Dont Waste Michigan (and its co-

raised by either Sierra Club or by Dont Waste Michigan and its co-petitioners.

8 Holtec International, LBP-19 -4, 89 N.R.C. 353 (2019) (JA0436)

(Licensing Board 2019 Order) (addressing admissibility of contentions raised by all putative intervenors); Holtec International, LBP-20-6, 91 N.R.C. 239 (2020) (Licensing Board June 2020 Order) (JA0799)

(addressing contentions raised by Sierra Club and Fasken); Holtec International, LBP-20-10, 92 N.R.C. 235 (2020) (Licensing Board September 2020 Order) (JA0832) (addressing additional contentions raised by Fasken).

9 Commission 2020 Order, 91 N.R.C. 167 (JA0676) (appeal by all putative intervenors of Licensing Board 2019 Order); Commission February 2021 Order, 93 N.R.C. 119 (JA1060) (appeal by Sierra Club of Licensing Board June 2020 Order); Commission April 2021 Order, 93 N.R.C. 215 (JA1072) (appeal by Fasken of Licensing Board September 2020 Order).

18 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 33 of 103

petitioners), Sierra Club, and Fasken, those organizations filed four

Petitions for Review in this Court. 10 The Court consolidated the

Petitions.

Meanwhile, in addition to its Petition here, Fasken separately

petitioned for review in the United States Court of Appeals for the Fifth

Circuit. 11 Unlike its claim before this Court, Faskens petition in the

Fifth Circuit challenges the license (distinct from the Commissions

adjudicatory decisions denying Faskens request to intervene). Federal

Respondents moved to dismiss the Fifth Circuit petition for review for

lack of subject-matter jurisdiction (because the petitioners there, who

are seeking review of the license in that court without having been

admitted to the adjudicatory proceeding, were not parties aggrieved by

the orders under review). The Fifth Circuit referred the motion to the

merits panel. Fasken filed its brief before the Fifth Circuit on October

2, 2023. Federal Respondents have requested that that court place

10 Beyond Nuclear v. NRC, No. 20-1187 (D.C. Cir.); Don t Waste Michigan v. NRC, No. 20-1225 (D.C. Cir.); Sierra Club v. NRC, No. 21-1104 (D.C. Cir.); Fasken Land and Minerals, Ltd. v. NRC, No. 21-1147 (D.C. Cir.).

11 Fasken Land and Minerals, Ltd. v. NRC, No. 23-60377 (5th Cir.).

19 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 34 of 103

Faskens petition in abeyance pending resolution of the proceedings in

Texas v. NRC, discussed below; that request remains under

consideration as of the filing of this Brief.

C. Administrative and judicial proceedings concerning the Interim Storage Partners license

The licensing of the Holtec facility proceeded largely in parallel

with the licensing of a similar proposed spent fuel storage facility to be

built by Interim Storage Partners in Andrews, Texas (adjacent to the

New Mexico border). All Petitioners here sought leave to intervene in

the Interim Storage Partners licensing proceeding, but the Commission

denied them admission as parties. The NRC issued a license to Interim

Storage Partners LLC in July 2021.

The Interim Storage Partners licensing proceeding generated

litigation that also proceeded in parallel with the litigation over the

Holtec facility. Beginning in 2021, the same petitioners here filed in

this Court seven separate petitions for review of the Commissions

denial of their petitions to intervene and of the issuance of the license to

Interim Storage Partners. The Court denied the petitions for review

challenging the Commissions denial of their requests to intervene, and

it dismissed, for lack of subject-matter jurisdiction, their challenges to

20 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 35 of 103

the license itself. Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL

395030 (D.C. Cir. Jan. 25, 2023) (per curiam).

Both Fasken and the State of Texas challenged the issuance of the

Interim Storage Partners license in the United States Court of Appeals

for the Fifth Circuit, and the State of New Mexico challenged the

issuance of the license in the United States Court of Appeals for the

Tenth Circuit. In January 2023, the Tenth Circuit dismissed New

Mexicos petition for lack of subject-matter jurisdiction, ruling that New

Mexicos failure to participate in the adjudicatory proceeding prevented

it from attaining party status under the Hobbs Act and precluded

judicial review. Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023).

However, in August 2023, the Fifth Circuit granted Texass and

Faskens petitions for review, (a) disagreeing with the Tenth Circuits

decision in Balderas (as well as numerous other courts, including this

one) that participation in the adjudicatory proceeding before the agency

is a prerequisite to judicial review under the Hobbs Act; and

(b) disagreeing with both this Court and the Tenth Circuit in holding

that the NRC lacks statutory authority to license away-from- nuclear-

reactor storage of spent nuclear fuel. Texas v. NRC, 78 F.4th 827 (5th

21 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 36 of 103

Cir. 2023). Federal Respondents and Interim Storage Partners filed

petitions for en banc review of this decision in October 2023, and the

Fifth Circuit has since requested responses from Texas and Fasken. 12

SUMMARY

OF ARGUMENT

Petitioners three opening briefs raise numerous challenges to the

Commissions orders denying Petitioners intervention in the

adjudicatory proceeding. We address each opening brief in a separate

Argument section.

1. In Argument Section I, we explain how the Commission

acted consistently with the NWPA and thus properly declined to admit

Beyond Nuclears contention.

Beyond Nuclear contends that the Commission violated the

NWPA by considering Holtecs application for a license contemplating

the storage of spent fuel to which DOE holds title. But the Commission

12 Fasken asserts that the decision in Texas renders this case moot.

Fasken Br. 3 n.2. This is plainly incorrect. As an initial matter, a petition for rehearing en banc is pending in Texas as of the time of the filing of this Brief and, even if the petition is denied, the possibility of further review by the Supreme Court remains. And as of this writing, the Fifth Circuit has not yet adjudicated Faskens petition for review challenging the Holtec license, so that license remains in effect.

22 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 37 of 103

correctly determined that the license could be exercised in a manner

that comports with the NWPAthrough the storage only of fuel owned

by private parties. Indeed, Holtec acknowledged during the

adjudicatory proceeding that, under current law, the storage of spent

fuel to which DOE owns title would be illegal and that, absent a change

in law, it only intended to store fuel owned by private parties. The

possibility that the law could be amended someday to permit storage of

DOE-titled fuel did not require dismissal of Holtecs application.

2. In Argument Section II, we explain that the Commission

properly denied Faskens requests to admit a series of contentions that

were both untimely and inadmissible. Fasken raised these contentions

after the deadline for seeking leave to intervene and after the

adjudicatory proceeding had closed (thus requiring reopening of the

adjudication). Each contention was premised on variations of Faskens

assertion that Holtec lacked control over subsurface mineral and

development rights at or near the proposed facility. The Commission

reasonably and correctly found that the information underlying

Faskens arguments was available long before it sought leave after the

close of the intervention window to raise each of its contentions.

23 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 38 of 103

In particular, Holtec disclosed the information concerning public

ownership of subsurface rights in documents that it submitted with the

application, so Fasken could have raised its contentions before the

intervention deadline. Moreover, Fasken fails even to address the

independent reasons the Commission declined to reopen the

proceedings, including that Fasken (1) failed to address the reopening

standards for one of its contentions; (2) failed to demonstrate that its

contentions raised significant safety or environmental issues; and

(3) failed to generate a genuine dispute with respect to an issue

material to licensing the facility. Fasken has forfeited the opportunity

to challenge those independent bases for the Commissions denial of its

request to reopen the proceedings. In any event, these failures

independently demonstrate that the agency acted reasonably in

declining to admit Fasken as an intervenor.

3. In Argument Section III, we explain how the Commission

reasonably declined to admit the contentions of Environmental

Petitioners. Environmental Petitioners raised a series of contentions

that the Commission rejected because, among other things, they

misunderstood the role of the Continued Storage Rule, they contained

24 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 39 of 103

unsubstantiated assertions concerning the potential for contamination

of canisters, and they refused to recognize that the license can be

exercised in a manner that comports with the NWPA.

Although Environmental Petitioners also contend that the NRC

lacks statutory authority to issue the Holtec license, that argument is

foreclosed by this Courts contrary holding in Bullcreek. As this Court

has already correctly held, the Commission has authority under the

AEA to license private parties to store spent fuel away from reactors,

and the NWPA left untouched the Commissions preexisting AEA

authority. Three AEA provisions, 42 U.S.C. §§ 2073(a), 2093(a),

2111(a), expressly authorize the Commission to issue licenses to possess

the radiologically hazardous components of spent nuclear fuel, and

Environmental Petitioners fail to explain why these provisions do not

authorize issuance of a license here.

STANDARD OF REVIEW

This Courts review is governed by the Administrative Procedure

Act, which permits this Court to set aside an agency order only where it

is arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law. 5 U.S.C. § 706(2)(A); 42 U.S.C. § 2239(b); see also

25 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 40 of 103

CTIA-Wireless Assn v. FCC, 466 F.3d 105, 112-18 (D.C. Cir. 2006).

This deferential standard applies in cases, like this one, involving

judicial review of NRC orders resolving contentions filed in an NRC

licensing proceeding. Blue Ridge, 716 F.3d at 195-96; Massachusetts v.

NRC, 708 F.3d 63, 77 (1st Cir. 2013). Thus, agency factual conclusions

are reviewed for substantial evidence, a standard more deferential

than the clearly erroneous standard for appellate review of trial court

findings. See Dickinson v. Zurko, 527 U.S. 150, 162, 164 (1999). And

when NRCs decision involves the application of its adjudicatory rules to

Petitioners contentions, the relevant question is whether the agencys

determination constitutes a reasonable application of its rules; if so, the

agencys conclusions are entitled to deference. Blue Ridge, 716 F.3d at

196.

