ML21336A521
| ML21336A521 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 12/02/2021 |
| From: | Andrew Averbach, Heminger J, Kim T NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 00516114195, 21-60743 | |
| Download: ML21336A521 (28) | |
Text
Case: 21-60743 Document: 00516114195 Page: 1 Date Filed: 12/02/2021
No. 21-60743
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF TEXAS; TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; 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 Environment and Natural Resources Commission Division 11555 Rockville Pike U.S. Department of Justice Rockville, MD 20852 Post Office Box 7415 andrew.averbach@nrc.gov Washington, D.C. 20044 (301) 415-1956 justin.heminger@usdoj.gov (202) 514-5442
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CERTIFICATE OF INTERESTED PERSONS
Case No. 21-60743
STATE OF TEXAS; GREG ABBOTT, GOVERNOR OF TEXAS; TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; 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. State of Texas
- b. Greg Abbott, Governor of Texas
- c. Texas Commission on Environmental Quality
- d. Fasken Land and Minerals, Ltd.
- e. Permian Basin Land and Royalty Owners
- 2. Counsel for Petitioners
- a. Michael Abrams, Office of Attorney General, State of Texas
- b. Ryan Baasch, Office of Attorney General, State of Texas
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- c. Henry Carl Myers, Office of Attorney General, State of Texas
- d. Allan L. Kanner, Kanner & Whiteley, L.L.C.
- e. Annemieke M. Tennis, Kanner & Whiteley, L.L.C.
- f. Monica Renee Perales
- 3. Respondents
- a. United States Nuclear Regulatory Commission
- b. United States of America
- 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. Respondent-Intervenor
- a. Interim Storage Partners, LLC
- b. Orano CIS, LLC
- d. Orano SA, owned by government of France, Mitsubishi, and Japan
Nuclear Fuel
- e. Waste Control Specialists, LLC
- f. Fermi Holdings, Inc.
ii
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- g. J.F. Lehman & Co.
- 6. Counsel for Respondent-Intervenor
- a. Brad Fagg, Morgan, Lewis & Bockius LLP
/s/ Andrew P. Averbach Andrew P. Averbach Counsel for Respondent U.S. Nuclear Regulatory Commission
iii
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Respondents Nuclear Regulatory Commission (NRC) and the United
States of America move to dismiss or in the alternative to transfer to the U.S. Court
of Appeals for the District of Columbia Circuit, 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. Petitioners State of
Texas, Governor Abbott, and Texas Commission on Environmental Quality
(collectively Texas) oppose the relief requested and intend to file a response.
Respondent-Intervenor Interim Storage Partners, LLC (ISP) supports the
requested relief but will not file a separate response.
BACKGROUND
This action concerns an Atomic Energy Act (AEA) license that the NRC
issued on September 13, 2021, to ISP to construct and operate a facility in Texas
for the storage of spent nuclear fuel. On September 23, 2021, Texas filed a
petition for review in this Court challenging the license. The NRC and the United
States moved to dismiss that petition because Texas did not participate in the
adjudicatory hearing process before the NRC. On November 19, 2021, this Court
ordered that motion be carried with the case. Order (Nov. 19, 2021) (per curiam).
Unlike Texas, Fasken did participate in the NRCs adjudicatory proceedings.
In decisions dated December 17, 2020 and June 22, 2021, the NRC determined that
Case: 21-60743 Document: 00516114195 Page: 6 Date Filed: 12/02/2021
Faskens contentions supporting its request to intervene as a party were not
admissible, denied its hearing request, and declined to admit Fasken as a party. In
August 2021, Fasken petitioned for review of those decisions in the D.C. Circuit.
See Exhibit 1. The D.C. Circuit consolidated Faskens petition with three other
similar petitions for review (the first of which was filed in February 2021)
challenging the NRCs decisions denying the other petitioners requests for party
status in the ISP license adjudicatory proceedings. On November 10, 2021, the
D.C. Circuit issued an order establishing a briefing format and schedule for these
consolidated petitions for review. Petitioners opening brief (or briefs) is due
January 20, 2021.
On November 12, 2021, the three sets of petitioners before the D.C. Circuit
other than Fasken filed four new petitions for review in the D.C. Circuit, this time
purporting to challenge the NRCs September 13, 2021, issuance of the ISP
license. The D.C. Circuit consolidated three of the petitions (apparently
inadvertently excluding the fourth) with the petitions that had previously been
filed, including Faskens. Order, Doc. No. 1922896, Dont Waste Michigan v.
