[00:00:00] Speaker 01: Case number 20, that 1187 et al. [00:00:04] Speaker 01: Beyond Nuclear Inc. [00:00:05] Speaker 01: petitioner versus U.S. [00:00:06] Speaker 01: Nuclear Regulatory Commission and United States of America. [00:00:10] Speaker 01: Ms. [00:00:10] Speaker 01: Curran for the petitioner Beyond Nuclear. [00:00:13] Speaker 01: Mr. Taylor for the petitioners Don't Waste Michigan and the Sierra Club. [00:00:17] Speaker 01: Mr. Kanner for the petitioner Baskin. [00:00:19] Speaker 01: Mr. Averbeck for the federal respondents. [00:00:22] Speaker 01: Mr. Clements, amicus cariae for the Nuclear Energy Institute. [00:00:26] Speaker 01: Ms. [00:00:26] Speaker 01: Leidig for the respondent intervener VOLTECH. [00:00:31] Speaker 04: Morning. [00:00:31] Speaker 04: Good morning. [00:00:33] Speaker 04: My name is Diane Curran. [00:00:34] Speaker 04: I represent Petitioner Beyond Nuclear. [00:00:37] Speaker 04: I'd like to save two minutes for rebuttal. [00:00:40] Speaker 04: This appeal presents a clear case of agency overreach that is redressable by a simple act by this court to sever unlawful language from Haltech's license application as approved by the NRC. [00:00:54] Speaker 04: At page 32 of its brief, [00:00:56] Speaker 04: The NRC says, quote, the entire point of a licensing proceeding is to ensure that any license is consistent with applicable law, close quote. [00:01:06] Speaker 04: Instead of using its licensing proceeding to ensure that Haltech's operation would comply with the Nuclear Waste Policy Act, the NRC decided for itself how that law might change in the future and granted Haltech a permit to carry out that made up law. [00:01:24] Speaker 04: The NFC, I'm sorry. [00:01:26] Speaker 11: If the application had just said Holtek will be permitted to take title to whether Holtek would be able to store commercial reactor waste instead of referring to privately owned or DOE owned. [00:01:44] Speaker 11: So I didn't say this very clearly. [00:01:46] Speaker 11: I think the application referred to DOE owned and privately owned waste. [00:01:50] Speaker 00: Correct. [00:01:51] Speaker 11: What if it had just referred to commercial reactor [00:01:55] Speaker 04: that would have been consistent with the Atomic Energy Act. [00:01:59] Speaker 11: And my understanding, I understand this wasn't part of the record when the decision was made, so I take that point, but my understanding is the license itself does only refer to commercial reactor waste. [00:02:12] Speaker 11: It never once mentions DOE. [00:02:16] Speaker 04: Is that right? [00:02:18] Speaker 04: The NRC in the licensing decision approved the application with the intent that their decision approved Holtek's ultimate ability to store federally owned spent fuel if the law changed. [00:02:34] Speaker 11: But I guess my question is, shouldn't it matter that the license itself makes no reference to DOE-owned waste? [00:02:41] Speaker 04: The NRC clearly stated [00:02:44] Speaker 04: that they intended not for the license activity includes what's also approved in the NRC's adjudicatory decision. [00:02:54] Speaker 04: It's not just what's in the four corners of the license, which is not part of the record of the case. [00:03:00] Speaker 11: I understand that. [00:03:01] Speaker 11: You said earlier if the application had just referred to commercial reactor waste, the application would have been okay. [00:03:08] Speaker 04: yes well and then we end up with a license that licenses exactly what you said would have been okay to apply for the license always also says that the operation can operate the licensee can operate in compliance with what was in its application that is also in the license and in the application are a number of provisions that contemplate [00:03:31] Speaker 04: federally, storage of federally owned spent fuel. [00:03:35] Speaker 04: I appreciate that. [00:03:36] Speaker 11: Is one of your concerns that the license or the application would permit Holt to store foreign waste or non-commercial reactor waste like from Navy ships? [00:03:47] Speaker 04: Is that not something you're worried about? [00:03:49] Speaker 04: We're concerned about the issue of there's quite a bit of spent fuel that would be stored, could be stored at this facility. [00:03:58] Speaker 04: The NRC seems to be contemplating some [00:04:01] Speaker 04: event where the NRC would say, the government, the Congress would say, we're going to take title for all this commercial spent fuel, which is the Nuclear Waste Policy Act's intention, ultimately, when there's a repository. [00:04:17] Speaker 04: And they're jumping the gun, effectively, saying... The Department of Defense made a contract with the construction company to build a hangar for planes. [00:04:28] Speaker 11: And it said the hangar [00:04:31] Speaker 11: should be able to accommodate the B-21 or five smaller plants. [00:04:37] Speaker 11: And there's a statute that says the Department of Defense is not allowed to purchase B-21s. [00:04:44] Speaker 11: You think that the contract between the Department of Defense and the construction company would be contrary to law just because it refers to a hanger that can accommodate B-21s? [00:04:57] Speaker 04: Well, a contract or a permit has to be enforceable on its terms. [00:05:01] Speaker 04: If this was the NRC, that's the PFS case, 52 NRC at 34, that's cited in our brief. [00:05:10] Speaker 04: And this is consistent with the Administrative Procedure Act. [00:05:14] Speaker 04: A contract or a license isn't supposed to have conditions that people can't understand now or figure out what it means. [00:05:23] Speaker 04: My hypothetical contract is that [00:05:24] Speaker 04: A contract, in this case, would be analogous to the permit, which it gives Holtec some rights for what they can do. [00:05:34] Speaker 11: In my hypothetical, do you think the contract is contrary to law? [00:05:40] Speaker 04: It appears to be, yes. [00:05:43] Speaker 08: So procedurally, Beyond Nuclear was denied the ability to intervene. [00:05:49] Speaker 08: And so you can't challenge the license itself. [00:05:52] Speaker 08: You can only challenge the denial of your request to intervene. [00:05:58] Speaker 04: Isn't that correct? [00:05:58] Speaker 04: That's right. [00:05:59] Speaker 04: When we request a hearing, it has to be based on the application. [00:06:03] Speaker 04: We have to raise a dispute with the application. [00:06:06] Speaker 04: We were told, you can't raise a dispute here because we all agree. [00:06:11] Speaker 04: that this license application contains illegal provisions. [00:06:14] Speaker 08: So there has to be, in order to intervene in a proceeding, you have to show that there's some genuine dispute about the law. [00:06:22] Speaker 08: That's right. [00:06:22] Speaker 08: And so what can you point to that suggests the law does not permit a conditional license here? [00:06:31] Speaker 08: So this is different from like the Don't Waste Michigan case. [00:06:35] Speaker 08: You know, why can't an agency or why can't the NRC in this specific context grant a license that has some conditions in the future? [00:06:44] Speaker 08: I mean, we've upheld conditional licenses in a number of other contexts. [00:06:48] Speaker 08: In Oglala's suitcase, there was a conditional license. [00:06:51] Speaker 08: We've upheld, which is in the same context, we've upheld conditional licenses issued by FERC. [00:06:58] Speaker 08: I mean, it's sort of an ordinary process. [00:07:00] Speaker 08: So what can you point to that suggests that it's contrary to law? [00:07:05] Speaker 04: The PFS case is very helpful because that's a case where license conditions were in dispute. [00:07:12] Speaker 04: But the question there was, [00:07:15] Speaker 04: The NRC said license conditions are okay if they're precisely drawn, and anybody who's in charge of administering the license can understand it without further analysis. [00:07:29] Speaker 08: So what's not precise here? [00:07:31] Speaker 04: What's not precise? [00:07:32] Speaker 04: Okay, let's just take a hypothetical. [00:07:34] Speaker 08: I mean, if the law changes, DOE could send their waste to Holtex facility. [00:07:39] Speaker 08: I don't see what's imprecise about that. [00:07:41] Speaker 04: And that is certainly the kind of simplistic framework that the NRC sets up here. [00:07:46] Speaker 04: But let's take a hypothetical. [00:07:48] Speaker 04: Let's say Congress does change the law. [00:07:50] Speaker 04: We're 10 years down the road. [00:07:52] Speaker 04: Congress changes the law and says, we're going to take title to this spent fuel and we will pay. [00:07:59] Speaker 04: That's the issue, who pays and how much. [00:08:02] Speaker 