ML23216A146

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7-28-23 Motion to Dismiss (5th Cir.)(Case No. 23-60377)
ML23216A146
Person / Time
Issue date: 07/28/2023
From: Andrew Averbach
NRC/OGC
To:
References
23-60377, 18-1
Download: ML23216A146 (1)
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Case: 23-60377 Document: 18-1 Page: 1 Date Filed: 07/28/2023 No. 23-60377 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT FASKEN LAND AND MINERALS, LTD., and PERMIAN BASIN LAND AND ROYATY OWNERS, Petitioners, v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

On Petition for Review of Action by the Nuclear Regulatory Commission MOTION TO DISMISS OR TRANSFER THE PETITION FOR REVIEW OF FASKEN LAND AND MINERALS AND PERMIAN BASIN LAND AND ROYALTY OWNERS TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Environment and Natural Resources 11555 Rockville Pike Division Rockville, MD 20852 U.S. Department of Justice andrew.averbach@nrc.gov Post Office Box 7415 (301) 415-1956 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442

Case: 23-60377 Document: 18-1 Page: 2 Date Filed: 07/28/2023 CERTIFICATE OF INTERESTED PERSONS Case No. 23-60377 FASKEN LAND AND MINERALS, LTD., and PERMIAN BASIN LAND AND ROYATY OWNERS, Petitioners, v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Circuit Rule 28.2. have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1. Petitioners
a. Fasken Land and Minerals, Ltd.
b. Permian Basin Land and Royalty Owners
2. Counsel for Petitioners
a. Allan L. Kanner, Kanner & Whiteley, L.L.C.
b. Annemieke M. Tennis, Kanner & Whiteley, L.L.C.
3. Respondents
a. United States Nuclear Regulatory Commission
b. United States of America

Case: 23-60377 Document: 18-1 Page: 3 Date Filed: 07/28/2023

4. Counsel for Respondents
a. Andrew P. Averbach, U.S. Nuclear Regulatory Commission
b. Todd Kim, U.S. Department of Justice
c. Jennifer Scheller Neumann, U.S. Department of Justice
d. Justin Heminger, U.S. Department of Justice
5. Licensee/Proposed Intervenor
a. Holtec International
6. Counsel for Licensee/Proposed Intervenor
a. Jay Silberg, Pillsbury Winthrop Shaw Pittman LLP
b. Ann Leidich, Pillsbury Winthrop Shaw Pittman LLP
c. Benjamin L. Bernell, Pillsbury Winthrop Shaw Pittman LLP

/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission ii

Case: 23-60377 Document: 18-1 Page: 4 Date Filed: 07/28/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................iv INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 2 A. Legal background ............................................................................................ 2 B. Factual background.......................................................................................... 3 ARGUMENT ............................................................................................................. 6 I. The Petition for Review should be dismissed for lack of jurisdiction. .......... 6 A. Fasken is not a party aggrieved under the Hobbs Act and therefore cannot directly challenge the Holtec license. ................... 6 B. The judicial review provisions of the Atomic Energy Act, not the Nuclear Waste Policy Act, govern this Petition.......................13 II. Alternatively, the Petition for Review should be transferred to the D.C. Circuit, where Fasken is already pursuing a jurisdictionally proper challenge to the NRCs licensing proceeding. .............................. 15 CONCLUSION ........................................................................................................18 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)

CERTIFICATE OF SERVICE iii

Case: 23-60377 Document: 18-1 Page: 5 Date Filed: 07/28/2023 TABLE OF AUTHORITIES Cases Alaska v. FERC, 980 F.2d 761 (D.C. Cir. 1992).....................................................................8, 9 Am. Newspaper Publishers Assns v. U.S. Postal Service, 789 F.2d 1090 (5th Cir. 1986) .......................................................................17 Am. Trucking Assns v. ICC, 673 F.2d 82 (5th Cir. 1982) ...............................................................7, 8, 9, 11 Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023) ............................................................6, 12, 13 Baros v. Texas Mexican R.R. Co.,

400 F.3d 228 (5th Cir. 2005) .........................................................................10 Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)................................................................... 3, 14 In re Chicago, Milwaukee, St. Paul & Pac. R.R.,

799 F.2d 317 (7th Cir. 1986) .....................................................................6, 10 City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998)......................................................................... 7 Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030 (D.C. Cir. Jan. 25, 2023) ..........5, 7, 9, 13, 14 Ecology Action v. Atomic Energy Commn, 492 F.2d 998 (2nd Cir. 1974) ......................................................................... 8 Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd.,

167 F.3d 111 (2nd Cir. 1999) ........................................................................10 Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911 (5th Cir. 1993) .............................................................................11 iv

Case: 23-60377 Document: 18-1 Page: 6 Date Filed: 07/28/2023 Natl Assn of State Util. Consumer Advocates v. FCC, 457 F.3d 1238 (11th Cir. 2006) ..................................................................... 10 Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190 (1983)......................................................................................... 3 Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ...............................................................3, 14 Thermal Ecology Must Be Preserved v. Atomic Energy Commn, 433 F.2d 524 (D.C. Cir. 1970)......................................................................... 8 Wales Transp., Inc. v. ICC, 728 F.2d 774 (5th Cir. 1984) ......................................................................6, 9 Adjudicatory Decisions of the Nuclear Regulatory Commission In the Matter of Holtec International (HI-STORE Consolidated Interim Storage Facility),

CLI-20-4, 91 NRC 167 (2020) ........................................................................ 4 CLI-21-4, 93 NRC 119 (2021) ....................................................................... 4 CLI-21-7, 93 NRC 215 (2021) ........................................................................ 4 LBP-19-4, 89 NRC 353 (2019) .....................................................................11 v

