[00:00:01] Speaker 01: Case number 17-1059, Aglaq-Sikoi Tribe Petitioner versus U.S. [00:00:07] Speaker 01: Nuclear Regulatory Commission and Al, Mr. Parsons for the petitioner, Mr. Adler for the respondents, Mr. Puzling for the [00:00:17] Speaker 00: Thank you. [00:00:18] Speaker 00: Good morning, Your Honors. [00:00:19] Speaker 00: You may please the court. [00:00:20] Speaker 00: My name is Jeff Parsons. [00:00:22] Speaker 00: I'm here on behalf of the Oglala Sioux Tribe. [00:00:24] Speaker 00: With me at council table is Travis Stills. [00:00:27] Speaker 00: From the tribe's perspective, this case is largely one about the interests of the tribe and its cultural resources on a property in its ancestral territory in the Black Hills. [00:00:40] Speaker 00: This property is recognized, although there has not been a scientifically defensible cultural resources survey done, it's recognized as exceptional for its high density of cultural resources at the site. [00:00:54] Speaker 00: We're talking about burials, sacred sites on this land, historic and prehistoric occupation sites. [00:01:03] Speaker 00: Hundreds of these sites, hearths, [00:01:09] Speaker 00: and others. [00:01:09] Speaker 00: Those are listed, the ones that the NRC has identified anyway, are listed in the joint appendix at 655 to 659. [00:01:18] Speaker 00: The final effective license that the NRC has issued in this case allows the company to begin construction on those sites despite the fact... I thought the 1A contention was still up for grabs, right? [00:01:33] Speaker 03: Isn't there going to be an evidentiary hearing and then a decision made and that would be reviewed by the commission? [00:01:39] Speaker 03: And isn't a possible outcome of that, that the license would be revoked? [00:01:44] Speaker 00: Your Honor, the adjudicatory hearing has already taken place in this case. [00:01:49] Speaker 00: There was an adjudicatory hearing in 2014, a decision issued by the Atomic Safety and Licensing Board in April [00:02:00] Speaker 00: of 2015, so almost three years ago, and it found after an educatory, evidentiary hearing that the NRC staff failed to comply with the National Environmental Policy Act with respect to surveys of cultural resources [00:02:20] Speaker 00: at the site. [00:02:22] Speaker 00: And so that, that evidentiary hearing is taking place. [00:02:25] Speaker 00: That was appealed up to the Nuclear Regulatory Commission, pursuant to the Regulatory Commission's regulations at 10 CFR 2, 1210 C1, [00:02:37] Speaker 00: Those ASLB, Atomic Safety, and Licensing Board decisions are reviewable by the Commission to make a final decision, which is what happened in December 23rd of 2016, almost 15 months ago. [00:02:53] Speaker 00: The Commission's instruction was for the staff to essentially take another look. [00:03:00] Speaker 00: However, it left that license in full force and effect. [00:03:05] Speaker 00: affirmatively finalizing that license. [00:03:09] Speaker 03: Right, but on this taking another look, isn't one possible outcome of that the license will be revoked? [00:03:16] Speaker 00: I suppose that's a conceivable outcome, Your Honor. [00:03:19] Speaker 03: The problem- And did I misunderstand or am I wrong? [00:03:23] Speaker 03: Is there not another evidence you're hearing yet to take place regarding [00:03:27] Speaker 03: what I keep calling the 1A issue? [00:03:29] Speaker 00: It is not entirely clear that there would be another evidentiary hearing. [00:03:36] Speaker 00: If the NRC staff goes back and completes its NEPA process, then that would potentially lead to another evidentiary hearing, but not necessarily. [00:03:48] Speaker 00: The problem the tribe has, of course, is that in the interim, and again it's been three years since the Atomic Safety Licensing Board finally issued its partial initial decision adjudicating the NEPA violation, and 15 months now since the NRC issued its final decision affirming those NEPA violations, [00:04:10] Speaker 00: Through this time, the company has this active, effective license, final license in place, and is steadily moving toward a start of construction. [00:04:22] Speaker 03: It's had an effective license since 2014. [00:04:25] Speaker 03: It may not have been a lawful license, right? [00:04:27] Speaker 03: I mean, there were challenges to it, but it had an effective license when the staff issued it in 2014. [00:04:33] Speaker 03: That's true, Your Honor. [00:04:34] Speaker 00: Okay, okay. [00:04:35] Speaker 00: And then that was adjudicated in the Atomic Safety Licensing Board. [00:04:39] Speaker 00: The Atomic Safety Licensing Board made amendments to that license. [00:04:43] Speaker 00: through their decision, and then that was appealed by all parties up to the Nuclear Regulatory Commission, which issued its final decision. [00:04:50] Speaker 00: And so what that final decision, what that final order did, using the terminology of the Hobbs Act, which obviously controls [00:04:58] Speaker 00: allows review of any final order for the granting of a license. [00:05:03] Speaker 00: And that's what we had on December 23, 2016, was the Nuclear Regulatory Commission issuing that final order, affirming that issuance of the license. [00:05:15] Speaker 03: If there's a possibility that further proceedings under 1A would lead to the revocation of the license, [00:05:24] Speaker 03: Do we then have a final order in front of us? [00:05:26] Speaker 00: We do have a final order, Your Honor. [00:05:28] Speaker 00: The finality is addressed. [00:05:32] Speaker 00: In fact, if you look at the order itself, at page 57, that's in the Joint Appendix at 0292, the Commission uses the words that this order should be considered final. [00:05:44] Speaker 00: And so that was a final order from the Nuclear Regulatory Commission. [00:05:47] Speaker 00: If you look at the case law that interprets finality from the Serene Court, Bennett v. Spear, the Hawks case, the City of Benton case, and the Adenariwo cases from this district, excuse me, this