ML23338A007

Initial Brief of Intervenor Holtec International

ML23338A007
Person / Time
Issue date:	12/01/2023
From:	Leidich A Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OGC
References
USCA Case #20-1187 Document #2029575
Download: ML23338A007 (1)

Text

USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 1 of 62

ORAL ARGUMENT NOT YET SCHEDULED No. 20-1187 (Consolidated with Nos. 21-1225, 21-1104, and 21-1147)

In the United States Court of Appeals For the District of Columbia Circuit

BEYOND NUCLEAR, INC., ET AL.

Petitioners

V.

U.S. NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA, Respondents

HOLTEC INTERNATIONAL,

Intervenor for Respondents

On Petition for Review of Action by the U.S. Nuclear Regulatory Commission

INITIAL BRIEF OF INTERVENOR HOLTEC INTERNATIONAL

JAY E. SILBERG ANNE LEIDICH PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 (202) 663-8000 jay.silberg@pillsburylaw.com anne.leidich@pillsburylaw.com

Counsel for Holtec International

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES In accordance with D.C. Circuit Rule 28(a)(1), the undersigned

counsel certifies the following:

(A) Parties and Amici

Except for amicus curiae Nuclear Energy Institute, Inc. ( NEI ), all

parties, intervenors, and amici appearing in this Court are listed in the

Brief for Federal Respondents.

(B) Rulings Under Review

References to the rulings at issue appear in the Brief for Federal

Respondents.

(C) Related Cases

A list of related cases appears in the Brief for Federal Respondents.

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1(a) and D.C.

Circuit Rule 26.1, Holtec International (Holtec) submits the following

corporate disclosure statement. Holtec is a corporation organized and

existing under the laws of the State of New Jersey with its headquarters

in the State of Florida. Holtec has received a U.S. Nuclear Regulatory

Commission license to construct and operate an away-from -reactor spent

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fuel storage site in Lea County, New Mexico. Holtec is not a publicly held

company, and no other publicly held company has a 10 percent or more

equity interest in Holtec.

s/ Anne Leidich Anne Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 (202) 663-8707 anne.leidich@pillsburylaw.com

Counsel for Holtec International

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TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES.............................................................................................. ii

CORPORATE DISCLOSURE STATEMENT........................................... ii

TABLE OF AUTHORITIES.................................................................... vii

GLOSSARY OF ABBREVIATIONS........................................................ xi

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

STATEMENT OF JURISDICTION.......................................................... 3 STATEMENT OF THE ISSUES............................................................... 4

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

STATEMENT OF THE CASE.................................................................. 4

I. Statutory and Regulatory Background............................................ 4

II. Commission Adjudicatory Proceeding on Holtecs Application....... 6 III. NRC Staff Review of Holtecs Application....................................... 9

SUMMARY

OF ARGUMENT................................................................. 10

STANDARD OF REVIEW....................................................................... 11

ARGUMENT........................................................................................... 12

I. Beyond Nuclears Claims Should Be Rejected............................... 12

II. The Commissions Rejection of Environmental Petitioners Claims Was Neither Arbitrary Nor Capricious............................. 13

A. The AEA Allows the NRC to License the Proposed Facility, and the NWPA Does Not Revoke that Authority............................................................................... 14

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TABLE OF CONTENTS (continued)

Page

B. The Commission Properly Rejected Environmental Petitioners False Statements Claims.................................. 21 C. The Commission Properly Rejected Sierra Clubs Geologic Impacts Claims....................................................... 23

1. The Commission Properly Rejected Sierra Clubs Contention 11............................................................... 23

2. The Commission Properly Rejected Sierra Clubs Contention 15............................................................... 25

3. The Commission Properly Rejected Sierra Clubs Contention 16............................................................... 27

4. The Commission Properly Rejected Sierra Clubs Contention 17............................................................... 28

5. The Commission Reasonably Rejected Sierra Clubs Contention 19.................................................... 29

D. The Commission Properly Rejected DWMs Volume of Low-Level Radioactive Waste Claims.................................. 29

E. The Commission Properly Rejected DWMs Continued Storage GEIS Claims............................................................ 31 F. The Commission Properly Rejected DWMs Start Clean/Stay Clean Claims...................................................... 34

G. The Commission Properly Rejected DWMs Transportation Claims.......................................................... 35

III. The Commissions Rejection of Faskens Claims Was Not Arbitrary and Capricious............................................................... 37

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TABLE OF CONTENTS (continued)

Page

A. The Commission Properly Found that Faskens Contentions 2 and 3 Were Procedurally Deficient and Inadequate Under NRC Requirements................................ 37

B. Fasken Does Not Challenge the Commission Decision on Appeal............................................................................... 43

C. Fasken Improperly Raises New Arguments on Appeal....... 48

CONCLUSION........................................................................................ 49 CERTIFICATE OF COMPLIANCE........................................................ 50

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TABLE OF AUTHORITIES

Page(s)

Cases Beyond Nuclear v. N.R.C.,

704 F.3d 12 (1st Cir. 2013)................................................................... 2

Blue Ridge Envtl Def. League v. N.R.C.,

716 F. 3d 183 (D.C. Cir. 2013).............................................. 3, 6, 11, 12

Branch v. Smith, 538 U.S. 254 (2003)............................................................................. 20 Bullcreek v. N.R.C.,

359 F. 3d 536 (D.C. Cir. 2004)................................................ 4, 5, 6, 14

Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983)................................................................................. 5

Texas v. N.R.C.,

78 F.4th 827 (5th Cir. 2023)............................................... 4, 14, 15, 16 Nat. Res. Def. Council v. Morton,

458 F.2d 827 (D.C. Cir. 1972)............................................................... 5

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989)............................................................................... 5

Scientists Inst. for Pub. Info., Inc. v. A.E.C.,

481 F.2d 1079 (D.C. Cir. 1973)............................................................. 5

Sims v. Apfel, 530 U.S. 103 (2000)....................................................................... 45, 49

Train v. Colo. Pub. Int. Rsch. Grp.,

426 U.S. 1 (1976)................................................................................... 5

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519 (1978)............................................................................... 4

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TABLE OF AUTHORITIES (continued)

Page

Administrative Proceedings

CLI-20 -4, 91 N.R.C. 167

.................................. 8, 13, 21, 22, 23, 24, 30, 31, 32, 33, 34, 35, 36, 37 CLI-21 -4, 93 N.R.C. 119.........................................9, 13, 25, 26, 27, 28, 29

CLI-21 -7, 93 N.R.C. 215............................... 8, 9, 39, 40, 44, 45, 46, 47, 48

LBP-19 -4, 89 N.R.C. 353........................................................... 7, 8, 13, 37

LBP-20 -10, 92 N.R.C. 235................................................................... 8, 39

LBP-20 -6, 91 N.R.C. 239............................................. 8, 13, 25, 28, 38, 44 Statutes and Codes

United States Code Title 5 Section 706(2)(A)................................................................. 3, 11 Title 42 Section 2014(e)(1)............................................................ 16, 17 Title 42 Section 2014(e)(3)-(4)...................................................... 16, 17 Title 42 Section 2073.......................................................................... 15 Title 42 Section 2073(a)(1)-(3)...................................................... 15, 16 Title 42 Section 2073(a)(4).................................................................. 15 Title 42 Section 2239(a)........................................................................ 6 Title 42 Section 10155(b)(l)(B)............................................................ 20 Title 42 Section 10155(h)........................................................ 17, 19, 20

Administrative Procedure Act 5 U.S.C. §§ 551-559............................................................... 3, 4, 11, 12

Atomic Energy Act of 1954 Section 11(e)(3)-(4).............................................................................. 16 Section 53............................................................................................ 15 Section 53(a)(1)-(4)........................................................................ 15, 16 Section 189(a)........................................................................................ 6

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TABLE OF AUTHORITIES (continued)

Page

National Environmental Policy Act 42 U.S.C. § 4321 et seq................................................. 5, 32, 35, 37, 48

Nuclear Waste Policy Act 42 U.S.C. § 10101 et seq....................................6, 14, 15, 17, 18, 19, 20

Rules and Regulations

Code of Federal Regulations Title 10 Part 72............................................................................... 1, 18 Title 10 Section 2.309....................................................................... 2, 7 Title 10 Section 2.309(c)....................................................................... 7 Title 10 Section 2.309(f)(1)........................................................... 13, 40 Title 10 Section 2.309(f)(vi)................................................................ 45 Title 10 Section 2.326..................................................................... 2, 38 Title 10 Section 2.326(a)....................................................................... 8 Title 10 Section 51.23......................................................................... 32 Federal Register

Holtec International HI-STORE Consolidated Interim Storage Facility Project 85 Fed. Reg. 16,150 (Mar. 20, 2020)..................................................... 9 85 Fed. Reg. 37,965 (Jul. 22, 2020)...................................................... 9 87 Fed. Reg. 43,905 (Jul. 22, 2022)...................................................... 9 Storage Facility for Interim Storage of Spent Nuclear Fuel 83 Fed. Reg. 32,919 (July 16, 2018)...................................................... 7

Other Authorities

97 Cong. Rec. 28,033 (1982).................................................................... 19

128 Cong. Rec. 32,560 (1982)............................................................ 19, 20

128 Cong. Rec. 32,945 (1982).................................................................. 18

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TABLE OF AUTHORITIES (continued)

Page

128 Cong. Rec. 32,946 (1982).................................................................. 19

Radioactive Waste Legislation: Hearings on H.R. 1993, H.R. 2800, H.R.