Where the issues raised involve NEPA compliance, the Court

should set aside the agencys substantive findings only where it has

committed a clear error of judgment. Blue Ridge, 716 F.3d at 195; see

WildEarth Guardians v. Jewell, 738 F.3d 298, 308 (D.C. Cir. 2013)

(courts do not flyspeck an agencys environmental analysis looking for

minor deficiencies). Indeed, courts must give deference to agency

26 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 41 of 103

judgments as to how best to prepare an EIS. Indian River Cnty. v.

U.S. Dept. of Transp., 945 F.3d 515, 533 (D.C. Cir. 2019).

Because the NEPA process involves an almost endless series of

judgment calls, the line -drawing decisions necessitated by that

process are vested in the agencies, not the courts. Duncans Point Lot

Owners Assn Inc. v. FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (quoting

Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987)).

And when a high level of expertise is required, such as when NRC

makes technical judgments and predictions, this Court must defer to

the agencys weighing of the evidence as long as its decisionmaking is

informed and rational. Marsh v. Or. Nat. Res. Council, 490 U.S. 360,

377 (1989); Blue Ridge, 716 F.3d at 195 (citing Balt. Gas & Elec. Co. v.

NRDC, 462 U.S. 87, 103 (1983)).

ARGUMENT

I. The Commission acted consistently with the NWPA in considering the license application.

Beyond Nuclear asserted before the Commission that Holtecs

license application violated the NWPA and that the NRC should not

have considered it at all because it contemplated that Holtec would

enter into a contract with DOE in which DOE would transport spent

27 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 42 of 103

fuel to the Holtec facility, and Holtec would store that DOE-titled spent

fuel. The Commission reasonably and properly rejected this argument

for three related reasons. 13

First, the Commission observed that there was a lawful option by

which Holtec could enter into contracts with third parties for the

storage of spent fuel through the storage of spent fuel to which private

entities retain title. Commission 2020 Order, 91 N.R.C. at 176

(JA0685). Id. Indeed, under the NWPA, private entities own title to

the spent fuel they generate until it is accepted by DOE for permanent

disposal. See 42 U.S.C. §§ 10143, 10222(a)(5)(A). And the Commission

13 In Don t Waste Michigan, Beyond Nuclear had raised a similar argument in the Interim Storage Partners administrative proceeding, asserting that because the central premise of Holtecs application was the storage of DOE-titled fuel, the application was unlawful. This Court held that the Commission did not err in declining to admit Beyond Nuclears contention because it ignor[ed] the possibility of private ownership and therefore failed on its face. Don t Waste Michigan, 2023 WL 395030 at *2. Unlike Don t Waste Michigan, here Beyond Nuclear amended its contention in the adjudicatory proceeding before the agency, asserting that the mere mention of the possibility of storing DOE-titled fuel in the license application documents even if accompanied by the option of storing fuel owned by private generators rendered the application unlawful. Licensing Board 2019 Order, 89 N.R.C. at 380-81 (JA0463-64). Don t Waste Michigan therefore does not control the result here with respect to this issue.

28 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 43 of 103

properly concluded both that the NWPA does not prohibit a nuclear

power plant licensee from transferring spent nuclear fuel to another

private entity, and that issuance of a license to Holtec would not itself

effectuate or authorize an illegal transfer of fuel. Commission 2020

Order, 91 N.R.C. at 176 (JA0685 ). Although Beyond Nuclear asserted

that a business model based on the storage of privately owned fuel

would be unrealistic, it provides no basis to contest the legality of this

proposed conduct or to refute the Commissions conclusion that the

agencys role in a licensing proceeding is to assess the safety and

legality of the proposed facility, and not to question the wisdom of

Holtecs business judgment. See id. at 175-76 , 193 (JA0685-86 , 0702).

Second, the Commission observed that Holtec had agreed during

the adjudicatory proceeding that it would be illegal under [the] NWPA

for DOE to take title to the spent nuclear fuel at this time, and that

Holtec merely hope[d] that Congress would amend the NWPA in the

future so that this might be accomplished. Id. at 176 (JA0685). In light

of Holtecs acknowledgment to the Licensing Board that storage of

DOE-titled fuel would contravene the NWPA and that, absent a change

in legislation, it was committed to pursuing the license solely by

29 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 44 of 103

contracting with private plant owners who own title to their spent fuel,

Licensing Board 2019 Order, 89 N.R.C. at 381 (JA0464), the

Commission was not obligated to presume (as Beyond Nuclear

advocated) that the license would be exercised in a manner that is

inconsistent with the law. Simply stated, the Commission reasonably

credited Holtecs representations, and its determination to do so is

entitled to deference.

Nor, third, did the Commission err in joining the Licensing Board

in declining to presume that DOE would enter into a contract that

violates the NPWA (or that the NRC itself would permit such an

arrangement), or in affording future government action the

presumption of regularity. See id. at 381-82 (JA0464-65 ) (citing United

States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem.

Found., Inc., 272 U.S. 1, 14-15 (1926)). Indeed, the Commission

rationally determined that it expected DOE to follow the law, and were

DOE (or the NRC) to take action that allegedly contravened the NWPA,

those actions would be subject to judicial review. See 42 U.S.C.

§ 10139(a)(1) (judicial review provision of NWPA); 5 U.S.C. § 704.

30 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 45 of 103

Beyond Nuclear challenges (Beyond Nuclear Br. 19) the agencys

reliance on the presumption of regularity, but none of the authorities it

cites involves a situation where, as here, the agency has authorized

conduct that can be performed in a legal manner and the regulated

party acknowledges both that it lacks legal authority to undertake the

actions in question and represents that it does not intend to do so.

Under these circumstances, there is no evidence, let alone clear

evidence, of Government impropriety. Natl Archives & Records

Admin. v. Favish, 541 U.S. 157, 174 (2004).

And to the extent that Beyond Nuclear asserts that the

presumption of regularity does not extend to actions that are not in

accordance with law, Beyond Nuclear Br. 19 (quoting NRDC v. EPA,

822 F.2d 104, 111 (D.C. Cir. 1987)), it puts the cart before the horse. To

be sure, a presumption that agencies act consistently with the law can

be rebutted with evidence of illegality. But there is no evidence of

illegality here. Given that Holtec sought authorization to conduct

lawful spent fuel storage activities and expressly disclaimed any intent,

absent a change in law, to store fuel to which DOE owns title, there is

no basis to conclude that the company will in fact undertake action that

31 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 46 of 103

contravenes the NWPA; that DOE or the NRC would permit the

licensee to operate illegally; or, most of all, that the agency should not

have entertained the application to begin with.

Nor is Beyond Nuclear correct when it asserts (Br. 20) that the

existence of a legal means of exercising the license does not rescue

allegedly offending portion of the application (in which Holtec had

articulated an intent to store DOE-titled fuel, e.g. Environmental

Report Rev. 0 at 1-1 (JA 0003)) . The entire point of a licensing

proceeding is to ensure that any license is consistent with applicable

law. The fact that a provision of the application, as originally applied

for, partially or even wholly contemplated conduct that would have been

inconsistent with the NWPA is not, in and of itself, a reason to dismiss

the application, where the deficiency can be cured. And that is exactly

what the licensing process, including Holtecs on- the-record

representations during the adjudicatory proceeding that it will not

(absent a change in governing law) seek to store fuel to which DOE

owns title and the Commissions conclusion that the license can be

exercised legally, has accomplished.

32 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 47 of 103

Finally, Beyond Nuclear asserts that the agency has violated the

separation of powers doctrine by prognosticating about future

legislation (Beyond Nuclear Br. 20-22). This argument is unpersuasive.

Unlike In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013), the NRC did

not make any determination in this case based upon an assessment or a

hope about legislation that might be enacted in the futurethe

Commission dismissed Beyond Nuclears contention challenging

Holtecs application based on the Commissions determination that a

license could be validly issued based on the current state of the law.

Perhaps Congress will one day amend the NWPA so as to permit Holtec

to store fuel to which DOE owns title. But that is a matter for Congress

to decide, and it has no bearing on the current status of the Holtec

license.

Nor is Beyond Nuclear correct when it asserts that consideration

of Holtecs application somehow gives Holtec an unfair advantage going

forward. Beyond Nuclear Br. 21-22. The Commission has done nothing

to transfer property rights to Holtec, as Beyond Nuclear asserts; it

merely determined that there is a valid path under existing law for

Holtec to exercise a license to store privately held spent fuel. At some

33 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 48 of 103

point, Congress might authorize the storage of fuel to which DOE holds

title. Or it might not. But in the meantime, the Commission

reasonably determined that the license sought could be exercised in a

manner that was consistent with existing law, and Beyond Nuclears

arguments do not provide a reason for the agency not to have

entertained the license application.

II. The Commission reasonably determined that the contentions that Fasken sought to admit were neither timely raised nor admissible.

The Licensing Board issued a comprehensive decision on all the

timely filed requests to intervene in May 2019, including those based on

the motion to dismiss that Beyond Nuclear and Fasken filed. Licensing

Board 2019 Order, 89 N.R.C. at 353 (JA0436). Because no putative

intervenor was admitted as a party, the Licensing Board terminated the

adjudicatory proceeding. Id. at 463 (JA0546).

In August 2019, Fasken sought leave to submit a new contention

(and ultimately submitted three such contentions). Because these

contentions all were raised after the closure of the adjudication, Fasken

was required to show not only that its contentions presented a genuine

dispute concerning the application, see 10 C.F.R. § 2.309(f)(1)(vi), but

34 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 49 of 103

also that the contentions satisfied the heightened requirements

necessary to reopen an otherwise closed adjudicatory proceeding, see

10 C.F.R. § 2.326(a) (requiring contentions submitted after record has

closed to be timely (or to present an exceptionally grave issue), to raise

a significant safety or environmental issue, and to be accompanied by a

demonstration that a materially different result would have been likely

had the newly proffered evidence been considered initially). The

Commission denied Faskens request, generally concluding that: (1) the

information supporting Faskens contentions was known to and

available to Fasken prior to the deadline for submitting contentions; (2)

Fasken failed to timely raise its arguments; and (3) in any event, the

arguments did not raise a genuine dispute concerning Holtecs

application.