circuit, [00:06:04] Speaker 00: The language they use with regard to finality is whether the adjudication has reached a stage where judicial review will not disrupt those proceedings. [00:06:15] Speaker 00: So contrary to, I think, what the NRC is arguing in this case, there is no bright line just because there are additional steps [00:06:24] Speaker 00: and potential steps at the administrative level does not, does not settle the issue. [00:06:32] Speaker 03: Even though those additional steps could overturn the decision to issue the license? [00:06:37] Speaker 00: Well, yes, Your Honor. [00:06:40] Speaker 00: I think what we get to is whether judicial review at this point will disrupt the proceedings. [00:06:47] Speaker 00: And in fact, there have been no arguments to speak of from the other side with respect to how an adjudication review by this Court would disrupt those proceedings. [00:06:58] Speaker 00: In the meantime, again, there's this final [00:07:00] Speaker 00: agency action in place that allows the company to go forward with construction that will put the tribe at risk of having its sacred sites desecrated or destroyed before they've even been identified out on the land. [00:07:17] Speaker 00: Can I pause over this? [00:07:19] Speaker 04: The second half of Bennett v. Spears requires that rights or obligations have been determined or that legal consequences will flow. [00:07:30] Speaker 04: So I understand an argument based on our immediate effectiveness cases. [00:07:40] Speaker 04: I'm not sure whether something beyond that fits within final order. [00:07:45] Speaker 04: That is, are you relying on our immediate effectiveness cases as providing the second element of benefit? [00:07:53] Speaker 00: We did make that argument in our brief, Your Honor. [00:07:56] Speaker 00: I think that's a tenable basis for this Court to rule. [00:07:59] Speaker 00: I also think that it is undisputed that rights have been determined. [00:08:06] Speaker 04: They haven't been determined. [00:08:07] Speaker 04: Imagine that there were no license at all at this stage, okay? [00:08:11] Speaker 04: They had not approved a license that was still pending, okay? [00:08:16] Speaker 04: Not a media license, any kind of license. [00:08:19] Speaker 04: Would you still be able to make the same argument? [00:08:21] Speaker 04: I don't think so, Your Honor. [00:08:23] Speaker 04: So it's only the fact that the license has become immediately effective. [00:08:27] Speaker 00: That's right. [00:08:27] Speaker 00: Turning to the language of the Hobbs Act, again, allows review of any final order for the granting, revoking, withdrawing, but granting of the license. [00:08:38] Speaker 00: And so, yes, it is the fact that we have a final agency action that is to say... What's the consequence of the license that was issued at this point? [00:08:45] Speaker 00: From the NRC's perspective, it is a fully effective license allowing the company to go forward with construction at any time. [00:08:54] Speaker 00: Now, to be fair, there are additional permits that the company is still seeking. [00:08:59] Speaker 00: However, NRC has no [00:09:02] Speaker 00: control over that, we have no control over that. [00:09:04] Speaker 00: Essentially from the tribe's perspective, the tribe is essentially being pushed to the edge of this cliff where at any time these licenses could come down and will be forced. [00:09:15] Speaker 00: You mean these permits? [00:09:16] Speaker 00: I'm sorry, these permits from other agencies. [00:09:17] Speaker 00: Who issues the permits? [00:09:19] Speaker 00: There are other federal agencies, EPA and BLM. [00:09:21] Speaker 00: But not NRC? [00:09:23] Speaker 00: Say again? [00:09:23] Speaker 04: But not the nuclear regulatory? [00:09:24] Speaker 04: Correct. [00:09:25] Speaker 04: They're done with respect to the license itself unless they decide later to revoke it. [00:09:30] Speaker 00: That's right. [00:09:33] Speaker 00: And so at any time, these construction activities could begin. [00:09:40] Speaker 00: The NRC makes the argument that the tribe isn't, that it's sort of a harmless situation for the tribe, because we could come in and ask for a stay within the NRC process in order to stop that activity from going forward. [00:09:56] Speaker 00: But from the tribe's perspective, that's very much an inadequate remedy. [00:10:01] Speaker 00: there was a request for the stay that the tribe made in this case immediately upon issuance of a license. [00:10:10] Speaker 00: And that decision, discussion is at Joint Appendix 512 and 513. [00:10:16] Speaker 00: And the Atomic Safety Licensing Board recites the test for acquiring such a stay and calls it an extraordinary, as it is, an extraordinary remedy that's rarely granted in the NRC. [00:10:29] Speaker 00: And so the tribes in a position where we litigated, were successful, won a ruling from the Atomic Safety Licensing Board, won a ruling from the Nuclear Regulatory Commission, finding violations of NEPA with respect to any survey of the cultural resources, [00:10:49] Speaker 00: And yet, we're forced to come in and achieve an extraordinary remedy just in order to preserve the status quo to make sure that our cultural resources – again, we're talking burials, sacred sites – are not destroyed or put at risk from the immediate commencement of construction. [00:11:13] Speaker 03: So from our perspective... Why isn't the 2014 decision the one that triggers, that does the work here? [00:11:24] Speaker 03: In 10 CFR, section 2.1202A, it says the NRC staff's action on the matter is effective upon issuance by the staff. [00:11:35] Speaker 03: Why isn't that when the license became immediately effective and not 2016 when [00:11:43] Speaker 03: this challenge is brought. [00:11:45] Speaker 00: Right. [00:11:46] Speaker 00: So it did become immediately effective upon issuance. [00:11:49] Speaker 03: So then why doesn't the clock start running from there? [00:11:51] Speaker 03: Why aren't you too late to bring a challenge? [00:11:53] Speaker 00: Well, under the Hobbs Act, it's any final order for the granting of a license. [00:11:57] Speaker 03: The regulations... The Hobbs Act language is different than final decision, right? [00:12:03] Speaker 03: I mean, you're relying on the language of final decision. [00:12:07] Speaker 03: The Hobbs Act speaks differently. [00:12:09] Speaker 00: It talks about a final order. [00:12:12] Speaker 00: And the way the NRC process works is the way they conduct it anyway. [00:12:17] Speaker 03: But our case law construing the Hobbs Act, it said when there's still issues to be reviewed by the agency, it's not a final order. [00:12:25] Speaker 00: Not necessarily. [00:12:26] Speaker 00: There are exceptions. [00:12:29] Speaker 00: Again, the finality cases talk about whether the proceedings have reached a stage where judicial review will not disrupt the proceedings. [00:12:38] Speaker 00: And so that, I think, is the finality issue. [00:12:42] Speaker 00: And again, yes, the NRC staff is conducting an additional administrative process, but again, this license has been made final and effective. [00:12:53] Speaker 04: The 2014 decision, the staff decided that there was no NEPA violation, right? [00:13:01] Speaker 04: That's right. [00:13:01] Speaker 04: So that is a different issue. [00:13:04] Speaker 04: If you would appeal that, you would be appealing whether there really was a NEPA violation, correct? [00:13:10] Speaker 04: Correct. [00:13:11] Speaker 04: Now, among other things, you're appealing the authority of the agency to go forward notwithstanding its finding that there was a NEPA violation. [00:13:21] Speaker 04: That's correct. [00:13:21] Speaker 04: And you wouldn't have been able to make that argument in 2014. [00:13:26] Speaker 00: That's right. [00:13:28] Speaker 00: That decision was made just months, three months or so, before the administrative adjugatory hearing was to take place. [00:13:38] Speaker 00: And so had we brought this case at that point, I think there would have been a tenable argument that that review by this Court would disrupt the proceedings. [00:13:48] Speaker 00: We had yet to go into the adjudication before the Atomic Safety and Licensing Board to determine whether those NEPA violations occurred. [00:13:57] Speaker 00: And I think, so finality, [00:14:00] Speaker 00: I think is established because we have the final license, determines rights and responsibilities. [00:14:06] Speaker 00: With regard to the vacatour issue, that's a very important one in this case. [00:14:12] Speaker 00: Under the APA, vacatour is the standard remedy. [00:14:15] Speaker 00: That's discussed in our opening brief at 23. [00:14:19] Speaker 00: Standard remedy for who? [00:14:21] Speaker 00: For us. [00:14:22] Speaker 00: Sorry, yes. [00:14:23] Speaker 00: Under the Administrative Procedure Act. [00:14:24] Speaker 00: For the courts. [00:14:25] Speaker 00: For the courts. [00:14:26] Speaker 00: Yes. [00:14:27] Speaker 00: And so what we have in this case is an established violation of the National Environmental Policy Act, and then a license affirmed through a final order of the Nuclear Regulatory Commission. [00:14:41] Speaker 00: What they argue is that we're not harmed because of something called the programmatic agreement. [00:14:45] Speaker 00: Again, they say we can come in for that stay, which, as I explained, is not an adequate remedy. [00:14:49] Speaker 00: They say that we're protected under the programmatic agreement. [00:14:52] Speaker 00: But the programmatic agreement is purely a creature of the National Historic Preservation Act. [00:14:57] Speaker 00: It only applies and only protects cultural resources that rise to the high level of being eligible for the National Register of Historic Places. [00:15:06] Speaker 00: I tell you, it doesn't address the NEPA question. [00:15:11] Speaker 00: It does not at all address the NEPA question, and it leaves a whole raft of cultural resources without the ability for us to protect. [00:15:20] Speaker 00: In fact, at Joint Appendix 920, 923, and 925, the PA by its own terms said, [00:15:25] Speaker 00: If not eligible for the National Register of Historic Places, no further consideration will be given to those cultural resources. [00:15:33] Speaker 00: And so it is a very narrow, a slim reed, so to speak, of protection for any of the tribes' cultural resources, which, again, are at risk because this final agency action and this final license are in place despite the lack of any cultural resources survey. [00:15:51] Speaker 00: Question? [00:15:51] Speaker 00: Judge Anderson? [00:15:54] Speaker 04: No, no question. [00:15:54] Speaker 04: Okay, thank you. [00:16:12] Speaker 02: May it please the Court, my name is James Ather, I represent the U.S. [00:16:15] Speaker 02: Nuclear Regulatory Commission in the United States of America. [00:16:20] Speaker 02: This case should be dismissed for lack of jurisdiction. [00:16:23] Speaker 02: This Court has said that finality under the Hobbs Act is to be narrowly construed, and also that a final order typically disposes of all issues as to all parties. [00:16:32] Speaker 02: Here, the NRC proceeding is still ongoing, and the Tribes still participate. [00:16:36] Speaker 04: Can I ask a final point? [00:16:37] Speaker 04: So the Supreme Court of the United States has said finality is pragmatic. [00:16:41] Speaker 04: That's what it said in Bennett. [00:16:43] Speaker 04: And we have said both in Massachusetts, Commonwealth of Massachusetts, [00:16:51] Speaker 04: Sure, I'm waiting that where there is an immediate effectiveness, that can be a final decision under the Hobbs Act. [00:16:59] Speaker 02: Yes, Your Honor. [00:16:59] Speaker 04: You have to start with those cases to get to the hardest point for you. [00:17:04] Speaker 02: Yes, Your Honor. [00:17:05] Speaker 02: We don't think that this case fits that mold. [00:17:09] Speaker 02: It's certainly possible if a license is effective that one could, but we don't think this one does. [00:17:15] Speaker 02: First, as has