2840, H.R. 2881, and H.R. 3809 Before the Subcomm. On Energy and the Environment of the House Comm. On Interior and Insular Affairs, 97th Cong. 326 (1981)............................................................ 18

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GLOSSARY OF ABBREVIATIONS

AEA Atomic Energy Act

AFR Away-From -Reactor

APA Administrative Procedure Act

DEIS Draft Environmental Impact Statement

DOE U.S. Department of Energy

DTS Dry Transfer System

DWM Dont Waste Michigan

FEIS Final Environmental Impact Statement

GEIS Generic Environmental Impact Statement

NEI Nuclear Energy Institute

NEPA National Environmental Policy Act

NRC U.S. Nuclear Regulatory Commission

NWPA Nuclear Waste Policy Act

SAR Safety Analysis Report

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INTRODUCTION

This proceeding involves the issuance of a spent nuclear fuel

storage license (the License) by the U.S. Nuclear Regulatory

Commission (NRC or Commission) under the Atomic Energy Act of

1954, as amended (AEA), and NRC regulations at 10 C.F.R. Part 7 2.

The License authorizes a private company, Holtec International

(Holtec), to temporarily store spent fuel for up to forty years at a site in

southeastern New Mexico.

The AEA establishes the use of an adjudicatory hearing process in

which any member of the public may challenge Commission licensing

actions once they establish judicial standing and present an adequate

challenge to the application for the Commission license. The Petitioners 1

proposed numerous challenges (i.e., contentions) to Holtecs License

Application under this process.

1 Petitioners are (1) Beyond Nuclear; (2) Dont Waste Michigan (DWM) (which also includes Citizens Environmental Coalition; Citizens for Alternatives to Chemical Contamination; Nuclear Energy Information Service; Public Citizen, Inc.; San Luis Obispo Mothers for Peace; Sustainable Energy and Economic Development Coalition; and Leona Morgan); and Sierra Club (together with DWM, the Environmental Petitioners); and (3) Fasken Land and Minerals, Ltd.,

and Permian Basin Land and Royalty Owners (together Fas ken).

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The contentions were initially considered by the NRCs Atomic

Safety and Licensing Board (Board), an independent tribunal of three

administrative law judges. The Board found that all the Petitioners had

judicial standing, except for DWM, who has since joined with Sierra Club

to pursue its appeal. The Board also considered all but one of the

contentions brought in this case, and, after many rounds of briefing and

several oral arguments, ultimately rejected all of the proposed

contentions for failing to meet the Commissions well-established

contention admissibility standards in 10 C.F.R. § 2.309 and its

procedural requirements in 10 C.F.R. § 2.326. Petitioners appealed the

Board decisions, and the Commission affirmed those decisions in three

orders: CLI-20 -4 (Apr. 23, 2020), CLI -21 -4 (Feb. 1, 2021), and CLI -21 -7

(Apr. 28, 2021). The Commission also considered and rejected the one

contention not yet dealt with by the Board, Fasken Contention 3. In its

decisions, the Commission reviewed the Boards detailed justification for

rejecting the contentions and ultimately affirmed the Board decisions

under its established policy of deferring to the Board unless an appeal

points to an error of law or abuse of discreti on. Beyond Nuclear v.

N.R.C., 704 F.3d 12, 18 (1st Cir. 2013). These Commission decisions,

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CLI-20 -4, CLI -21 -4, and CLI-21 -7, are what Petitioners must appeal

under the Hobbs Act.

Petitioners pay lip service to these orders, often referring to them

summarily without addressing the reasoning behind the Commission

decisions. This is not enough. Under the Administrative Procedure Act

(APA), this court can only reverse the Commission decisions if they are

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

accordance with law, 5 U.S.C. § 706(2)(A); see also Blue Ridge Envtl Def.

League v. N.R.C., 716 F. 3d 183, 195 (D.C. Cir. 2013), and this Court

defers to decisions rejecting contentions as long as the Commission

reasonably applies its contention admissibility rules. Blue Ridge, 716

F. 3d at 196.

Petitioners failure to challenge the reasoning behind the

Commission decisions does not meet these high standards on review. For

t his reason, the Petitions for Review should be denied.

STATEMENT OF JURISDICTION

Holtec does not dispute that this Court has subject matter

jurisdiction to consider these Petitions. Holtec also does not dispute the

Petitioners standing.

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STATEMENT OF THE ISSUES

1. Whether Petitioners have established an APA violation with

regard to the Commissions final orders, when Petitioners

misrepresent or disregard the rationale behind the

Commissions findings in those orders.

2. Whether the Court should follow the demonstrably erroneous

Fifth Circuit panel decision in Texas, Texas v. N.R.C., 78

F.4th 827 (5th Cir. 2023), and ignore its own controlling

precedent in Bullcreek v. N.R.C., 359 F. 3d 536 (D.C. Cir.

2004).

STATUTES AND REGULATIONS

All applicable statutes and regulations are provided in the

addenda provided by the Petitioners and Federal Respondents.

STATEMENT OF THE CASE

I. Statutory and Regulatory Background

The primary statute governing NRC authority in this matter is the

AEA, in which the [NRC] was given broad regulatory authority over the

development of nuclear energy, Vt. Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council, Inc., 435 U.S. 519, 525-26 (1978), and the production,

possession, and use of three types of radioactive materials source

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material, special nuclear material, and byproduct material. Train v.

Colo. Pub. Int. Rsch. Grp., 426 U.S. 1, 5 (1976). This statute also confers

on the NRC authority to license and regulate the storage and disposal of

[spent nuclear] fuel. Bullcreek, 359 F. 3d at 538.

Second is the National Environmental Policy Act (NEPA), which

requires the NRC to consider environmental impacts, unavoidable

adverse environmental effects, and reasonable alternatives to major

Federal actions significantly affecting the quality of the human

environment. See Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 351 (1989). NEPA does not require [a] crystal ball inquiry. Nat.

Res. Def. Council v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972) (internal

quotations omitted). Nor does it call for certainty or precision. When

faced with uncertainty, NEPA requires [r]easonable forecasting.

Scientists Inst. for Pub. Info., Inc. v. A.E.C., 481 F.2d 1079, 1092 (D.C.

Cir. 1973). An agency is obligated to examine the relevant data and

articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choices made. Motor Vehicle

Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983) (internal quotations omitted).

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While Beyond Nuclear and Environmental Petitioners also assert

that a third statute the Nuclear Waste Policy Act (NWPA) has

relevance here, Holtec disagrees. The NWPA establishes the Federal

Governments responsibility for disposing of spent fuel and authorizes

temporary storage of spent fuel by the Federal Government. It does not

govern storage of privately -owned spent fuel. See Bullcreek, 359 F. 3d at

543.

These statutes, corresponding NRC regulations, and their

respective relationships to this proceeding are further described in

Federal Respondents Brief at 4-8.

II. Commission Adjudicatory Proceeding on Holtecs Application

The NRCs adjudicatory process is the method by which interested

parties have an opportunity to participate in a contested hearing on a

proposed license, subject to the NRCs procedural requirements. See AEA

§ 189(a), 42 U.S.C. § 2239(a). Blue Ridge, 716 F.3d at 187 (D.C. 2013).