NRC, No. 21-1048 (D.C. Cir. Nov. 17, 2021). The D.C. Circuit also ordered that
the previously entered briefing format and schedule also applied to the newly
consolidated petitions. Thus, eight consolidated petitions for review are pending
before the D.C. Circuit related to the ISP license, including Faskens.
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Fasken did not take the same route as the other D.C. Circuit petitioners.
Rather than filing another petition in the D.C. Circuit, as its co-petitioners did,
Fasken filed a new Petition for Review of the ISP license itself in this Court.
ARGUMENT
I. The Petition for Review should be dismissed because Fasken cannot directly challenge the ISP license and because the license was issued under the Atomic Energy Act, not the Nuclear Waste Policy Act.
Faskens Petition for Review should be dismissed because this Court lacks
jurisdiction to hear a direct challenge to the ISP license by a party that
unsuccessfully sought intervention in the NRCs adjudicatory proceedings. As
discussed below, a party denied intervenor status must challenge the decision
denying intervention, and it cannot seek 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, 42
U.S.C. §§ 2342, 2342, permit parties aggrieved by final orders in NRC licensing
proceedings to seek judicial review of those orders in the United States courts of
appeals. Only parties aggrieved by such orders are permitted to seek such relief.
See 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 NRC proceeding for the issuance of a
license, it becomes a party and is permitted to file a petition for review in the
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court of appeals within sixty days of the issuance of the license. 28 U.S.C. § 2344.
Indeed, this is the ordinary scenario in which the final order that triggers
Hobbs Act jurisdiction is the issuance of the license. See, e.g., City of Benton v.
NRC, 136 F.3d 824, 825 (D.C. Cir. 1998).
However, when a putative intervenor before the NRC does not obtain party
status because the agency does not admit its contentions, then it is not a party
aggrieved with respect to the issuance of the license; rather, the putative
intervenor is a party aggrieved with respect to the independent NRC order
denying it intervention. In that situation, the putative intervenors proper judicial
remedy is to challenge the decision denying it party status, which it must do within
60 days of the order denying its admission to the proceeding, and it cannot
challenge the license itself. See 28 U.S.C. § 2344; 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.... ).
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Fasken followed the path charted by these precedents. Along with the other
D.C. Circuit petitioners, Fasken challenged the NRCs adjudicatory decisions
denying it party status by filing a petition for review in the D.C. Circuit. And
Respondents have not contested the D.C. Circuits jurisdiction over those original
petitions for review. But this Court lacks jurisdiction over Faskens new Petition
for Review because Fasken never obtained intervenor status in the NRCs
adjudicatory proceedings that led to the issuance of the ISP license. 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. Alaska, 980 F.2d at 763. Faskens Petition
for Review before this Court of its claims directly challenging the ISP license
should be dismissed.
In addition to claiming jurisdiction under the Hobbs Act, Faskens Petition
for Review also invokes the judicial review provision of the Nuclear Waste Policy
Act (NWPA), 42 U.S.C. § 10139. This provision is inapplicable. The NRC
issued the ISP license under the AEA and, specifically, its authority to issue
licenses for the possession of spent nuclear fuel pursuant to 10 C.F.R. Part 72. The
very first paragraph of the license plainly states this. See Exhibit 2 (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,
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Part 72, and in reliance on statements and representations heretofore made by the
licensee, a license is hereby issued....). 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. Bullcreek v. NRC, 359 F.3d 536, 538-39
(D.C. Cir. 2004); see also id. 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.).
The NWPAs judicial review provision plainly relates to review of agency
action taken pursuant to the NWPA, not the AEA. Specifically, the NWPA
authorizes judicial review of agency action related to the issuance of a license to
the Department of Energy to construct and operate a spent fuel storage or disposal facility.1 The license at issue in this case was issued pursuant to the AEA to a
private party, ISP, not to the Department of Energy; and it is the judicial review
provision of that statute (i.e., AEA § 189(b), 42 U.S.C. § 2239(b), invoking review
under the Hobbs Act) that governs Faskens challenge.
1 Section 10139 of the NWPA refers to judicial review of actions of the President, DOE, or NRC taken under this part, which is a reference to actions undertaken pursuant to U.S. Code Title 42, Chapter 108, Subchapter 1, Part A, 42 U.S.C.