04: What if Congress puts a cap on the amount of money that it will spend? [00:08:06] Speaker 04: What if it's, if they say we'll only pay on Wednesdays and not on Friday? [00:08:10] Speaker 10: The DOE will be bound by those legal provisions. [00:08:13] Speaker 04: Well, [00:08:14] Speaker 04: Yes, but we will never get a chance to have a hearing before the NRC on whether that's an adequate amount of money to safely store this quantity of spent fuel. [00:08:26] Speaker 04: We never got that hearing because nobody knew what the law was. [00:08:31] Speaker 04: And in the future, if after Holtec now has a license, if we go back and say, we want a hearing, they say, oh, it's too late. [00:08:41] Speaker 04: They've got the license. [00:08:43] Speaker 04: You can bring an enforcement petition, and our decision will be essentially unreviewable. [00:08:48] Speaker 04: under Heckler versus Cheney. [00:08:50] Speaker 04: We've lost the right to a hearing once Haltech gets a license. [00:08:54] Speaker 04: And there are potential safety issues. [00:08:57] Speaker 04: We just don't know what Congress might do in this law. [00:09:00] Speaker 04: Nobody knows. [00:09:03] Speaker 10: My understanding from the briefing was that NRC says if and when new routes, for example, and new contracts arise, there will be new proceedings in which you can raise objections. [00:09:15] Speaker 04: Is that false? [00:09:16] Speaker 04: I think that is a false implication. [00:09:19] Speaker 04: It's at page 32 of their brief. [00:09:21] Speaker 04: If you go back to the licensing board decision at page 465 of the joint appendix, they say, [00:09:28] Speaker 04: The whole point of this is to avoid a hearing once after Haltech, after Congress changes the law, we can say the hearing already took place. [00:09:39] Speaker 04: A hearing at that point would be useless. [00:09:42] Speaker 04: Not to us, because we never got the hearing. [00:09:45] Speaker 04: There may have been a hearing on some issues where the law was clear, but on the very important issue of is there enough money here to safely store this waste? [00:09:58] Speaker 04: We were shut out from the beginning and we will be shut out if the law changes. [00:10:04] Speaker 11: Do you agree that the Bull Creek statement about the AEA authorizing this type of license is holding that we're bound by? [00:10:17] Speaker 04: We did not brief that issue. [00:10:19] Speaker 04: Our issue is under the Nuclear Waste Policy Act, a completely different statute, and we're concerned that, you know, certainly if the question of [00:10:32] Speaker 04: whether the Atomic Energy Act allows private storage is resolved, it still doesn't answer the question of whether the NRC can put a hypothetical license condition into a license like this. [00:10:45] Speaker 04: It could still be that the NRC's authorization of Holden's Act to store federally-owned spent fuel remains because they're just speculating. [00:10:56] Speaker 04: This is a license about what if Congress does something different in the future [00:11:01] Speaker 04: It's not about what the law says now. [00:11:03] Speaker 08: What about the fact though that DOE does own some of this fuel? [00:11:07] Speaker 08: So the license is at least valid as to, you know, the, you know, the fuel that, you know, the spent fuel that DOE already owns and that could be stored. [00:11:17] Speaker 08: I understand that there's a small amount of that. [00:11:20] Speaker 04: Yes, there's a small amount of that. [00:11:22] Speaker 04: It's minuscule in relation to the immense quantity [00:11:27] Speaker 04: of commercially generated Spinefield, which is that issue. [00:11:31] Speaker 08: The provision non-conditional as to that small amount at least. [00:11:35] Speaker 04: But clearly the decision was, if you look, if you read the commission's decision, the licensing board's decision, they were anticipating government storage, a government assumption of ownership of commercially generated Spinefield. [00:11:51] Speaker 04: There is no doubt in that decision. [00:11:55] Speaker 08: Just one other question that I had was, your proposed remedy is that this court sever part of the license. [00:12:05] Speaker 04: Yes. [00:12:05] Speaker 08: Can you point to where we have the authority to do that? [00:12:09] Speaker 04: It's in the doctrine of severability, which... With respect to a license? [00:12:15] Speaker 04: It has been applied in a regulatory context, but the important point is that unlawful language [00:12:24] Speaker 04: cannot remain in the license. [00:12:27] Speaker 04: Whether the court decides to throw out the whole thing or to say we are rejecting this language and we specifically identify the unlawful language in our brief, that language [00:12:40] Speaker 04: that could be stricken. [00:12:42] Speaker 04: And we did move the NRC to dismiss the entire application or the unlawful language early on in the proceeding, and they refused. [00:12:53] Speaker 04: This would be going back and granting the relief we asked for, which is resubmit this application and leave out the unlawful language. [00:13:02] Speaker 04: That could be, we would not object to that. [00:13:05] Speaker 10: I think Judge Walker asked you about this earlier, but where in the license is the unlawful language? [00:13:10] Speaker 04: And the license, it's in the provision that says this company is allowed to operate in compliance with its license application. [00:13:21] Speaker 04: I think it's called the final safety analysis report. [00:13:25] Speaker 11: I think I have the license in front of me. [00:13:29] Speaker 11: Could be wrong. [00:13:30] Speaker 11: Can you tell me more about where to look? [00:13:33] Speaker 04: It's near the top. [00:13:35] Speaker 04: I'm sorry. [00:13:35] Speaker 04: I don't have it in front of me. [00:13:37] Speaker 04: It's in one of the clauses. [00:13:40] Speaker 04: It's a very early clause, it's boilerplate language that the NRC, the application is basically forms the basis for the license. [00:13:49] Speaker 04: The license itself is kind of a summary document that authorizes the licensee to do what they say they're going to do in their application. [00:13:58] Speaker 04: That's how NRC issues licenses. [00:14:04] Speaker 04: Any questions? [00:14:06] Speaker 04: Thank you. [00:14:21] Speaker 07: morning I'm Wally Taylor I represent several petitioners who sought to intervene in this proceeding and submitted several contentions all of those contentions were denied because the NRC violated its own contention admissibility standard the Commission has repeatedly with their [00:14:50] Speaker 07: agency decisions said basically that all the petitioner has to do to present that in visible contention is to just raise factual issues and and not just conclusory statements or vague allegations and we did that with detailed factual statements citing to the whole tech documents [00:15:19] Speaker 07: and presenting expert testimony. [00:15:21] Speaker 08: Mr. Taylor, it has to be, under the NRC's rules, it has to be information that was previously unavailable. [00:15:32] Speaker 08: So can you speak to how the information, you know, FASC and presented was previously unavailable? [00:15:40] Speaker 07: I'm not sure that that's the standard for the initial contention. [00:15:45] Speaker 07: That's something that would be necessary to maintain contention. [00:15:51] Speaker 08: Isn't that part of the good cause requirement for a new contention? [00:15:55] Speaker 07: I'm sorry? [00:15:56] Speaker 08: Isn't that part of the good cause requirement for a new contention to be raised? [00:16:00] Speaker 07: We're arguing new contention. [00:16:02] Speaker 07: We're arguing our original contention. [00:16:04] Speaker 07: We're not admitted because the NRC [00:16:10] Speaker 07: looked at the contentions in a manner that would be appropriate for determining the facts at a hearing, but not determining whether or not we had made the initial presentation to just raise the factual issues. [00:16:32] Speaker 07: Compare the. [00:16:34] Speaker 10: I apologize. [00:16:35] Speaker 10: Can I ask you a very basic question? [00:16:36] Speaker 10: Sure. [00:16:36] Speaker 10: You representing Fasken or the environmental practitioners? [00:16:39] Speaker 07: The environmental practitioners. [00:16:41] Speaker 10: OK, I'm sorry. [00:16:42] Speaker 10: No, I understand. [00:16:44] Speaker 10: Can I direct you? [00:16:46] Speaker 08: So many parties here. [00:16:48] Speaker 08: I'm sorry. [00:16:49] Speaker 10: So in your. [00:16:49] Speaker 10: I wonder where we were going with that. [00:16:51] Speaker 08: I'll ask Fasken that question. [00:16:53] Speaker 10: Council, in your opening