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Case number 19-1240, Nuclear Energy Institute Petitioner versus U.S.

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Nuclear Regulatory Commission and United States of America.

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Mr. Crowley for the petitioner.

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Mr. Averbach for the respondents.

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You may proceed.

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Thank you.

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May it please the court.

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Stephen Crowley on behalf of the petitioner, the Nuclear Energy Institute.

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I've asked to reserve two minutes of my time.

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Judge Millett, Judge Piller, Judge Ginsburg, this is a straightforward case in light of three points that I think I can state very briefly.

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Point one, the Atomic Energy Act allows the NRC to enter into agreements with states whereby state regulators, instead of the commission, regulate land disposal of very low level nuclear waste.

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When the NRC discontinues its regulatory authority in this way, and discontinues is the word the Act uses,

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the state now called an agreement state becomes the regulator and the commission disavows authority over matters within the scope of such an agreement.

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Point two, many years ago, NEI's members obtained approval for their disposal of low level waste from agreement states under the auspices of these agreements entered into between those states and the NRC.

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Until 2018,

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These members in places like Texas, Arizona, Washington state had no reason to doubt their state's regulatory authority over their land disposal of low level waste.

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And third and finally, in fact, these members had every reason to believe that their approvals from their agreement states governed the disposal of their waste.

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And here's why.

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Once the NRC discontinues regulatory authority through an agreement state agreement,

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It can reclaim or claw back that authority only by a rule regulation or order that language rule regulation or order also are the words that the act uses and those words are echoed in the AAS implementing regulations as well.

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What about 20.2002, which was on the books the entire time and which clearly seemed to speak to what the NRC is now referring to as a kind of bifurcated responsibility, the responsibility of the generator of the ways to get approval for sending it and the responsibility of the disposal facility as a disposal facility, which is regulated by, in their view, by the agreement state?

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And 2002 seems to speak only to the former, and it has been consistently on the books.

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So 2002 is not relevant to the regulatory framework that we're discussing, Your Honor.

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And here's why.

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2002 is a sibling regulation, a companion of 10 CFR 150.10.

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It is that pathway, 10 CFR 150.10, that is the regulatory framework for agreement state agreements.

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And that's why the government consistently and correctly refers to or agreement state equivalence to 2002.

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2002 provides for disposal where disposal is not otherwise provided for in this chapter, but disposal is otherwise provided for in this chapter.

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That is chapter one, it governs the AEA through 150.10 and 150.15.

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Well, and this is a sort of fundamental difficulty that I have as between your argument and the government's argument, which is that you persistently describe disposal as one thing, and the government is describing two different actions that the generator

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has an obligation to you know package and transport and you know there's a getting it to the dump if you will and that you know as they as i read their understanding is that then the dump and whether the dump is like a safe place and whether it's supervised and whether it's leaking and whether it's you know off behind somebody's you know

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country house or whatever.

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And it feels like your ship's passing in the night on that issue.

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I don't think so, Judge Miller.

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It's an important question, so thank you for it.

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And I want to be clear what our argument is.

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So our argument is the NRC, we don't have a quarrel with much of the government's position, just the core of its position, okay?

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We recognize, we don't argue that the NRC has jurisdiction over the packaging of low-level waste, the handling of it, the storage of it, the transportation of it.

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What it doesn't have is regulatory jurisdiction over putting the waste in the hole.

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that they have given up.

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They have given that up by entering into agreements, data agreements.

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There is and was a robust

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process for entering into those agreements.

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They are posted in a federal register.

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Public comment is invited.

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State regulators understand that they have authority.

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So we are not, with respect to, again, packaging, transportation, handling, that is NRC jurisdiction, always has been, always will be.

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But with respect to disposal at the site, again, turning the shovel over into the hole, that is the domain of state regulation, because so says the AEA and the agreements, the agreements, state agreements,

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the government has entered into.

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I just want to clarify, your argument is limited to in-state disposal?

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Yes, importantly, it's limited to in-state disposal.

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Yeah, so it's a different ballgame if we're talking about interstate disposal, and that gets a little more complicated.

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And the NRC has provided guidance on various scenarios if I'm taking disposal from one state to another state.

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We're talking here, and as relevant to, again, Arizona and Texas,

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And of course it was the enforcement action intrastate disposal in Texas that prompted this case.