been noted, the license was issued in 2014. [00:17:19] Speaker 04: But it is the case that in 2014, no one had decided that there was a NEPA violation. [00:17:25] Speaker 02: That's correct. [00:17:25] Speaker 04: Let me put all my cards on the table so you can get the hypothetical. [00:17:30] Speaker 04: Commissioner Barron's dissent essentially says that NEPA requires that the EIS be lawfully completed before a license can be issued. [00:17:46] Speaker 04: And he's saying that in this case, and then maybe in all cases, the NRC is taking the position that it can go forward, even if NEPA is violated, [00:17:59] Speaker 04: as long as there's not, unless the petitioner can show immediate and irreparable harm. [00:18:06] Speaker 04: So if you wanted to challenge that, imagine the NRC announced, I don't care what NEPA says, we don't care what NEPA says, we're gonna let every license go forward unless the petitioner can show irreparable injury. [00:18:21] Speaker 04: Are you saying that could not be challenged until a final decision, until [00:18:28] Speaker 04: they ultimately resolve on remand and fix the problem? [00:18:35] Speaker 04: Well, one, that was, of course, not what was said here. [00:18:38] Speaker 04: Well, what was said here, I'm not sure about that. [00:18:40] Speaker 04: What was said here is that NEPA was violated, right, and we're going to remand it to get it fixed, right? [00:18:48] Speaker 04: Correct. [00:18:49] Speaker 04: Okay. [00:18:49] Speaker 04: But in the meantime, a license goes forward. [00:18:53] Speaker 02: Yes, Your Honor. [00:18:54] Speaker 02: I think it's an important distinction that this hearing process going on, it's not a NEPA process. [00:19:00] Speaker 02: It's under the Atomic Energy Act. [00:19:01] Speaker 04: I'm asking about the hearing process. [00:19:04] Speaker 04: I'm going to give you that for the purposes of this argument. [00:19:06] Speaker 04: I'm asking for NEPA alone. [00:19:08] Speaker 04: Under NEPA, you can't just go forward without completing an appropriate EIS. [00:19:14] Speaker 04: In this case, they're going forward without an appropriate EIS. [00:19:18] Speaker 04: There is an immediately effective license. [00:19:21] Speaker 04: Now, maybe this is disputable, maybe there's a law argument about it, but your interpretation of final agency action means that this could never be tested, because by the time it then gets up to us, you will have resolved the question of whether NEPA has been violated, whether it can be fixed or not, and then you will either vacate the license or you'll give the license, in which case it'll be over. [00:19:45] Speaker 04: So you are, aren't you not effectively insulating the agency from violating NEPA by your interpretation of final agency action? [00:19:56] Speaker 02: Well, we don't believe so, Your Honor. [00:19:57] Speaker 02: You want to tell me why? [00:19:59] Speaker 02: Well, first, as has been mentioned, if there is some immediate time-sensitive issue, that's what our state processes before, and as we suggested in our brief, we think that [00:20:09] Speaker 02: falls into the immediate effectiveness type box that can then be taken straight to court. [00:20:14] Speaker 02: And so a court can look at that question just as it did in the immediate effectiveness issue. [00:20:19] Speaker 04: But the question of a stay under your rules, I'm just going to read from your own brief, is stay was available where the decision, quote, threatens the party adversely affected by it with immediate and serious irreparable impact. [00:20:35] Speaker 04: That is not the NEPA standard. [00:20:37] Speaker 04: What if a defendant said, what if you announced we are going to violate NEPA as long as there is not, the party is not adversely affected, as long as the party can't prove that it was adversely affected by immediate and serious irreparable impact? [00:20:55] Speaker 04: That strikes me as a clear violation of NEPA that were your rule. [00:20:58] Speaker 04: And yet, the only way somebody can appeal to get a stay under your rule is by taking the burden on itself and by showing immediate and serious irreparable impact. [00:21:15] Speaker 02: I think one point that needs to be and the reason I was bringing up the hearing process earlier is that because the violation was identified a year after the license was issued, there's nothing in NEPA that tells agencies what do you do if a year after you take a major federal action and you're looking back at your AIS and you decide, hmm, you know, we've [00:21:38] Speaker 02: done something, you know, there's something in there that needed to be better to comply with NEPA. [00:21:43] Speaker 02: There's nothing in NEPA that says what to do. [00:21:45] Speaker 02: There's nothing in our Atomic Energy Act hearing process, which says very little about the specifics of hearings, that tells us what to do. [00:21:52] Speaker 02: So the board was in a situation when it made this ruling deciding, okay, well, there's no statute that tells me exactly what to do here. [00:21:59] Speaker 02: What do we do? [00:22:00] Speaker 02: And it looked at the fairness of the situation as well as the [00:22:04] Speaker 04: I think there's an argument about that, but that's on the merits. [00:22:07] Speaker 04: Right now I'm only on the question of jurisdiction. [00:22:09] Speaker 04: Sure. [00:22:10] Speaker 04: And on the jurisdiction question, imagine that is what you did in this case. [00:22:15] Speaker 04: Maybe it's right and maybe it's wrong. [00:22:16] Speaker 04: You're telling me it's untestable. [00:22:19] Speaker 04: That somebody can't dispute the board's conclusion. [00:22:23] Speaker 04: So the commission concludes that there's going to be an internal harmless error rule, right? [00:22:27] Speaker 04: That's what they've essentially done. [00:22:29] Speaker 04: Inside the agency, harmless error rule. [00:22:32] Speaker 04: What if that's unlawful underneath them? [00:22:34] Speaker 04: That's the nature of their challenge. [00:22:36] Speaker 04: You're