For the Holtec License, this process started on July 16, 2018, when the

NRC published a notice in the Federal Register providing the public an

opportunity to participate in the Holtec licensing proceeding by (1)

requesting a form al evidentiary hearing to challenge the Application and

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(2) petitioning for leave to intervene in that proceeding. See Holtec

Internationals HI-STORE Consolidated Interim Storage Facility for

Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16,

2018).

In September 2018, Petitioners Beyond Nuclear and Fasken filed

motions to dismiss Holtecs Application, while other Petitioners

submitted hearing requests and petitions to intervene in the adjudicatory

proceeding, seeking to challenge Holtecs license application. LBP-19 -4,

89 N.R.C. 353, 361 (JA___).

In October 2018, the Secretary of the Commission referred the

petitions to intervene to the Board for consideration under the NRCs

regulations governing petitions to intervene and contention admissibility

in 10 C.F.R. § 2.309, along with Beyond Nuclear and Faskens motions to

dismiss the Application. Id. at 362 (JA___). A three-judge Board was

then established to adjudicate these filings.

The NRCs regulations also permit the late filing of new or amended

contentions after the initial intervention deadline provided that they are

based on materially different information that was not previously

available, 10 C.F.R. § 2.309(c), and parties may seek to reopen the

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hearing record subject to additional requirements. 10 C.F.R. § 2.326(a).

Of particular relevance here, Fasken proposed additional late-filed

contentions that would have required reopening the record. See CLI-21 -

7, 93 N.R.C.215, 219-20 (JA___ -___).

Following several rounds of briefing between 2018 and 2020, and

two oral arguments, the Board ultimately issued orders denying or

dismissing all challenges filed by the Petitioners and terminating the

adjudicatory proceeding. See, e.g., LBP-19 -4, 89 N.R.C. 353 (JA___);

LBP-20 -6, 91 N.R.C. 239 (JA___); LBP -20 -10, 92 N.R.C. 235 (JA___).

Petitioners appealed certain aspects of the Boards orders to the

Commission. On April 23, 2020, the Commission affirmed the Boards

orders, except for Sierra Clubs Contentions 15, 16, 17, and 19 which were

remanded to the Board for additional considerat ion. CLI-20 -4, 91 N.R.C.

167, 191 (JA__, JA___). The Board considered those contentions and

rejected them in LBP -20 -6, 91 N.R.C. 239, 241 (JA__, JA___). The Board

also rejected late-filed contentions from Fasken in LBP -20 -10, 92 N.R.C.

235, 237 (JA___, JA___). The Commission subsequently affirmed these

Board orders because Sierra Club and Fasken failed to demonstrate any

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error of law or abuse of discretion by the Board. CLI-21 -4, 93 N.R.C. 119,

120 (JA___, JA___); CLI-21 -7, 93 N.R.C. 215, 217 (JA___, JA___).

III. NRC Staff Review of Holtecs Application

In parallel with the adjudicatory process, the NRC Staff performed

its safety and environmental reviews of Holtecs application.

On March 20, 2020, the NRC Staff issued a Draft Environmental

Impact Statement (DEIS) and requested public comment. Holtec

International HI-STORE Consolidated Interim Storage Facility Project.

85 Fed. Reg. 16,150 (Mar. 20, 2020). The DEIS comment period was

extended until September 22, 2020, resulting in a 180-day comment

period. Holtec International HI -STORE Consolidated Interim Storage

Facility Project, 85 Fed. Reg. 37,965 (Jul. 22, 2020). The NRC Staff

accepted all public comments (approximately 4,800) and published its

responses in the Final Environmental Impact Statement (FEIS), made

available to the public on July 13, 2022. Holtec International HI -STORE

Consolidated Interim Storage Facility Project, 87 Fed. Reg. 43,905 (Jul.

22, 2022).

On May 9, 2023, the NRC published its Final Safety Evaluation

Report, documenting the agencys technical, scientific, and engineering

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analyses on public health and safety issues, and its conclusion that the

proposed facility satisfied all regulatory requirements and adequately

protected public health and safety. The NRC Staff then issued Materials

License No. SNM-2516 to Holtec.

SUMMARY

OF ARGUMENT Petitioners fail to demonstrate any arbitrary or capricious action by

the Commission, largely because Petitioners on appeal fail to directly

challenge the reasoning in the Commissions decisions. In each of its

decisions, the Commission set forth detailed reasons for affirming the

underlying Board decisions and finding each contention inadmissible.

Yet, these detailed reasons are disregarded and Petitioners instead

repeat their prior claims and misrepresent the Commissions decisions

on appeal. By not challenging the agencys decisions, Petitioners fail to

demonstrate that they are arbitrary or capricious.

Even if Petitioners had addressed the Commission decisions, they

would not have been able to establish any arbitrary or capricious agency

action, because there was none. The Commission followed its contention

admissibility standards and adjudicatory rules and correctly found that

all of the Petitioners contentions were inadmissible, untimely, or

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procedurally inadequate. These decisions were neither arbitrary nor

capricious.

For these and all of the other reasons explained below, Petitioners

have no valid complaint under the APA.

STANDARD OF REVIEW This Court reviews NRC decisions under the APA, and will affirm

decisions that are not otherwise arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A);

see also Blue Ridge, 716 F. 3d at 195. On environmental issues, the Court

must find that [Commission] committed a clear error of judgment, B lu e

Ridge, 716 F. 3d at 195, and on technical issues the Court is obligated to

defer to the wisdom of the agency, provided its decision is reasoned and

rational. Id. (internal quotations omitted).

On the Commissions interpretations of its own rules, including

contention admissibility and the reopening standards, the burden is even

higher: the court give[s] controlling weight to the agencys

constructions unless plainly erroneous or inconsisten t with the

regulation. Id. (internal quotations and citation omitted), Because this

Court has held that the NRCs contention admissibility rules do not

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facially violate the [AEA] or the APA and are consistent with NEPA,

the Court should defer to the Commissions decision rejecting contentions

as long as the NRC reasonably applied those rules. Id. at 196. This Court

has also previously endorsed the Commissions high standards for

reopening closed hearings and the stringency of those criteria. Id. at

195-96. (internal quotations omitted).

ARGUMENT I. Beyond Nuclears Claims Should Be Rejected

With respect to Beyond Nuclears claims, Holtec agrees with the

responses set forth by Federal Respondents and Amicus Curiae Nuclear

Energy Institute (NEI). Fed-Br. at 41-48; NEI -Br. at 22-24. Even if the

U.S. Department of Energy (DOE) cannot currently take ownership of

fuel stored at Holtecs facility, Holtec can (and will) store spent fuel

owned by private parties. This is indisputably a legally authorized

pathway for Holtec to use the license. Moreover, there is no bar against

Holtec contemplating a future where DOE is permitted to store spent fuel

at the facility.

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II. The Commissions Rejection of Environmental Petitioners Claims Was Neither Arbitrary Nor Capricious Environmental Petitioners submitted multiple contentions in their

hearing requests and petitions to intervene. In its lengthy decision, the

Board rejected these contentions as inadmissible for failing to satisfy one

or more of the admissibility criteria in 10 C.F.R. § 2.309(f)(1). LBP-19 -4,

89 N.R.C. at 358 (JA__). Environmental Petitioners appealed part of this

decision to the Commission. While the Commission substantially

affirmed most of the Boards rulings, it reversed in part and remanded

for further consideration four contentions (Sierra Club Contentions 15,

16, 17, and 19), and remanded two late-filed contentions to the Board for

initial consideration. CLI-20 -4, 91 N.R.C. at 171, 191 (JA__, JA___).

After further consideration, the Board determined that these

remanded contentions were not admissible. LBP-20 -6, 91 N.R.C. at 241

(JA__). Sierra Club appealed this decision, and the Commission affirmed

the Boards decision, finding that Sierra Club failed to point to any error

of law or abuse of discretion by the Board. CLI-21 -4, 93 N.R.C. at 119

(JA__).

According to the Environmental Petitioners Certificate as to

Parties, Rulings, and Related Cases, they are seeking review of

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Commission order CLI -20 -4 (but not CLI -21 -4). Envtl -Br. at 5. However,

to properly challenge the Commission decisions on the remanded

contentions, Environmental Petitioners must also challenge the

Commissions ultimate decision on those contentions in CLI-21 -4. Yet,

Environmental Petitioners hardly mention CLI-21 -4. With regards to its

other contentions, Environmental Petitioners also repeatedly

mischaracterize and ignore much of the Commissions rationale in CLI-

20-4. As a result, Environmental Petit ioners neither demonstrate that

Commission decision was arbitrary or capricious, nor that the

Commission erred in applying its adjudicatory procedures or rules.