brief, you raised this argument about bulk reek that we shouldn't look at to it or it can be distinguished somehow. [00:17:01] Speaker 10: The commission says you did not raise that before the commission and therefore that it was forfeited. [00:17:07] Speaker 10: And I think you didn't contest that in your reply brief. [00:17:11] Speaker 10: I'm just trying to figure out if you're conceding that that issue is not properly presented or if you have some counter on that. [00:17:16] Speaker 07: Well, the reason we put it in our initial brief was in anticipation that the NRC would say, well, even if the Nuclear West Policy Act doesn't give us the authority, the Atomic Energy Act does. [00:17:32] Speaker 07: So that's why we put it in our brief, and the NRC [00:17:38] Speaker 10: presented some extensive response. [00:17:40] Speaker 10: That question is just whether there's any authority to license private away from reactor storage at all, right? [00:17:47] Speaker 10: Right. [00:17:47] Speaker 10: And that is a distinct argument from the argument that Beyond Nuclear was rated. [00:17:52] Speaker 10: Sure, sure. [00:17:53] Speaker 10: And it's my understanding that that was not exhaustive. [00:17:55] Speaker 10: Right. [00:17:56] Speaker 10: You agree with that? [00:17:58] Speaker 10: Yes. [00:17:58] Speaker 10: OK. [00:17:59] Speaker 11: Thank you. [00:17:59] Speaker 11: Can I ask you, you know, you have a lot of Sierra Club and Don't Waste Michigan, a lot of contentions. [00:18:05] Speaker 11: And what is, if you had to pick one, what is your strongest contention? [00:18:11] Speaker 07: I think the strongest contention is, well, several contentions that involve geology and groundwater, which we put, I think, in issue four in our brief. [00:18:31] Speaker 07: Contention regarding earthquakes, we relied on a recent, at that time at least, study by Stanford University that the oil and gas industry, in doing their fracking, had induced earthquakes and that that was at or near the Holtec site. [00:18:53] Speaker 07: And the NRC responded that while that [00:19:00] Speaker 07: the new information, but they could have supplemented or revised their environmental report. [00:19:10] Speaker 07: In fact, they did that five times. [00:19:13] Speaker 11: I thought that NRC considered the 2016 government data and the 2018 Stanford data and explained how the Stanford data was compatible with the government data. [00:19:25] Speaker 07: Well, the Stanford data... Did they do that? [00:19:29] Speaker 07: what I just said. [00:19:31] Speaker 07: Yeah, the Stanford data was more recent, at least at that time. [00:19:35] Speaker 07: And certainly the more recent data taking into account the increased fracking activity made the earthquake potential greater. [00:19:48] Speaker 07: And as far as the ground water, we had an expert who went through all of the whole tech [00:19:58] Speaker 07: The documentation pointed out exactly where he felt it was insufficient or incorrect. [00:20:05] Speaker 11: My impression was that the expert gave really more of a list of questions, didn't really put any facts into contention. [00:20:14] Speaker 07: Well, he did. [00:20:14] Speaker 07: I mean, to a certain extent, it was a form of questions, but there were facts because he pointed to references in the Holtec documentation where it was incorrect or [00:20:28] Speaker 07: and misapplied and the NRC's response was that well we hadn't really proven anything but we don't have to prove anything at that point. [00:20:43] Speaker 07: That was my original point here that I made is that we presented enough through [00:20:53] Speaker 07: expert opinion, references to the Holtec documentation, setting up the facts to lay a predicate for the admissibility of that contention. [00:21:04] Speaker 07: And then, once it's admitted, then Holtec, after discovery, Holtec can file what is in essence a motion for summary disposition, much like in a civil case. [00:21:23] Speaker 07: And in fact, I would compare the condition of miss ability, the question to the review of a motion to dismiss regular civil litigation. [00:21:33] Speaker 11: If you on the groundwater expert witness, if you had to point to one material fact that the expert into dispute or that is in dispute, that the expert assert it, what's what one material [00:21:47] Speaker 07: What I can think off the top of my head is that he said there was only one testing well in the area where it was most important. [00:22:03] Speaker 07: And Holtec said, well, we did four or five of them. [00:22:05] Speaker 07: But our expert made clear that those four or five others were not in a place where it was relevant. [00:22:22] Speaker 06: So I think, do you have a question? [00:22:26] Speaker 06: Oh, my time is up. [00:22:27] Speaker 06: I'm sorry. [00:22:28] Speaker 08: Thank you. [00:22:47] Speaker 09: Good morning. [00:22:49] Speaker 09: I'm Alan Kanner. [00:22:51] Speaker 09: of Karen Whiteley on behalf of Fasken Land and Minerals and the Permian Basin Land and Royalty Owners. [00:22:58] Speaker 09: Collectively, I'll refer to them as Fasken. [00:23:01] Speaker 09: That's okay. [00:23:02] Speaker 09: And I'll reserve three minutes at the end. [00:23:04] Speaker 09: This is a case about competing land uses at a specific site in the Permian Basin. [00:23:10] Speaker 09: An NRC's decision to allow Fasken to make a record, decision not to allow Fasken to make a record that these were incompatible land uses. [00:23:22] Speaker 09: Instead, NRC threw out the rule book in favor of a garbage in, garbage out approach, which would lead it to its predetermined results. [00:23:32] Speaker 09: The Permian Basin, briefly. [00:23:35] Speaker 08: Sure, Mr. Kanner, if you could answer the question that I asked the other council is, what is the previously unavailable information that FASCAN presented that would allow it to reopen the record or to show good cause? [00:23:51] Speaker 08: for entering its contention. [00:23:52] Speaker 09: So the 2020 affidavits of Stoney Pollock and Tommy Taylor are probably the most useful. [00:23:59] Speaker 09: For example, Mr. Pollock talks about the karst formation, which is oil and gas available at about 1200 feet. [00:24:09] Speaker 09: As you know, in the final EIS, a decision was made [00:24:13] Speaker 09: that it was unlikely that fracking would occur above 3,000 feet. [00:24:17] Speaker 09: That is different information. [00:24:19] Speaker 09: That is information that was disregarded by the NRC. [00:24:23] Speaker 09: He also talked about trends. [00:24:25] Speaker 09: If you're giving a license, you've got to look into the future a little bit. [00:24:29] Speaker 09: Fracking technology is evolving very rapidly. [00:24:31] Speaker 11: I don't understand how that is something that wouldn't have been available for him to testify to earlier. [00:24:39] Speaker 09: Ah, good question. [00:24:42] Speaker 09: That's because Holtec lied and filed an incomplete application, inaccurate, incomplete, contrary NRC rules. [00:24:52] Speaker 09: Specifically, they said that by agreements, they had control of the land. [00:25:01] Speaker 09: So in other words, when you say you have agreements with third parties, [00:25:05] Speaker 09: What you're telling Fasken, who doesn't know this is a lie, is that you've contacted all their mineral SCs, and you've also talked to the state regulatory authorities, the state land office, for example, because what they said is there would be no drilling above 5,000 feet. [00:25:24] Speaker 09: That's a lie. [00:25:26] Speaker 09: The final, we know it's a lie because the final EIS says that there is no control. [00:25:33] Speaker 09: The DEIS. [00:25:35] Speaker 11: Regardless of what Ultec said or didn't say, it seems like an assertion that fracking technology evolves is not something that was unknowable back when Fasken first had an opportunity to submit information. [00:25:53] Speaker 09: Right. [00:25:54] Speaker 09: To what extent would it matter if they had total control of all activities there? [00:26:05] Speaker 09: what would the contention have been? [00:26:07] Speaker 09: Because one of the things that's, I said this was a lie and I also said it was incomplete. [00:26:13] Speaker 09: They went through about 10 iterations of their application and it was kind of a moving target through the whole thing. [00:26:22] Speaker 09: But if somebody says that we control by agreement all of this, [00:26:29] Speaker 09: then what's the materiality of the changing technology? [00:26:35] Speaker 09: Only when the land office said it was a lie, we acted immediately. [00:26:40] Speaker 11: A couple different things. [00:26:42] Speaker 11: In your opening brief and the second footnote, you