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Except that the documents that are referred to going back to 86, 2012, 2016, 2019, none of those are actually making that distinction except in specific examples.

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But in terms of the regime,

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the regime is one that I think from NRC's perspective applies to intra and interstate.

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We would respectfully disagree with that, your honor.

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I mean, I'll let the NRC speak for itself, but just to back up a second, we have a framework that says states can approve of land disposal of low level waste, right?

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That comes from the face of the act, provided that the state regulators enter into an agreement with the NRC and vice versa.

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And again,

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When, when that happens, you know, there's a robust process to ensure that state regulation is up is up to stuff.

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What happened in 2012 as you mentioned this document is because it was not crystal clear what is required in the multi state scenarios.

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the NRC issued what it called a clarification letter, a clarification, not a disavowal of the AEA's framework.

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It wouldn't have had authority to disavow the AEA's framework, but a clarification letter that spoke to different scenarios.

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Again, it gets a little complicated on the math, but depending on whether I'm in an agreement state or I'm not, and I'm disposing in an agreement state or not,

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We have no quarrel with the 2012 document that the court refers to.

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Likewise, we have no quarrel with the 2016 document that memorializes that clarification.

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Our beef is with the longstanding authority of states to approve of disposal within their states.

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And even in 2012, when the NRC renewed Washington state's

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approval authority, right?

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It did so recognizing the state's authority in this way.

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That's addendum nine.

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You say you have no trouble with the 2016 regulatory issue summary, but had no reason to think that there was a change of position until 2019.

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But in 2016, the commission clearly said that it was superseding the 1986 information notice.

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And part of your

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quibble is that there was no notice in common rulemaking.

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But that ship has sailed.

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So as you're well aware, one of the questions is the timeliness question of any challenge, given the clarity of the statement.

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And I understand your position that it was unlawful for various procedural and substantive reasons.

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But given the clarity of the 2016 statement and

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Why has that ship not sailed?

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Yes, thank you for the question.

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No, we strongly disagree that this was clear and I want to say why.

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It's important here to focus both on the words on the page and the context in which this document was issued.

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So at JA-16, the regulatory issue summary makes clear that there was an incorrect statement in the 1986 information.

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And that is a true statement.

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There was an incorrect statement.

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What was the incorrect statement?

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It was a global statement that states always have approval over land disposal of low-level waste.

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And what this clarification that is referred to in JA-16, also JA-17, is to say that was an oversimplification.

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The commission is saying, we want to correct that oversimplification, that over-broad statement.

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And we're correcting that by explaining

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that in a multi-state scenario, again, this is the language that's important at the top of JA-17, matters are different.

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And we acknowledge that, we had no problem with that.

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Of course, the same document is very clear-throated that it does not constitute a departure from the regulatory framework.

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It says that in JA-18, it says there's no notice and comment, we're not doing a back-fit, we're not publishing it in the Federal Register, nothing here to see.

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I see that my time's about to end.

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It may continue.

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Right.

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To put it differently, imagine had we tried to, and we didn't have a beef with it, so we wouldn't have, but imagine hypothetically that NEI sought to challenge this document, we wouldn't have been able to challenge it.

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Why?

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It says it is simply memorializing the status quo.

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It is not changing the regulatory status quo.

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It doesn't require anything of licensing.

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Well, you're a better lawyer than that.

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You don't take that at face value.

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If an agency says that and it's not the case, you would take it up and say, that's not the case.

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They want to say nothing to see here, but that may be part of what you would challenge.

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But Your Honor, there's no reason to think this wasn't the case.

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This, on the face of it, makes sense with the regime.

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Again, the NRC knows about these agreements.

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It knows what state regulators are doing.

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It knows that NEI members are disposing pursuant of state authority.

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Under the AEA, if it's going to do something dramatically different, it has to say, okay, what should have this document said?

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It should have said, we are hereby amending

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150.10.

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We are hereby changing the wording of 150.15.

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We're changing the wording of 2002.

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But our position is there's a clear way to read this document consistent with those regulations as they are worded then and now.

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Well, so what about the, you know, one way of reading them saying no back fit needed, strictly voluntary, this just ensures compliance with current regulations, and I gather this is the NRC's position, although they can correct me, is that they're saying, you know, 20.2002 requires that even in an agreement state that the generator where it's in nuclear power plant has to get

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NRC permission to go with an alternative disposal site.