Fasken does not meaningfully confront the primary reasons why

the Commission denied admission of its contentions. In fact, and as

exemplified by the conclusion of its Brief (in which it repeats the

request it made to the agency that its [m]otions to [r]eopen should be

granted and [its] [c]ontentions submitted for further consideration,

Fasken Br. 22), Fasken merely rehashes the arguments that the

35 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 50 of 103

Commission rejected, and it does not identify any error in the

Commissions thorough explanations for declining to admit its

contentions. Its Petition should therefore be denied.

A. The Commission reasonably determined that Faskens assertions were not based on new information and that its contentions were in any event inadmissible.

Fasken raises a series of arguments challenging the Commissions

decisions not to admit Contention 2, either in its original form or as

amended, or Contention 3. In this Part II.A., we provide context for

Faskens arguments by describing the contentions and the

Commissions thorough resolution of them. Then in Part II.B., we

explain why Faskens arguments lack merit.

In Contention 2, Fasken asserted that Holtecs application failed

to describe the control of subsurface mineral rights and oil, gas, and

mineral extraction operations beneath and in the vicinity of the

proposed facility, precluding a proper NEPA analysis and satisfaction of

the NRCs siting criteria. Licensing Board June 2020 Order, 91 N.R.C.

at 254 (JA0814). Fasken submitted an Amended Contention 2 after the

publication of the Draft EIS, asserting that statements in that

document continue to misrepresent the nature of ownership of

36 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 51 of 103

subsurface mineral rights and the status of petroleum operations and

geologic characteristics in the region. Licensing Board September 2020

Order, 92 N.R.C. at 243 (JA0840).

In Contention 3, also submitted after the adjudication had closed

and after the publication of the Draft EIS, and in response to

information conveyed in the comments to the Draft EIS, Fasken

asserted that the project would interfere with mineral development,

which could not proceed safely alongside the proposed facility, and that

the Draft EIS and documents submitted as part of Holtecs application

were based on misleading and speculative information and assertions

and glaring material omissions as to land use, land rights and land

restrictions at, under and around the proposed site. Commission April

2021 Order, 93 N.R.C. at 229 (JA1086).

With respect to Contention 2 in its original form, the Licensing

Board found that the contention was both untimely and did not raise

exceptionally grave environmental and safety issues warranting a

departure from its timeliness rules concerning reopening. Licensing

Board June 2020 Order, 91 N.R.C. at 254-56 (JA0814-16); see also

10 C.F.R. § 2.326(a)(1) (requiring a timely motion to reopen the record

37 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 52 of 103

but allowing discretion for an exceptionally grave issue to be

considered even if untimely). Fasken did not appeal the Licensing

Boards dismissal of Contention 2, instead choosing to amend it after

the Draft EIS was published.

The Licensing Board reached the same conclusion concerning the

timeliness of Amended Contention 2. Licensing Board September 2020

Order, 92 N.R.C. at 240-53. (J A0837-50). The Licensing Board

determined that inasmuch as Amended Contention 2 challenged the

description of ownership and control of mineral rights, it was not based

on new information that would excuse its untimeliness because it

(1) challenged documents contained in Holtecs application, as distinct

from documents that became available after the deadline for raising

contentions and after closure of the adjudicatory proceeding, id. at 243

(JA0840); and (2) contained information concerning ownership of

mineral rights and the nature of ongoing oil and gas activities about

which Fasken had been aware for several years, id. at 245-47 (JA0842-

44).

On appeal, the Commission affirmed the Licensing Boards

September 2020 Order, noting that Fasken had merely pointed to its

38 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 53 of 103

filings before the Board but had not identified any error in the Boards

reasoning. Commission April 2021 Order, 93 N.R.C. at 225 (JA1082).

The Commission likewise concluded that Fasken had not explained how

the facility would have an exceptionally grave impact on economics,

security, or employment, and that the Licensing Board had not abused

its discretion in declining to waive the timeliness requirements. Id. at

225-26 (JA1082-83 ); see 10 C.F.R. § 2.326(a). And the Commission

further found that, beyond Faskens failure to comply with the agencys

timeliness requirements, its contention did not present a genuine

dispute material to issuance of the license. Id. at 226-28 (JA1083-85 )

(noting, among other things, that the Draft EIS had acknowledged that

the State of New Mexico owned mineral rights beneath and

surrounding the site, and that continued mineral development was

possible).

The Commission reached similar conclusions with respect to

Contention 3 (which it considered without referring the matter to the

Licensing Board). First, it determined that Faskens assertions about

mineral rights and mineral development were not based on previously

unavailable information. Fasken claimed to have discovered the

39 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 54 of 103

information through comments on the Draft EIS and responses Holtec

provided to requests for additional information issued by the NRC staff.

Id. at 230 (JA1087). But the Commission noted that the Draft EIS

acknowledged New Mexicos ownership interests in mineral rights, as

had the initial Environmental Report submitted by Holtec in March

2017. Id. (JA1087). And, with respect to oil and gas deposits, the

Commission observed that Holtecs Environmental Report had stated

that [f]urther oil and gas development [was] not allowed by the New

Mexico Oil Conservation Division due to the presence of potash ore on

the [s]ite, which Holtec subsequently clarified to indicate that drilling

through potash deposits would not be permissible. Id. at 230-31

(JA1087-88 ).

The Commission stressed that, under NRCs rules, the time for

Fasken to dispute these specific assertions was when those assertions

were first made, and that Fasken was responsible for understanding

background principles of New Mexico property law that governed the

rights of subsurface-estate leaseholders. Id. at 231-32 (JA1088-89).

And the Commission ruled that Fasken had not presented a significant

40 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 55 of 103

environmental issue or a hazardous condition justifying waiver of its

timeliness rules. Id. at 233-34 (JA1090-91 ).

In sum, the Commission and Licensing Board properly enforced

the agencys timeliness rules when they declined to admit Faskens

Contention 2, Amended Contention 2, and Contention 3. And, with

respect to the issues that Fasken appealed, the Commission reasonably

determined that, even if the contentions had been timely raised, they

would still not have been admissible.

B. Fasken presents no arguments undermining the Commissions determination that its contentions were either untimely, not admissible, or both.

Fasken makes a series of arguments suggesting that the agency

acted arbitrarily and capriciously in declining to admit its contentions.

Fasken Br. 12-22. None of these arguments are directly responsive to

the rationales that the Commission provided for upholding the denial of

Faskens intervention request, and, in any event, they are incorrect.

First, Fasken asserts that the piecemeal disclosure of

information relating to mineral rights created a perpetually evolving

target . . . that prevented timely filed contentions. Fasken Br. 13.

However, Fasken makes no effort to demonstrate how the information it

41 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 56 of 103

claims to have been inconsistently conveyed relates to its contentions or

to the agencys analysis of the safety and environmental issues

presented by the license application.

Fasken next challenges the dismissal, on timeliness grounds, of

Contention 2 in its original form. Fasken Br. 15 -17 . The Basis for

Contention 2, as Fasken presented it to the agency, was that Holtec

falsely indicat[ed] that it had control over mineral rights below the

site. JA0609 (quotation marks omitted). Fasken asserts before the

Court that the New Mexico Land Commissioners June 2019 letter

stating that neither the State nor oil and gas lessees had agreed to limit

mineral development or drilling activities contradicted previous

statements in Holtecs application and justified the filing of a late

contention. Fasken Br. 15-16 . Its argument fails for several reasons.

As a threshold matter, Fasken fails even to mention, let alone to

provide reason for the Court to excuse, two procedural defaults before

the agency with respect to Contention 2 that foreclose consideration of

its argument here. First, the Licensing Board found that Fasken had

failed to address the relevant criteria in NRCs rules for reopening a

closed record, and that this failure was itself sufficient ground to deny

42 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 57 of 103

admission of its contention. Licensing Board June 2020 Order, 91

N.R.C. at 255 (JA0815) (noting that Fasken had created the

extraordinary situation of a petitioner who not only failed to move to

reopen, as required by the NRCs regulations, but has actually refused

to do so); see 10 C.F.R. § 2.326(a). The Licensing Boards conclusion

constitutes a reasonable application of the agencys rules and warrants

deference. Blue Ridge, 716 F.3d at 196.

Second, because the Licensing Board declined to admit Contention

2 in its June 2020 Order, and because Fasken did not appeal that order

to the Commission, Fasken has forfeited its right to seek judicial review

of this issue. In Vermont Department of Public Service v. NRC, 684

F.3d 149 (D.C. Cir. 2012), this Court faced a similar circumstancethe

petitioners unsuccessfully attempted to raise an issue before the

Licensing Board and declined to seek review of that determination by

(and otherwise to raise the issue before) the Commission, yet they

sought review of that issue under the Hobbs Act. Id. at 154-55. The

Court deemed the issue forfeited, concluding that the petitioners here

were required under agency regulations to afford the full Commission

an opportunity to pass on the [ ] issue before seeking judicial review.

43 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 58 of 103

Id. at 157-58; see also Environmentel, LLC v. FCC, 661 F.3d 80, 84 (D.C.