say that this appeal is moot after the Fifth Circuit's decision. [00:26:54] Speaker 11: And this is similar to a question I asked one of the parties in the previous case. [00:26:59] Speaker 11: I mean, if it's moot, then don't we lack jurisdiction to consider your petition? [00:27:07] Speaker 09: Currently, it would be moot because the Fifth Circuit ruled on the merits in the ISP case. [00:27:15] Speaker 09: However, it's not a final decision. [00:27:18] Speaker 09: They've asked for a rehearing of the matter. [00:27:22] Speaker 09: But the NRC told [00:27:24] Speaker 09: the Fifth Circuit that the Holtec case was on all fours with the ISP case. [00:27:31] Speaker 09: And that was the sense in which I meant it was moot. [00:27:34] Speaker 09: It wasn't materially different. [00:27:35] Speaker 11: I mean, there are- Has something changed? [00:27:37] Speaker 11: I mean, you're saying that the circus decision to go bonk has taken it from being moot to not moot? [00:27:45] Speaker 09: It's not clear if they're going to take it or not. [00:27:47] Speaker 09: I'm trying to be honest and just say it's up in the air in that sense. [00:27:51] Speaker 11: So it's your job to show jurisdiction. [00:27:54] Speaker 11: We don't have jurisdiction if your petition is moot. [00:27:57] Speaker 11: And you've said your petition is moot. [00:28:00] Speaker 11: So putting 2 plus 2 equals 4 seems like you haven't shown jurisdiction. [00:28:06] Speaker 09: I believe that jurisdiction has really not been disputed. [00:28:10] Speaker 09: If that was, in some sense, misleading, we did want the court to understand that there had been a ruling in the Fifth Circuit and that the NRC had said that the whole tech situation would be bound by whatever was decided in the ISP case. [00:28:27] Speaker 09: If I should have used another word, I apologize. [00:28:29] Speaker 09: I don't have to. [00:28:30] Speaker 11: I think I get it. [00:28:33] Speaker 11: I get it. [00:28:34] Speaker 11: And then this is my last question. [00:28:36] Speaker 11: The NRC found that even if your contentions were true, they weren't material enough to justify reopening the record. [00:28:44] Speaker 11: And I'm sure you disagree with that, but where in your opening brief do you explain why that conclusion was wrong? [00:28:51] Speaker 09: If I may explain it now, we talk about... You start with where in your brief you said it, and then... It's fine with me if you... I'll get you that, if I could. [00:29:04] Speaker 09: We talk about the final environmental impact statement in our brief, and in the final environmental impact statement, what they say is, [00:29:14] Speaker 09: It's unlikely that anybody will mine potash and it's likely that it will never be below 3000 feet. [00:29:23] Speaker 09: That's why it's material. [00:29:26] Speaker 09: They basically admit it's material. [00:29:28] Speaker 09: And interestingly, they say that they're relying on new information, which is the same information that we tried to present to them. [00:29:40] Speaker 09: This is a highly unusual case because [00:29:43] Speaker 09: Basically, the contention we were making about there not being any control following the Mexico Land Office, ultimately, not in the DEIS, but in the final EIS, they said, oh, yeah, that's right. [00:29:55] Speaker 09: There's no control. [00:29:56] Speaker 09: But it doesn't matter that there's no control. [00:29:58] Speaker 09: And then they make these statements like, well, it's unlikely for economic reasons that anybody is going to go after potash. [00:30:05] Speaker 09: When under the rules, they really have an obligation to look at what that means. [00:30:11] Speaker 09: And so, in this case, I think that it's you know that we need to do over at least with respect to the very. [00:30:20] Speaker 09: The International Agency for Atomic Energy says that... Were you going too much? [00:30:25] Speaker 11: Because I know you're running, it looks like you're low on time. [00:30:27] Speaker 11: I don't know if your co-counsel has found the page number or not. [00:30:31] Speaker 11: I'd like to know the page number of your opening brief where you say this. [00:30:37] Speaker 09: Okay, do you want me to stop and look forward or you want me to answer other questions while she's looking? [00:30:46] Speaker 08: You can tell us on rebuttal. [00:30:48] Speaker 09: Okay, thank you very much. [00:30:50] Speaker 09: I'm sorry, I didn't have it on the top of my head. [00:31:18] Speaker 02: Good morning and please the court. [00:31:20] Speaker 02: My name is Andrew ever back United States Nuclear Regulatory Commission appear on behalf of the federal respondents. [00:31:26] Speaker 02: I'm prepared to answer questions about the arguments that each of the petitioners have made, but I'd like to focus my time. [00:31:32] Speaker 02: on the assertion that the agency lacks statutory authority under the Atomic Energy Act to issue licenses for the away from reactor storage of spent nuclear fuel. [00:31:41] Speaker 02: That argument fails for three independent reasons. [00:31:44] Speaker 02: First, the argument was not presented to the commission and therefore has been forfeited. [00:31:49] Speaker 02: Second, the argument is precluded by this court's holding in Bull Creek versus NRC. [00:31:55] Speaker 02: And third, the argument fails on the merits. [00:31:58] Speaker 02: The Atomic Energy Act confers authority [00:32:02] Speaker 02: on the commission, by its plain language, to issue licenses to private parties for the away from reactor storage of spent fuel. [00:32:10] Speaker 02: In fact, it confers authority on the agency to issue licenses both at reactors and away from reactors. [00:32:17] Speaker 11: I'd be grateful if you could start there. [00:32:20] Speaker 11: What's the specific statutory provision that gives you the authority to do a license like this? [00:32:29] Speaker 02: There are three separate provisions of the Atomic Energy Act, which authorized the commission to issue licenses for the constituent components of spent nuclear fuel, specifically 42 USC 2073, 42 USC 2093, and 42 USC 2111, covering source byproduct. [00:32:47] Speaker 11: The special nuclear waste and the byproduct, and there's one more. [00:32:50] Speaker 11: Source. [00:32:51] Speaker 11: Source. [00:32:52] Speaker 11: And is your argument that each of them alone [00:32:57] Speaker 02: would authorize this license? [00:33:11] Speaker 11: I guess I understand how each of them individually would, because if a spent fuel rod has special nuclear waste in it, and there's the authority to do a license for storing it, then there's authority to do a license for storing [00:33:28] Speaker 11: the fuel rod, regardless of what other products are in the fuel rod. [00:33:33] Speaker 11: And you could play that out with each of the three types. [00:33:36] Speaker 11: The argument that none of them is individually sufficient, but we sort of like do a number emanation analysis of all three. [00:33:44] Speaker 11: And when we combine them into a cocktail, they give you the authority. [00:33:48] Speaker 11: I think that's a harder argument. [00:33:50] Speaker 02: Well, to be clear, we can't, there's no, [00:33:55] Speaker 02: There's no spent fuel assembly that contains only one. [00:33:57] Speaker 02: And there's a prohibition against the possession without a license of any of the three materials. [00:34:03] Speaker 02: So in order to possess spent fuel, one need not be prohibited from doing so. [00:34:07] Speaker 02: One needs to have a license to, to possess special nuclear material and source material. [00:34:13] Speaker 11: Each of the three requires a license and each statutory provision gives whole tech in this case gives the NRC authority to allow whole tech to store that thing. [00:34:24] Speaker 11: And so in order to store a fuel rod with all three of those things, you basically need a license to store all three of those things. [00:34:32] Speaker 02: That's correct, Your Honor. [00:34:34] Speaker 02: And the license refers to each of those three types of materials. [00:34:38] Speaker 02: I wanted to at least begin my discussion of the AEA issue with this court's holding in Bull Creek. [00:34:48] Speaker 02: I know that there has been discussion, both from the petitioners here as well as from the Fifth Circuit's decision, suggesting that this court only assumed the existence of that authority in Bull Creek. [00:34:58] Speaker 02: But I would submit that's not correct, Your Honor. [00:35:02] Speaker 02: the bull creek decision was premised on the acknowledgement and the recognition of the [00:35:10] Speaker 02: NRC's authority under the AEA to issue licenses for away-from-reactor storage. [00:35:15] Speaker 