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And as we explained in the letter in 2012 we went through the five different scenarios and that included NRC regulated generator in agreement state and even then the facility, the

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generator has to get NRC approval.

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So their view of nothing to see here is not that we're sticking with the 1986 regime.

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Their view is we're sticking with what we think we explained in 2012 and that we think is codified in and supported by 20.2002.

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Well, again, Your Honor, 22,002 doesn't say that.

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It's important to highlight the language here.

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So 22,002 references

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otherwise authorized in the regulations in this chapter.

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Okay, so in other words, there is a door in 22,002 that recognizes other sources of authorization.

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And again, that would be- Well, not otherwise authorized in the regulations in this chapter to dispose of, and it's, so again, this is about, this is applied to generators.

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not to the disposal sites.

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And I'm just reading the government's brief and trying to get your best answer to it, that their view is that there's nothing else that authorizes a generator to dispose of in an alternative facility.

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The 150.15 may authorize the site in an agreement state.

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It doesn't make that distinction, Your Honor.

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The regulation says any person.

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And again, for decades, there in fact have been agreements between states and the NRC allowing for generators to dispose.

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I don't think the government disputes that.

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So there is a pathway for generators.

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There was never any distinction between generators and non-generators.

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It's any person.

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Nor is there any such distinction made in the act itself.

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The act itself says, look, this is about state cooperation and enlisting states to do their part and have a say in the disposal of material that is very low risk, as this is.

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We're saying low level waste, it's a shorthand for very low level waste.

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So there's no such distinction that has been drawn.

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And if there were, the NRC could not have entered into those agreements, state agreements in the first place.

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The NRC would not have said in 2012, the same year as this first clarification letter was issued,

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the way, issued only to states, not to the regulated industry, would not have acknowledged Washington state's ongoing supervisory authority, regulatory authority, over the disposal of a generator.

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It's important.

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That was in the context of renewing a generator's license.

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So there was a very clear framework.

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There was a very clear regulatory before, and now there's a regulatory after.

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And if the NRC wants to change its position, that's okay, but it needs to do so pursuant to rule regulation or order.

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So again, so says the Atomic Energy Act, the commission's own regulations, the APA, this is ultimately about kind of due process small D. Mr. Crowley, I have a question.

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It's not an essay question, it's a multiple choice question.

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What is it that you filed to review?

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You petitioned for us to review.

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What decision?

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Well, what anything did you ask us to review?

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You filed a petition to review something.

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I see.

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We asked you to review the NRC's determination that state approval is no longer sufficient for land disposal.

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We need an order.

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What order did you ask us to review?

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Well, that determination is important.

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What action?

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I shall take it back.

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What action?

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Yes, an action, yes.

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Well, it's the action, it's an action.

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What's the date of the action?

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Let's start there.

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I'm sorry.

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I missed your question, Judge.

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What is the date of the action?

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I don't know what we're talking about.

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The date of the action is September 2019.

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Date?

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Date, yes.

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No, that's a month.

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What's the date?

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Oh, it's the letter from the

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rescind the RIS, right?

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I'm sorry, Your Honor.

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No, that's the response letter to that letter.

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That letter was in February.

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That's what I meant to say.

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Yes, okay, exactly.

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So the predicate for their sending that letter on September 16 was that you would ask them to rescind the RIS.

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And the RIS is the 2016 document that Judge Pollard's been talking about.

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Not exactly, Your Honor.

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Not exactly, Your Honor.

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That letter, the September 16, 2019 letter, was the culmination of a policy process that the NRC put in motion, prompted by a protest from South Texas, the facility that was cited for it.

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Yes, I understand that.

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I understand that you're saying the letter is the culmination of a series of actions.

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But the actions are, if I understand the letter, the actions are to

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to do something based on the 2016 document, the RIS, that you would like them to repudiate.

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It's not the interpretation that you would like them to repudiate.

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Yes, that's an important distinction, Your Honor.

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Thank you.

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It's the interpretation.

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It's not the IRS on its face.

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Again, we had and have no quarrel with the IRS on its face.

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What happened?

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Yes.

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So it's important to draw the distinction between what the RIS says and how it was interpreted beginning in August of 2018.

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I'm sorry.

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Let me just quote one passage from the RIS of 2016.

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This RIS, let's see, wait a minute.

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Right here.

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It's on page JA 17.