Cir. 2011) (holding that petitioner failed to exhaust remedies with

respect to argument that it raised before agency bureau but failed to

pursue before full Federal Communications Commission);

10 C.F.R. § 2.1212 (requiring a party to an NRC proceeding [to] file a

petition for Commission review before seeking judicial review of an

agency action). 14

Moreover, Fasken offers no rebuttal to the underlying reasons

identified by the Licensing Board as to why the information contained

in the June 2019 letter was available long before Fasken moved to file

Contention 2. The Licensing Board properly recognized that the thrust

of Contention 2 was Faskens assertion that Holtec lacked control over

14 The fact that Petitioners declined to pursue this argument before the Commission (while asserting others) distinguishes this case from Darby

v. Cisneros, 509 U.S. 137 (1993). Darby presented the question whether a party challenging agency action and seeking judicial review could forego altogether its right to appeal a determination to the head of the agency. Here, Fasken did file an appeal to the Commission of the Licensing Boards other decisions declining to admit its contentions. It simply chose not to include its arguments concerning Contention 2 as originally submittedwhich, by that time had been rendered moot by issuance of a Draft EIS and Faskens filing of an amended contention challenging that documentin its appeal.

44 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 59 of 103

mineral rights. Licensing Board June 2020 Order, 91 N.R.C. at 255-56

(JA0815-16 ). The Licensing Board explained that Holtecs

Environmental Report (filed with its application) had specifically

acknowledged that subsurface mineral rights were owned by the State

of New Mexico, and that Holtec had acknowledged in responses to

requests for supplemental information from the agency, months before

Fasken filed its motion for leave to reopen, that subsurface mineral

rights were held in trust by the New Mexico Commissioner of State

Lands. Licensing Board June 2020 Order, 91 N.R.C. at 255-56 (JA0815-

16). Simply stated, the Licensing Board reasonably determined that

Faskens contention challenging Holtecs assertions about its control of

mineral rights could have been raised prior to the deadline for filing

contentions (or, at a minimum, long before it was actually filed), and

Fasken provides no evidence to the contrary.

The same is true of Faskens arguments (Fasken Br. 17-21 )

pertaining to its Amended Contention 2 (the denial of which Fasken did

appeal to the Commission). In Amended Contention 2, Fasken again

asserted that Holtecs application fails to adequately, accurately,

completely and consistently describe the control of subsurface mineral

45 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 60 of 103

rights and oil and gas and mineral extraction operations beneath and in

the vicinity of the proposed Holtec Facility site. Licensing Board

September 2020 Order, 92 N.R.C. at 240 (JA0837).

The Licensing Board denied admission of this contention because

the allegedly new information in the Draft EIS to which Fasken

referred did not materially differ from that which was previously

available to it, such that the contention could have been raised earlier.

See id. at 246 (JA0843). The Board noted, specifically, that Fasken had

failed to identify any difference between the impacts of extraction of oil

and gas at depths greater than 5,000 feet, as referenced in Holtecs

Environmental Report, and extraction at greater below 3,050 feet, as

described in the Draft EIS. Id. (JA0843). And it rejected Faskens

assertion that the Draft EIS for the very first time referred to an

active oil and gas well near the site, referencing a portion of the safety

evaluation contained in Holtecs license application that discussed the

existence of the same well. Id. at 247 (JA0844).

On appeal, the Commission ruled that that Fasken failed to

explain how the Licensing Board erred in addressing its arguments or

why the factual basis for Amended Contention 2 could not have been

46 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 61 of 103

raised earlier. Commission April 2021 Order, 93 N.R.C. at 225

(JA1082). Fasken repeats that error here, failing to identify any flaw in

the Commissions reasoning or even respond to the evidence that the

Licensing Board and the Commission identified reflecting the

availability of information before the deadline to submit contentions.

And while Fasken repeats its assertion (Br. 18) that the Draft EIS

indicated for the first time that oil and gas production extraction would

occur below the Salado Formation at depths of only 3,050 feet, it cites to

no record evidence to contest the Licensing Boards determination that

the delta between extraction activity at 3,050 feet (the depth identified

in the Draft EIS) and 5,000 feet (the depth identified in Holtecs

Environmental Report) does not materially affect the agencys

environmental or safety analyses.

Moreover, Fasken fails to address the Licensing Boards

determination, affirmed by the Commission on appeal, that Amended

Contention 2 would not have been admissible even if it had been timely

raised. Licensing Board September 2020 Order, 92 N.R.C. at 249-53

(JA0846-08 50); Commission April 2021 Order, 93 N.R.C. at 227

(JA1084). Indeed, the Commission explained that Fasken had failed to

47 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 62 of 103

identify a genuine dispute of material fact in Amended Contention 2

because, by the time the Draft EIS had been prepared, it had been fully

disclosed that continued mineral development near and even under the

site was possible. Commission April 2021 Order, 93 N.R.C. at 227

(JA1084). And the Commission concluded that Fasken failed to identify

any part of the Draft EIS that relied on a land-use restriction to

inaccurately assess the impacts of development activities. Id. (JA1084).

Faskens failure to address these aspects of the Commissions ruling is

an independent reason to reject its arguments about Amended

Contention 2.

Faskens final argument (Fasken Br. 21-22) relates to Contention

3, which the Commission rejected in its April 2021 Order and which

also raises issues pertaining to mineral rights and development. Again,

however, Fasken entirely fails to mention, let alone to demonstrate

error in, the Commissions determination that the contention was both

untimely and inadmissible. Commission April 2021 Order, 93 N.R.C. at

229-35 (JA1086-92 ).

Rather than address the Commissions explanation for denying

admission of its contention, Fasken asserts that it submitted new

48 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 63 of 103

information in support of Contention 3 about the legal interests of third

parties in subsurface mineral estates. Fasken Br. 21. Fasken claims

that information only came to light in October 2020 as a result of public

comments on the Draft EIS and in Holtecs responses to requests for

information from the NRC. Id.

But as the Commissions explanation shows, the information

Fasken relied on to support Contention 3 was simply a variant of the

same type of information that was known (or knowable) to the public

long before Fasken belatedly sought to raise it. Commission April 2021

Order, 93 N.R.C. at 230-31 (JA1087-89). Fasken does not address the

Commissions explanation that the basis for Contention 3 was

ascertainable long before October 2020 through (1) statements in the

Environmental Report acknowledging New Mexicos ownership of

mineral rights, 93 N.R.C. at 230 (JA1087); (2) the characterization of

the land as lying within New Mexicos Designated Potash Area (which

would preclude drilling through potash deposits to reach oil and gas

deposits), id. at 231 (JA1088); or (3) background principles of New

Mexico oil and gas law, id. (JA1088). And Fasken offers no basis to

question the Commissions conclusion that the comments Fasken relied

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on mischaracterized the Draft EIS and, were in any event, challenges

that Fasken could have raised earlier. Id. at 232 (JA1089).

In sum, the Commission reasonably determined that Faskens

contentions were untimely, inadmissible, or both; and its conclusions,

which Fasken does not meaningfully address in its Brief, are both

correct and, at a minimum, entitled to deference as a reasonable

application of its adjudicatory procedures. Faskens Petition should be

denied.

III. The Commission reasonably declined to admit Environmental Petitioners contentions.

A. Environmental Petitioners forfeited their challenge to NRCs statutory authority, and in any event, this Court has correct, binding precedent that NRC has statutory authority to issue this kind of license.

The AEAs plain text authorizes the Commission to issue licenses

for temporary storage of spent fuel away from reactor sites. In

Bullcreek v. NRC, this Court held that the Commission has this

authority and that the NWPA did not repeal it. 359 F.3d 536, 538-543

(D.C. Cir. 2004). Seeking to sidestep this Courts precedent,

Environmental Petitioners rely on the Fifth Circuits recent decision in

Texas v. NRC, 78 F.4th 827 (5th Cir. 2023), which created a circuit split

50 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 65 of 103

with Bullcreek and with the Tenth Circuits later decision in Skull

Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th

Cir. 2004). Environmental Petitioners Br. 7-10. Environmental

Petitioners challenge to the Commissions statutory authority fails for

several independent reasons.

First, Environmental Petitioners failed to raise their statutory

authority argument before the Commission. To be sure, Sierra Club

asserted in a contention that the NRC lacked statutory authority to

issue a license for an away-from-reactor storage facility. The Licensing

Board dismissed that contention, concluding that (1) NRC regulations

expressly allow licensing of such facilities and Sierra Club could not

challenge that regulation in a licensing proceeding absent a waiver

under 10 C.F.R. § 2.335 (which Sierra Club had not sought); and (2) this

Court has held the Commission has authority under the AEA to license

privately owned facilities like the Holtec facility and the NWPA did not

repeal or supersede that authority. See Licensing Board 2019 Order, 89

N.R.C. 353, 383 (JA466). Despite raising numerous other arguments

before the Commission, Environmental Petitioners did not appeal the

Licensing Boards ruling on this issue to the Commission and therefore

51 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 66 of 103

forfeited their right to assert it here. See Vermont Dept of Pub. Serv.,

684 F.3d at 157; Environmentel, 661 F.3d at 83-84 .

Second, this Court has rejected the precise argument that

Environmental Petitioners raise here. In Bullcreek, the Court held that

the NRC had authority under the AEA to issue licenses for the away-

from-reactor temporary storage of spent fuel and that the NWPA did

not revoke this authority. 359 F.3d at 538-43. The Court recognized

that the AEA gave the Commission authority over spent fuel and that

the Commission had properly exercised that authority in 1980, when it

issued regulations covering licensing of temporary, away-from -reactor

storage of spent fuel. Id. at 538-40.

The Court also surveyed the developments that led Congress to

enact the NWPA in 1982 and concluded that there is no basis to

conclude that in enacting the NWPA Congress implicitly repealed or

superseded the NRCs authority. Id. at 543. When Congress passed

the NWPA, it was aware of the Commissions 1980 regulations and, as

part of a legislative compromise permitting public and private storage

programs to exist in parallel, Congress left the pre -existing regulatory

scheme as it found it. Id. Thus, this Court held in Bullcreek that the

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NWPA did not disturb the Commissions preexisting AEA authority. Id.

at 542-43.