Case: 23-60377 Document: 18-1 Page: 7 Date Filed: 07/28/2023 Statutes 28 U.S.C. § 1404 ......................................................................................................17 28 U.S.C. § 2321 ........................................................................................................ 9 28 U.S.C. § 2342 .................................................................................................... 6, 9 28 U.S.C. § 2343 ......................................................................................................17 28 U.S.C. § 2344 ............................................................................................4, 6, 7, 9 42 U.S.C. § 2073 ....................................................................................................... 2 42 U.S.C. § 2092 ........................................................................................................ 2 42 U.S.C. § 2093 ........................................................................................................ 2 42 U.S.C. § 2111 ........................................................................................................ 2 42 U.S.C. § 2239 ..................................................................................................6, 15 42 U.S.C. § 10139 ..............................................................................................13, 15 Pub. L. No.93-584, 88 Stat. 1917 (1975) ................................................................10 Regulations 10 C.F.R. Part 2......................................................................................................2, 3 Federal Register Notices Final Rule, Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693 (November 12, 1980) ..................................................... 2 vi

Case: 23-60377 Document: 18-1 Page: 8 Date Filed: 07/28/2023 INTRODUCTION Respondents Nuclear Regulatory Commission (NRC) and the United States move to dismiss the Petition for Review of Fasken Land and Minerals, Limited, and Permian Basin Land and Royalty Owners (together, Fasken).

Counsel for Respondents contacted all parties concerning this motion. Fasken opposes this motion and will file a response. Holtec International (Holtec),

which has filed an unopposed motion to intervene, supports the requested relief.

This Petition concerns an Atomic Energy Act (AEA) license that the NRC issued to Holtec to construct and operate a facility in New Mexico for the storage of spent nuclear fuel. As provided by the AEA, the NRC offered interested parties an opportunity to participate in an adjudicatory hearing concerning issuance of the license, and Fasken sought leave to intervene, but the NRC denied Fasken party status. Dissatisfied with that result, Fasken filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit, which remains pending.

Yet Fasken also seeks relief before this Court, purporting to challenge the terms of the license itself, even though it was denied admission to the adjudication over the license. This form of duplicative action is barred by the text of the Hobbs Act and by the chorus of circuit courts holding that when a person is denied admission as a party to an NRC licensing proceeding, that persons sole avenue for

Case: 23-60377 Document: 18-1 Page: 9 Date Filed: 07/28/2023 judicial review is through a challenge to the NRCs decision denying that person party status. Fasken is pursuing that avenue before the D.C. Circuit, so its Petition to this Court should be dismissed for lack of subject-matter jurisdiction. In the alternative, the Petition should be transferred to the D.C. Circuit.

BACKGROUND A. Legal background The NRC issues licenses for the storage of spent nuclear fuel pursuant to authority conferred upon it by Congress pursuant to the AEAspecifically, pursuant to its authority to issue licenses for the possession of source, byproduct, and special nuclear material under 42 U.S.C. §§ 2073, 2092, 2093, 2111. In 1980, the NRC implemented its statutory authority in its regulations at 10 C.F.R. Part 72.

See Final Rule, Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 45 Fed. Reg. 74,693, 74,694, 74,699, 74,700-01 (November 12, 1980) (promulgating Part 72 and explaining that the agency licenses the possession of NRC-regulated materials at fuel storage sites pursuant to its AEA authority).

Both the D.C. Circuit and Tenth Circuitwhich encompasses New Mexico, the site of the Holtec facilityhave confirmed that Congress conferred the authority upon the NRC in the AEA to license the storage of spent nuclear fuel and did not repeal that authority through passage of the Nuclear Waste Policy Act 2

Case: 23-60377 Document: 18-1 Page: 10 Date Filed: 07/28/2023 (NWPA) in 1982. Bullcreek v. NRC, 359 F.3d 536, 542 (D.C. Cir. 2004); Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004).

See generally Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev.

Commn, 461 U.S. 190, 206, 217 (1983) (explaining that the Atomic Energy Commission, the NRCs predecessor, was given exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession and use of nuclear materials and recognizing, in the course of describing the NRCs authority under the AEA, that the NRC has promulgated detailed regulations governing storage and disposal

[of spent fuel] away from the reactor (citing 10 C.F.R. Part 72)).

B. Factual background In March 2017, Holtec filed an application with the NRC for a license to construct and operate a spent fuel storage facility in Lea County, New Mexico.

Fasken moved to dismiss the license application, asserting that issuance of the license would be inconsistent with the NWPA because it contemplated the storage of fuel for which the Department of Energy would be responsible. Several putative intervenors, including Fasken, also requested a hearing before the agency by filing contentions in accordance with the agencys adjudicatory procedures set forth at 10 C.F.R. Part 2. In October 2018, the NRC referred Faskens motion to dismiss into its adjudicatory process (along with a similar motion filed by another intervenor). Exhibit 1. Over the next three years, the NRC issued a series of 3

Case: 23-60377 Document: 18-1 Page: 11 Date Filed: 07/28/2023 rulings denying admission of the various contentions that the putative intervenors, including Fasken, had raised and ultimately denying their petitions to intervene.1 Fasken and three other groups of petitioners filed petitions for review in the D.C. Circuit, challenging the Commissions adjudicatory decisions denying them intervenor status. Those petitions were consolidated by the D.C. Circuit and remain pending before that court. See Beyond Nuclear v. NRC, No. 20-1187 (consolidated with No. 20-1225 (Dont Waste Michigan v. NRC), No. 21-1104 (Sierra Club v. NRC), and No.21-147 (Fasken v. NRC)).

On May 9, 2023, the NRC issued a license to Holtec to store spent fuel at the proposed facility. Exhibit 2. Fasken timely filed the instant Petition on July 7, 2023. See 28 U.S.C. § 2344.