02: And the reason I say that is because the court was construing 42 USC 101155H, which says, according to generally, nothing in this chapter, i.e. [00:35:28] Speaker 02: the NWPA, shall be construed to authorize or encourage the private use away-from-reactor storage or the federal use. [00:35:35] Speaker 02: of away from reactor storage. [00:35:37] Speaker 02: But in order to reach the conclusion that that provision had not completely eliminated the NRC's authority to issue storage license, court specifically recognized that this authority existed not under this chapter, but under the AEA itself. [00:35:54] Speaker 02: So it had to carve out, it had to interpret that language in order to understand that there had not been a revocation as a consequence of the [00:36:04] Speaker 02: passage of the Nuclear Waste Policy Act, and then to conclude that passage of the Nuclear Waste Policy Act had left the agency's AEA authority, in this court's words, untouched. [00:36:15] Speaker 08: And is that in part because implied repeals are disfavored? [00:36:19] Speaker 02: Yes, Your Honor. [00:36:19] Speaker 02: The court certainly cited, Bull Creek Court cited to that precise price principle. [00:36:27] Speaker 02: Let me turn also to the [00:36:31] Speaker 02: the issue of the agency's actual authority, meaning the merits of the case. [00:36:35] Speaker 02: And as I mentioned, that authority is provided by the three separate statutory provisions that I've referred to. [00:36:43] Speaker 02: Now, there has been argument in various briefs that we've received and that have been submitted to the court suggesting that the fact that spent nuclear fuel is not referenced in any of those three [00:36:54] Speaker 02: statutes somehow means that the agency doesn't have authority to issue licenses of this type. [00:36:59] Speaker 02: But none of the material licenses that the agency, none of the authorities pursuant to which the agency issues materials licenses specifically name any kind of products or devices or items. [00:37:12] Speaker 02: Rather, Congress gave the agency the authority to issue licenses based or with reference to the core potentially radioactive materials that the licenses would cover. [00:37:24] Speaker 02: So in all kinds of licensing actions, [00:37:30] Speaker 02: such as for fuel fabrication facilities or uranium enrichment facilities or commercial radiators. [00:37:35] Speaker 02: Those products, those items are not specifically named in the materials licensing provisions of the AEA. [00:37:41] Speaker 02: Nonetheless, the NRC has been issuing license of this type for 75 years. [00:37:46] Speaker 08: How common is it for an NRC license to have a condition like the type of condition here about DOE, you know, where some authority is granted in the future if there's a change in circumstance or a change in law? [00:38:00] Speaker 08: fairly common? [00:38:02] Speaker 02: Well, there are conditions in many of its licenses. [00:38:07] Speaker 02: I'm a little perplexed by the question, though, only because the license itself doesn't actually refer to DOE. [00:38:15] Speaker 02: Certainly, the application that was submitted referred to nuclear power plant owners and or DOE, but that language is actually eliminated in the license. [00:38:26] Speaker 08: So that the NRC's position that if the law changed, I couldn't take. [00:38:32] Speaker 08: Couldn't take material from DOE. [00:38:34] Speaker 08: If the law changed, like if Congress changed the law to allow that, is that not within the license? [00:38:41] Speaker 02: Your Honor, if Congress were to change it and all other aspects of the fuel were covered by the license, such as that it satisfied the host of safety requirements that are incorporated into the license, then there would not be any particular prohibition against storing this DOE title, fuel to which DOE is acquired title. [00:39:01] Speaker 02: But we were not at that point. [00:39:05] Speaker 02: Holtek has made a representation to the NRC that as long as that remains illegal, [00:39:11] Speaker 02: that it won't do it. [00:39:12] Speaker 02: And in the event that it tried to, there would be adequate remedies in order to prevent that from happening. [00:39:17] Speaker 02: And is that true only for commercial reactor wastes? [00:39:22] Speaker 02: Well, the license, this particular license is for the storage of commercial waste. [00:39:28] Speaker 02: If Your Honor is referring to defense waste, I think that's beyond the scope of the license. [00:39:33] Speaker 08: What would be those mechanisms? [00:39:35] Speaker 08: I mean, Ms. [00:39:36] Speaker 08: Curran said for Beyond Nuclear that there would be no way to challenge this in the future. [00:39:41] Speaker 08: Is that the commission's view of that? [00:39:45] Speaker 02: A couple points. [00:39:47] Speaker 02: First, the commission could take action as against its licensee in order to enforce the representations that were made to it during the licensing process. [00:39:55] Speaker 02: Second, I think that if the Department of Energy were to accept fuel that was deemed to be an illegal transfer of title, then there would be action as against the Department of Energy pursuant to the APA, [00:40:10] Speaker 02: or the Nuclear Waste Policy Act, or potentially under the Hobbs Act. [00:40:13] Speaker 02: I mean, there are a variety of different vehicles that might be employed to do that. [00:40:18] Speaker 02: But certainly, the agency would hold the licensee responsible for violating representations it made during the course of the licensing proceeding. [00:40:28] Speaker 02: And those representations the NRC considers to be bombing, much as if this court instructed me on behalf of the NRC [00:40:38] Speaker 08: Notify the court or to not take no enforcement action. [00:40:41] Speaker 08: Is there any recourse to petitioners? [00:40:45] Speaker 02: As against the NRC? [00:40:47] Speaker 02: Well, Council mentioned what was what's referred to as a citizen petition or petition pursuant to 10 CFR 2.206, which asks the agency to take action as against the licensee to suspend or modify or amend the license in the event of the identification of some form of safety issue. [00:41:06] Speaker 08: But declining to enforce would not be judicially reviewable. [00:41:09] Speaker 02: Well, Your Honor, there are two separate questions about that. [00:41:13] Speaker 02: One, there's jurisdiction under the Supreme Court's decision in Lorian. [00:41:21] Speaker 02: There is a presumption of unreviewability for prosecutorial discretion types that you're referencing in Heckler v. Cheney. [00:41:28] Speaker 02: But it's not an insurmountable task. [00:41:32] Speaker 02: I recognize that it takes a lot [00:41:33] Speaker 02: showing of an abdication of authority or something to that effect, but we have seen litigation challenging the commission's denials of 2206 petitions and we're forced to defend them on the merits. [00:41:44] Speaker 10: The only other point I'd like to make, can I just follow up on that issue? [00:41:49] Speaker 10: So at a sort of a first level, [00:41:53] Speaker 10: I understand your argument to be that this is a license to hold a particular type of waste. [00:41:58] Speaker 10: And this is what the commission says on page 465 of the appendix, is essentially it doesn't matter who the waste comes from. [00:42:06] Speaker 10: It matters that we've approved this site with these practices and at this location to store this type of waste. [00:42:15] Speaker 10: Is that everything I've said so far correct? [00:42:20] Speaker 02: Yes. [00:42:22] Speaker 02: Without overstating, yes, Your Honor, it is correct. [00:42:25] Speaker 02: Without overstating or oversimplifying, the commission's focus is on the safety of the storage of fuel. [00:42:34] Speaker 02: I don't want to minimize the issue that's been raising here by suggesting that's a paperwork issue. [00:42:40] Speaker 02: But fundamentally, the owner of the fuel is not [00:42:44] Speaker 02: that the agency needs to take into account in determining whether or not the storage of the fuel is safe? [00:42:49] Speaker 10: Right. [00:42:49] Speaker 10: So the hypothetical I think they spun out, I'm not sure this was in their brief, but it was if Congress in the future allows DOE to store this type of fuel with a private company, but imposes funding restrictions that might hypothetically mean Holtec can't get enough money to follow what it promised to do in the license, that that would raise a practical concern. [00:43:13] Speaker 10: And it seems to me that would raise a practical concern if there was no way for them or the commission to challenge and enforce the license against Holtec. [00:43:24] Speaker 