Facing similar issues later that same year, the Tenth Circuit

found this Courts reasoning in Bullcreek persuasive and declined to

revisit the issues. See Skull Valley, 376 F.3d at 1232. Thus, the Tenth

Circuit agreed with this Courts holding that the AEA authorized the

Commission to license privately-owned, away-from -reactor, temporary

storage facilities for spent nuclear fuel and the NWPA did not repeal or

supersede the Commissions AEA authority. Id.

Environmental Petitioners suggestion (echoed by Beyond

Nuclear) that the Court in Bullcreek simply assumed the existence of

this authority is refuted by the Courts reasoning. The Court explained

in Bullcreek that:

• Congress was fully aware in 1982, when it passed the NWPA, that

the NRC had promulgated 10 C.F.R. Part 72 in 1980 and that Part

72 allowed for both onsite and offsite storage of spent fuel, id. at

543 (Utah ignores that private away-from -reactor storage was

already regulated by the NRC under the AEA prior to the

NWPA.);

53 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 68 of 103

• Congress intended for a licensing program for private offsite

storage pursuant to the AEA to exist in parallel with any program

conducted by DOE pursuant to the NWPA, id. (in enacting 42

U.S.C. § 10155(h), which stated that the NWPA did not itself

authorize or encourage private storage facilities, Congress limited

the scope of the NWPA, but left untouched prior and subsequent

statutes that authorized such facilities, id. at 542); and

• Congress declined to disturb the Commissions authority to issue

licenses for away-from -reactor storage as part of the compromise

that led to passage of the NWPA, id. at 543 (compromise ensured

that DOE would not take over private facilities to fulfill its NWPA

obligations, and clarified that private generators were not

obligated under the NWPA to exhaust all away-from -reactor

options prior to receiving federal assistance).

Simply stated, this Courts recognition of the Commissions

authority under the AEA to license away-from -reactor temporary

storage facilities was not assumed, as Environmental Petitioners (and

Beyond Nuclear) contend; it was an essential component of the holding

in Bullcreek that could only be overturned by this Court sitting en banc.

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If it reaches the issue, this Court should follow Bullcreek and uphold

NRCs authority under the AEA to grant the Holtec license.

B. Contrary to the Fifth Circuits recent decision, the AEA authorizes the NRC to license temporary storage of spent nuclear fuel away from reactor sites.

Though the NRCs authority is not an open question here, both

this Court in Bullcreek and the Tenth Circuit in Skull Valley correctly

concluded that the AEA grants the NRC authority to license temporary

storage of spent nuclear fuel away from reactor sites. Environmental

Petitioners misplace their reliance on the Fifth Circuits recent Texas

decision, which rests on a flawed reading of the AEAs and the NWPAs

text.

The AEA provides for licenses to possess three types of material

special nuclear material, 42 U.S.C. § 2073(a), source material, id.

§ 2093(a), and byproduct material, id. § 2111(a); see also id.

§§ 2014(aa), (z), (e) (defining the terms). Spent nuclear fuel contains

each of these materials. Tying these three provisions together, the AEA

authorizes the Commission to issue regulations governing the

possession and use of special nuclear material, source material, and

byproduct material as the Commission may deem necessary or desirable

55 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 70 of 103

. . . to protect health or to minimize danger to life or property.42

U.S.C. § 2201(b).

The Commission has for decades consistently exercised its

materials licensing authority to ensure the safe, temporary storage of

spent nuclear fuel. In 1980, recognizing the need for more storage, the

Commission relied on all four statutory provisions identified above to

issue the Part 72 regulations providing a definitive framework for

temporary storage of spent nuclear fuel, both at nuclear reactors and

offsite. See Licensing Requirements for the Storage of Spent Fuel in an

Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693,

74,694 (Nov. 12, 1980) (recognizing the demand for storage space in

light of the cessation of programs for SNF reprocessing).

Environmental Petitioners primarily rely on the Fifth Circuits

recent decision in Texas v. NRC. In Texas, the Fifth Circuit held that

the AEA permits the Commission to issue licenses only for specific

enumerated purposes, including for certain types of research and

development. 78 F.4th at 840. But that cramped reading of the AEAs

plain text is incorrect.

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The AEA authorizes the Commission to license special nuclear

material for such other uses as the Commission determines to be

appropriate to carry out the purposes of the AEA. 42 U.S.C.

§ 2073(a)(4). A central purpose of the AEA is maximizing the

generation of electricity from nuclear material. See id. § 2013(d). The

Commission acted consistently with that purpose by promulgating the

Part 72 regulations covering licensing of temporary storage of spent fuel

both at reactors and away from reactors.

Similarly, the AEA authorizes the Commission to issue licenses to

any qualified applicant to possess source material for any other use

approved by the Commission as an aid to science or industry. 42

U.S.C. § 2093(a)(4). Allowing nuclear reactor operators to store spent

fuel, whether at or away from reactor sites, aids the electric-generation

industry.

Texas dismissed both those provisions as catchall provisions

limited to the uses listed elsewhere in their respective statutory

sections. 78 F.4th at 840. But Congress added Section 2073(a)(4) to the

AEA in 1958 to expand the purposes for which special nuclear material

licenses could be issued beyond those set forth in Section 2073(a)(1)-(3).

57 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 72 of 103

Pub. L. No.85-681, § 1, 72 Stat. 632 (1958). Texas also overlooked the

statutory context that should inform interpretation of Sections

2073(a)(4) and 2093(a)(4), including other provisions that authorize

licenses to use special nuclear material and source material under a

license to operate a nuclear reactor. 42 U.S.C. §§ 2073(a)(3), 2093(a)(3).

The NRCs authority also extends to licensing possession of the

byproduct materials contained in spent fuel. 42 U.S.C. § 2111(a). But

Texas mistakenly focused on Section 2111(b), which concerns disposal of

certain radioactive wastes, not temporary storage of the nuclear

materials covered by the license here. 78 F.4th at 841. Thus, Texass

comparison of radium-226 with plutonium is misguided. Id. Radium-

226 is waste that may be disposed of under Section 2111(b). Because

plutonium is special nuclear material, 42 U.S.C. § 2014(aa), the

Commission has authority to license its possession and temporary

storage.

Texas compounded its interpretive errors when it turned to the

NWPA. To begin with, the court failed to address the NRCs Part 72

regulations or the NRCs longstanding interpretation of the NWPA,

which this Court credited in Bullcreek. Compare Texas, 78 F.4th at

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841-42 with Bullcreek, 359 F.3d at 538-43; see also In the Matter of

Private Fuel Storage, L.L.C., 56 N.R.C. 390 (2002). Texas also departed

from this Courts holding in Bullcreek that Congress left the pre -

existing regulatory scheme as it found it, and that the NWPA did not

disturb the NRCs preexisting AEA authority. 359 F.3d at 542-43.

Texass brief discussion of the major questions doctrinewhich

the court addressed in the alternative, after holding that the AEA and

NWPA unambiguously preclude the licensure of an away-from -reactor

storage facility, 78 F.4th at 844 is also flawed.15 In West Virginia v.

EPA, the Supreme Court recognized a small category of extraordinary

cases in which the history and the breadth of the authority that the

agency has asserted, and the economic and political significance of that

assertion, provide a reason to hesitate before concluding that Congress

meant to confer such authority. 142 S. Ct. 2587, 2608 (2022) (quotation

marks and alterations omitted; emphasis added). Texas touched on just

15 Environmental Petitioners did not raise the major questions doctrine in their initial brief, so in addition to forfeiting the issue before the Commission, they have forfeited the issue before this Court. See, e.g.,

New York Rehabilitation Care Mgmt. v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007).

59 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 74 of 103

one of these elements in a paragraph suggesting that disposal of

nuclear waste is an issue of great economic and political significance.

78 F.4th at 844 (emphasis added). That discussion conflated temporary

storage with disposal. And unlike situations where the Supreme Court

and other courts have applied the major questions doctrine, the safe,

temporary storage of spent nuclear fuel lies at the core of NRCs

expertise and statutory role.

Because the Fifth Circuits holding on NRCs authority is

erroneous and consciously created a circuit split with decisions of this

Court and the Tenth Circuit, Federal Respondents have sought

rehearing en banc in that case. Federal Respondents also have sought

rehearing en banc on Texas holding that the Hobbs Acts jurisdictional

requirement that a petitioner be a party to NRCs proceedings is subject

to a judge-made ultra vires exception. At this time, the rehearing

petition is currently pending before the Fifth Circuit.

In sum, Environmental Petitioners forfeited their statutory

authority argument by failing to exhaust it before the Commission, and

this Court already decided the issue in Bullcreek. But even if this were

not true, the AEAs plain text gives the NRC authority to issue the

60 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 75 of 103

Holtec license. For all these reasons, Environmental Petitioners

argument should be rejected.

C. The Commission properly declined to dismiss the license application when it reasonably concluded that Holtecs license application was accurate.

In a variant of Beyond Nuclears NWPA-based argument,

Environmental Petitioners challenge (Br. 10-16) the Commissions

decision not to deny the license application because, in their view,

Holtec misrepresented its plans to take title to fuel owned by nuclear

power plants and only intended to store fuel to which DOE holds title.

The Commissions disposition of this issue was entirely

reasonable. The Commission agreed with the Licensing Boards

conclusion that, even assuming 42 U.S.C. § 2236 empowers the agency

to deny an application based on a willfully and materially false

statement,16 the statements contained in Holtecs license application

were accurate. Commission 2020 Order, 91 N.R.C. at 191-93 (JA0700-

16 Section 2236 provides that the agency may revoke an existing license. On its face, it does not require the agency to deny a license application if it identifies a willful material misrepresentation.