telling me that that can't be challenged, that the agency can adopt any internal rule, not only on the merits, but it can't be challenged. [00:22:44] Speaker 02: I think the issue would be that if, in this circumstance, based on this record, it seems like it would be an academic issue. [00:22:53] Speaker 02: If it becomes non-academic, the state process is available and the court can review whether the NRC abused its discretion in doing this. [00:23:00] Speaker 02: But, you know, at this point, if it is an academic question, this is, you know, basically a temporary situation that is on track to getting resolved, what is the issue the court needs to jump in and remedy? [00:23:13] Speaker 04: Well, normally we think, for example, in, if an agency issues a rule without notice and comment, agencies often argue, well, this is just academic because we really took everything into consideration. [00:23:28] Speaker 04: And we don't have to follow the APA. [00:23:31] Speaker 04: Don't follow it. [00:23:32] Speaker 04: We normally say, yes, you do, because there's a value in getting notice and comment, which the party can't even prove until there's been notice and comment. [00:23:41] Speaker 04: Here the argument is there is a value, which NEPA establishes as a congressional principle, that you have to first do the hard look before you do the federal action. [00:23:54] Speaker 04: and you've done the federal action before you finish the hard look. [00:23:59] Speaker 04: I don't know, maybe that's right, maybe that's wrong, but it seems to me that that's a final decision on your part that is subject to immediate review because it's immediately effective. [00:24:11] Speaker 02: Well, there would be a path after the 2014 license issuance if there were some non-academic concern that the tribe could raise that the license is actually going to affect us, which it hasn't. [00:24:25] Speaker 02: And I think it's based on the fact that the PowerTech project isn't going anywhere right now because of other permits they need. [00:24:33] Speaker 02: But they have that ability. [00:24:34] Speaker 02: Well, let me ask that. [00:24:35] Speaker 04: If that's true, if nothing's going to happen, why don't you just suspend the license until they get the other permits? [00:24:41] Speaker 04: You suspend the license pending the resolution of the NEPA issue and whatever else. [00:24:50] Speaker 04: If you don't think there's any harm to them, the reason you think there's no harm to them is because nothing's happening, then why not suspend the license until you're finished with your procedures? [00:24:59] Speaker 02: Well, I'm sure that could have been a possible outcome. [00:25:03] Speaker 02: The board explained why it did what it did, but it acknowledged it could have suspended the license. [00:25:07] Speaker 02: I mean, that issue of [00:25:09] Speaker 02: the project not moving forward at the time wasn't something the board pointed out. [00:25:14] Speaker 02: I mean, there was only a year after license issuance. [00:25:17] Speaker 02: Now we're four years after. [00:25:20] Speaker 04: What was the argument in favor of continuing the license? [00:25:24] Speaker 02: The argument was that in the board's view on this NEPA and NHPA issue, which was very particular to the tribe's own interests, that the tribe was partly responsible for [00:25:36] Speaker 02: the information not being developed to the point where the board thought it needed to be. [00:25:40] Speaker 04: I thought it couldn't resolve, I thought the board said it wasn't going to, the commission said it wasn't going to resolve that question. [00:25:49] Speaker 04: The question of who was responsible I thought was not resolved, isn't that right? [00:25:53] Speaker 02: Well, that was the board's rationale. [00:25:56] Speaker 02: I don't think it was challenged to the commission on appeal. [00:25:59] Speaker 02: The argument the tribe made to the commission on appeal was that the board doesn't have legal authority to even make decisions like that. [00:26:07] Speaker 03: I thought that went more to the dispute over consultation and not so much to the dispute over the adequacy of the survey. [00:26:16] Speaker 02: You know, I think they're very linked. [00:26:20] Speaker 02: I mean, the survey process is how I think the staff would ordinarily gather information to discuss in the EIS. [00:26:31] Speaker 02: NHPA and NEPA are often melded together. [00:26:35] Speaker 02: And I think in this case, there was, you know, official linkage of the two and then some separation. [00:26:39] Speaker 03: There was an EIS done here, right? [00:26:42] Speaker 02: Yes, the NEPA process went from start to a sensible finish and then the license was issued. [00:26:48] Speaker 03: And the commission's concern was that there were procedural inadequacies with the EIS, right? [00:26:56] Speaker 02: I think the commission's [00:26:59] Speaker 02: Well, in response to the tribe's argument that as a matter of law upon the board's findings on contentions 1A and 1B that license must be vacated, the commission said, well, no, let's step back. [00:27:12] Speaker 02: That's not true. [00:27:13] Speaker 02: We have procedural statutes here. [00:27:15] Speaker 02: So there is some flexibility. [00:27:17] Speaker 02: And the tribe really hadn't argued anything other than that. [00:27:19] Speaker 02: So that's what the commission responded to. [00:27:25] Speaker 04: I thought that the... [00:27:29] Speaker 04: Is it not the case that the board, that the commission concluded, accepted the board's view that NEPA had not been satisfactorily complied with? [00:27:40] Speaker 02: Isn't that right? [00:27:42] Speaker 04: It declined to disturb it. [00:27:45] Speaker 04: Okay, then in that case, didn't the board conclude that the requisite hard look hadn't been given? [00:27:52] Speaker 02: Yes, that's correct. [00:27:54] Speaker 02: Again, a year after license issuance. [00:27:57] Speaker 04: Right. [00:27:57] Speaker 04: A license was issued, and then they figured out that they