A. The AEA Allows the NRC to License the Proposed Facility, and the NWPA Does Not Revoke that Authority.

Environmental Petitioners claim that this Court should follow the

Fifth Circuit panel decision in Texas v. N.R.C., 78 F.4th 827 (5th Cir.

2023), and find that the AEA does not authorize the NRC to license spent

fuel storage and that the NWPA prohibits licensing of private away-from -

reactor (AFR) storage facilities. The Court should reject this claim for

the two reasons already set forth by Government Respondents: (1) this

Court has already rejected this argument in Bullcreek, 359 F.3d at 538-

14 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 26 of 62

43, after performing a detailed analysis of the AEA and NWPA; and (2)

Environmental Petitioners never appealed this issue to the Commission.

Fed-Br. 64-69. See also NEI-Br. 16-21.

The Court, however, should also reject this claim for a third reason:

the panel decision in Texas misreads and misunderstands key provisions

of the AEA to reach a demonstrably erroneous conclusion that the AEA

does not provide the NRC with authority over spent fuel.

First, the panel narrows the NRCs exclusive authority over special

nuclear material by claiming that the AEA § 53, 42 U.S.C. § 2073, does

not confer a broad grant of authority to issue licenses for any type of

possession of special nuclear material. Texas, 78 F.4th at 841. On the

contrary, the AEA does exactly that. In AEA § 53(a)(4), 42 U.S.C. §

2073(a)(4), Congress clearly provided a broad grant of authority for the

NRC to issue licenses for the possession of special nuclear material for

such other uses as the Commission determines to be appropriate. The

panel treats this provision as statutory surplusage limited by the

preceding clauses (AEA § 53(a)(1) -(4), 42 U.S.C. § 2073(a)(1) -(3)). Texas,

78 F.4th at 841. But Congress added subsection (a)(4) in 1958 specifically

to authorize the Commission to issue licenses for the possession of

15 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 27 of 62

special nuclear material within the United States for uses which do not

fall expressly within the present provisions of subsection 53a [42 U.S.C.

§ 2073(a)(1)-(3)], including licenses for incipient new [i]ndustrial uses.

Joint Committee on Atomic Energy, Amending the AEA of 1954, as

Amended, S. Rep. No. 85-1944, at 1 (2d Sess. 1958).

Second, the Texas panel narrows the NRCs authority over

byproduct material by turning the definition of byproduct material on its

head. The panel posits that the definition of byproduct material should

be interpreted in light of the example byproduct material in AEA §

11(e)(3)-(4), 42 U.S.C. § 2014(e)(3) -(4), radium -226, and, thus, would limit

the Commission in the types of byproduct materials covered under the

AEA to those like radium-226 that emit radiation for significantly less

time than spent nuclea r fuel. Texas, 78 F.4th at 841. This ignores the

plain text of the AEA which has always, since 1954, defined byproduct

material as any radioactive material (except special nuclear material)

yielded in or made radioactive by exposure to the radiation incident to

the process of producing or utilizing special nuclear material, Pub. L.

No.83-703, 68 Stat. 919, 923 (Aug. 30, 1954) (defining byproduct material

in the same terms as currently used in 42 U.S.C. § 2014(e)(1)). Once

16 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 28 of 62

again, the Texas panel would read a significant provision of the AEA into

statutory surplusage.

The panel also ignores the purpose of including radium-226 in the

AEA: to define the bounds of the NRCs authority over naturally

occurring radioactive material. 42 U.S.C. § 2014(e)(4). Indeed, the

provisions regarding radium-226 were added to that AEA in 2005 to close

a gap in the NRCs authority over such materials, Pub. L. No. 109-58, 119

Stat. 594, 806, 807 (Aug. 8, 2005), not to modify the NRCs longstanding

authority over materials made radioactive in a nuclear power reactor. 42

U.S.C. § 2014(e)(1).

The panel in Texas also erroneously found that the NWPA would

take away any NRCs authority over AFR spent fuel storage. On the

contrary, while the AEA gives the Commission authority to license AFR

spent fuel storage, the NWPA never takes it away. The NWPA only

establishes a mechanism for the DOE to provide a limited amount of

interim spent fuel storage. 42 U.S.C. § 10155(h). While nothing in [the

NWPA] shall be construed to encourage, authorize, or require the private

or Federal use, purchase, lease, or other acquisition of AFR facilities, id.,

neither this provision, nor any other provision in the NWPA explicitly

17 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 29 of 62

repeals the Commissions existing statutory authority over licensing AFR

facilities.

In fact, during consideration of the NWPA, Congress explicitly

recognized the existence and licensing of privately-owned AFR facilities.

As the NRC Executive Director for Operations testified during the

development of the NWPA:

The Commission has stated with the issuance of its regulation, 10 C.F.R. Part 72, which provides the licensing criteria for independent spent fuel storage installations, that there are no compelling safety or environmental reasons generally favoring either reactor sites or away from reactor sites. Thus, Part 72 establishes the licensing framework for such storage either at reactor sites or away -from - reactors using either wet or dry storage technologies.

Radioactive Waste Legislation: Hearings on H.R. 1993, H.R. 2800, H.R.

2840, H.R. 2881, and H.R. 3809 Before the Subcomm. On Energy and the

Environment of the House Comm. On Interior and Insular Affairs, 97th

Cong. 326 (1981) (emphasis added ).

Nowhere do the debates suggest that these licenses would become

invalid after the NWPA was enacted. In fact, Rep. Corcoran of Illinois

recognized that the Morris, Ill. AFR storage facility would continue to

operate and delays in permanent disposal would put[] even greater

pressure on the AFR facility at Morris. 128 Cong. Rec. 32,945 (1982).

18 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 30 of 62

Nor is there any hint that after the NWPA became law, the Morris facility

would become the last of its kind.

In fact, the Morris facility was repeatedly discussed in the

Congressional debates for other reasons, as Rep. Corcoran worked to

prevent Federal Government ownership of the facility. See 128 Cong.

Rec. 32,560 (1982) (expressing pleasure that the compromise bill

prohibits the Federal Government from taking over the interim spent

fuel storage facility in Morris, Ill.). This debate led to the NWPAs

limitation on the use, purchase, lease, or other acquisition of AFR

storage facilities not already owned b y the Federal Government. 42

U.S.C. § 10155(h). A Senate bill preceding the NWPA would have

grant[ed] the Secretary of Energy the authority to construct, acquire or

lease one or more [AFR] facilities. 128 Cong. Rec. 32,946 (1982). Rep.

Corcoran objected, and Section 10155(h) was added to address the heart

of the problem that many of us have, that is, the concern about whether

or not private AFR storage facilities would be vulnerable to a federal

takeover under [the NWPA]. 97 Cong. Rec. 28,033 (19 82). Thus, 42

U.S.C. 10155(h) would prohibit the Secretary [of Energy] from providing

19 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 31 of 62

capacity for the storage of spent nuclear fuel from civilian nuclear power

reactors at [Morris, Ill.]. S ee 128 Cong. Rec. 32,560, 32,946 (1982).

Section 10155(h) did not explicitly repeal the Commissions

authority to license AFR facilities. Nor was it an implied repeal, since

the NWPA and the AEA can co-exist and both be given effect. Branch v.

Smith, 538 U.S. 254, 273 (2003) (finding implied repeal when provisions

in two statutes are in irreconcilable conflict, or a new act covers the

whole subject of the earlier one and is clearly intended as a substitute.).

There is no inconsistency for private industry to license at -reactor or AFR

spent fuel storage pursuant to the AEA, while the Federal Government

also provides some interim spent fuel storage, if needed. 42 U.S.C. §

10155(b)(l)(B).

In short, in enacting the NWPA, Congress neither repealed, nor

intended to repeal, the Commissions authority for the licensing of off-site

spent fuel storage under the AEA. That authority remains wholly intact.

These significant flaws in the panel decision in Texas are yet another

reason for this Court to reject Environmental Petitioners request to

adopt that decision.