61 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 76 of 103

02); see also Licensing Board 2019 Order, 89 N.R.C. at 421 & n.446

(JA0504).

This conclusion was amply supported by the record. As the

Licensing Board explained, Holtec acted transparently during the

licensing process by amending its application to include the possibility

of storing privately held fuel and readily acknowledging that it was

hoping for a change in the law that would permit it to contract with

DOE. Licensing Board 2019 Order, 89 N.R.C. at 421-22, 452 (JA0504-

05, 0535). Further, the Commission properly observed that the issue in

the licensing proceeding was whether the license applicant could

operate the facility safely, and not whether it would operate the facility

if it could only rely on private customers or its plans to lobby Congress

for a change in the law. Commission 2020 Order, 91 N.R.C. at 193

(JA0702). Environmental Petitioners demonstrate no error in the

Commissions conclusion that Holtecs statements in its application

were not false, and certainly not materially so.

Environmental Petitioners rely on a Reprising 2018 newsletter

published by Holtec (JA0419), in which Holtec suggested that

deployment of the facility will ultimately depend on the Department of

62 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 77 of 103

Energy and the U.S. Congress, but that isolated and ambiguous

sentence does not change the Commissions conclusion. Beyond being

vague, this innocuous statement in a marketing email in no way

suggests that Holtecs true intention was to await Congressional

action so that it could exclusively store fuel to which DOE owns title;

the newsletter states no such thing.

Moreover, to the extent that it is appropriate to read a motive into

Holtecs statement, the newsletter just as plausibly leads to the opposite

conclusion as the one that Environmental Petitioners suggesti.e., it

suggests that a private storage facility will not be necessary if Congress,

and DOE working at Congresss direction, provide an alternate site

either in the form of a repository or a federally owned interim storage

site. And, as the Commission correctly noted, the issue in the licensing

proceeding was whether the facility could be operated safely, and not

whether, in the exercise of its business judgment, Holtec would decline

to operate the facility if it only could store privately owned fuel.

Commission 2020 Order, 91 N.R.C. at 193 (JA0702).

At a minimum, the statement does not establish a willful material

misrepresentation, let alone one that would require the NRC to deny

63 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 78 of 103

the license application. Again, Holtec acknowledged during the

licensing proceeding that its original plan was to store fuel to which

DOE owns title and, confronted with its current inability to so, adjusted

its application accordingly and disclaimed any intent to act

inconsistently with applicable law. The NRC reasonably declined to

penalize Holtec for altering its application during the licensing process,

and Petitioners cite to no authority requiring it to have done so.

D. The Commission reasonably declined to admit contentions related to seismology and geological and hydrological impacts.

Environmental Petitioners challenge the Commissions disposition

of Contentions 11, 15, 16, 17, and 19, in which they made various

challenges to the environmental analysis of seismology and the facilitys

geological and hydrological impacts. Environmental Petitioners Br. 16-

22. As to each contention, addressed below in turn, the Licensing Board

carefully examined the issues raised and then made a reasonable

conclusion that is supported by the record, and the Commission

affirmed each of the Licensing Boards conclusions. These issues

required the agencys technical expertise and warrant deference to the

Commissions judgment. See Blue Ridge, 716 F.3d at 195. Moreover,

64 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 79 of 103

inasmuch as Environmental Petitioners arguments challenge

assertions made by Holtec in its license application, it was their burden

to identify specific facts sufficient to generate a genuine dispute. See

Beyond Nuclear, 704 F.3d at 21-22 (agency acted reasonably in

declining to admit contention, and did not improperly decide facts at

contention admissibility stage, where petitioner failed to supply facts

contesting applicants conclusion in environmental report).

In Contention 11, Environmental Petitioners challenged the

discussion in the license application of earthquake risks to the facility,

asserting that the discussion was out of date and inadequately

addressed the effects of oil and gas recovery operations on seismicity.

The Commission declined to admit the contention, agreeing with the

Licensing Board that the data used from the U.S. Geological Survey

was the latest provided before the application was submitted in 2017,

and that the application discussed increased seismicity from the oil and

gas industry. Commission 2020 Order, 91 N.R.C. at 185-87 & n.112

(JA0694-96 ).

Environmental Petitioners challenge these conclusions, asserting,

first, that a study prepared by Stanford University in 2018 undermined

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the seismicity data in the application and, second, that the Commission

erred in considering their argument on appeal concerning the effects of

oil and gas recovery on seismicity to be new (and therefore

inadmissible) and in any event unsupported. Environmental

Petitioners Br. 17.

These arguments are unpersuasive. Though Environmental

Petitions assert that the seismic analysis in the Environmental Report

was out of date because it failed to account for the Stanford study, they

cite no evidence suggesting that the Commission erred in finding that

the Stanford study was, in fact, fully consistent with the analysis that

Holtec had provided. Commission 2020 Order, 91 N.R.C. at 187

(JA0696). And, with respect to Environmental Petitioners second

argument, the statement from their contention that Petitioners rely on

in their Briefalleging that the application is contradicted by the

Stanford University study has nothing to do with the new question

raised on appeal to the Commission whether fracking activities were

inducing new geologic faults. Moreover, the Commission correctly

observed that Environmental Petitioners did not point to any statement

in the Stanford study demonstrating that new faults were getting closer

66 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 81 of 103

to the Holtec site as a consequence of oil and gas activities, id. (JA0696),

and they likewise fail do so in their Brief here. The Commission

therefore did not err in declining to admit the contention. See Beyond

Nuclear, 704 F.3d at 22.

Environmental Petitioners also take issue with the Commissions

dismissal of four Contentions15, 16, 17, and 19related to

groundwater impacts. In Contention 15, Environmental Petitioners

challenged a statement in Holtecs Environmental Report suggesting

that shallow alluvium is likely non-water bearing at the Site.

Licensing Board June 2020 Order, 91 N.R.C. at 243 (JA0803). The

Commission upheld the Licensing Boards determination not to admit

the contention, ruling that Environmental Petitioners were incorrect in

their assertion that the conclusion was based only on the data from a

single monitoring well, and that Holtec had provided a 2017

Geotechnical Data Report reflecting data from five such monitoring

wells. Commission February 2021 Order, 93 N.R.C. at 122 (JA1063).

Environmental Petitioners argue that the Commission erred in

declining to credit Sierra Clubs experts claim that only one of the wells

was relevant because it was the only one at the interface of the

67 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 82 of 103

alluvium and the Dockum formation. Environmental Petitioners Br.

19. But as with their claims related to seismic impacts, these

arguments fail to show how the Commission erred in affirming the

Licensing Boards rejection of the contention.

Indeed, the Licensing Board specifically addressed the alleged

infirmity identified by Environmental Petitioners expert, determining

that the expert had overlooked the work plan in the Geotechnical Data

Report, which made clear that the wells were adjusted based on the

conditions encountered, the personnel performing the study were

regularly monitoring for groundwater, and that the boring logs reflected

the absence of groundwater throughout the shallow alluvium.

Licensing Board June 2020 Order, 91 N.R.C. at 243-44 (JA0803-04 ).

Environmental Petitioners naked assertions that the Licensing Board

and Commission should have exercised their technical judgment

differently, unaccompanied by any explanation as to why the specific

reasons that the Board and Commission determined that

Environmental Petitioners had failed to identify a genuine dispute for a

hearing, do not demonstrate error. See Blue Ridge, 716 F.3d at 198

(upholding Commissions decision not to admit contention where

68 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 83 of 103

petitioners failed to refer to particularized information that would

support their assertions and that would reflect the existence of a

genuine dispute to be resolved by hearing); Beyond Nuclear, 704 F.3d at

22 (recognizing petitioners lack of evidentiary support for claim that

genuine dispute existed).

In Contention 16, Environmental Petitioners asserted that

Holtecs Environmental Report did not indicate whether there was

brine in groundwater beneath the site (and that brine could adversely

affect the storage of spent fuel canisters). The Commission declined to

admit the contention, noting that the application had in fact

acknowledged the presence of brine in the shallow groundwater. T he

Commission observed that the water table is below the excavation

depth of the facility and deferred to the Licensing Boards

determination that the contention lacked sufficient factual support to

raise a genuine dispute. Commission February 2021 Order, 93 N.R.C.

at 123 (JA1064); see also Licensing Board June 2020 Order, 91 N.R.C.

at 245 (JA0805).

Environmental Petitioners object (Br. 20) to the Licensing Boards

observation, echoed by the Commission, that Environmental Petitioners

69 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 84 of 103

only posed questions on the matter without providing the required

factual support to demonstrate a genuine dispute with Holtecs license

application. But Environmental Petitioners again point to no error by

the Commission, which reasonably credited the Licensing Boards

conclusion that the contention did not raise a genuine issue because

brine disposal facilities, and the site where brine was located, are on

the far side of the site and downgradient of the proposed facility.

Commission February 2021 Order, 93 N.R.C. at 123 (JA1064); see also

Safety Analysis Report (Rev. 0F) Figs. 2.1.6(a) and 2.4.7 (JA0416, 0417),

cited in Licensing Board June 2020 Order, 91 N.R.C. at 245 n.28

(JA805) (maps illustrating distance between CISF and site of brine

detection and topography).

In Contention 17, Environmental Petitioners asserted that the

Environmental Report and Safety Analysis Report prepared by Holtec

failed to discuss the presence or likely presence of fractured rock.

Environmental Petitioners Br. 21. The Licensing Board rejected this

contention because it was factually unsupported (and, specifically,

because the application documents identified either fractures or tight

sandy loams between the depths of 85 and 100 feet and cited to reports

70 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 85 of 103

that, as Environmental Petitioners expert acknowledged, referenced

such fractures). Licensing Board June 2020 Order, 91 N.R.C. at 245-46

& nn.31-32 (JA0805-06) . The Commission affirmed the decision on this

ground. Commission February 2021 Order, 93 N.R.C. at 124 (JA1065).