This Petition is not the first one that Fasken has raised in this Court challenging the issuance of a license for a fuel storage facility. In 2021, Fasken filed a petition for review in this Court, which was consolidated with a petition 1

In the Matter of Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167 (2020) (affirming Licensing Boards denial of admission of contentions raised by Fasken, Sierra Club, Beyond Nuclear, Inc, and a group of Joint Intervenors, including Don't Waste Michigan, and remanding additional contentions to Licensing Board for further consideration); CLI-21-4, 93 NRC 119 (2021) (affirming denial of admission of Sierra Clubs additional contentions); CLI-21-7, 93 NRC 215 (2021) (affirming denial of Faskens motion to reopen the record to admit new contention).

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Case: 23-60377 Document: 18-1 Page: 12 Date Filed: 07/28/2023 filed by the State of Texas, challenging another license for a spent fuel storage facility, this one issued to Interim Storage Partners, LLC (ISP) for a facility in Texas. Texas v. NRC, No. 21-60743 (5th Cir.). As here, Fasken sought to intervene in the licensing proceeding, and the NRC denied Faskens petition to be admitted as a party. The NRC and the United States moved to dismiss the challenges filed in this Court, asserting that the Court lacks jurisdiction (a) over Texass petition because Texas did not participate at all in the adjudicatory proceedings before the agency; and (b) over Faskens petition because the sole remedy for persons who are denied party status in NRC proceedings is to seek review of the decision denying party status. The Court carried the NRCs motions with the case, and the matter has been briefed, argued, and submitted.

Since then, the courts of appeals have continued to confirm the proper course for participating in NRCs licensing proceedings and seeking judicial review of those decisions. In January 2023, the D.C. Circuit upheld the NRCs decision not to admit Fasken as a party to the proceedings concerning the ISP license. Dont Waste Michigan v. NRC, No. 21-1048, 2023 WL 395030 at *3 (D.C. Cir. Jan. 25, 2023) (unpublished per curiam judgment). In that same decision, the D.C. Circuit also held that it lacked jurisdiction to consider another petitioners direct challenge to the ISP license because that petitioner was denied leave to intervene and thus did not qualify as a party aggrieved by the NRCs 5

Case: 23-60377 Document: 18-1 Page: 13 Date Filed: 07/28/2023 order issuing the license. Id. (relying on Ohio Nuclear-Free Network v. NRC, 53 F.4th 236, 239 (D.C. Cir. 2022)). Then, in February 2023, the Tenth Circuit dismissed the State of New Mexicos direct challenge to the ISP license. Balderas

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

ARGUMENT I. The Petition for Review should be dismissed for lack of jurisdiction.

A. Fasken is not a party aggrieved under the Hobbs Act and therefore cannot directly challenge the Holtec license.

Faskens Petition for Review should be dismissed because this Court lacks jurisdiction to hear a direct challenge to the Holtec license by an entity that unsuccessfully sought intervention in the NRCs adjudicatory proceedings. The sole remedy for an entity denied intervenor status is to challenge the decision denying intervention, and that entity cannot get a second bite at the apple by seeking judicial review of the final order issuing the license.

Section 189 of the AEA, 42 U.S.C. § 2239(a), (b), and the Hobbs Act, 28 U.S.C. §§ 2342, 2344, permit a party aggrieved by a final order issued in an NRC licensing proceeding to seek judicial review of that order in the federal courts of appeals. Only a party aggrieved is permitted to seek such relief. Wales Transp.,

Inc. v. ICC, 728 F.2d 774, 776 (5th Cir. 1984); In re Chicago, Milwaukee, St. Paul

& Pac. R.R., 799 F.2d 317, 334-35 (7th Cir. 1986) (Hobbs Act limits review to petitions filed by parties, and that is that.). When an intervenor is admitted to an 6

Case: 23-60377 Document: 18-1 Page: 14 Date Filed: 07/28/2023 NRC proceeding for the issuance of a license, it becomes a party and is permitted to file a petition for review challenging the NRCs decision to issue license in the court of appeals within 60 days of the issuance of the license. See 28 U.S.C. § 2344. Indeed, this is the ordinar[y] scenario in which the final order that triggers Hobbs Act jurisdiction is the issuance of the license. City of Benton v.

NRC, 136 F.3d 824, 825 (D.C. Cir. 1998).

But if the NRC denies a person intervention, the putative intervenor is not a party aggrieved as to the license that may result from the proceeding. Rather, the putative intervenor is a party aggrieved only as to the independent NRC order that denied it permission to intervene. In that situation, the putative intervenors sole judicial remedy is to challenge the agencys final decision denying it party status. As this Court explained in American Trucking Assns v.

ICC, 673 F.2d 82, 85 (5th Cir. 1982), those who would intervene but are denied permission to do so are not without remedies. Their judicial remedy is to take an immediate appeal from that denial within the agency and, if necessary, to the Court of Appeals. Id..

Other courts of appeals agree with this Courts longstanding interpretation of the party aggrieved requirement of the Hobbs Act. See, e.g., Dont Waste Michigan, 2023 WL 395030 at *3 (Because Beyond Nuclear was denied leave to intervene in the NRC's licensing proceeding, it does not qualify as a party 7

Case: 23-60377 Document: 18-1 Page: 15 Date Filed: 07/28/2023 aggrieved by the order issuing the license.); Alaska v. FERC, 980 F.2d 761, 763 (D.C. Cir. 1992) (Having failed to achieve the status of a party to the litigation, the putative intervenor could not later seek review of the final judgment on the merits.); Ecology Action v. Atomic Energy Commn, 492 F.2d 998, 1000 (2nd Cir.