20 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 32 of 62

B. The Commission Properly Rejected Environmental Petitioners False Statements Claims.

In an attempt to revive Sierra Club Contention 26 and Joint

Petitioners Contention 14, Environmental Petitioners claim that the

Application contains false statements because references to spent fuel

ownership by reactor owners are just a fig leaf. Envt l-Br at 24.

Petitioners support for this claim comes from an alleged Freudian slip

in the Holtec Application and a comment from Holtec in 2018 that the

spent fuel storage facilitys deployment will ultimately depend on the

DOE and the U.S. Congress. Id. From this sentence, Petitioners invent

the claim that [t]he purpose of including nuclear plant owners [in the

Application] was to provide a distraction and a cover up of Holtecs true

intent to have the [DOE] own the waste. Id. at 13.

The Commission rejected Sierra Club Contention 26 and Joint

Petitioners Contention 14 both because there was no actual willful

misrepresentation in the Holtec Application and because the

contentions did not raise an issue material to the licensing proceeding.

CLI-20 -4, 91 N.R.C. at 169 -70 (JA ___). As correctly recognized by the

Board, and agreed upon by the Commission, Holtec has made no

misrepresentations, willful or not. Holtec openly acknowledges that it

21 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 33 of 62

hopes Congress will change the law to allow DOE to contract directly with

Holtec. Id. at 192 (JA____). In addition, Holtec itself pointed out that

the need for the project could be reduced or eliminated if DOE were to

build a permanent waste repository. Id.Thus, Holtec has been

transparent that deployment of this project may depend to some extent

on actions of DOE and Congress, and Holtecs statements are all

consistent with the Application which would allow for either privately-

owned and/or DOE-owned spent fuel at the Holtec facility. Id.

Environmental Petitioners do nothing to challenge this explanation.

Nor do Environmental Petitioners challenge the Commission

finding that, even if false statements were to exist in this case they do

not the statements would be irrelevant to the licensing proceeding, as

the material issue here is whether Holtec has shown that it can safely

operate the facility. Id. at 193. Aside from summarily pointing to

Beyond Nuclears separate brief, which should be rejected for the reasons

set forth in Federal Respondents brief, Fed-Br. at 41-48, Environmental

Petitioners do nothing to challenge this finding. Envtl-Br. at 27 -28.

22 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 34 of 62

In sum, Environmental Petitioners have done nothing to

demonstrate that the Commissions decision on this matter is arbitrary

or capricious.

C. The Commission Properly Rejected Sierra Clubs Geologic Impacts Claims.

Environmental Petitioners further claim that the Commission

mistakenly rejected a number of contentions challenging the treatment

of geological impacts in the License Application, including Sierra Club

Contentions 11, 15, 16, 17, and 19. Envtl-Br. at 28-34. Environmental

Petitioners fail to establish that the Commission acted in an arbitrary or

capricious manner in dismissing each of these contentions for the reasons

set forth below.

1. The Commission Properly Rejected Sierra Clubs Contention 11.

In Contention 11, Sierra Club alleged that the Application

inadequately discussed earthquake risks to the facility (including seismic

activity induced by oil and gas recovery operations), largely based on a

2018 Stanford study, which purportedly documented the existence of

prior earthquakes in southeast New Mexico and the existence of

numerous faults in the area in and around the proposed Holtec site.

CLI-20 -4, 91 N.R.C. at 185 (JA____) (internal quotations omitted).

23 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 35 of 62

Environmental Petitioners now allege that the Commission mistakenly

rejected this contention by ignor[ing] the 2018 Stanford study. Envtl -

Br. at 29. Environmental Petitioners also dispute the Commission

finding that their argument about new geologic faults was first raised

on appeal. Id.

This claim, however, cannot be reconciled with the Commissions

actual decision. The Commission found, and Environmental Petitioners

do not dispute, that Sierra Club provided no evidence of recent seismic

activity near the site, and that the maps inclu ded in the Stanford

Report seemed to confirm, rather than contradict, the [Safety Analysis

Reports (SARs)] statements that there were no Quaternary faults

within the immediate area of the Holtec site. CLI -20 -4, 91 N.R.C. at 186

(JA____). Moreover, the Commission found that while the Stanford

Report discussed recent earthquakes, it did not establish stronger

earthquakes or place them closer to the Holtec facility. Id. (JA____). The

Commission also found that the Stanford Report did not demonstrate

that oil and gas activities are inducing new geologic faults or that new

faults or earthquakes are getting closer to the Holtec site. Id. at 187.

(JA____) (internal quotations omitted). As a result, the Commission

24 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 36 of 62

found that Sierra Club failed to raise a genuine dispute with the

Application.

Environmental Petitioners do not challenge any of these findings

and therefore fail to establish that the Commissions reasoned decision is

arbitrary or capricious.

2. The Commission Properly Rejected Sierra Clubs Contention 15.

In Contention 15, Sierra Club argued that Holtec failed to establish

that shallow alluvium is likely non -water bearing at the Site. CLI -21 -

4, 93 N.R.C. at 122 (JA___). The Board ultimately rejected this claim for

failing to raise a genuine dispute with the Application, and that decision

was upheld by the Commission in CLI-21 -4. CLI -21 -4, 93 N.R.C. at 122

(JA___); LBP-20 -6, 91 N.R.C. at 242 -244 (JA___-____).

Now on appeal, Environmental Petitioners largely repeat their

prior assertions. Environmental Petitioners also allege the Commission

erred in claiming that Sierra Clubs expert was incorrect in saying there

was only one monitoring well at the interface of the alluvium and the

Dockum formation, because while the Commission identified four

additional wells, their expert was clear in his report that the only

relevant well would be at the interface. Envtl -Br. at 31.

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This misrepresents the reasoning behind the Commissions

decision. The Commissions concern was not the number of wells, it was

that Petitioners did not address the Environmental Reports discussion

of [these] groundwater monitoring wells. CLI -21 -4, 93 N.R.C. at 122

(JA___) (emphasis added). Sierra Clubs assertion that Holtecs

conclusion was based entirely on the absence of water in a single

monitoring well observed in 2007, incorrectly reads the Application. Id.

(JA___). Moreover, while Sierra Club dismisses the other wells as

irrelevant, it never addressed those wells or the fact that they were

monitored for groundwater throughout the drilling, and showed that no

groundwater was encountered in the shallow alluvium. Id. (JA___).

Thus, Sierra Club did not address the Environmental Report's

discussion of the groundwater monitoring wells that Holtec drilled to

investigate the presence of groundwater. Id. (JA___).

Environmental Petitioners do not challenge the Commissions

finding that Sierra Club failed to address the content of Holtecs

Application as required under the Commissions contention admissibility

standards. As a result, Environmental Petitioners failed to establish that

the Commissions decision is arbitrary or capricious.

26 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 38 of 62

3. The Commission Properly Rejected Sierra Clubs Contention 16.

In Contention 16, Sierra Club argued that the Application does not

contain any information as to whether brine continues to flow in the

subsurface under the site. CLI -21 -4, 93 N.R.C. at 123 (JA___). On

appeal, Environmental Petitioners argue that the Commission should

not have rejected their experts mere recitation of questions, as their

Contention only needed to point out deficiencies in the environmental

documents. Envtl -Br. at 32 -33.

Environmental Petitioners, however, do not dispute the

Commissions detailed findings that [t]he application acknowledges

brine in the shallow groundwater. CLI -21 -4, 93 N.R.C. at 123 (JA___).

Particularly finding that the water table [where brine would occur] is

below the excavation depth of the facility, and brine disposal facilities,

and the site where brine was located, are on the far side of the site and

downgradient of the proposed CISF. Id. (JA___). Because Sierra Club,

and its expert, failed to dispute this analysis in the Application, the

Commission correctly rejected the Contention for lacking factual support

to establish a genuine dispute, as required under the contention

admissibility standards. Id. (JA___). Environmental Petitioners failed

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to challenge this reasoning, and thus, fail to establish that the

Commissions decision is arbitrary or capricious.

4. The Commission Properly Rejected Sierra Clubs Contention 17.

In Contention 17, Sierra Club alleged that neither the

Environmental Report nor the SAR discussed the presence of fractured

rock. Envtl-Br. at 33. Environmental Petitioners repeat this claim on

appeal. CLI-21 -4, 93 N.R.C. at 124 (JA___); Envtl -Br. at 33. To the

contrary, the Commission correctly affirmed the Boards finding that

both documents explicitly discuss the presence of either fractures or

tight sandy zones between the depths of 85 and 100 feet at the site. LBP -

20-6, 91 N.R.C. at 245 (JA___ ); see CLI-21 -4, 93 N.R.C. at 124 (JA___).