had not given appropriate hard look as required by need. [00:28:06] Speaker 02: Correct. [00:28:06] Speaker 02: And so now the NRC staff is busy trying to rectify that, and we'll see what the board thinks. [00:28:11] Speaker 02: And in the meanwhile, the license is out there. [00:28:15] Speaker 04: That's correct. [00:28:19] Speaker 04: Judge Anderson? [00:28:20] Speaker 03: I'm OK. [00:28:21] Speaker 04: OK, thank you. [00:28:22] Speaker 04: Thank you, Your Honor. [00:28:23] Speaker 04: I think we have an intervener for four minutes. [00:28:25] Speaker 04: Is that right? [00:28:35] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:28:37] Speaker 05: My name is Christopher Pugsley, and I am appearing on behalf of the intervener respondent, PowerTech USA, Incorporated, who serves as the NRC licensee in this proceeding. [00:28:47] Speaker 05: While PowerTech concurs with NRC's arguments regarding jurisdiction, should this Court see fit to exercise jurisdiction over petitioners' appeal, PowerTech believes it's important for the Court to take notice of some issues associated with the other items on appeal before the Court. [00:29:04] Speaker 05: First, with respect to vacator of the license, the record is rife with references to immediate and irreparable harm. [00:29:12] Speaker 05: We've already heard multiple questions during this argument about it. [00:29:16] Speaker 05: And there have been references to, quote, the PowerTech project isn't going anywhere anytime soon. [00:29:21] Speaker 05: Well, I think as the licensee, it's my obligation to inform the court as to where those permit proceedings currently stand. [00:29:28] Speaker 04: Is any of that in the record? [00:29:31] Speaker 05: We have noted in several submissions to the NRC staff, Your Honor, that where the proceedings stand because of that status has been requested by the licensing board, but it's not in the record before you. [00:29:44] Speaker 04: If you would like to hear where we are. [00:29:45] Speaker 04: We should kind of restrict ourselves to the record. [00:29:48] Speaker 04: Normally we only decide on the record. [00:29:49] Speaker 05: Of course, Your Honor. [00:29:51] Speaker 05: Well, with respect to a discussion regarding Commissioner Barron's dissent in CLI 16-20, I would also like to note for the record here, if we're talking about a NEPA violation and part of the way the Commission has exercised its inherent supervisory authority over the issuance of Atomic Energy Act licenses, [00:30:10] Speaker 05: then Commissioner, now Chairman Svinicki, noted in a dissent that with regard to the NEPA violation associated with the tribe's historic and cultural resources, that the information was not reasonably available to NRC staff due to the conduct of the process associated with identification of those resources and further assessment. [00:30:31] Speaker 04: So that could have been a ground for the Commission's decision, right? [00:30:36] Speaker 04: Is that what you're saying? [00:30:37] Speaker 05: I'm sorry, your honor. [00:30:38] Speaker 04: That could have been a ground for the Commission to decide that there was no NEPA violation. [00:30:43] Speaker 04: Yes, your honor, that's correct. [00:30:43] Speaker 04: But it wasn't the ground. [00:30:44] Speaker 05: That was not the ground that was concluded. [00:30:46] Speaker 04: Well, you're familiar with the Jennery case, which says we can certainly uphold on a ground actually decided by the Commission. [00:30:52] Speaker 04: They could, if we were to remand, they could decide on that ground if they wanted to, but they didn't, and neither did the board in the end. [00:30:59] Speaker 05: No, Your Honor, the board decided there was a NEPA violation and the commission declined to disturb, even though contention 1B has been resolved at the board level, but it's still ongoing. [00:31:09] Speaker 04: 1B is the cultural. [00:31:13] Speaker 05: The National Historic Preservation Act process, yes, sir. [00:31:16] Speaker 05: Not the NEPA one yet. [00:31:17] Speaker 04: No. [00:31:18] Speaker 04: So the cultural one, the Historic Preservation Act has been resolved and it will go back up to the commission? [00:31:26] Speaker 05: It could conceivably go back up to the commission, yes. [00:31:29] Speaker 04: And can they bring out piecemeal to the Commission, or do you have to wait until the NEPA decision is made? [00:31:34] Speaker 05: Well, Your Honor, it is possible for interlocutory review, although it is disfavored by the Commission under the rules of practice. [00:31:40] Speaker 05: But it is possible. [00:31:42] Speaker 05: I can speak that PowerTech did file an interlocutory appeal on Contention 1A. [00:31:47] Speaker 05: So that is possible. [00:31:49] Speaker 05: But it could come up together, I would conceive it could come up together at the end of the board proceeding, because in the commission's CLI 1620, they affirmed the board's retaining of jurisdiction over 1A and 1B. [00:32:03] Speaker 05: The board expressly noted that in its decision, that they were retaining jurisdiction. [00:32:07] Speaker 05: So that did not [00:32:10] Speaker 05: that could have conceivably been grounds for denial of the petition for review in that case. [00:32:15] Speaker 04: And the board's decision is supposed to conclude by October, is that right, on the NEPA issue? [00:32:22] Speaker 05: On Contention 1A, Your Honor? [00:32:24] Speaker 05: Yes. [00:32:25] Speaker 05: Currently, that's what the board is proposing in terms of a schedule. [00:32:29] Speaker 05: There are ongoing discussions between all parties to the proceeding as to a proper approach to settling the contention with the board. [00:32:37] Speaker 05: And then the process takes on a life of its own in terms of how long the agency takes to go through the steps of supplementing the supplemental EIS. [00:32:47] Speaker 05: and then issuing it for public comment and then answering those comments as required and then issuing the final document. [00:32:54] Speaker 05: But at the same time, there is [00:32:59] Speaker 05: Conceivable that there would be no resolution to the case that contention that is until all parties agree that the product produced by NRC staff is adequate to Satisfy the petitioner and we have another party in the group consolidated interveners They are free to revise or amend their contention associated with this with the board if they find the product unsatisfactory I See my time is up your honors. [00:33:27] Speaker 05: May I please sum up? [00:33:29] Speaker 05: Yes, please. [00:33:30] Speaker 05: Well, then it's a power tech respectfully request that this court agree with NRC staff's position and deny the prayer for relief offered by petitioners. [00:33:39] Speaker 05: Thank you very much. [00:33:44] Speaker 04: How much time is left? [00:33:55] Speaker 04: Can I ask you to come back up again? [00:33:58] Speaker 05: Yes, sir. [00:34:00] Speaker 04: I'm not sure what we can do with something not in the record, but maybe just for my own curiosity. [00:34:06] Speaker 05: Of course, sir. [00:34:07] Speaker 04: So I'm going to put this to the side. [00:34:09] Speaker 04: You haven't yet decided whether we can consider this, but go ahead. [00:34:12] Speaker 04: Tell me what is the disruption that would be caused if you didn't have the license now? [00:34:18] Speaker 05: If the license were suspended or. [00:34:20] Speaker 05: Yes, the the harm to the company while it was stated earlier by the agency that the project isn't being developed at any time right at any time right now and we're not allowed to because we don't have the other permits. [00:34:36] Speaker 05: The harm to the company is at most primarily financial. [00:34:41] Speaker 05: PowerTech is a publicly traded company. [00:34:43] Speaker 05: It has an obligation to its shareholders, and it's what we refer to in this market, and I'm not sure about other markets, Your Honor, but a junior company. [00:34:53] Speaker 05: Essentially, it's defined as a company that has no cash flow and is burning investment capital every month that it's in operation. [00:35:01] Speaker 05: And if the license were suspended, vacated, or revoked, [00:35:05] Speaker 05: The stock price of the company would plummet, and the company would either not be able to maintain operation or would be subject to, I guess, what you could call a hostile takeover. [00:35:15] Speaker 04: So what if you had a license, but you weren't able to do anything with it until this were resolved? [00:35:21] Speaker 05: If we had a license. [00:35:23] Speaker 04: Yeah, I don't understand. [00:35:24] Speaker 04: I get your general point about the financing, but if you weren't allowed to do construction, for example, or this licenses includes looking places before it was include the ability to do construction. [00:35:37] Speaker 05: Your Honor, that's actually a two-tiered argument. [00:35:41] Speaker 05: One is that NRC has a regulation at 10 CFR Part 40.32e that defines construction and the items you are not allowed to engage in prior to issuance of a license. [00:35:52] Speaker 05: That would be essentially constructing the project. [00:35:55] Speaker 04: That's a separate. [00:35:56] Speaker 05: That's a separate. [00:35:57] Speaker 04: So I'm just going to read. [00:35:58] Speaker 04: It says, if license is hereby issued authorizing the licensee to receive, acquire, possess, and transfer byproduct, source, and special nuclear material, [00:36:07] Speaker 04: to use such material for the purposes designated below to deliver or transfer such material to persons authorized to receive it in accordance with the regulations of the applicable parts. [00:36:17] Speaker 04: That's what your current license is, right, the materials license? [00:36:20] Speaker 05: That's correct. [00:36:21] Speaker 05: But, Your Honor, there is one other item to note is that NRC also requires as a standard requirement in these types of licenses that we must obtain all other necessary permits or approvals [00:36:33] Speaker 05: Prior to proceeding with operation of a site now the South Dakota Board of Minerals and environment that holds hearings on what are called large-scale mine permits they of their own initial sponte stopped the proceeding and Said basically said that they were waiting for NRC and EPA to conclude its [00:36:53] Speaker 05: review processes. [00:36:55] Speaker 05: And NRC's review processes, to the best of my knowledge, Your Honor, is everything. [00:37:01] Speaker 04: So again, I ask, if that's the case, why would it matter if the NRC also didn't? [00:37:08] Speaker 04: In other words, you're telling me you're stymied anyway. [00:37:12] Speaker 04: Why didn't that cause all your investors to leave? [00:37:15] Speaker 04: And if it didn't, why would further action by the NRC along the same lines make a difference? [00:37:22] Speaker 05: Well, further action along the same lines by NRC in this instance is a huge financial problem, as I said before, and you obviously know that. [00:37:30] Speaker 04: But what I'm not seeing is I didn't realize that the – what state? [00:37:34] Speaker 04: South Dakota? [00:37:34] Speaker 04: South Dakota, sir. [00:37:35] Speaker 04: South Dakota has already stopped these kinds of operations, that is, the kinds permitted by the material license. [00:37:41] Speaker 05: Well, they haven't stopped the operations, sir. [00:37:43] Speaker 05: They've stopped the hearing proceeding. [00:37:45] Speaker 04: But you can't go forward without their permit, right? [00:37:48] Speaker 05: Yes, sir. [00:37:49] Speaker 05: We cannot go forward without their permit. [00:37:53] Speaker 04: So, if they, if the commission were to not let you go forward until you got that permit, you wouldn't be in any worse position than you are now. [00:38:07] Speaker 05: Well, the commission already doesn't allow us to operate the facility without all the permits. [00:38:12] Speaker 04: I'm trying to figure out what license you've been granted, which I think I have in front of me. [00:38:17] Speaker 04: It's the materials license. [00:38:18] Speaker 