1974) (order denying intervention is immediately appealable as final order even if license has not yet issued); Thermal Ecology Must Be Preserved v. Atomic Energy Commn, 433 F.2d 524, 526 (D.C. Cir. 1970) (An order denying intervention would be reviewable . . . . ).

Fasken followed the path charted by these precedents in its litigation in the D.C. Circuit. Along with three other groups of petitioners who unsuccessfully sought to intervene before the NRC, Fasken has challenged the NRCs adjudicatory decisions denying it party status by filing a petition for review in the D.C. Circuit. See Beyond Nuclear v. NRC, No. 20-1187 (D.C. Cir.) (consolidated with Nos. 20-1225, 21-1104, and 21-1147). And Respondents have not contested the D.C. Circuits jurisdiction over those petitions for review. But this Court lacks jurisdiction over Faskens new Petition for Review challenging the license because Fasken never obtained intervenor status in the NRCs adjudicatory proceedings.

Under these circumstances, Faskens sole remedy under the Hobbs Act is to pursue its challenge to the NRCs denial of its admission as a party to the proceedings, as it has already done in the D.C. Circuit. American Trucking, 673 F.2d at 85; see 8

Case: 23-60377 Document: 18-1 Page: 16 Date Filed: 07/28/2023 also Dont Waste Michigan v. NRC, 2023 WL 395030 at *3; Alaska, 980 F.2d at 763. Faskens Petition for Review before this Court of its claims directly challenging the Holtec license should therefore be dismissed.

We note that Faskens Petition for Review does not specify the arguments it intends to raise before this Court. But see 28 U.S.C. § 2344(3) (directing that a petition for review shall contain a concise statement of, among other things, the grounds on which relief is sought). We expect that Fasken will raise arguments contesting the authority of the NRC to issue a license for the storage of spent fuel under the AEA. And, to be sure, when addressing review of orders by the Interstate Commerce Commission (ICC) under the Hobbs Act, 2 this Court in dicta in American Trucking identified two rare instances a person may appeal an agency action even if not a party to the original agency proceeding: (1) if the agency action is attacked as exceeding the power of the Commission; or (2) if a person, not a party to the agency proceeding, challenges the constitutionality of the statute conferring authority on the agency. American Trucking, 673 F.2d 82, 85 n.4 (5th Cir. 1982); see also Wales Transportation, 728 F.2d at 776 n.1 (5th Cir.

1984) (relying on ultra vires exception to review petition against ICC).

2 The functions of the ICC have since been assigned to the Surface Transportation Board, the rules, regulations, and final orders of which are reviewable under the Hobbs Act. See 28 U.S.C. §§ 2321, 2342.

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Case: 23-60377 Document: 18-1 Page: 17 Date Filed: 07/28/2023 But the ultra vires exception is inapplicable here. As an initial matter, and as this Court has observed, the exception has been squarely rejected by other courts. Baros v. Texas Mexican R.R. Co., 400 F.3d 228, 238 n.24 (5th Cir. 2005);

see also Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd., 167 F.3d 111, 112-13 (2nd Cir. 1999); In re Chicago, 799 F.2d at 334-35; Natl Assn of State Util. Consumer Advocates v. FCC, 457 F.3d 1238, 1249 (11th Cir. 2006). And for good reason. This Court explained in Baros that the underlying rationale for American Truckings ultra vires exception in ICC cases was the Courts apparent misapprehension that decisions of the ICC were not subject to the Hobbs Act (and its party aggrieved requirement). See Baros, 400 F.3d at 238 n.24 (noting that American Trucking had relied on two cases decided before 1975). In fact, decisions of the ICC became subject to the Hobbs Act in 1975, id. (citing Erie-Niagara, 167 F.3d at 113); Pub. L. No.93-584, §§ 3, 4, 88 Stat. 1917 (1975), and the exception that this Court recognized in American Trucking and applied in Wales Transportation rests on a flawed understanding of the non-applicability of the Hobbs Act, and the party aggrieved requirement, to ICC cases. That apparent error need not be (and has not been) extended to this Courts review under the Hobbs Act of decisions by other agencies. There is no justification for extending a suspect exception to the plain text in the Hobbs Act to decisions of the NRC.

10

Case: 23-60377 Document: 18-1 Page: 18 Date Filed: 07/28/2023 And even as to ICC orders, this Court has held that the exception to the requirement that one seeking review must be an aggrieved party is exceedingly narrow. Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 922 (5th Cir.

1993). Thus, in Merchants Fast, this Court held that the exception did not apply to a challenge to the ICCs authority where the agency had the authority to decide the issue being raised in the first instancein that case, whether the commerce at issue was interstate in character. Id. at 922; see also American Trucking, 673 F.2d at 84 (noting that it is incumbent upon an interested person to act affirmatively to protect himself in administrative proceedings (quoting Nader v. NRC, 513 F.2d 1045, 1054 (D.C. Cir. 1975)).

So here. The NRC has the authority to adjudicate arguments relating to the scope of its authority under the AEA. In fact, the agencys authority to issue the Holtec license is being challenged in the D.C. Circuit by petitioners who did assert before the agency that the agency lacks authority to issue licenses for the storage of spent fuel. See, e.g., Holtec International, LBP-19-4, 89 NRC 353, 383 (2019)

(adjudicating Sierra Clubs contention that any away-from-reactor interim storage facility is necessarily unlawful under the AEA and/or the NWPA). Yet Fasken has chosen not to pursue the avenue that Congress specified for asserting such arguments in court (i.e., by raising them in a hearing conducted pursuant to Section 189a of the AEA and seeking judicial review within 60 days of being denied 11

Case: 23-60377 Document: 18-1 Page: 19 Date Filed: 07/28/2023 intervenor status). Fasken cannot evade the plain requirements of the Hobbs Act by filing a freestanding and belated challenge to the license here.