Moreover, as recognized in Environmental Petitioners appeal, Envtl-Br.

at 33, Sierra Clubs own expert acknowledged that Holtecs Geotechnical

Data Report explicitly documents the presence of fractured rock. CLI -21 -

4, 93 N.R.C. at 124 (JA___). In light of this, Environmental Petitioners

cannot credibly claim it was arbitrary or capricious for the Commission

to find that Holtec discussed the presence of fractured rock.

28 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 40 of 62

5. The Commission Reasonably Rejected Sierra Clubs Contention 19.

In Contention 19, Sierra Club argued that the Environmental

Report did not contain sufficient information to determine whether

packer tests were performed correctly. CLI -21 -4, 93 N.R.C. at 124

(JA___). The Board and the Commission rejected Contention 19. Id. at

125 (JA___). On appeal, Petitioners claim that the Commission rejected

their contention on the grounds that [the experts] statement was mere

speculation. Envtl -Br. at 34. On the contrary, the Commission rejected

Contention 19 not because the experts statement was mere

speculation, but because Sierra Club did not explain how the asserted

departures [in performing the packer tests] would ultimately have any

significance for any analysis or conclusion in the Environmental Report.

CLI-21 -4, 93 N.R.C. at 125 (JA___). Having failed to even address this

finding, Environmental Petitioners fail to establish that the Commission

decision is arbitrary or capricious.

D. The Commission Properly Rejected DWMs Volume of Low-Level Radioactive Waste Claims.

Environmental Petitioners next resurrect assertions from DWMs

Contention 3, claiming that Holtec underestimates the amount of low -

level radioactive waste (LLRW) to be generated from operations at the

29 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 41 of 62

facility. See Envtl-Br. at 34-41. Environmental Petitioners further

challenge the Commission decision as finding that DWM impermissibly

challenged the adequacy of [spent fuel facility] decommissioning analyses

in the Continued Storage [Generic Environmental Impact Statement

(GEIS)]. Id. at 39.

The Commission did reject Petitioners claims regarding the

environmental impacts after the life of the facility (including the

repackaging of spent fuel and disposal of spent fuel casks) as an

impermissible attack on an existing NRC rule incorporating an already -

existing NRC Staff analysis of impacts. CLI-20 -4, 91 N.R.C. at 205

(JA____). The Commission, however, also affirmed the Boards decision

rejecting Contention 3 as to the environmental impacts over the life of

the facility for failing to include support for its assertions of inadequacy

regarding Holtecs evaluation of LLRW impacts. CLI -20 -4, 91 N.R.C. at

205 (JA____). For example, the Board found that [DWM] had not

proffered any evidentiary support for their claim that the concrete pads

and casks will become contaminated or for their claim that the canisters

will need to be replaced during the operating life of the facility. Id.

(JA____). In addition, while Petitioners claimed that evidence of

30 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 42 of 62

significant volumes of unremediable concrete, soil and canisters exists,

they did not point to any such evidence. Id. at 204 (JA____). Nor could

Petitioners point to any factual support for their assertions that concrete

at the CISF would become activated or that concrete decontamination

would not be possible, except self -proclaimed common sense. Id. at

204-05 (JA____).

The Commission also rejected Contention 3 for improperly

challenging a rule (including an existing analysis of environmental

impacts after the life of the spent fuel storage facility) and lacking

evidentiary support for unaddressed environmental impacts during

facilitys life. Id. at 205 (JA____). On appeal, Environmental Petitioners

ignore the Commissions finding that it lacked evidentiary support for its

claims regarding the life of the facility. As such, Environmental

Petitioners fail to establish that the Commission decision is arbitrary or

capricious.

E. The Commission Properly Rejected DWMs Continued Storage GEIS Claims.

In Contention 4, DWM argued that Holtec cannot rely on the

Continued Storage [GEISs] generic environmental analysis of

transportation and operational accidents because the proposed [Holtec

31 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 43 of 62

facility] differs from the type of facilities contemplated by the Continued

Storage GEIS, particularly with respect to its lack of a [Dry Transfer

System (DTS)]. CLI -20 -4, 91 N.R.C. at 205 (JA ____). On appeal,

Environmental Petitioners continue to allege that Holtecs uniqueness

requires a site-specific NEPA analysis, Envtl -Br. at 42, and the Holtec

facility cannot be excluded from scrutiny under NEPA by virtue of the

[GEIS], which is codified at 10 C.F.R. § 51.23. Id. at 41.

The Commission did not reject Contention 4 for that reason. There

is no dispute that Holtecs facility requires a site-specific NEPA analysis.

The Commission rejected this contention because Holtec did perform a

site-specific NEPA analysis, and the contention ignored that analysis. As

the Board found, and the Commission affirmed, Holtecs Environmental

Report contains a site-specific impact analysis, CLI -20 -4, 91 N.R.C. at

206 (JA ____) and Holtec e valuated the site-specific environmental

effects associated with the construction and operation of the proposed

CISF. Id. at 207 (JA____). It was DWM that failed to properly challenge

this facility-and site-specific analysis on appeal to the Commission. Id.

(JA____).

32 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 44 of 62

Environmental Petitioners again do not challenge the

Commissions finding. Instead, Environmental Petitioners allege Holtec

was excused from performing the detailed site-specific analysis that

Holtec did perform that is in the Environmental Report that DW M failed

to challenge. Id. (JA____). Environmental Petitioners do not

demonstrate that the Commissions finding that a site-specific analysis

exists was arbitrary and capricious.

To the extent that Environmental Petitioners are arguing that

Holtecs site-specific analysis was inadequate because it did not include

the impacts of a DTS facility, Envtl-Br. 44-45, the Commission correctly

found that Holtec is not required to build a DTS. CLI-20 -4, 91 N.R.C. at

207 (JA____). Moreover, even if Holtec later decides to construct and

operate a DTS, a separate licensing action would be required, which

would entail additional environmental review. CLI -20 -4, 91 N.R.C. at

207 (JA ___). Environmental Petitioners do not say how it is arbitrary or

capricious for the Commission to wait to perform an environmental

review when a facility is actually planned and licensed.

33 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 45 of 62

F. The Commission Properly Rejected DWMs Start Clean/Stay Clean Claims.

DWM Contention 7 decried Holtecs start clean/stay clean policy,

because it calls for the return of defective canisters to their original

destination in approved transportation casks, therefore purportedly

effectively intend[ing] radiation exposure (even excessive radiation

exposure) on return routes. Envtl -Br. at 49 (emphasis supplied).

Environmental Petitioners further protest the Commission decision that

the [m]ere existence of Holtecs start clean/stay clean policy does not

undermine the requi rements and safety analyses that have generically

established the integrity of approved spent fuel canister designs. Id.

(quoting CLI-20 -4, 91 N.R.C. at 208 (JA____)).

While Environmental Petitioners correctly quote the Commissions

ultimate decision, they ignore the reasoning behind it. The mere

existence of the start clean/stay clean policy does not undermine the

Commissions requirements and existing safety analyses because the

Licensing Board found that DWM failed to contest those very programs

that provide that a transportation accident or breach of canister is not

credible. CLI -20 -4, 91 N.R.C. at 208 (JA____). In particular, the

Commission affirmed a Board finding that:

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Petitioners had not shown: (1) how the spent fuel, when packaged at the reactor site, would leave the site leaking or damaged notwithstanding NRC-approved quality assurance programs; (2) how the spent fuel canister, within its transport overpack cask, would become credibly damaged in an accident scenario that results in an exceedance of dose rates while in transit; and (3) how the sequestration sleeve, as outlined in Holtecs SAR at the time the petitions were due in this proceeding, is an inadequate remedy should the cask and canister somehow become damaged.

Id. at 207-08 (JA____ -____). Since DWM failed to even attempt such a

showing, the Boards found, and the Commission affirmed, that the

contention lacked the required factual or expert support. Id. at 208

(JA____). Environmental Petitioners do not challenge this finding or

otherwise establish that it is arbitrary or capricious.

