ML23338A007
| 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
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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
27 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 39 of 62
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
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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
40 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 52 of 62
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
43 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 55 of 62
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
44 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 56 of 62
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
48 4873-4932-1108.v1 USCA Case #20-1187 Document #2029575 Filed: 12/01/2023 Page 60 of 62
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