§§ 10131-10145. The licensing action that Fasken challenges in its Petition for Review was not undertaken pursuant to any of these provisions, or any provision of the NWPA.
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In summary, because neither the Hobbs Act nor the NWPA gives this Court
jurisdiction to review the ISP license, Faskens Petition for Review should be
dismissed.
II. Alternatively, the Petition for Review should be transferred to the D.C.
Circuit, where Fasken is already pursuing a challenge to the NRCs actions.
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 ISP license proceedings. Since
then, Fasken has continued to pursue that petition, including by joining the other
petitioners in requesting and obtaining a briefing schedule and format from the
D.C. Circuit. There is no question that, as did the other D.C. Circuit petitioners,
Fasken could have filed its subsequent petition for review challenging the ISP
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 filed the
Petition for Review of the ISP license in this Court. Faskens decision to bifurcate
judicial review of the related actions by the NRC between two courts of appeals
could lead to conflicting judicial opinions. For instance, if the D.C. Circuit were to
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hold that the NRC properly denied Fasken intervention in the ISP proceedings,
then this Courts review of Faskens challenge to the ISP license would conflict
with that decision.
Moreover, the D.C. Circuit has consolidated the petitions for review pending
in that court, both the petitions challenging the NRCs orders denying intervention
and the petitions directly challenging the NRCs issuance of the ISP license (by
parties other than Fasken). If this Court does not transfer Faskens Petition, Fasken
would be participating in briefing in two courts of appeals challenging the same
ISP 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 involving the
same order (the ISP license) and the same parties (Fasken and Respondents).
Fasken also appears likely to raise issues in this Court that substantially
overlap with the issues it intends to pursue in the D.C. Circuit. For example, in its
non-binding statement of issues filed before the D.C. Circuit, Fasken identified the
following issue, among others:
Whether the NRC acted arbitrarily and capriciously, failed to engage in reasoned decision-making, acted without substantial evidence, abused its discretion, and/or acted otherwise contrary to law, including but not limited to in violation of the NWPA, the APA, the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, et seq. (NEPA) and/or its own regulations, when it denied Petitioners the required opportunity for a hearing and ruled that Petitioners contentions were inadmissible in CLI-20-14 and/or CLI-21-09.
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Petitioners Non-Binding Statement of Issues at 2, Doc. No. 1921498, Dont Waste
Michigan v. NRC, No. 21-1048 (D.C. Cir. Nov. 8, 2021). This issue is similar to
the NEPA argument that Fasken has identified in its Petition for Review before this
Court. See Petition for Review at 2 (asserting that the NRCs record of decision
eschews reasonable consideration of environmental impacts of the ISP/[Waste
Control Specialists Consolidated Interim Storage Facility]). Fasken should not
be permitted to pursue similar issues before multiple courts of appeals, especially
when that overlap is the result of its choice 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 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;
American 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
interest of justicewith respect to conserving judicial resources, the undesirability
of inconsistent decision from different circuits, and the discouragement of forum-
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shoppingstrongly militates in favor of transfer here. Cf. 28 U.S.C. § 1404(a)
(permitting transfer of district court actions in the interest of justice).
This interest likewise militates in favor of transfer in the event that Fasken
invokes 28 U.S.C. § 2112(a) as a reason to keep its Petition for Review in this
Court. Section 2112(a) is a somewhat unusual venue statute that provides for
consolidated review of petitions in a single court of appeals to avoid confusion
and duplication by the courts and to prevent unseemly conflicts that could result
should sister circuits take the initiative and issue conflicting decisions.
Westinghouse Elec. Corp. v. NRC, 598 F.2d 759, 766-67 (3rd Cir. 1979). Under
Section 2112(a), consolidated review is determined by (1) a lottery, when multiple
petitions are filed in different circuits within 10 days of the agency order issuing;
or (2) a first-filed ruled. 28 U.S.C. § 2112(a); see Wynnewood Refining Co. v.
OSHA, 933 F.3d 499, 500 & n.1 (5th Cir. 2019). But while Texas was the only
party to directly challenge the ISP license itself within ten days of the NRC issuing
the license, Section 2112 does not anchor challenges to the license in this Court.
First, Texass petition for review is jurisdictionally infirm, for the reasons set
forth in our prior Motion to Dismiss. Although this Court has deferred resolution
of that Motion to the merits stage, neither Fasken nor Texas should not be able to
rely on Texass petition as the first filed when there is a serious question whether
that petition is jurisdictionally sound. Cf. Pub. Serv. Commn for State of N.Y. v.