10: It seems to me like your answer is the commission would enforce. [00:43:30] Speaker 02: Recognizing that it's not, certainly the commission would, [00:43:35] Speaker 10: quite catch the last part your position is if they didn't have enough money DOE funding to comply with the license then they would just be violating the license and commission would take whatever absolutely to enforce the license absolutely and I would note too that the commission's oversight over licensees is certainly informed by citizen petitions that might come in [00:44:00] Speaker 02: but also by its ongoing enforcement of regulatory requirements. [00:44:03] Speaker 02: And on a yearly basis, the agency makes sure that there is adequate funding in place, for example, to provide for decommissioning in the event that decommissioning becomes necessary. [00:44:13] Speaker 02: So it's not as though the agency simply closes the book on its oversight of the financial arrangements of the facility. [00:44:21] Speaker 02: And were there to be a meaningful change in the conditions such that what had previously happened with respect to private [00:44:30] Speaker 02: privately titled fuel might no longer be applicable, that would certainly provide an impetus for the agency to investigate further and to oversee ongoing activities. [00:44:38] Speaker 10: But it's not as extreme, the world in which their complaint would make it. [00:44:43] Speaker 10: Even less sense would be if for any future contract, full tech reaches with a private company or with DOE, that that contract itself needs to be approved by the commission. [00:44:57] Speaker 10: And my understanding is that that's not. [00:44:59] Speaker 10: That's not the way this will work in the future. [00:45:02] Speaker 10: If it finds a customer, it doesn't need to come back to the commission. [00:45:04] Speaker 02: Well, the terms of the license are such that as issued should sort of self-execute. [00:45:11] Speaker 02: Yes, but the agency does commit itself to oversight to make sure that these requirements as not only the health and safety aspects of its oversight, but also the financial elements of its oversight. [00:45:25] Speaker 02: are satisfied on a periodic basis. [00:45:28] Speaker 02: And to the extent they're not, then the agency would take appropriate action. [00:45:33] Speaker 11: You could have just, I think you could have said, for environmental effects, we've evaluated this fuel and it doesn't matter who owns it, private or DOE. [00:45:42] Speaker 11: But I think instead, you said we've evaluated, we've done the environmental evaluation for privately owned and for DOEO. [00:45:55] Speaker 11: But there isn't much DOEO. [00:45:58] Speaker 11: So I'm not sure what you meant by that. [00:46:03] Speaker 02: I'm not sure I said that. [00:46:06] Speaker 11: So if you're not sure what, sorry. [00:46:09] Speaker 11: I'm not sure I said what. [00:46:11] Speaker 11: Well, not you specifically, but I think amid J465, [00:46:16] Speaker 11: The NRC staff assures us that the staff bases its safety and environmental reviews on the application as presented, which seeks a license on the basis that either DOE or private entities may hold title to the waste. [00:46:30] Speaker 11: So it seems like you're assuring us that you're reviewing the application in light of both possibilities. [00:46:36] Speaker 11: Maybe I'm wrong about that. [00:46:38] Speaker 11: And then if you are reviewing the environmental effects in [00:46:43] Speaker 11: light of both possibilities, possibility that's legal now and the possibility that may one day become legal. [00:46:49] Speaker 11: I guess how did you do the evaluation or the possibility that might one day become legal if at this time there isn't much DOE owned fuel to? [00:47:00] Speaker 02: I don't believe that there are any distinct environmental effects of owning fuel to which the Department of Energy as distinct from [00:47:10] Speaker 02: commercial utility. [00:47:11] Speaker 11: That was my guess. [00:47:13] Speaker 11: Yeah. [00:47:14] Speaker 02: And that's correct. [00:47:15] Speaker 02: From a health and safety perspective. [00:47:17] Speaker 02: No, from an environmental perspective. [00:47:18] Speaker 02: No, it doesn't make any difference. [00:47:20] Speaker 02: There's a different amount of paper. [00:47:21] Speaker 02: There will be different forms involved, but I don't think that there's a distinct. [00:47:25] Speaker 11: That's what I thought it meant. [00:47:26] Speaker 11: And that's what I was hoping it meant. [00:47:27] Speaker 11: But I just wanted to make sure that's what. [00:47:29] Speaker 02: Your honor, unless there are any further questions. [00:47:34] Speaker 08: Thank you. [00:47:49] Speaker 03: Morning, Your Honors. [00:47:50] Speaker 03: May it please the court, Paul Clement, for the amicus NEI. [00:47:53] Speaker 03: I'm going to focus on the two issues that we focused on in our amicus brief. [00:47:58] Speaker 03: The first of that is this question about the status of Bull Creek and whether the Atomic Energy Act provides the authority for offsite storage. [00:48:07] Speaker 03: That issue is incredibly important to my clients. [00:48:10] Speaker 03: But as I understand where we are in the case right now, it's been forfeited twice over. [00:48:14] Speaker 03: And I thought I heard my friend from the Sierra Club basically say they're no longer taking issue with that, no longer even really raising it. [00:48:23] Speaker 03: So as much as my clients would love a full-throated re-endorsement of the holding, which was in fact a holding, unless the court has any questions, I mean, it just seems like there's not too much to say about that issue. [00:48:37] Speaker 03: So maybe then I'll turn to the second issue we addressed in the brief. [00:48:41] Speaker 03: which is the beyond nuclear argument that somehow the sort of disjunctive reference to the possibility of DOE taking title somehow makes this process unlawful. [00:48:53] Speaker 03: And let me start by just trying to underscore how absolutist and extremist that position is. [00:48:59] Speaker 03: Because what it really comes down to, concretely, [00:49:02] Speaker 03: is that in the proposed application, and this is on page 40 of the joint appendix, in the 17th condition on the proposed license, there is a parenthetical and disjunctive reference to the possibility that the spent nuclear fuel that's going to be stored in this facility is DOE or privately owned. [00:49:25] Speaker 03: And as Judge Walker alluded to, although it's outside the record, by the time you get to the actual license, the parenthetical disappears. [00:49:36] Speaker 03: And of course, that makes sense, because the parenthetical is actually not even particularly necessary to anything. [00:49:43] Speaker 03: It's like if you were thinking about a pedestrian example, like licensing a bar, and it said that we'll have the capacity for 200 lawful patrons, and then it said, [00:49:55] Speaker 03: 18 or 21. [00:49:56] Speaker 11: I mean, you know, and maybe this is just pointless formality, but I think we're not reviewing the license. [00:50:03] Speaker 11: We're reviewing whether the contentions were properly rejected. [00:50:07] Speaker 11: The final license wasn't before the NRC when it [00:50:11] Speaker 11: So what's the argument for why we're allowed to kind of peek at the final license? [00:50:18] Speaker 03: It doesn't even matter whether you can peek at it, because I'm not sure you can as a technical matter. [00:50:23] Speaker 03: My point is that if the relief is to strike something that's actually superfluous, [00:50:28] Speaker 03: That just shows there's something wrong with the argument that's actually before you squarely. [00:50:33] Speaker 03: And so that's why I'm pointing to what is in the Joint Appendix, which is in the record. [00:50:36] Speaker 03: And it shows you that this is just a disjunctive parenthetical. [00:50:41] Speaker 03: And the reason it could be in a parenthetical is because it doesn't really matter for purposes of this whole licensing process who has title to the spent nuclear fuel. [00:50:52] Speaker 03: And maybe this will help kind of clarify. [00:50:54] Speaker 08: I mean, it is a consequence of that argument that it could hold tech eventually if it became lawful take DOE titled waste. [00:51:04] Speaker 03: Yes, it could, under the proposed license, under the licensed as issue. [00:51:09] Speaker 03: And just to make clear, like... And why would that be? [00:51:12] Speaker 08: I mean, because you're relying on the fact that it's not even in the final. [00:51:15] Speaker 03: No, but what's not in the final is the parenthetical. [00:51:18] Speaker 03: There's still this condition