Indeed, earlier this year, the Tenth Circuit correctly applied these principles when it rejected New Mexicos invocation of the ultra vires exception to challenge the ISP license. Balderas, 59 F.4th at 1124. In Balderas, the court not only rejected the legal basis for the ultra vires exception but also concluded that, even if the exception were legally sound, it would be inapplicable because New Mexico had the opportunity to raise arguments concerning the NRCs authority in the licensing proceeding. Id. (recognizing American Truckings reliance on the need for affirmative action to protect oneself). The same requirement applies to any challenge by Fasken in this Court to the NRCs authority to issue a license for the away-from-reactor storage of spent fuel Fasken could have raised these arguments in the form of a contention before the agency and, if dissatisfied with the result, could have sought review of the agencys decision not to permit it to intervene on this basis. Fasken simply chose not to do so.3 Thus, even if the ultra vires exception were applicable to decisions of the NRC, this case does not present 3

To the extent Fasken may claim that its petition for review in the D.C. Circuit does raise arguments that go to the agencys legal authority, it is obviously free to make those assertions before that court. But it is not entitled to a second judicial forum within which to raise such a challenge.

12

Case: 23-60377 Document: 18-1 Page: 20 Date Filed: 07/28/2023 the exceedingly narrow circumstances where its invocation would be appropriate.

B. The judicial review provisions of the Atomic Energy Act, not the Nuclear Waste Policy Act, govern this Petition.

Fasken also invokes in its Petition for Review the judicial review provision of the NWPA, 42 U.S.C. § 10139, which, unlike the Hobbs Act, does not contain a party aggrieved requirement. However, this provision is inapplicable to this case. Section 10139 of the NWPA provides for judicial review of actions of the President, the Department of Energy, or NRC taken under this part, which is a reference to actions undertaken pursuant to Part A of U.S. Code Title 42, Chapter 108, Subchapter 1, 42 U.S.C. §§ 10131-10145. And those actions all pertain to licenses issued to the Department of Energy, not to private parties.

The Tenth Circuit expressly reached this conclusion in Balderas, holding that Section 10139 of the NWPA is inapplicable when the NRC issues a license for temporary storage of spent fuel to a private party, like it did here, rather than a license to the Department of Energy for a permanent federal repository for spent fuel or a federally licensed temporary storage facility. 59 F.4th at 1122-23 (We lack jurisdiction under the Nuclear Waste Policy Act because it does not govern Interim Storages license.); see also Dont Waste Michigan, 2023 WL 395030 at

  • 1 (distinguishing between storage of spent fuel under the AEA and disposal in a permanent repository under the NWPA).

13

Case: 23-60377 Document: 18-1 Page: 21 Date Filed: 07/28/2023 The NRC made clear when it issued the license to Holtec that it was doing so pursuant to the AEA, not the NWPA. The very first paragraph of the license plainly so states. See Exhibit 2 at 1 (invoking agency authority under the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 (Public Law 93-438), and Title 10, Code of Federal Regulations, Chapter 1, Part 72, and in reliance on statements and representations heretofore made by the licensee). And it is well-settled that the Commission has authority under the AEA (not the NWPA) to license and regulate the storage of such fuel by private parties. See Bullcreek v. NRC, 359 F.3d at 542 (In enacting NWPA, Congress did not intend to repeal or supersede the NRC's authority under the AEA to license and regulate private use of private away-from-reactor spent fuel storage facilities.); Dont Waste Michigan, 2023 WL 395030 at *1 (quoting Bullcreek and observing that the AEA grants the NRC authority to license and regulate the storage and disposal of spent nuclear fuel); see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1232 (10th Cir. 2004) (endorsing the D.C. Circuits decision in Bullcreek concerning the scope of NRCs authority under the AEA and agreeing that passage of the NWPA did not affect NRCs preexisting authority).

In short, the NWPAs judicial review provision relates solely to review of agency action taken pursuant to the NWPA, not the AEA. And the NWPA authorizes judicial review of agency action related to the issuance of a license to 14

Case: 23-60377 Document: 18-1 Page: 22 Date Filed: 07/28/2023 the Department of Energy to construct and operate a spent fuel storage or disposal facility. See 42 U.S.C. § 10139. The license at issue in this case was issued pursuant to the AEA to a private party, Holtec, not to the Department of Energy; and it is the judicial review provision applicable to the AEA (i.e., AEA § 189b, 42 U.S.C. § 2239(b), invoking review under the Hobbs Act) that governs Faskens challenge.

II. Alternatively, the Petition for Review should be transferred to the D.C.

Circuit, where Fasken is already pursuing a jurisdictionally proper challenge to the NRCs licensing proceeding.

If this Court declines to dismiss Faskens Petition for Review, it should transfer the Petition to the D.C. Circuit. Transfer is in the interests of justice, promotes efficient use of judicial and party resources, and avoids the potential for conflicting decisions involving the same parties.

In August 2021, Fasken filed a petition for review in the D.C. Circuit that challenges the NRCs denial of intervention in the Holtec licensing proceedings.

Fasken also could have filed its subsequent petition for review challenging the Holtec license in the D.C. Circuit (even if there is no independent jurisdictional basis for the court to review the license itself, as discussed above). Instead, Fasken repeated the same approach that it pursued in the Texas litigation, filing a second petition for review of the license in this Court. Faskens decision to bifurcate judicial review of the related actions by the NRC between two federal courts of 15

Case: 23-60377 Document: 18-1 Page: 23 Date Filed: 07/28/2023 appeals could lead to conflicting judicial opinions. For instance, if the D.C. Circuit were to hold that the NRC properly denied Fasken intervention in the ISP proceedings, then this Courts review of Faskens challenge to the Holtec license would directly conflict with that decision.