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Fed. Power Commn, 472 F.2d 1270, 1272 (D.C. Cir. 1972) (noting exception to
the first-to-file rule for a case where the first petition to review is filed by a party
who is not substantially aggrieved, in effect undercutting the assumption of a good
faith petition to review (emphasis added)).
Second, the jurisdictionally sound petitions for review in the D.C. Circuit
(including Faskens) were filed long before Texas filed its petition. Section 2112
provides a mechanical rule for determining which court should determine venue
in the case of conflicting petitions for review. Natl Parks Conservation Assn v.
EPA, 991 F.3d 681, 684 (5th Cir. 2021) (cleaned up). Specifically, [i]f
proceedings are instituted in two or more courts of appeals with respect to the same
[administrative agency] order, then the court in which the proceedings were first
instituted should determine venue. Id. (quoting 28 U.S.C. § 2112(a)(1), (5))
(cleaned up). In this regard, the courts of appeals recognize that Section 2112(a)s
reference to the same order should account for multiple orders issued in the same
or interrelated proceedings. See, e.g., Pub. Serv. Commn for N.Y., 472 F.2d at
1272 (noting exception to the first-to-file rule for a case where the same or inter-
related proceeding was previously under review in a court of appeals and is now
brought for review of an order entered after remand, or in a follow-on phase, where
continuance of the same appellate tribunal is necessary to maintain continuity in
the total proceeding); BASF Wyandotte Corp. v. Costle, 582 F.2d 108, 112 (1st
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Cir. 1978) (adopting a rule under which sequential regulations should be
considered the same order for purposes of Section 2112(a) if they arise from the
same or interrelated proceedings); Westinghouse, 598 F.2d at 767 (Also in
keeping with the purposes of the statute, courts have interpreted the term, the
same order, so as to insure the consolidation in one court of petitions from
sequential orders arising from the same administrative background and cumulative
record.).
Here, although those petitions challenge earlier actions by the NRC, those
actions arose from the same proceedings that eventually resulted in the ISP license.
And the D.C. Circuit has now consolidated the new petitions for review
challenging the ISP license with the earlier-filed petitions challenging the NRC
order denying intervention. Order, Doc. No. 1922896, Dont Waste Michigan v.
NRC, No. 21-1048 (D.C. Cir. Nov. 17, 2021). Under these circumstances, the
first-to-file rule should be measured from the first petition filed in the D.C. Circuit
in February 2021. See Petition for Review, Dont Waste Michigan v. NRC, No. 21-
1048 (D.C. Cir. Feb. 2, 2021). This Court should reject Faskens attempt to shift
the locus of properly filed proceedings away from the circuit in which they were
originally filed and, in so doing, create a duplication of judicial and party resources
and a substantial risk of inconsistent judgments.
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Finally, we acknowledge that even if this Court transfers Faskens Petition
for Review to the D.C. Circuit, Texass petition will remain in this Court. For
three reasons, however, the perfect should not be the enemy of the good.
First, unlike Fasken, Texas filed in only one court of appeals and has
challenged only the ISP license.
Second, unlike Fasken, Texas never sought to participate in the ISP
adjudicatory proceedings. For the reasons explained in our prior Motion to
Dismiss, Texas therefore is precluded from challenging the ISP license in any court
of appeals. Thus, the final disposition of Texas petition for review should be
dismissal for lack of jurisdiction. In contrast, Fasken has a timely, jurisdictionally
proper petition for review that has been pending in the D.C. Circuit since August
2021. That court, therefore, is the proper forum for any and all of Faskens
challenges to the NRCs actions to be heard.
Third, Section 2112(a) authorizes the court where the record is filed to
transfer all proceedings with respect to that order to any court of appeals [f]or
the convenience of the parties in the interest of justice. 28 U.S.C. § 2112(a)(5).
Here, the convenience of the parties and the interest of justice weigh in favor of
Faskens Petition being transferred to the D.C. Circuit. Cf. American Pub. Gas
Assn v. Fed. Power Commn, 555 F.2d 852, 857, 861 (D.C. Cir. 1976) (observing
that this Court had agreed to a procedure by which the D.C. Circuit should take
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the lead and reach a determination on venue and looking to the convenience of the
parties and interest of justice as the basis for determining venue). As to the parties
convenience, the D.C. Circuit has established an efficient briefing format and
schedule that will govern the consolidated petitions for review before that Court,
including Faskens own, earlier-filed petition. As to the interest of justice,
Faskens strategic choice to file in two courts of appeals should not be rewarded.