that you have to have a contract with somebody who has spent nuclear fuel. [00:51:24] Speaker 03: It just no longer specifies that that could be DOE in some future world, or it could be a private party right now. [00:51:30] Speaker 03: So the superfluous parenthetical has dropped out, which shows that it's superfluous. [00:51:36] Speaker 03: And the license is now written in a way that basically says anybody who lawfully owns the commercial spent nuclear fuel can contract with Holtec. [00:51:45] Speaker 08: If DOE at some future date lawfully owns such fuel, they could contract with Holtec. [00:51:49] Speaker 03: Yes. [00:51:50] Speaker 08: The same way a private entity could. [00:51:52] Speaker 03: Absolutely. [00:51:53] Speaker 03: And just to try to make this even more clear, as a practical matter, in theory, it could be some other spent nuclear fuel that DOE somehow takes title to under some change in the law. [00:52:04] Speaker 03: But what we're really talking about is the exact same spent nuclear fuel that is currently in on-site storage facilities, including at decommissioned sites. [00:52:14] Speaker 03: And as a technical matter, the reason that DOE can't take title to that right now is because the Nuclear Waste Policy Act said that they can't take title to that until the Yucca Mountain facility is operational. [00:52:29] Speaker 03: So we have this, you know, unusual situation now where, you know, the federal government is essentially paying for the storage. [00:52:36] Speaker 03: of this spent nuclear fuel because of decisions that have said other provisions in the act mean that as of 1998, the federal government is basically on the hook for the storage costs, but they can't take title under the laws that currently stands. [00:52:51] Speaker 03: And all the license did here is quite sensibly observe that and say, you know, that's not the most like long-term stable solution in the world. [00:52:58] Speaker 03: And maybe at some point, Congress is going to revisit this and transfer title to the same nuclear [00:53:03] Speaker 03: spent nuclear fuel back to DOE, and that's not going to make any difference as you alluded to. [00:53:10] Speaker 03: But that's why I think the provision in the joint appendix you were reading, nothing turns on literally who has titled to the waste, because it's the same darn waste at the end of the day. [00:53:22] Speaker 03: And so, you know, some of the arguments that you see, like in the licensing process, like if it's timely raised, I suppose the commission can consider the Karst formulations under the storage facility. [00:53:34] Speaker 03: But the Karst doesn't change if title shifts from a private party to the DOE. [00:53:41] Speaker 11: And so that's... What's the best way to distinguish Henry Aiken? [00:53:46] Speaker 11: You know, they make the argument that, well, [00:53:49] Speaker 11: the NRC aired then when it said, the law might change, so we're going to act as if the law might change. [00:53:53] Speaker 11: And here, the NRC is acting in a way that sort of assumes the law might change. [00:53:58] Speaker 03: Yeah, and I think the difference in the end is that Inray Aiken made that assumption, and then they did something that was currently unlawful, unambiguously so. [00:54:08] Speaker 03: They wouldn't move forward even though they had the command to do it, and there were available appropriated funds. [00:54:14] Speaker 03: So with all due respect to my friend, I can understand why this court [00:54:17] Speaker 03: issued a mandamus there. [00:54:19] Speaker 03: But this situation is nothing like that. [00:54:20] Speaker 03: And this situation is very much like your hypothetical about the hangar, where it's actually kind of sensible government to say, all right, we're building a facility. [00:54:30] Speaker 03: We want it to work now. [00:54:32] Speaker 03: But if in the near future there's a possibility that there's going to be a bigger airplane authorized by Congress, [00:54:39] Speaker 03: It would really be imprudent to have a hanger that isn't big enough for this new plane. [00:54:44] Speaker 11: Can you think of any other examples? [00:54:47] Speaker 11: I also thought of like a building permit that you can't actually act on the permit until something's been rezoned. [00:54:54] Speaker 11: Do you have any examples that can help? [00:54:57] Speaker 03: I don't know that I have any other sort of examples that help. [00:55:00] Speaker 03: What I would say is two things. [00:55:01] Speaker 03: One, I think this is the easy case because this isn't a situation where the only thing that the license is designed for is currently not authorized by law. [00:55:13] Speaker 03: I would say even in that case, there's not an APA problem with that kind of conditional license. [00:55:19] Speaker 03: But here, since it's in the disjunctive and there is a real world example where it's perfectly fine, then that seems to me to be the relatively easy case. [00:55:29] Speaker 03: That's why I think it's like, OK, I got a bar. [00:55:32] Speaker 03: I want a license. [00:55:33] Speaker 03: The drinking age is currently 21. [00:55:35] Speaker 03: I want to make sure that the license for the facility, which really doesn't turn on the age of the patrons, [00:55:40] Speaker 03: It's still valid if they change the drinking age. [00:55:42] Speaker 03: So I got a provision in there that says that there's no separation of powers problem there. [00:55:47] Speaker 03: There's nothing remotely problematic. [00:55:49] Speaker 08: In your view, this isn't even a conditional license. [00:55:53] Speaker 08: This is a license that says you can do this. [00:55:55] Speaker 08: And some other activities may come into what the license approves in the future. [00:56:01] Speaker 03: This is a conditional license with a reference in the disjunctive in a parenthetical to the possibility that the law could change and Whole Tech would end up contracting with DOE rather than the private parties that currently have title to the spent nuclear fuel. [00:56:18] Speaker 03: Thank you, Your Honors. [00:56:20] Speaker 00: Thank you. [00:56:32] Speaker 05: May it please the court. [00:56:33] Speaker 05: My name is Anne Lydic from Pillsbury Winthrop Shaw Pitman representing Intervenor Holtec International. [00:56:38] Speaker 05: I'd like to very briefly address some of the FASC and contentions, specifically FASC and contention amended contention two and contention three. [00:56:45] Speaker 05: Once those came into this proceeding, they didn't, they should not have challenged the Holtec environmental report. [00:56:51] Speaker 05: What they needed to challenge was the staff's draft environmental impact statement, because that was the active licensing document at that stage of the proceeding. [00:56:59] Speaker 05: The draft environmental impact statement does have a drilling depth of 3,000 feet, does recognize that New Mexico holds title to the land and a variety of other things that Fasken has not challenged. [00:57:10] Speaker 05: But at that point, when Fasken came in and attempted to demonstrate a dispute with the application, they needed to demonstrate a dispute with the draft environmental impact statement. [00:57:20] Speaker 05: Of course, they also need to demonstrate that they met the most tree open requirements and we don't believe that they've met this year. [00:57:27] Speaker 05: The reopening requirements are it's a very high bar to reopen an NRC proceeding after it has closed. [00:57:34] Speaker 05: And this court has upheld those requirements before in Duke Mays and VNRC, which is referenced in the Blue Ridge environmental case. [00:57:40] Speaker 05: And that actually provides a factual basis or a factual scenario where reopening the record once did happen. [00:57:47] Speaker 05: And you can tell when you read the case that it is a very, very, very high bar. [00:57:51] Speaker 05: We don't believe Fasken ever met that bar here. [00:57:54] Speaker 05: In fact, I don't believe that they ever really attempted to meet that bar here. [00:57:57] Speaker 05: And as a result, that's one of the many reasons why these contentions were not admitted by the licensing board or the commission. [00:58:05] Speaker 11: The environmental petitioner said they think their strongest contention is the earthquake and groundwater contentions. [00:58:12] Speaker 11: Anything today that you'd like to respond to? [00:58:14] Speaker 05: No, I believe that the judges have read it correctly. [00:58:18] Speaker 05: The earthquake contention was rejected because the Stanford report did not actually dispute the content of the application. [00:58:25] Speaker 05: If you go and look at the application on pages 407 to 408 of the