Moreover, the D.C. Circuit has consolidated several petitions for review of the NRCs orders denying intervention in the Holtec licensing proceeding. If this Court does not transfer Faskens Petition, Fasken would be participating in briefing in two courts of appeals raising issues related to the same license. This is an improper and inefficient use of judicial and party resources that creates a risk of conflicting opinions by two courts of appeals related to the same order (the Holtec license) and the same parties (Fasken, Respondents, and Holtec).

Fasken also appears likely to raise issues in this Court that substantially overlap with the issues that it or other parties intend to pursue in the D.C. Circuit, including the agencys authority to issue licenses for the storage of spent nuclear fuel under either the AEA or the NWPA. Fasken should not be permitted to pursue similar issues before multiple courts of appeals, especially when the resulting overlap is the result of its unilateral decision to file petitions in both courts.

Moving forward with the Petition for Review in this Court that raises similar issues to those that will be raised in the D.C. Circuit would undermine a sister circuits 16

Case: 23-60377 Document: 18-1 Page: 24 Date Filed: 07/28/2023 case management efforts and needlessly complicate the litigation for all involved, including the courts.

To the extent this Court has jurisdiction over Faskens Petition for Review (and it plainly does not), it is empowered to transfer the Petition to the D.C.

Circuit, where Fasken could have filed the Petition. See 28 U.S.C. § 2343; Am.

Newspaper Publishers Assns v. U.S. Postal Service, 789 F.2d 1090, 1092 (5th Cir.

1986) (transferring case to Fourth Circuit). And, in this case, the interests of justicewith respect to conserving judicial resources, the undesirability of inconsistent decision from different circuits, and the discouragement of forum-shoppingstrongly militate in favor of transfer here. Cf. 28 U.S.C. § 1404(a)

(permitting transfer of district court actions in the interest of justice).

17

Case: 23-60377 Document: 18-1 Page: 25 Date Filed: 07/28/2023 CONCLUSION Respondents respectfully request that this Court dismiss Faskens Petition for Review for lack of subject-matter jurisdiction, or in the alternative, transfer the Petition to the United States Court of Appeals for the D.C. Circuit.

Respectfully submitted,

/s/ Justin D. Heminger /s/ Andrew P. Averbach TODD KIM ANDREW P. AVERBACH Assistant Attorney General Solicitor JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Environment and Natural Resources 11555 Rockville Pike Division Rockville, MD 20852 U.S. Department of Justice andrew.averbach@nrc.gov Post Office Box 7415 (301) 415-1956 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442 July 28, 2023 18

Case: 23-60377 Document: 18-1 Page: 26 Date Filed: 07/28/2023 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)

I certify that this filing complies with the requirements of Fed. R. App. P.

27(d)(1)(E) because it has been prepared in 14-point Times New Roman, a proportionally spaced font.

I further certify that this filing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 4,151 words, excluding the parts of the of the filing exempted under Fed. R. App. P. 32(f), according to the count of Microsoft Word.

/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission

Case: 23-60377 Document: 18-1 Page: 27 Date Filed: 07/28/2023 CERTIFICATE OF SERVICE I certify that on July 28, 2023, I served a copy of the foregoing MOTION TO DISMISS OR TRANSFER THE PETITION FOR REVIEW OF FASKEN LAND AND MINERALS AND PERMIAN BASIN LAND AND ROYALTY OWNERS upon counsel for the parties in this action by filing the document electronically through the CM/ECF system.

/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission

Case: 23-60377 Document: 18-2 Page: 1 Date Filed: 07/28/2023 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matters of )

)

)

HOLTEC INTERNATIONAL ) Docket No. 72-1051

)

(HI-STORE Consolidated Interim Storage )

Facility) )

)

)

INTERIM STORAGE PARTNERS LLC ) Docket No. 72-1050

)

(WCS Consolidated Interim Storage Facility) )

)

_________________________________________ )

ORDER On July 16, 2018, the NRC provided notice in the Federal Register of Holtec Internationals application to construct and operate a consolidated interim storage facility for spent nuclear fuel.1 Separately, on August 29, 2018, the NRC provided notice in the Federal Register of Interim Storage Partners application to construct and operate a consolidated interim storage facility for spent nuclear fuel.2 On September 14, 2018, Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners filed motions to dismiss both the Holtec and Interim Storage Partners applications.3 These groups argue that the NRC cannot, as a threshold matter, issue 1 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,608 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018). Interim Storage Partners is a joint venture of Orano USA and Waste Control Specialists.

3 Beyond Nuclear filed its own motion to dismiss. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14, EXHIBIT 1

Case: 23-60377 Document: 18-2 Page: 2 Date Filed: 07/28/2023 licenses to Holtec or Interim Storage Partners because both applications are contrary to the Nuclear Waste Policy Act (NWPA). Specifically, the groups argue that both applications contemplate the storage of Department of Energy-titled spent fuel in violation of various NWPA provisions.

The NRCs regulations allow interested persons to file petitions to intervene and requests for hearing in which they can raise concerns regarding a particular license application.

These regulations do not, however, provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. I therefore deny both motions to dismiss on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions.

Beyond Nuclear also filed hearing petitions in the Holtec and Interim Storage Partners proceedings that incorporated by reference the NWPA arguments that it raised in its motion to dismiss and identified those arguments as proposed contentions.4 I am separately referring these hearing requestsas well as other hearing requests challenging the applicationsto the Atomic Safety and Licensing Board Panel (ASLBP) for the establishment of a Board to consider all hearing requests in accordance with the hearing procedures set forth in 10 C.F.R. §2.309.