Environmental Petitioners one-paragraph discussion of this issue fails

to identify any flaw in the Commissions determination or to explain

why the information provided in the application documents was

somehow materially inadequate.

Finally, Environmental Petitioners challenge (Br. 21-22) the

Commissions disposition of Contention 19, which alleged deficiencies in

Holtecs Environmental Report related to tests (known as packer

tests) that were performed to measure the permeability of the Santa

Rosa Formation, an underground aquifer in the area of the Holtec site.

The Licensing Board found these allegations to be mere speculation,

Licensing Board June 2020 Order, 91 N.R.C. at 247 (JA0807). The

Commission upheld this conclusion, explaining that (1) the mere fact

that the report in which the tests were published was silent with

respect to certain details related to issues such as cleaning of the

boreholes did not provide ground to assume that the test was performed

71 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 86 of 103

improperly; and (2) the work was performed under a quality assurance

program. Commission February 2021 Order, 93 N.R.C. at 125 (JA1066).

Environmental Petitioners identify no basis to contest these

conclusions. While they assert that their expert identified three

specific areas where the packer tests were deficient, Environmental

Petitioners Br. 22, they provide no evidence that the tests were

performed improperly and no support for their assertion that the

Commission erred in failing to accept their experts unsupported

assertions. See Blue Ridge, 716 F.3d at 198 (upholding Commissions

determination that contentions lacking particularized information

sufficient to demonstrate the existence of a genuine dispute were

inadmissible); Beyond Nuclear, 704 F.3d at 21-23.

To summarize, the Licensing Board and the Commission

thoroughly considered and rejected Environmental Petitioners

Contentions 11, 15, 16, 17, and 19, and found that none of them

adduced specific evidence sufficient to identify a genuine dispute for a

hearing. On these technical issues, the Court should defer to the

agencys expert judgment.

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E. The Commission reasonably and properly declined to admit contentions related to the volume of low-level waste.

Environmental Petitioners next challenge the exclusion of a

contention relating to the calculation of low-level waste likely to be

generated from the Holtec facility at decommissioning. Environmental

Petitioners Br. 22- 29. Environmental Petitioners primarily focus on the

amount of concrete (8,000,000 tons) that they assert will undergo

bombardment by neutron beta radiation for a century and be

considered low-level radioactive waste, and challenge the assessment

in Holtecs Environmental Report that decommissioning would result in

only a small amount of additional waste. Id. at 25.

The Commission declined to admit this contention, agreeing with

the Licensing Boards assessment that Petitioners had failed to identify

a genuine dispute material to issuance of the license because

Environmental Petitioners (1) had not provided any expert testimony to

support their claims that this amount of concrete would, in fact, become

contaminated; and (2) failed even to take a position on whether, as

Holtec had asserted, decontamination of any contaminated concrete was

possible. Commission 2020 Order, 91 N.R.C. at 204-05 (JA0713-14).

73 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 88 of 103

The Commission further credited the Licensing Boards finding that

Environmental Petitioners had failed to provide evidentiary support

that, contrary to Holtecs projections, spent fuel canisters would need to

be replaced during the operating life of the facility and that the

calculation of waste should include this material. Id. at 205 (JA0714).

Environmental Petitioners fail to demonstrate any error in the

Commissions insistence on an evidentiary basis to validate their

assertions. As the Commission recognized, Holtec explained in its

Environmental Report that contamination of the storage canisters and

pads did not constitute a plausible scenario because (1) the steel

canisters would be surveyed prior to shipment and upon arrival at the

Holtec facility to ensure the absence of radiological contamination;

(2) the spent fuel would remain inside sealed canisters while being

stored at the Holtec facility; and (3) activation of the storage casks

would produce negligible radioactivity. Id. at 203 & n.225 (JA0712); see

also Licensing Board 2019 Order, 89 N.R.C. at 435 (JA518) (noting that

the design of the facility includes a liner that protects the concrete from

contamination from canister). Environmental Petitioners fail to cite to

any competent evidence in the record undermining these conclusions, or

74 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 89 of 103

otherwise supporting their theory that additional waste would be

generated during the period of licensed operation of the Holtec facility.

Environmental Petitioners also question the Licensing Boards

citation to the Continued Storage Rule in this context, and, in

particular, the Rules identification of the impacts identified in the

Continued Storage Generic EIS associated with the disposal of the

concrete and canisters that might ultimately need to be replaced.

Environmental Petitioners Br. 27-28. But the Commission explained

that (for the reasons stated above) Petitioners had not demonstrated

that contamination or replacement was likely during the licensed life of

the facility. Commission 2020 Order, 91 N.R.C. at 205 (JA0714).

And, indulging Petitioners unsupported assumption that

replacement would be required during the life of the facility, the

Commission explained that [t]he portion of the Continued Storage

GEIS that the Board discusses refers to the expected consequences of

temporary storage in [a] large scale ISFSIa facility like the proposed

facility and found that the expected consequences of replacing concrete

pads, casks, canisters and the [dry transfer system] would be small.

Id. (JA0714). It further found, as is the case now, that Environmental

75 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 90 of 103

Petitioners had failed to provide any basis to challenge this conclusion.

Id. (JA0714).

Environmental Petitioners assert that application of the rule to

the Holtec facility is regrettable (ostensibly because of the amount of

fuel to be stored at the Holtec facility), Environmental Petitioners Br.

27; see also id. at 33 (making the same argument in connection with a

dry transfer system). However, the Commission made clear that

neither it nor the Licensing Board was applying the Continued Storage

Rule to foreclose consideration of impacts of replacing concrete,

canisters, and the like during the licensed term of the facility; the

Commission merely employed the analysis from the Continued Storage

Generic EIS to support its alternative conclusion that, even if

replacement activities were to take place during the period of licensed

operation, Environmental Petitioners had not provided any evidence

sufficient to create a genuine issue of fact concerning the reasonably

foreseeable impacts of facility operations. Commission 2020 Order, 91

N.R.C. at 205 (JA0714).

Finally, inasmuch as Petitioners now assert that the rule should

not be applied to the impacts of the facility after its licensed term, they

76 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 91 of 103

are too late. The time for Environmental Petitioners to have argued

that the generic analysis adopted in the Continued Storage Rule was

inapplicable to this facility was in adjudicatory proceeding before the

agency, pursuant to a request for a waiver under 10 C.F.R. § 2.335(b).

See generally New York v. NRC, 824 F.3d 1012, 1021-22 (D.C. Cir. 2016)

(acknowledging the agencys process for granting of a waiver of generic

analyses adopted as a consequence of Continued Storage Rule and the

Courts jurisdiction to review denials of waiver petitions asserting that

site-specific analysis is warranted). Petitioners did not make such a

request, and they have forfeited such an argument here.

F. The Commission analyzed the impacts of facility construction and operation on a site-specific basis.

Environmental Petitioners also challenge reliance on the

Continued Storage Rule to exclude[] from scrutiny under NEPA the

site-specific impacts of the Holtec facility. Environmental Petitioners

Br. 29. However, neither Holtecs Environmental Report (which was

the subject of Environmental Petitioners contention as originally

raised) nor the Commission, which rejected the contention, excluded

site-specific impacts from their analyses. As the Commission explained,

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Holtecs Environmental Report evaluated the impacts of the

construction and operation of the Holtec facility, including the impacts

of transporting fuel to and from the site, on a site-specific basis, and it

applied the Continued Storage Rule to identify the impacts caused by

the facility after the period of operations of the facility. Commission

2020 Order, 91 N.R.C. at 206-07 (JA0715-16 ); Environmental Report

(Rev. 0) at 1- 1, 1-5, 4-30 to 4-40 , 4-44 to 4-57 (JA0003, 0005, 0007-34 ).

Thus, Environmental Petitioners assertion that the environmental

analysis had not considered, on a site-specific basis, the steps that

would be necessary to safely transport [fuel] to and from the Holtec

[facility] and . . . to maintain safe conditions while the waste is present,

Environmental Petitioners Br. 30, is simply incorrect, and the

Commission did not err in rejecting it.

Environmental Petitioners emphasize the quantity of the spent

fuel to be stored at the Holtec site, as compared to the facility

referenced in the Continued Storage Generic EIS, and the increased

likelihood of some form of radiological hazard because of this increased

quantity. E.g., Environmental Petitioners Br. 33 (The Holtec plan

means more than four times the risks and chances that a flawed

78 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 93 of 103

cargo will be delivered . . . .) (bold and italics in original). But again,

their argument ignores the fact that the risks associated with such

hazards, whether associated with the construction or operation of the

facility or the transportation of spent fuel to or from the facility, were

analyzed as part of the site-specific analysis contained in Holtecs

Environmental Report. Commission 2020 Order, 91 N.R.C. at 207

(JA0716 ). The agency therefore did not err in declining to admit

Environmental Petitioners contention.

Finally, Environmental Petitioners suggest that the Commission

erred by rejecting the portion of their contention that objected to the

lack of a dry transfer system in Holtecs application. Environmental

Petitioners Br. 34 (suggesting that Hol tec is balking at installing even

a single such system). But their arguments fare no better here than

when this Court rejected similar ones in Dont Waste Michigan.