Joint Appendix, [00:58:29] Speaker 05: you'll see a description of fracking in the impact on earthquakes in the region. [00:58:34] Speaker 05: It specifies actually where the earthquakes are happening. [00:58:37] Speaker 05: It specifies the location of the faults in the area. [00:58:40] Speaker 05: And all of that is consistent with the information that was in the Stanford report. [00:58:44] Speaker 05: So while environmental petitioners had an expert report, that expert report did not demonstrate a genuine dispute with the application as it was required to do. [00:58:54] Speaker 05: In terms of the groundwater contentions, [00:58:57] Speaker 05: An overarching theme in the groundwater contentions is that the expert report did not address relevant information in the application. [00:59:05] Speaker 05: Again, this is required to establish a genuine dispute under the NRC's rules that there needs to be a challenge to all of the relevant information to demonstrate that there even is a contention that is worth having a hearing on. [00:59:19] Speaker 05: If the expert fly specs takes one sentence here one sentence there and says I dispute the sentence you only had one well. [00:59:26] Speaker 05: Well, there were four wells, there were four wells, they were monitored for groundwater as the wells were drilled. [00:59:31] Speaker 05: There was a quality assurance program that was applied a variety of other reasons to believe that all of those wells demonstrated that there was no groundwater in those locations. [00:59:42] Speaker 05: And the expert has to address that information when they come in. [00:59:46] Speaker 05: Otherwise, there's no way of the commission knowing if there is a real dispute here, which is why these contentions were rejected. [00:59:52] Speaker 11: Before you're out of time, just to be extremely, almost unnecessarily clear, if Congress does not change the law to allow DOE-owned waste to be stored here, you do not plan to store DOE-owned waste. [01:00:07] Speaker 05: Holtek will not store any waste that DOE has taken title to illegally under the Nuclear Waste Policy Act. [01:00:12] Speaker 05: That's correct. [01:00:14] Speaker 05: For those reasons, we request the petitions to be denied. [01:00:18] Speaker 08: Thank you. [01:00:22] Speaker 08: Ms. [01:00:22] Speaker 08: Curran, we'll give you two minutes. [01:00:27] Speaker 04: Judge Walker, I'd like to give you the paragraph number for the license. [01:00:30] Speaker 04: It's paragraph nine. [01:00:32] Speaker 04: It says, the license authorizes Haltech to operate as described in the final safety analysis report, which is the language used to describe the application. [01:00:43] Speaker 04: If you look at footnote three of our opening brief, it lists the language in the provisions of the FSAR that are unlawful. [01:00:55] Speaker 04: I just, it was said that this is the same darn waste at the end of the day. [01:01:01] Speaker 04: It doesn't matter who owns it. [01:01:03] Speaker 04: And we don't think that's true because so much is about money. [01:01:09] Speaker 04: This is expensive material to care for safely. [01:01:13] Speaker 04: You know, safety is paramount and it's often an issue who's gonna pay for how long and how much. [01:01:21] Speaker 04: We don't know what the Congress may do if the law changes with respect to those issues. [01:01:28] Speaker 04: We want our rights to be heard, and that can only happen [01:01:34] Speaker 04: if Holtek is forced to wait to apply for a license or a license amendment, we could have a license now. [01:01:43] Speaker 10: That's the argument that would apply to any contract with a private reactor, right? [01:01:48] Speaker 10: Everything you just said. [01:01:49] Speaker 10: You won't get another chance to talk about who's paying for how much. [01:01:53] Speaker 10: And instead, the recourse will be to make sure that Holtek is following the provisions of the license, right? [01:01:59] Speaker 04: Right, but the devil is in the details in the license conditions, which we would want to say in the PFS, the Private Field Storage Division. [01:02:10] Speaker 04: Once we knew what was Congress going to provide for in terms of funding, then we could [01:02:15] Speaker 04: asked for license conditions to make sure that the commitments were adequate to cover a very large quantity of spent fuel to be stored for a very long time. [01:02:26] Speaker 04: That takes place in the licensing proceeding. [01:02:30] Speaker 04: Once the license is issued, I think Mr. Aberbach made it pretty clear, we have no rights anymore. [01:02:36] Speaker 04: The NRC is on its own to decide whether and to what extent to enforce the license. [01:02:44] Speaker 04: And just one more comment about the Aiken case. [01:02:49] Speaker 04: That was a case in which I think the NRC was described as defiant. [01:02:54] Speaker 04: And we think that that applies here, too. [01:02:56] Speaker 04: Because right at the outset of this proceeding, we asked the NRC to send this license application back, ask Coltech to take out the unlawful language, and have an application that is the traditional private ownership of spent fuel. [01:03:14] Speaker 04: But the NRC refused and continually. [01:03:18] Speaker 04: Thank you very much. [01:03:34] Speaker 07: Until that very last argument on the other side, I hadn't heard anything in response to our argument that the condition of disability standards were violated. [01:03:46] Speaker 07: So I thought maybe I was going to goodbye without having to respond to that. [01:03:48] Speaker 07: But Ms. [01:03:51] Speaker 07: Loughneak, I think, made a statement that really explains what we're dealing with. [01:03:57] Speaker 07: She said, our groundwater expert should have requested information. [01:04:02] Speaker 07: At the contention and miscibility stage, we go by what the applicant, in this case Holtec, has put in their application documents. [01:04:14] Speaker 07: Discovery occurs after the contention is admitted. [01:04:20] Speaker 07: And that's why we feel that the agency violated its own contention and miscibility standard. [01:04:32] Speaker 07: Since Mr. Robert Bach spent his argument about the Atomic Energy Act, I got permission to just make some brief comments in response. [01:04:45] Speaker 07: The Fifth Circuit in Texas versus NRC went through all of that and explained in detail why the Atomic Energy Act does not give the agency the authority to license. [01:04:58] Speaker 08: The Fifth Circuit, that's the Fifth Circuit, right. [01:05:02] Speaker 06: Thank you. [01:05:13] Speaker 09: Thank you, Judge Walker. [01:05:16] Speaker 09: So we talk about it in a number of places. [01:05:19] Speaker 09: In our brief, the statement of issues presented obviously deals with reasonably anticipated future extraction operations and selection of whole tech. [01:05:30] Speaker 09: In addition, [01:05:31] Speaker 09: On page 16 through 17, we talk about the information was material to the required findings needed to satisfy the NRC siting. [01:05:41] Speaker 09: I will say that because of the word limitations, we reference other materials like our contentions where we talk about it in greater detail and where the affidavits appear that I cited from earlier. [01:05:55] Speaker 09: But most importantly, and this goes also to the comment about materiality, [01:06:01] Speaker 09: The NRC staff agreed that contention two would be admissible in part to the extent that Fasken challenges the application's description of whole tax control of mineral rights, including oil and gas extraction underneath the site. [01:06:15] Speaker 09: It has proffered an admissible contention specifically by identifying what it asserts are material inconsistencies and potential inaccurate statements in the application that directly bear on the analyses. [01:06:27] Speaker 09: And it also goes on to say, Fasken has provided the necessary threshold support for its dispute with the Holtex reported ability to control and limit future oil drilling and mining beneath the site. [01:06:40] Speaker 09: What happened was we were held to an elevated standard of good cause, and we believe we showed it. [01:06:47] Speaker 09: What the agency said was, oh, no, this was all previously available. [01:06:53] Speaker 09: But that doesn't make any sense, that it was all previously available. [01:06:56] Speaker 09: A, why did the state land office decide to send this out and say, your allegations are just wrong? [01:07:04] Speaker 09: How would we have known anybody lies? [01:07:06] Speaker 09: You don't walk into these applications and assume somebody is lying about controlling all of the minerals. [01:07:14] Speaker 09: And frankly, thank you very much, Your Honor.