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This RIS makes the clarification that any licensees request for approval to dispose of licensed material under 20.2002 or the equivalent agreement state regs must be submitted to the regulatory authority that issued the license for use of the radioactive material.

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It's in the first full paragraph under summary of issue, second sentence, third sentence.

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Now that's what you're complaining about.

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In the policy that you say has been restated or somehow

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came to fruition only in 2019.

[00:19:17] Speaker 03:
Yes, Your Honor, that's our argument.

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That cryptic sentence contained in a document that says we are not changing the regulatory framework can't satisfy the APA, the AEA.

[00:19:32] Speaker 02:
Okay, but as Judge Pollard pointed out, you might well have challenged it if you thought that.

[00:19:37] Speaker 02:
Now, there is an enforcement proceeding that's been filed, correct?

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And I presume all of these arguments will be made there.

[00:19:44] Speaker 03:
It's not so easy as that.

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It's not so easy as that, Your Honor.

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And the reason is, in this context, enforcement is a serious business.

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What's called a minor violation is quickly escalated to a major violation.

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It's not the industry's practice to say, oh, well, you can enforce against us and we'll see you in court.

[00:20:01] Speaker 02:
I understand that that's not preferable, but that's where you are, where one of your members is, I guess.

[00:20:07] Speaker 03:
Well, but your honor, it's a circular argument we're responding to that the government's making here, that we're going to take a sentence out of context, out of the larger document it appears, and out of the larger regulatory framework understood by all parties and say, okay, this sentence means something that it wasn't understood or didn't mean at the time.

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Why wouldn't the sentence say, we are hereby amending

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150.10.

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We are hereby abandoning the agreement state regime.

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That's not what the risk says.

[00:20:40] Speaker 02:
What the risk says is- Maybe they should have done that.

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Maybe they should have had notice and comment rulemaking in 2016.

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Maybe they should have had a backfit analysis.

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They didn't do any of those things.

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And that may have been quite a faulty procedure, but you didn't challenge it.

[00:21:00] Speaker 02:
But reiterating it, you say, please say it ain't so, take it back.

[00:21:04] Speaker 02:
And they say, we're not taking it back.

[00:21:06] Speaker 02:
And you now try to say, out of we're not taking it back, we won't rescind it, to use the term you used, to make that into a reviewable event.

[00:21:17] Speaker 03:
I think that we tried to, again, we didn't have a quarrel with this risk when it was written.

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Our quarrel is how it has been interpreted.

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And I can only imagine the government's argument if we tried to, if we tried to challenge it.

[00:21:31] Speaker 07:
So you didn't have a quarrel with how it was written.

[00:21:34] Speaker 03:
Yes.

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Did you consider it ambiguous or confusing?

[00:21:40] Speaker 03:
Yes, we considered it confusing at the time.

[00:21:43] Speaker 07:
And then did you immediately follow up and say, wait, say the sentence Judge Ginsburg just read.

[00:21:49] Speaker 07:
Does that mean what we think it means?

[00:21:52] Speaker 07:
Or did you just sort of go with the, well, our reading of this is we're going to focus on the language we like and say that this isn't meant to be a change.

[00:22:03] Speaker 07:
We're going to understand it this way and hope that works.

[00:22:07] Speaker 07:
That's what I'm trying to figure out.

[00:22:08] Speaker 03:
It seems like- I hear your question.

[00:22:09] Speaker 07:
Yes.

[00:22:11] Speaker 07:
It's at best ambiguous as to what it was doing.

[00:22:16] Speaker 03:
I guess I want to say to think, Judge, first of all, at the most, this cryptic, now very pregnant sentence that is going to be used outside of the broader regulatory framework and this document taken as a whole and taken at face value, at the most, it might be read to say, going forward, indeed, the languages must be submitted, on a going forward basis,

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that if there is a new generator or a new state or a new facility that wants to seek land disposal on a going forward basis, it would seek that from the NRC.

[00:22:53] Speaker 03:
We think that it's unreasonable to say all existing agreements, state agreements, and the rule that they are moored to and the statute that rule is moored to are hereby wiped away.

[00:23:04] Speaker 06:
I mean, that's- I'm having trouble with that.

[00:23:07] Speaker 06:
I mean, I do appreciate

[00:23:09] Speaker 06:
That there has not been model clarity and you know that there's been a little bit of a feeling of a kind of.