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
December 2, 2021
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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 3,298 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: 21-60743 Document: 00516114195 Page: 20 Date Filed: 12/02/2021
CERTIFICATE OF SERVICE
I certify that on December 2, 2021, I served a copy of 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. This method of service is calculated to serve counsel at the following e-mail addresses:
Michael Abrams Michael.Abrams@oag.texas.gov, hollis.duncan@oag.texas.gov, katrina.shanks@oag.texas.gov
Henry Carl Myers carl.myers@oag.texas.gov, david.laurent@oag.texas.gov, laura.courtney@oag.texas.gov
Justin Heminger justin.heminger@usdoj.gov, efile_app.enrd@usdoj.gov
Arnold Bradley Fagg brad.fagg@morganlewis.com
Allan L. Kanner a.kanner@kanner-law.com; A.Tennis@kanner-law.com, k.crowell@kanner-law.com
/s/ Andrew P. Averbach Andrew P. Averbach
Counsel for Respondent U.S. Nuclear Regulatory Commission
Case: 21-60743 Document: 00516114196 Page: 1 Date Filed: 12/02/2021 Case: 21-60743 Document: 00516114196 Page: 2 Date Filed: 12/02/2021
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
FASKEN LAND AND MINERALS, LTD. and PERMIAN BASIN LAND AND ROYALTY OWNERS,
Petitioners, Case No. _____________
v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA,
Respondents.
PETITION FOR REVIEW
Pursuant to 42 U.S.C. § 2239, 28 U.S.C. § 2344, 5 U.S.C. § 702, 42 U.S.C. §
10139, Fed. R. App. P. 15(a), and D.C. Cir. Rule 15(a), Petitioners Fasken Land and
Minerals, Ltd. and Permian Basin Land and Royalty Owners (Fasken or
Petitioners), through undersigned counsel, hereby petitions for review of the
following orders by the United States Nuclear Regulatory Commission (the NRC):
Order of NRC Secretary (unpublished) issued on October 29, 2018
(Secretarys Order) (attached hereto as Exhibit A);
NRC Memorandum and Order CLI-20-04 issued on April 23, 2020 (CLI
- 04) (attached hereto as Exhibit B); and
NRC Memorandum and Order CLI-21-07 issued on April 28, 2021 (CLI
- 07) (attached hereto as Exhibit C).
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Petitioners seekreview of the foregoing agency actions on the grounds that
the NRC abused its discretion, acted arbitrarily and capriciously, in excess of
statutory jurisdiction, and in violation of the Nuclear Waste Policy Act (NWPA),
U.S.C. §§ 10222(a)(5)(A) and 10143, the Atomic Energy Act (AEA), 42 U.S.C.
§§ 2011 et seq., the Administrative Procedure Act (APA), 5 U.S.C. §§ 706, the
National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and/or
NRCs own regulations and policies when it denied Petitioners a meaningful
opportunity to participate in the process.
Specifically, Petitioners contend that the Secretarys Order violated the
NWPA and the APA by refusing to dismiss an administrative proceeding that
contemplated issuance of a license permitting federal ownership of used reactor fuel
at a commercial fuel storage facility and disregarding the unambiguous provisions
of the NWPA. Petitioners also contend that the NRC violated the NWPA and the
APA in CLI-20-04 by ruling that the application under review in the proceeding was
lawful and by refusing to grant Petitioners a hearing on the question of whether the
NRC is prohibited by the APA from issuing a license that contains provisions that
would violate the NWPA if implemented.
Finally, Petitioners seek review of CLI-21-07 on the grounds that the NRC
wrongfully applied the NWPA, AEA, APA, NEPA and/or its own regulations when
it ruled that Petitioners site-specific contentions relating to inaccurate, insufficient
2 Case: 21-60743 Document: 00516114196 Page: 4 Date Filed: 12/02/2021
and inconsistent characterizations of property rights, land-use and subsurface
mineral rights in the vicinity of the proposed location for the commercial fuel storage
facility were inadmissible.
Petitioners respectfully request that this Court review, reverse and vacate CLI-
20-04 and CLI-21-07; alternatively, and/or cumulatively, order the dismissal of the
license application under review; and grant any other additional remedies that may
be warranted by law and equity.