05: Yes, sir. [00:38:19] Speaker 04: OK. [00:38:19] Speaker 04: And you're not doing any of the things in that license that the license authorizes you to do, because among other things, South Dakota won't let you. [00:38:28] Speaker 04: Is that fair? [00:38:30] Speaker 05: That's correct. [00:38:31] Speaker 05: We cannot construct the site and or operate it until we get all the relevant permits and approvals. [00:38:38] Speaker 04: So what would be the difference [00:38:40] Speaker 04: If that's true, why would it matter? [00:38:44] Speaker 04: And South Dakota is not letting you do that until you finish the NRC process, right? [00:38:50] Speaker 04: That's what you just said. [00:38:51] Speaker 05: The South Dakota is not continuing their administrative hearing process until, yes. [00:38:55] Speaker 04: So what is the harm to you if the NRC also said, [00:39:01] Speaker 04: We're not going to let this materials license have immediate effect until we finish our process. [00:39:08] Speaker 04: Since South Dakota's already holding you up. [00:39:14] Speaker 05: Well, the harm to us is, again, Your Honor, I'm sorry to keep beating a dead horse, but it is financial. [00:39:20] Speaker 05: And the fact that having an effective license in place further moves the process forward with the Environmental Protection Agency with respect to underground injection control permits and aquifer exemptions, which would then lead to a recommencement of the South Dakota proceedings. [00:39:37] Speaker 05: The longer this gets pushed into the future, the longer it strings out a company that has no cash flow and the longer that they go burning investment capital, the less likely it is the company can remain viable. [00:39:50] Speaker 05: And absent the showing of, really, to tell you the truth, sir, any harm to the petitioner, which there is none because we're not empowered to do anything at this site right now. [00:40:01] Speaker 05: Absent that showing, why stay the license? [00:40:02] Speaker 04: It's like a chicken and the egg problem, right? [00:40:05] Speaker 04: You can't do anything. [00:40:06] Speaker 04: They can't do anything. [00:40:08] Speaker 04: Once you start doing anything, it's too late for them. [00:40:11] Speaker 04: Once they stop you, it's too late for you. [00:40:14] Speaker 04: All right, but I think this was a useful intervention. [00:40:17] Speaker 04: I appreciate it. [00:40:18] Speaker 04: Thank you, sir. [00:40:19] Speaker 04: I appreciate the extra time. [00:40:19] Speaker 04: Any further questions? [00:40:21] Speaker 04: Okay, thank you. [00:40:21] Speaker 04: Thank you, sir. [00:40:22] Speaker 04: Now I'm sorry. [00:40:23] Speaker 04: Now we'll hear from O'Galla. [00:40:27] Speaker 00: Thank you, Your Honor. [00:40:28] Speaker 00: Very briefly, two things. [00:40:31] Speaker 00: With respect to the company's statements about their concern on their finances with respect to not having an effective license, from the tribes' perspective, there is no reasonable expectation that they should be able to keep a license in effect where it's been adjudicated to be in violation of the National Environmental Policy Act. [00:40:53] Speaker 00: There's no expectation that they should be able to retain in full force and effect what is in effect an illegal license. [00:41:01] Speaker 00: With respect to the issues with South Dakota and such, there is some evidence in the record that gets to this issue that I think is worth the court taking a look at. [00:41:11] Speaker 00: It's at JA-0849 and JA-0850. [00:41:18] Speaker 00: It's a letter from the PowerTech company to the state of South Dakota, and it discusses the issue of the stay that's been put on the proceedings in South Dakota for those permits. [00:41:31] Speaker 00: And the record reflects that the company says the hearing, meaning the South Dakota hearings, were suspended pending acquisition of the required federal permits and will be resumed once EPA and BLM issue their permits. [00:41:49] Speaker 00: It's anticipated that the permit hearing will be resumed shortly thereafter. [00:41:54] Speaker 00: So the concern the tribe has is that the stay in the South Dakota case is based on the acquisition of those permits, well, or licenses. [00:42:04] Speaker 00: Do we have that, what you just read? [00:42:07] Speaker 00: Do I have it here? [00:42:07] Speaker 00: Do we have it? [00:42:08] Speaker 00: Yes, I'm sorry, Your Honor. [00:42:09] Speaker 00: It's at Joint Appendix 0849 and 0850. [00:42:16] Speaker 00: While the characterization, I think, was that somehow all of these issues need to be wrapped up, and I think you heard that there is no concrete plan, it could go on for really quite some time, yet PowerTech holds an active and effective license. [00:42:33] Speaker 00: And according to the record, [00:42:35] Speaker 00: It demonstrates that the hearing was suspended pending acquisition of the required federal permits. [00:42:40] Speaker 00: Well, guess what? [00:42:41] Speaker 00: They have their NRC permit. [00:42:45] Speaker 00: And so the fact that there are additional proceedings, attempts by the NRC staff to remedy the NEPA violations does nothing to wipe [00:42:54] Speaker 00: that fact off the board that they do indeed have their NRC permit in hand. [00:43:01] Speaker 00: And from our perspective, and based on the record, that is sufficient for them to go forward with the South Dakota process once they get their other federal permits in line. [00:43:12] Speaker 00: That is to say that the NRC process for purposes of the South Dakota state is complete. [00:43:20] Speaker 00: And if there aren't any other questions. [00:43:23] Speaker 00: Thank you. [00:43:23] Speaker 00: One second. [00:43:24] Speaker 00: Sure. [00:43:36] Speaker 04: Okay, Judge Anderson, any questions? [00:43:40] Speaker ?: No. [00:43:40] Speaker 04: That's good. [00:43:40] Speaker 04: All right. [00:43:40] Speaker 04: Thank you. [00:43:41] Speaker 04: We'll take a matter under submission. [00:43:42] Speaker 04: We appreciate it.