[00:23:17] Speaker 06:
You know shell game of nothing to see here, nothing to see here, nothing to see here and voila at the end of the day it's a different regime from the one that there was.

[00:23:26] Speaker 06:
in 86.

[00:23:29] Speaker 06:
On the other hand, this at JA 17, where Judge Ginsburg was reading, it follows that sentence, for NRC-issued licenses, the request should be made in accordance with the provisions that talk about communicating with the commission.

[00:23:45] Speaker 06:
For agreement state licensees, the request should be made directly to the agreement state.

[00:23:49] Speaker 06:
So it feels, I may be missing something, but

[00:23:54] Speaker 06:
it seems to be saying your hobnobbing with the agreement state is, your approval from the agreement state is not enough.

[00:24:03] Speaker 03:
Maybe on a going forward basis, but how could this document?

[00:24:07] Speaker 02:
Mr. Clay, I can see how at the time you might read it that way or think of it that way, perhaps reasonably, perhaps not.

[00:24:14] Speaker 02:
I just have to be much more familiar with the context.

[00:24:18] Speaker 02:
But then the commission said to South Texas,

[00:24:24] Speaker 02:
in 2018, some point 2018, that this is a problem.

[00:24:31] Speaker 02:
South Texas, you haven't been complying with this.

[00:24:34] Speaker 02:
And then in August of 2018, South Texas asked for clarification, right?

[00:24:41] Speaker 02:
the NRC affirmed its position but declined to enforce.

[00:24:47] Speaker 02:
That was October 18.

[00:24:48] Speaker 02:
You know this situation now.

[00:24:50] Speaker 03:
Oh, absolutely.

[00:24:51] Speaker 02:
More than a year before there was a document that you sought to characterize as final agency action.

[00:24:58] Speaker 03:
Absolutely.

[00:24:59] Speaker 03:
Absolutely, Your Honor.

[00:25:00] Speaker 03:
In 2018, to South Texas's surprise, the government relied on this document.

[00:25:06] Speaker 03:
Apparently so.

[00:25:07] Speaker 03:
I mean, this became clear over time.

[00:25:09] Speaker 03:
But there's this back and forth and and South Texas responses are dealing it said you can't mean you can't mean this 2016 risk calls into question our existing long standing.

[00:25:20] Speaker 03:
approval from the state of Texas.

[00:25:22] Speaker 03:
It was that that that surprise on the part of... Yes, that's exactly what we mean, but we're not going to force.

[00:25:29] Speaker 03:
We would disagree.

[00:25:30] Speaker 03:
Not exactly, Your Honor.

[00:25:32] Speaker 03:
To its credit, the government said, we'll rethink this.

[00:25:34] Speaker 03:
The government, it's important.

[00:25:35] Speaker 03:
The government said, you're right.

[00:25:36] Speaker 03:
You have raised genuine questions about the clarity of the risks.

[00:25:40] Speaker 03:
We are going to hold a public meeting.

[00:25:42] Speaker 03:
We are going to take some comment, we are going to.

[00:25:45] Speaker 02:
And this is that was in the answer to us to South Texas wasn't that came later, I believe, no both your honor at j 32.

[00:25:53] Speaker 03:
The exact language was the NRC said we are going to evaluate this issue generically to provide further clarity.

[00:25:59] Speaker 03:
So the government is conceding there is not clarity.

[00:26:02] Speaker 06:
Well, one could, to be fair, read that as enforcement clarity, that they realize that with a shift and with whatever the practices are, that there's some question about how quickly and in what circumstances people have to come into compliance.

[00:26:21] Speaker 03:
May I respectfully disagree?

[00:26:24] Speaker 02:
For you to point out to an agency, as many this can happen, I readily imagine with other agencies,

[00:26:29] Speaker 03:
say it ain't so you can't mean it there's this huge reliance interest and the agency might say well we do mean it we haven't thought about the reliance interest we'll think about that now too all of the above what actually happens well let me make sure i'm responding to both of your questions which i think is a version of the same question but you'll you'll correct me if i'm if i'm wrong south texas protested the agency said you're right we will provide further clarity you have raised

[00:26:59] Speaker 03:
legitimate issues.

[00:27:00] Speaker 03:
You have caused us to evaluate the risk.

[00:27:03] Speaker 03:
That's what I said, to evaluate the risk.