Venue is proper in this Court pursuant to 28 U.S.C. § 2343.
Dated: June 25, 2021. Respectfully submitted,
KANNER & WHITELEY, LLC
/s/ Allan Kanner Allan Kanner, Esq.
Annemieke M. Tennis, Esq.
701 Camp Street New Orleans, Louisiana 70130 (504) 524 - 5777 a.kanner@kanner-law.com a.tennis@kanner-law.com
Monica Renee Perales, Esq.
6101 Holiday Hill Road Midland, TX 79707 Phone (432)687-1777 monicap@forl.com
Counsel for Petitioners
3 Case: 21-60743 Document: 00516114197 Page: 1 Date Filed: 12/02/2021
EXHIBIT 2 Case: 21-60743 Document: 00516114197 Page: 2 Date Filed: 12/02/2021
NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION (10-2000) PAGE 1 of 3 PAGES 10 CFR 72
LICENSE FOR INDEPENDENT ST ORAGE OF SPENT NUCL EAR 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 co nditions 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
- 2. WCS CISF 4. Expiration Date September 13, 2061 9998 Highway 176 West Andrews, Texas, 79714 5. Docket or - 1050 Reference No. 72
- 6. Byproduct, Source, and/or 7. Chemical and/or Physical Form 8. Maximum Amount That Licensee May Special Nuclear Material Possess at Any One Time Under This License A. Spent nuclear fuel elements from A. Intact fuel assemblies, damaged fuel A. 5,000 Metric Tons (MT) total of commercial nuclear utilities licensed assemblies, failed fuel and fuel debris, Uranium and Mixed-Oxide (MOX) in pursuant to 10 CFR Part 50, including as allowed by Materials License SNM - the form of intact spent fuel those stored under either a Part 50 2510, Amendment 4; Table 1-1c or assemblies, damaged fuel assemblies, general license or Part 72 specific Table 1-1j of Certificate of Compliance failed fuel assemblies, and fuel debris.
license, and associated fuel assembly No. 1004, Amendments 3 through 13; In addition, the cumulative amount of control components and associated Table 1-1t of Certificate of Compliance material received and accepted during radioactive materials related to the No. 1004, Amendments 10 through 13 ; the licensed term of the facility may not receipt, transfer, and storage of that Section 2.1 of Certificate of exceed 5,000 MT of Uranium plus spent nuclear fuel. Compliance No. 1029, Amendments 0, MOX.
1, and 3; Section B 2.1 of Certificate of Compliance No. 1025, Amendments 0 through 6; Section B 2.1.2 of Certificate of Compliance No. 1015, Amendments 0 through 5; Table B 2-1 of Certificate of Compliance No. 1031, Amendments 0 through 3 Revision 1, and 4 through 5, modified as described in Condition 9 below.
B. Greater than Class C Waste, reactor B. Greater than Class C Waste, as B. 231.3 MT (510,000 pounds) of Greater related material generated as a result activated and potentially surface than Class C Waste.
of plant operations and contaminated metals comprised of decommissioning where radionuclide miscellaneous solid waste resulting concentration limits of Class C waste in from segmentation and 10 CFR 61.55 are exceeded. decommissioning processes.
Case: 21-60743 Document: 00516114197 Page: 3 Date Filed: 12/02/2021
NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION PAGE 2 of 3 PAGES (10-2000) License No. Amendment No.
10 CFR 72 LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR SNM-2515 0 FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Docket or Reference No.
SUPPLEMENTARY SHEET 72 -1050
- 9. Authorizepossession, storage, and transfer at the WCS Consolidated Interim Storage Facility (WCS CISF), d Use: The material identified in 6.A, 6.B, 7.A and 7.B above is authorized for receipt, as described in the WCS CISF Final Safety Analysis Report (FSAR) as updated. Storage of fuel is authorized only in canisters referenced in Section 2.1 of the Attachment, Appendix A Technical Specifications and all fuel with assembly average burnup greater than 45 GWd/MTHM shall be canned inside the canister.
- 10. Authorized Place of Use: The licensed material is to be received, possessed, transferred, and stored at the WCS CISF, geographically located within Andrews County, Texas.
- 11. The Technical license. The Licensee shall operate the installation in accordance with the Technical Specifications contained in the Appendix attached hereto are incorporated into the Specifications in the Appendix.