And, in accordance with 10 C.F.R. § 2.346(i), I am referring the motion from Fasken Land and 2018) (ADAMS Accession No. ML18257A318). Fasken Land and Minerals joined with Permian Basin Land and Royalty Owners to file a motion to dismiss that is substantially similar to Beyond Nuclears motion. Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (ML18257A330). Both the NRC Staff and respective applicants filed oppositions to the motions, and Beyond Nuclear, Fasken Land and Minerals, and Permian Basin Land and Royalty Owners then filed replies.

4 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018)

(ML18257A324) (Holtec docket); Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Interim Storage Partners docket). Fasken Land and Minerals and Permian Basin Land and Royalty Owners have not filed related hearing petitions in either docket.

Case: 23-60377 Document: 18-2 Page: 3 Date Filed: 07/28/2023 Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under

§ 2.309.

This Order is issued under my authority in 10 C.F.R. § 2.346(c), (g), (i), and (j).

IT IS SO ORDERED.

For the Commission NRC SEAL /RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October 2018

Case: 23-60377 Document: 18-2 Page: 4 Date Filed: 07/28/2023 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket No. 72-1051

)

HOLTEC INTERNATIONAL )

)

)

(HI-STORE Consolidated Interim Storage )

Facility) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER OF THE SECRETARY have been served upon the following persons by Electronic Information Exchange (EIE).

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sarah Ladin, Law Clerk Patrick Moulding, Esq.

E-mail: sarah.ladin@nrc.gov E-mail: patrick.moulding@nrc.gov Joseph McManus, Law Clerk Sara B. Kirkwood, Esq.

E-mail: joseph.mcmanus@nrc.gov E-mail: sara.kirkwood@nrc.gov Taylor A. Mayhall Mauri Lemoncelli, Esq.

E-mail: taylor.mayhall@nrc.gov E-mail: mauri.lemoncelli@nrc.gov Office of Commission Appellate Christopher Hair, Esq.

Adjudication E-mail: christopher.hair@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Joseph I. Gillespie, Esq.

E-mail: ocaamail@nrc.gov E-mail: joe.gillespie@nrc.gov Krupskaya T. Castellon, Paralegal E-mail: krupskaya.castellon@nrc.gov Holtec Counsel Pillsbury Winthrop Shaw Pittman LLP OGC Mail Center: Members of this office have 1200 Seventeenth Street, NW received a copy of this filing by EIE service.

Washington, DC 20036 Jay Silberg, Esq. Dont Waste Michigan E-mail: jay.silberg@pillsburylaw.com 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Timothy J. Walsh, Esq. Terry J. Lodge, Esq.

E-mail: timothy.walsh@pillsburylaw.com E-mail: tjlodge50@yahoo.com Anne Leidich, Esq. Sierra Club E-mail: anne.leidich@pillsburylaw.com 4403 1st Avenue SE, Suite 402 Cedar Rapids, IA 52402 Michael Lepre, Esq. Wallace L. Taylor, Esq.

E-mail: michael.lepre@pillsburylaw.com E-mail: wtaylor784@aol.com

Case: 23-60377 Document: 18-2 Page: 5 Date Filed: 07/28/2023 Docket No. 72-1051 ORDER OF THE SECRETARY Harmon, Curran, Spielberg & Eisenberg LLP Hogan Lovells LLP 1725 DeSales Street NW 555 13th Street NW Suite 500 Washington, DC 20004 Washington, DC 20036 Sachin S. Desai, Esq.

Diane Curran, Esq. E-mail: sachin.desai@hoganlovells.com E-mail: dcurran@harmoncurran.com Allison E. Hellreich, Esq.

E-mail: allison.hellreich@hoganlovells.com Robert V. Eye Law Office, LLC Law Office of Nancy L. Simmons 4840 Bob Billings Parkway 120 Girard Boulevard SE Lawrence, KS 66049 Albuquerque, NM 87106 Robert V. Eye, Esq. Nancy L. Simmons, Esq.

E-mail: bob@kauffmaneye.com E-mail: nlsstaff@swcp.com Timothy J. Laughlin, Esq.

E-mail: tijay1300@gmail.com Turner Environmental Law Clinic Eddy-Lea Energy Alliance 1301 Clifton Road 102 S. Canyon Atlanta, GA 30322 Carlsbad, NM 88220 Mindy Goldstein, Esq. John A. Heaton E-mail: magolds@emory.edu E-mail: jaheaton1@gmail.com City of Carlsbad, NM City of Hobbs, NM 1024 N. Edward 2605 Lovington Highway Carlsbad, NM 88220 Hobbs, NM 88242 Jason G. Shirley Garry A. Buie E-mail: jgshirley@cityofcarlsbadnm.com E-mail: gabuie52@hotmail.com Eddy County, NM Lea County, NM 101 W. Greene Street 100 N. Main Carlsbad, NM Lovington, NM 88260 Rick Rudometkin Jonathan B. Sena E-mail: rrudometkin@co.eddy.nm.us E-mail: jsena@leacounty.net

[Original signed by Brian Newell]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 29th day of October, 2018 2

Case: 23-60377 Document: 18-3 Page: 1 Date Filed: 07/28/2023 NRC FORM 588 U. S. NUCLEAR REGULATORY COMMISSION (10-2000) 10 CFR 72 PAGE 1 OF 3 PAGES LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 (Public Law 93-438), and Title 10, Code of Federal Regulations, Chapter 1, Part 72, and in reliance on statements and representations heretofore made by the licensee, a license is hereby issued authorizing the licensee to receive, acquire, and possess the power reactor spent fuel and other radioactive materials associated with spent fuel storage designated below; to use such material for the purpose(s) and at the place(s) designated below; and to deliver or transfer such material to persons authorized to receive it in accordance with the regulations of the applicable Part(s). This license shall be deemed to contain the conditions specified in Section 183 of the Atomic Energy Act of 1954, as amended, and is subject to all applicable rules, regulations, and orders of the Nuclear Regulatory Commission now or hereafter in effect and to any conditions specified herein.