[00:27:05] Speaker 03:
At JA 48, there's a meeting notice.

[00:27:08] Speaker 03:
What does it say?

[00:27:10] Speaker 03:
I'm quoting, discuss a path forward to address concerns with the risks.

[00:27:15] Speaker 03:
And lastly, importantly, JA 54, 55, 56, summaries of those meetings

[00:27:21] Speaker 03:
And the language makes clear the agency, look, even if you think, which we strongly disagree with, that we could have sued on the basis of the 26, but even if the court were to conclude that, the agency reopened a policy process, ran a policy process to consider revisiting the risk.

[00:27:39] Speaker 06:
And then- You know that that's not how they characterize it.

[00:27:41] Speaker 06:
They characterize it as information sessions and trying to be transparent and respond to the outcry, but not reopening a policy process.

[00:27:51] Speaker 03:
Well, I don't wanna quibble over words, Judge Pillard, but what they said is we're going to evaluate the issue generically and discuss a path forward to address concerns with the risk.

[00:28:01] Speaker 03:
I think, I mean, any reasonable, let me just back up.

[00:28:04] Speaker 07:
Any reasonable- I'm sorry, I don't see them saying, first you said that they're gonna reevaluate the risk and I don't see that in their letter.

[00:28:14] Speaker 07:
And then now you just said what they said.

[00:28:16] Speaker 07:
They evaluate the issue generically to provide further clarity.

[00:28:21] Speaker 07:
I don't see them saying anywhere that we're re-evaluating the risk itself.

[00:28:26] Speaker 03:
So I'm looking at JA32, the last, well, the only full paragraph at JA32, the second sentence, the NRC is evaluating the issue generically to provide further clarity.

[00:28:37] Speaker 02:
Right, right.

[00:28:39] Speaker 02:
Yes, but in the previous page they had said- Further up in that, yeah, go ahead, Doug.

[00:28:43] Speaker 02:
I'm sorry.

[00:28:44] Speaker 02:
They had said at the bottom of the penultimate paragraph,

[00:28:48] Speaker 02:
However, NRC authorization for South Texas to use these sites of this material is also required.

[00:28:55] Speaker 02:
Okay.

[00:28:56] Speaker 02:
So, I mean, they're adhering to their position in regard to this particular enforcement action.

[00:29:02] Speaker 02:
Yes, we agree.

[00:29:03] Speaker 02:
We've raised some issues and we will think about those, but they're not in this case.

[00:29:08] Speaker 03:
Well, they're sticking to their position, we agree, but they're also, this is to the government's credit.

[00:29:13] Speaker 03:
They're also saying to its credit, like you've raised some issues, we will work through them.

[00:29:18] Speaker 03:
I mean, the alternative is, okay, the whole industry is asleep at the switch.

[00:29:23] Speaker 03:
Every generator in an agreement state is asleep at the switch.

[00:29:26] Speaker 03:
Every state regulator is asleep at the switch.

[00:29:29] Speaker 03:
Again, this is regulation by gotcha.

[00:29:32] Speaker 03:
That's not what the AEA prescribes.

[00:29:34] Speaker 03:
The AEA prescribes, the APA requires some process, some transparency, some notice.

[00:29:39] Speaker 03:
Give the industry a chance to weigh in.

[00:29:41] Speaker 03:
You can't put one sentence in a document that says,

[00:29:45] Speaker 03:
This does not disturb.

[00:29:46] Speaker 07:
That sounds like a great challenge on the merits to the agency's decision.

[00:29:51] Speaker 07:
We have to decide first and foremost though is when was that decision made.

[00:29:57] Speaker 03:
It was made sometime between August 2018.

[00:30:00] Speaker 07:
And I think under that Hobbs act, you got to, you got to have an action that you're challenging and you have to have a date.

[00:30:08] Speaker 03:
Yes.

[00:30:08] Speaker 07:
Um, and so sometime between 2016, then you probably should have started in 2016 with a challenge and then everything could have gotten cleared up quickly.

[00:30:17] Speaker 03:
You said 20 between 2018 with the citation, the commencement of the enforcement, when the commission signaled, okay, maybe we got ahead of our speeds.

[00:30:26] Speaker 03:
And yeah, the decision, the embodiment of the determination, the order for the Hobbs Act purposes is the letter response to the industry, right?