G. The Commission Properly Rejected DWMs Transportation Claims.

In Contention 9, DWM alleged that Holtec should have included all

of the potential transportation routes for spent fuel in the Application to

support its NEPA analysis. Envtl-Br. at 54 -55 -. However, the

Commission found that:

[D]etermining exact transportation routes is an issue outside the scope of this licensing proceeding. Furthermore, the use of representative routes in an environmental -impacts analysis to address the uncertainty of actual, future spent fuel transportation routes is a well -established regulatory approach, the foundations of which Joint Petitioners have not challenged.

35 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 47 of 62

CLI-20 -4, 91 N.R.C. at 209 (JA____).

It would be both premature and unduly burdensome at the very

least a crystal ball exercisefor Holtec to identify all of the potential

transportation routes at this point in time and then attempt to evaluate

their environmental impacts. Instead, as the Commission recognized,

Holtec evaluated the environmental impact of three representative

routes. Id. (JA____). Holtec then included that impact analysis in ER

Section 4.9, which Petitioners did not challenge. Id. at 209, n.262

(JA____). Moreover, once actual transportation routes are set in the

future, the Commission reviews and approves those routes in

conjunction with the Department of Transportation, including

consultation with applicable States or Tribes, and coordination with local

law enforcement and emergency responders. Id. at 209 (JA____).

On appeal, Environmental Petitioners merely restate their initial

arguments before the Commission and do not challenge the Commissions

ultimate finding that using representative routes is an established

regulatory approach. Envtl-Br. at 55-56. Environm ental Petitioners do

not point to any regulation or statute requiring more than the use of

representative routes.

36 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 48 of 62

Environmental Petitioners also argue that Holtecs approach to

analyzing transportation impacts is an inappropriate segmentation of

the NEPA analysis. Id. at 55-56. However, the Commission previously

rejected this argument as an improper attempt to raise a new argument

for the first time on appeal. CLI -204, 91 N.R.C. at 209, n.262 (JA____).

Having failed to address the Commissions reasons for rejecting this

Contention, Petitioners fail to establish that it is arbitrary or capricious.

III. The Commissions Rejection of Faskens Claims Was Not Arbitrary and Capricious.

A. The Commission Properly Found that Faskens Contentions 2 and 3 Were Procedurally Deficient and Inadequate Under NRC Requirements.

Untangling Fasken claims on appeal necessitates a brief lesson in

Faskens filings before the Board and Commission. On May 7, 2019, the

Board issued LBP-19 -4 rejecting inter alia the initial intervention

petition filed by Fasken (with its first contention), terminating the Holtec

proceeding. LBP 4, 89 N.R.C. at 358 (JA___). While various appeals

were pending before the Commission, and the record remained closed,

Fasken on August 1, 2019 (ten and a half months after the deadline for

filing contentions and more than twelve weeks after the record closed),

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raised Contention 2 relating to oil, gas, and mineral extraction at the site.

LBP-20 -6, 91 N.R.C. at 254 (JA___).

Faskens proposed late-filed Contention 2 alleged that the

Application made [s]tatements regarding control over mineral rights

below the site that were materially misleading and inaccurate and that

relying on these statements nullifies Holtecs ab ility to satisfy the NRCs

siting evaluation factors. Id. (JA___). To support these allegations,

Fasken relied on a June 19, 2019, letter from the New Mexico

Commissioner of Public Lands to Holtec. Id. (JA___).

Fasken failed to accompany this filing with a motion to reopen the

record, as required by 10 C.F.R. § 2.326. Weeks later, on September 3,

2019, Fasken filed a motion to reopen, then nine days later (and without

explanation) withdrew the motion, essentially refusing to move to reopen

the record. Id. at 254-55 (JA___). On June 18, 2020, the Board

nevertheless consideredand rejected Faskens late -filed Contention 2,

finding that Fasken failed to address the requirements for reopening the

record and failed to show how it met the requirements for filing out of

time. Id. at 255 (JA___). Fasken did not appeal thi s decision.

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In May 2020, Fasken submitted its Amended Contention 2 along

with a second motion to reopen the record. LBP-20 -10, 92 N.R.C. at 240

(JA___). On September 3, 2020, following oral argument, the Board

rejected Faskens Amended Contention 2. Id. at 253 (JA___). The Board

found that Fasken failed to meet its burden to reopen the record because

its Amended Contention 2 was not based on information that was

unavailable prior to publication of the DEIS but rather was based on

information that was p ublicly available in Holtecs application materials

much earlier. Id. at 242 (JA___). In fact, as the Board noted, Faskens

Amended Contention 2 [b]y its terms alleges deficiencies in Holtecs

application and does not even mention the DEIS. Id. at 243 (JA___)

(internal quotations omitted). As a result, the Board found, and the

Commission later agreed, that Amended Contention 2 claimed material

omissions, inadequacies and inconsistencies contained in Holtecs

licensing application documents and thus by its own terms claimed

deficiencies in the application, rather than in the DEIS. CLI -21 -7, 93

N.R.C. at 223 (JA___) (citing LBP 10, 92 N.R.C. at 243 (JA___)).

The Board also rejected, and the Commission subsequently

affirmed, Faskens claim (raised for the first time at oral argument) that

39 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 51 of 62

its Amended Contention 2 raised an exceptionally grave issue. CLI -21 -

7, 93 N.R.C. at 225-26 (JA___ -____). Finally, the Board found, and the

Commission affirmed, that apart from these deficiencies, Faskens

Amended Contention 2 did not meet the admissibility requirements in 10

C.F.R. § 2.309(f)(1). Id. at 226-28 (JA___ -____). Fasken subsequently

appealed the Boards decision to the Commission. Id. at 220 (JA___).

In November 2020, Fasken filed its Motion for Leave and Motion to

Reopen for Contention 3, reiterating its claims regarding the control of

subsurface mineral rights, the oil, gas and mineral extraction operations

beneath and in the vicinity of the CISF site, the accuracy of information

in the Application incorporated into the DEIS, and the adequacy of the

Staffs DEIS consultation. Id. at 220, 2 29 (JA___,____).

The Commission in the same decision considered and rejected both

the appeal regarding Amended Contention 2 and Faskens Contention 3.

Id. at 217 (JA___). The Commission affirmed the Boards findings on

Amended Contention 2 and rightly noted that Faskens appeal point[ed]

to no Board error in its finding that the motion to reopen and amended

[C]ontention [2] were untimely. Id. at 224 (JA___). Instead, Fasken

reiterate[d] its timeliness claims without confronting the Boards

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rulings. Id. at 225 (JA___). The Commission also rejected Faskens

attempt to comply with the good cause requirement for late-filed

contentions, pointing out that Fasken was relying on a standard that had

been replaced nine years earlier in a 2012 rulemaking. Id. at 224 (JA___).

The Commission further rejected Faskens attempt to allege an

exceptionally grave issue, noting that the exception is a narrow one, to

be granted rarely and only in truly extraordinary circumstances. Id. at

226 (JA___). As the Commission rightly found, while Fasken summarily

asserted that its contention comprises exceptionally grave issues of

national economics and security, regional employment, sinkholes[,]

subsidence, and seismicity, id. at 225 (JA ___) (internal quotations

omitted), it did not explain how the facility could have such an

exceptionally grave impact. Id. at 225-26 (JA___ -___). Nor did Fasken

even attempt to rebut the NRC Staffs detailed findings on the threat of

sinkholes, subsidence, or seismicity. Id. at 226 (JA___).

The Commission also found that Fasken never raised a material

dispute with the DEIS in Amended Contention 2, because it failed to

actually cite to any portion of the DEIS in dispute. Id. at 227 (JA___)

(First, Fasken argues that its Amended Contention 2 disputed the

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DEISs supposed reliance on a proposed but not-yet -accepted land use

restriction of condition at the Holtec site. Although Fasken made such an

argument in Amended Contention 2, neither Faskens appeal nor the

contention cites to where the DEIS relied on such an agreement.)

(internal quotations omitted). Moreover, the Commission further

affirmed the Boards right to reject expert testimony offered during oral

argument on contention admissibility, based on long-standing NRC

practice that oral argument is a n opportunity for the Board to ensure it

understands the participants legal positions, and participants do not

have a right to oral argument on contention admissibility. Id. at 228

(JA___).