This license is conditioned upon fulfilling the requirements of 10 CFR Part 72, as applicable, the attached Appendix A (Technical Specifications), and the conditions specified below.

Licensee

1. Holtec International 3. License No. SNM-2516 Amendment No. 0
2. Holtec Technology Center 4. Expiration Date May 9, 2063 1 Holtec Blvd Camden, NJ 08104 5. Docket or 72-1051 Reference No.
6. Byproduct, Source and /or 7. Chemical and/or Physical Form 8. Maximum Amount That Licensee Special Nuclear Material May Possess at Any One Time Under This License A. Spent nuclear fuel elements from A. Undamaged fuel assemblies, damaged A. 8,680 Metric Tons of Uranium commercial nuclear utilities licensed fuel assemblies, and fuel debris, as (500 loaded canisters) in the form of pursuant to 10 CFR Part 50 and allowed by Certificate of Compliance undamaged fuel assemblies, damaged associated radioactive materials related No. 1040, Amendments 0, 1, and 2, for fuel assemblies, and fuel debris.

to the receipt, transfer, and storage of the HI-STORM UMAX Canister Storage that spent nuclear fuel. System, and described in Paragraph 9 below.

9. Authorized Use: The material identified in 6.A and 7.A above is authorized for receipt, possession, storage, and transfer in the HI-STORE Consolidated Interim Storage (CIS) Facility, as described in the HI-STORE CIS Facility Final Safety Analysis Report (FSAR). Storage is authorized only in casks designed in accordance with Certificate of Compliance No. 1040, Amendments 0, 1, and 2, for the HI-STORM UMAX Canister Storage System.
10. Authorized Place of Use: The licensed material is to be received, possessed, transferred, and stored at the HI-STORE CIS Facility located in Lea County, New Mexico.
11. The Technical Specifications contained in the Appendix attached hereto are incorporated into the license. The licensee shall operate the HI-STORE CIS Facility in accordance with the Technical Specifications in the Appendix.
12. The design, construction, and operation of the HI-STORE CIS Facility shall be accomplished in accordance with the NRCs regulations specified in Title 10 of the Code of Federal Regulations. All commitments to applicable Commission Regulatory Guides and to applicable engineering and construction codes shall be met.

EXHIBIT 2

Case: 23-60377 Document: 18-3 Page: 2 Date Filed: 07/28/2023 NRC FORM 588A U. S. NUCLEAR REGULATORY COMMISSION PAGE 2 OF 3 PAGES (10-2000) 10 CFR 72 License No. Amendment No.

LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR SNM-2516 0 FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Docket or Reference No.

SUPPLEMENTARY SHEET 72-1051

13. The licensee shall follow the Holtec International & Eddy Lea Energy Alliance (ELEA) Underground Consolidated Interim Storage Facility -- Emergency Response Plan, HI-2177535, Revision 5, dated November 17, 2022, and as further supplemented and revised in accordance with 10 CFR 72.44(f).
14. The licensee shall:

(1) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) Underground Consolidated Interim Storage Facility - Physical Security Plan, HI-2177559, Revision 3, dated March 2, 2020, as it may be further amended under the provisions of 10 CFR 72.44(e) and 72.186; (2) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) Underground Consolidated Interim Storage Facility - Safeguards Contingency Plan, HI-2177560, Revision 3, dated March 2, 2020, as it may be further amended under the provisions of 10 CFR 72.44(e) and 72.186; and (3) follow the Holtec International & Eddy Lea Energy Alliance (ELEA) CISF Security Training and Qualification Plan, HI-2177561, Revision 2, dated March 30, 2019, as it may be further amended under the provisions of 10 CFR 72.44(e) and 72.186.

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

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

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

(1) include in its service contracts provisions requiring customers to retain title to the spent fuel stored, and allocating legal and financial liability among the licensee and the customers; (2) include in its service contracts provisions requiring customers to provide periodically credit information, and, where necessary, additional financial assurances such as guarantees, prepayment, or payment bond; (3) include in its service contracts a provision requiring the licensee not to terminate its license prior to furnishing the spent fuel storage services covered by the service contract.

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

Case: 23-60377 Document: 18-3 Page: 3 Date Filed: 07/28/2023 NRC FORM 588A U. S. NUCLEAR REGULATORY COMMISSION PAGE 3 OF 3 PAGES (10-2000) 10 CFR 72 License No. Amendment No.

LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR SNM-2516 0 FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Docket or Reference No.

SUPPLEMENTARY SHEET 72-1051

18. The licensee shall have insurance coverage as specified in Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISF - Financial Assurance & Project Life Cycle Cost Estimates, HI-2177593, Revision 2, effective 30 days before first fuel arrival.
19. Prior to receipt of the material identified in sections 6.A and 7.A of this license, the Licensee shall have a decommissioning financial assurance instrument, in a form of one or more of the methods described in 10 CFR 72.30(e), reflecting the current decommissioning cost estimate.
20. This license is effective as of the date of issuance shown below.

FOR THE NUCLEAR REGULATORY COMMISSION Signed by Helton, Shana on 05/09/23 Shana R. Helton, Director Division of Fuel Management Office of Nuclear Material Safety and Safeguards Date of Issuance: May 9, 2023

Attachment:

Appendix A - Technical Specifications for the HI-STORE Consolidated Interim Storage (CIS) Facility

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