In that case, Environmental Petitioners argued that the

applicants plan to not have a dry transfer system or other

technological means dealing with damaged, leaking or externally

contaminated canisters or damaged fuel in the canisters contradicts the

expectations of the Continued Storage Generic EIS. Brief of

79 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 94 of 103

Environmental Petitioners at 22, Dont Waste Michigan v. NRC, No. 21-

1048, Document #1958831 (D.C. Cir. Aug. 10, 2022). The Court rejected

this argument (along with all of Environmental Petitioners NEPA-

based arguments), 2023 WL 395030, at *3, much as it did in New York

v. NRC, when it endorsed the NRCs assumption in the Continued

Storage Generic EIS that the licensee of an offsite storage facility would

be able to employ such a system and that it need not be part of the

original license application. 824 F.3d at 1023 (D.C. Cir. 2016); see also

Continued Storage Generic EIS at 5-2 (assuming that dry transfer

system would be built sometime after the original construction

because it would not be needed immediately).

And, in any event, the Commission reasonably explained here that

a separate licensing action and environmental review would be required

if construction of a dry transfer system ultimately becomes necessary.

Commission 2020 Order, 91 N.R.C. at 207 (JA0716). This conclusion

comports with Dont Waste Michigan and New York and does not reflect

a clear error of judgment by the Commission in determining how to

fulfill its NEPA obligations. See Blue Ridge, 716 F.3d at 195.

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G. Environmental Petitioners demonstrate no error with respect to the evaluation of the disposition of contaminated canisters.

Environmental Petitioners assert that the Commission erred in

denying admission of their contention asserting that Holtecs Start

Clean/Stay Clean philosophypursuant to which contaminated,

leaking, or otherwise compromised fuel storage canisters would be sent

back to the power plant at which they were loadedpresented a danger

to the public, to workers, and to the environment. Environmental

Petitioners Br. 35- 39.

The Commission denied admission of this contention, adopting the

reasoning of a prior decision (Private Fuel Storage, L.L.C., CLI-04 -22,

60 N.R.C. 125 (2004)), in which it had held that such a policy did not

provide a basis to question the analysis underlying the quality

assurance program incorporated into the certification for the

transportation casks, which served to prevent exposure even in the

event of a defective canister and had been the subject of notice-and -

comment rulemaking. Commission 2020 Order, 91 N.R.C. at 207-08

(JA0716-17 ) (noting that the Environmental Petitioners had failed to

proffer factual or expert testimony supporting a credible scenario in

81 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 96 of 103

which spent fuel would leave a reactor in a damaged form, how it could

be damaged in an accident, and how the sequestration sleeve

incorporated into the facility design would be insufficient to guard

against exposure). Environmental Petitioners provide no basis to

question this judgment.

Nor are Environmental Petitioners saved by their assertions that

the agencys environmental analysis was required to identify the

impacts of transportation back to reactor sites under 10 C.F.R.

§ 71.47(b), which permits transportation of a damaged canister with

exposures exceeding the limits in § 71.47(a) if certain additional

conditions are met. Environmental Petitioners Br. 36. Environmental

Petitioners failed to advance a credible and adequately supported

challenge to the determination that these conditions would, in the

technical judgment of the NRC, provide reasonable assurance that the

hazards about which they complain will not be experienced. See Private

Fuel Storage, L.L.C., 60 N.R.C. at 138-39 & n.53 (recognizing the NRCs

longstanding generic determination that the use of licensed

transportation casks is sufficient to prevent the leakage of any

radioactive materials from a damaged canister and declining to admit

82 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 97 of 103

contention based on impacts of hazards that intervenor speculated

might be experienced on return trip to spent fuel generator); New York,

824 F.3d at 1021 (agency is entitled to presume compliance with

regulatory obligations in assessing environmental impacts).

Finally, Environmental Petitioners are simply incorrect when they

again assert (Br. 37-39) that the Continued Storage Rule did not

contemplate a facility without a dry transfer system. As noted in

Section III.F supra, the agencys analysis, affirmed by this Court in New

York v. NRC, did contemplate such a system and expressly noted that

such a system was not immediately necessary and would be

constructed, if needed, at a later date. And this Court rejected the same

arguments when Environmental Petitioners raised them in Dont Waste

Michigan, 2023 WL 395030, at *3.

H. The Commission reasonably and properly disclosed transportation routes.

Environmental Petitioners lastly assert that Holtec inadequately

disclosed possible transportation routes for spent fuel shipments to the

facility and that the Commissions ruling affirming the Licensing

Boards rejection of this argument was legally unsatisfactory.

Environmental Petitioners Br. 43. But Environmental Petitioners

83 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 98 of 103

merely repeat the arguments they made before the Licensing Board and

the Commission, and to this Court in Dont Waste Michigan

arguments that both agency bodies and this Court have rejected. They

fail to explain how the Commissions decision to uphold the Licensing

Boards rejection of their arguments was unreasonable.

First, Environmental Petitioners assert that Holtec inadequately

disclosed transportation routes in the Environmental Report by

depicting three representative routes rather than detailed disclosures

of the likely rail routes, Environmental Petitioners Br. 45, suggesting

that Holtec needed to analyze all anticipated rail routes from all

commercial nuclear power reactors, id. at 40. But the Commission, in

upholding the Licensing Board, determined that using representative

routes in the Environmental Report to evaluate potential

environmental impacts was a well -established regulatory approach

given the uncertainty of actual, future transportation routes to the

facility, and in any case was an issue outside the scope of the licensing

proceeding because the actual transportation routes must be approved

in a separate future process. Commission 2020 Order, 91 N.R.C. at 209

(JA0718).

84 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 99 of 103

Environmental Petitioners fail to explain how that conclusion

constitutes reversible error. In fact, they decline at all to challenge the

validity of the representative-route approach as a means of

environmental analysis in uncertain circumstances, arguing merely

that the uncertainty of the eventual routes is being exaggerated.

Environmental Petitioners Br. 43. This claim, however, fails to support

a conclusion that a representative- route approach is insufficient for

NEPA purposes: Environmental Petitioners point to nothing in the text

of either NEPA or the NRCs regulations that requires an assessment of

every possible transportation route from every commercial nuclear

power plant. And that is because no such requirement exists.

Moreover, as both the Commission and the Licensing Board explained,

the NRC reviews and approves spent nuclear fuel transportation routes

as part of a separate process with the U.S. Department of

Transportation and other parties, including appropriate State and

Tribal officials. Commission 2020 Order, 91 N.R.C. at 209 (JA0718);

Licensing Board 2019 Order, 89 N.R.C. at 446 (JA0529).

This Court previously rejected a similar argument concerning

transportation routes raised by the same Environmental Petitioners

85 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 100 of 103

among other NEPA contentions the Court dismissed in Dont Waste

Michigan, 2023 WL 395030, at *3. Environmental Petitioners attempts

to revive an argument rejected by the Commission and the Licensing

Boardand by this Court in Dont Waste Michigan fail again for the

same reasons.

Second, Environmental Petitioners assert that Holtecs analysis of

the three representative routes amounted to segmentation of the

projects environmental analysis in violation of NEPA. Environmental

Petitioners Br. 43- 44. The Commission declined to consider the

argument because Environmental Petitioners had failed to raise it

before the Licensing Board. See Commission 2020 Order, 91 N.R.C. at

209 n.262 (JA0718) (citing prior Commission authority and noting that

the argument failed to account for the evaluation of transportation

impacts in Holtecs Environmental Report, a conclusion Environmental

Petitioners do not contest here).

Because Environmental Petitioners forfeited their segmentation

argument by failing to assert it first before the Licensing Board, this

Court should likewise decline to consider it. See Vermont Dept of Pub.

Serv., 684 F.3d at 157. And even if the Court were to consider the

86 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 101 of 103

argument on the merits, it should reject it, just as it did a virtually

identical argument in Dont Waste Michigan, where, as noted above, the

Court dismissed many similar NEPA-related contentions. Dont Waste

Michigan, 2023 WL 395030, at *3; see Brief of Environmental

Petitioners at 9, Dont Waste Michigan v. NRC, No. 21-1048, Document

1. 1958831 (Separating transportation analysis from storage creates

segmentation.); id. at 33 (By effectively segmenting or excluding

identification and analysis of transportation matters from the EIS, the

NRC Staff is predetermining the outcome of the NEPA stage of ISPs

application.).

In short, the Commission reasonably determined that

Environmental Petitioners contentions were inadmissible, primarily

because they were based upon a misunderstanding of the license

application, did not provide a factual basis to contest the conclusions in

the Environmental Report, or were procedurally improper challenges to

rules that the agency adopted through notice-and -comment rulemaking

and that have survived judicial review. And Environmental Petitioners

present no basis to question the agencys considered judgment, rooted in

87 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 102 of 103

technical expertise and upheld by this Court in Dont Waste Michigan,

in determining how best to perform an environmental review.

CONCLUSION

For all these reasons, the Court should deny the Petitions for

Review.

Respectfully submitted,

/s/ Justin D. Heminger /s/ Andrew P. Averbach TODD KIM BROOKE P. CLARK Assistant Attorney General General Counsel

JUSTIN D. HEMINGER ANDREW P. AVERBACH Senior Litigation Counsel Solicitor Environment and Natural Office of the General Counsel Resources Division U.S. Nuclear Regulatory Commission January 23, 2024 DJ 90-13-3-16054

88 USCA Case #20-1187 Document #2036958 Filed: 01/23/2024 Page 103 of 103

CERTIFICATE OF COMPLIANCE

1. This document complies with the Courts order of August 10,

2023, because, excluding the parts of the document exempted by

Federal Rule of Appellate Procedure 32(f), it contains 16,474 words.

2. This document complies with the typeface requirements of

Federal Rule of Appellate Procedure 32(a)(5) and the type-style

requirements of Federal Rule of Appellate Procedure 32(a)(6) because

this document has been prepared in a proportionally spaced typeface

using Microsoft Word 2016 in 14-point Century Schoolbook font.

/s/ Andrew P. Averbach ANDREW P. AVERBACH

Counsel for Respondent U.S. Nuclear Regulatory Commission