- 12. The licensee shall follow WCS ERP-100, Consolidated Emergency Response Plan, Revision 02- 08 -
2019, and as it may be further revised in accordance with 10 CFR 72.44(f).
1 3. The Licensee shall:
(1) follow the Physical Protection Plan entitled, "WCS Consolidated Interim Storage Facility (CISF) Physical Security Plan, Revision 5, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72. 186(b) ;
(2) follow the Storage Facility (CISF) Training and QualificationTraining and Qualification Plan Appendix B to the CISF Plan entitled, "WCS Consolidated Interim Physical Security Plan, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72. 186(b) ;
(3) follow the Facility (CISF) Safeguards Contingency Plan Appendix C to the CISF Physical Safeguards Contingency Plan entitled "WCS Consolidated Inter im Storage Security Plan, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72. 186(b) ;
(4) follow the Independent Spent Fuel Storage Installations, dated September 28, 2007 ; and Additional Security Measures fo r the Physical Protection of Dry
(5 ) follow the Additional Security Measures for Access Authorization and Fingerprinting at Independent Spent Fuel Storage Installations, dated December 19, 2007.
1 4. Construction of the WCS CISF shall not commence before funding (equity, revenue, and debt) is fully committed that is adequate to construct a facility with the initial capacity as specified by the Licensee to t he NRC. Construction of any additional capacity beyond the initial capacity amount shall commence only after funding is fully committed that is adequate to construct such additional capacity.
1 5. The Licensee shall, in its contracts with clients :
(1) include provisions requiring clients to retain title to the material identified in 6. A, 6.B, 7.A or 7.B, and include provisions allocating legal and financial liability among the Licensee and the client(s);
(2) include provisionwhen necessary, additional financial assurances such as guarantees, prepayment, s requiring clients to peri odically provide credit information, and, or payment bond(s);
(3) include a provision requiring the furnishing storage services covered by the contract. Licensee not to terminate the license prior to
1 6. The Licensee shall obtain onsite and offsite insurance coverage in the amounts committed to by ISP in the ISP license application.
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NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION PAGE 3 of 3 PAGES (10-2000) License No. Amendment No.
10 CFR 72 LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR SNM-2515 0 FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Docket or Reference No.
SUPPLEMENTARY SHEET 72 -1050 1 7. To conform with the requirements of 10 CFR 72.42, the Licensee shall submit a request for license amendment(s) to incorporate any technically applicable provisions of the Aging Management Programs (AMPs) and Time-Limited Aging Analyses (TLAAs) approved in future renewals of NAC Systems CoCs 1015 and 1025 and 1031, for all applicable NAC spent fuel canisters and storage overpacks.
The Licensee shall submit the amendment request(s) within 120 days of the effective date of the applicable CoC approval. In the event that the current CoC holder for CoC 1015 and/or 1025 and/or 1031 does not submit a timely renewal as defined i n 10 CFR Part 72.240, the Licensee shall submit a license amendment request, incorporating AMP and TLAA information compliant with 10 CFR 72.42, within one (1) year following the timely renewal deadline defined in 10 CFR 72.240(b) for the applicable CoC.
18
. The Licensee shall submit a as updated, to the NRC at least 90 days prior to receipt and storage of the material identified in s tartup p lan as described in Chapter 13 of the WCS CISF FSAR,
6.A, 6.B, 7.A or 7.B at the facility.
- 19. Prior to commencemen t of operations, the Licensee shall have an executed contract with the U.S. Department of Energy (DOE) or other SNF Title Holder(s) stipulating that the DOE or the other SNF Title Holder(s) is/are responsible for funding operations required for storing the material identified in 6.A, 6.B, 7.A or 7.B at the CISF as licensed by the U.S. Nuclear Regulatory Commission.
2 0. Prior to receipt of the material identified in 6.A, 6.B, 7.A or 7.B, the Licensee shall have a financial assurance instrument required pursuant to 10 CFR 72.30 acceptable to the U.S.
2 1. This license is effective as of the date of issuance shown below. Nuclear Regulatory Commission.
FOR THE NUCLEAR REGULATORY COMMISSION
Shana R. Helton, Director Division of Spent Fuel Management Office of Nuclear Material Safety and Safeguards
Date of Issuance September 13, 20 21
Attachments: Appendix A - WCS Consolidated Interim Storage Facility Technical Specifications