The Commission likewise rejected Faskens Contention 3 claims

about mineral rights and mineral development as not based on or

supported by any previously unavailable information that is materially

different from information available in the application and DEIS. Id. at

230 (JA___). Similarly, the Commission rejected Faskens claims based

on public comments and Holtecs responses to the NRC Staffs Request

for Additional Information as not containing any new information beyond

that previously available to Fasken. Id. at 231-33 (JA___ -___). Finally,

42 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 54 of 62

the Commission found that Fasken failed to raise any significant safety

or environmental issue in Contention 3, and specifically, Fasken did not

show that drilling presents any hazard to the facility (or vice versa) that

has not been analyzed in the Safety Evaluation Report or the DEIS. Id.

at 233 (JA___). Faskens brief does nothing to demonstrate that these

Commission decisions are arbitrary or capricious.

B. Fasken Does Not Challenge the Commission Decision on Appeal.

Fasken is required to challenge the Commissions reasoning on

appeal and demonstrate that the Commissions decision is arbitrary or

capricious. Fasken cannot ignore the Commissions justification for

rejecting Contentions 2 and 3 and simply reiterate its prior claims anew.

Yet, that is exactly what Fasken has done on appeal.

Fasken first ignores the many reasons that the Commission

rejected its purportedly new information. For example, Fasken claims

that the Commission wrongly denied Contention 2 and the allegedly new

information contained in the letter from the New Mexico Land

Commissioner. Fasken-Br. at 20-21, 29-30. Fasken, however, ignores

that its August 2019 filing based on that letter was rejected as

procedurally defective, lacking a motion to reopen and any attempt to

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address the Commissions well-established contention timeliness

requirements. CLI -21 -7, 93 N.R.C. at 219 (JA___); LBP -20 -6, 91 N.R.C.

at 255 (JA___). Fasken also ignores the Boards findings that the Land

Commissioners letter did not contain new information beyond that

included in Holtecs response to an NRC Staff Request for Additional

Information from months earlier and the Application itself, which always

acknowledged that New Mexico owned mineral rights at the site. CLI-21 -

7, 93 N.R.C. at 219 (JA___); LBP 6, 91 N.R.C. at 255-56 (JA___ -___).

Most importantly, Fasken ignores that it did not challenge this Board

decision in its appeal to the Commission, thereby abandoning its claims

based on the Land Commissioners letter. CLI-21 -7, 93 N.R.C. at 220,

n.21 (JA___,___).

Fasken also claims that the NRC wrongly discarded the [ DEISs]

supposed reliance on a proposed but not-yet-accepted land use

restriction at the Holtec site, which Fasken alleges contradicts other

portions of the DEIS. Fasken-Br. at 21 (quoting CLI 7, 93 N.R.C. at

227 (JA___)). However, the Commission rejected Faskens claims about

a supposed reliance on an unnamed agreement in Amended Contention

2 because neither Faskens appeal nor the contention cites to where the

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DEIS relied on such an agreement. CLI -21 -7, 93 N.R.C. at 227 (JA___).

The Commissions well-established rules require petitioners to include

references to specific portions of the [licensing documents] that the

petitioner disputes, 10 CFR § 2.309(f) (vi), which Fasken failed to do.

Faskens attempt to remedy its claim now by adding a citation for the

first time on appeal before this Court is not an adequate substitute for

demonstrating how the Commission erred in applying this fundamental

rule. Sims v. Apfel, 530 U.S. 103, 112 (2000) (OConnor, J., concurring in

part and concurring in the judgment) (In most cases, an issue not

presented to an administrative decisionmaker cannot be argued for the

first time in federal court.).

Fasken also repeats its claims made below that the dominant

subsurface mineral estate cannot be encumbered by an after -the -fact

approval of a surface use like Holtec seeks here. Fasken-Br. at 31.

However, aside from summarily alleging that this is a novel disclosure,

id., Fasken does not address why the Commission rejected this claim:

the right of subsurface-estate leaseholders to use the surface estate is

not new information, it is a general principle of New Mexico oil and gas

law and the terms of New Mexico Land Office leases are established by

45 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 57 of 62

statute. CLI -21 -7, 93 N.R.C. at 231-32 (JA___ -___). Thus, [t]he

principles of New Mexico oil and gas law are not new information and

there is nothing unusual in the oil leases that was not previously

available. Id. at 232 (JA___). Having ignored the Commissions rationale

on appeal, Fasken has not established an arbitrary or capricious decision.

Fasken also wholly ignores why the Commission rejected its claims

as immaterial. Fasken claims that it could not have discerned the lack

of any private agreement between XTO Energy, Inc. [(an oil drilling

company)] and Holtec proscribing mineral activities beneath and

surrounding the site. Fasken -Br. at 21. But aside from summarily

listing Commission safety regulations that involve the evaluation of

external events, id. at 26, Fasken fails to challenge the Commissions

ultimate determination that such a private agreement prohibiting oil

drilling (whether it existed or not) would not have a material effect on

the existing NRC Staff analysis in the DEIS.

As the Commission explained, the DEIS acknowledges that New

Mexico owns the mineral rights under the site and the DEIS accounts for

the effects of future development. CLI -21 -7, 93 N.R.C. at 230 (JA___).

Moreover, the DEIS considers that future mineral development will take

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place in the strata where the minerals are known to exist. Id. at 233

(JA___). Given that the licensing documents assume drilling will occur,

an agreement prohibiting drilling would not change any NRC Staff

analysis.

The same is true of Faskens challenge to differences between the

DEIS and application documents. Fasken-Br. at 23. Fasken purports

that differences between the DEIS and Holtecs initial Environmental

Report regarding the anticipated depth of oil and gas exploration has a

potential to impact design bases, mitigation efforts, and geological

stability in a region riddled with subsidence and susceptible to

sinkholes. Id. at 28. This conclusory assertion, however, is the extent

of Faskens attempt to demonstrate a material dispute. This does not

rebut the Commissions finding that Fasken does not show such

[shallower] drilling presents any hazard to the facility (or vice versa) that

has not been analyzed in the Safety Evaluation Report or the DEIS, or,

as the Board phrased it, that Faskens expert did not explain how the

existence of wells at any depth is material to the NRC Staffs assessment

of environmental and cumulative impacts. CLI -21 -7, 93 N.R.C. at 227

(JA___) (internal quotations omitted). Fasken also does not challenge

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Holtecs explanation for why drilling would not create a hazard, which

the Commission found supports the Staffs findings that potential future

mineral development does not present a hazard to the facility. Id. at 234

(JA___).

By disregarding the Commissions decision on immateriality,

Fasken fails to demonstrate that the Commissions decision was an

arbitrary or capricious action on appeal.

C. Fasken Improperly Raises New Arguments on Appeal.

Beyond ignoring the Commissions decision below, Fasken also

introduces new arguments for the first time in this appeal. Specifically,

Fasken argues, for the first time, that NRCs failure to conduct an

independent investigation into the reliability and accuracy of applicable

land use rights and land uses for the affected environment while

eliminating each and every other alternative location violated its NEPA

implementing and siting evaluation regulations. Fasken -Br. at 30.

Fasken did not raise the NEPA alternatives analysis before the

Commission. As noted previously, [i]n most cases, an issue not

presented to an administrative decisionmaker cannot be argued for the

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first time in federal court. Sims, 530 U.S. at 112. As such, this claim

should be barred.

CONCLUSION

For the reasons set forth above, the Petitions for Review should be

denied.

Respectfully submitted,

s/ Anne Leidich ANNE LEIDICH JAY E. SILBERG PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 (202) 663-8000 jay.silberg@pillsburylaw.com anne.leidich@pillsburylaw.com

Counsel for Holtec International December 1, 2023

49 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 61 of 62

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of F ed. R. App. P.

32(a)(7)(B) and D.C. Cir. R. 32(e)(2)(B)(1) because, excluding the parts of

the brief exempted by Fed. R. App. P. 32(f) and D.C. Cir. R. 32(e)(1), this

brief contains 9,005 words. This brief also complies with the typeface

requirements of Fed. R. App. P. 32(a)(5)(A) and the type-style

requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in

a proportionally spaced typeface using Microsoft Word in 14-point

Century Schoolbook font.

December 1, 2023

s/ Anne Leidich Anne Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 (202) 663-8707 anne.leidich@pillsburylaw.com

Counsel for Holtec International

50 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 62 of 62

CERTIFICATE OF SERVICE

I hereby certify that on December 1, 2023, I caused the foregoing

document to be electronically filed through this Courts CM/ECF system.

Participants in this case who are registered CM/ECF users will be served

by the CM/ECF system.

s/ Anne Leidich Anne Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 (202) 663-8707 anne.leidich@pillsburylaw.com

Counsel for Holtec International