[00:30:35] Speaker 03:
That letter, by the way, was foreshadowed in the public meeting.

[00:30:39] Speaker 03:
They said, okay, we hear you.

[00:30:40] Speaker 03:
We will get back to you.

[00:30:42] Speaker 03:
I'm paraphrasing, but not loosely.

[00:30:44] Speaker 03:
We expect by the end of September to respond to industry's concerns.

[00:30:48] Speaker 03:
So naturally the NRC sends an authoritative letter to the industry's group

[00:30:53] Speaker 03:
my client, the petitioner, and says, here's our answer.

[00:30:55] Speaker 03:
So that easily satisfies Hobbs Act.

[00:30:57] Speaker 03:
There's lots of circuit law on a letter from an authoritative agency official that constitutes the culmination of an agency process is a Hobbs Act order.

[00:31:07] Speaker 02:
Actually, the principal case you cited for that also had an enforcement letter.

[00:31:13] Speaker 02:
I think it was Barrick.

[00:31:14] Speaker 03:
Barrick, yes.

[00:31:15] Speaker 03:
Appalachian Power.

[00:31:17] Speaker 03:
Yeah.

[00:31:18] Speaker 06:
I wondered about why Mr. Coley, the Institute, didn't just seek a rulemaking, just petition for rulemaking, because wouldn't you have clear, I mean, couldn't you still do that?

[00:31:29] Speaker 06:
You have clear, clear avenue for review from a denial of a petition to make the rule that you think you thought was in place.

[00:31:38] Speaker 06:
The agency denies that and then off you go to court.

[00:31:42] Speaker 03:
It sounds simple, Judge Billard, but in the meantime, there are enforcement risks.

[00:31:48] Speaker 03:
They are expensive, they raise reporting requirements, they implicate insurance arrangements.

[00:31:55] Speaker 03:
So the rulemaking process, even a pretty quick one, as the Court's well aware,

[00:31:59] Speaker 03:
That is not an appealing avenue.

[00:32:03] Speaker 03:
I think you're right, as a formal technical matter, that has not been precluded.

[00:32:08] Speaker 03:
But the fact remains, we have a decision, an order, a decision, and the agency has articulated a viewpoint that's inconsistent with the procedural requirements of the Atomic Energy Act.

[00:32:20] Speaker 03:
Run a process, give us a say, do something transparent, not this regulatory gotcha.

[00:32:29] Speaker 07:
Colleagues have any further questions?

[00:32:32] Speaker 07:
Not now.

[00:32:33] Speaker 07:
We'll give you some time.

[00:32:34] Speaker 04:
Thank you.

[00:32:36] Speaker 07:
Mr. Averbeck.

[00:32:39] Speaker 04:
Good morning, Your Honors.

[00:32:40] Speaker 04:
May it please the court, Andrew Averbeck from the U.S.

[00:32:42] Speaker 04:
Nuclear Regulatory Commission on behalf of the United States and the NRC.

[00:32:47] Speaker 04:
This petition for review challenges the NRC's determination in 2019 not to rescind at NEI's request an interpretation of its regulatory authority

[00:32:57] Speaker 04:
that the agency staff formally announced in 2016 and that in fact been articulated as far back as 2012.

[00:33:03] Speaker 04:
I have to confess that I was somewhat surprised to hear from NEI's council that they actually have no quarrel with either the 2012 or the 2016 guidance.

[00:33:15] Speaker 04:
The fact of the matter is that those are mere interpretive rules that the staff- Can I back you up?

[00:33:20] Speaker 07:
Is the decision not to rescind?

[00:33:24] Speaker 07:
Your position, a final agency action.

[00:33:27] Speaker 07:
You just said they asked you to rescind it.

[00:33:28] Speaker 07:
You just said you said no.

[00:33:30] Speaker 04:
Well, that's what they've identified in their petition.

[00:33:32] Speaker 07:
I'm asking you as a decision not to rescind a reviewable action under the Hobbs Act.

[00:33:39] Speaker 04:
If it had

[00:33:40] Speaker 04:
appreciable legal consequences, it could constitute the action that's reviewable.

[00:33:45] Speaker 07:
But I certainly does have appreciable legal consequences.

[00:33:49] Speaker 07:
That means they now they're clear and they have to go for the industry industry wide has to go forward now and change their application processes for waste disposal in a dramatic way that they hadn't before.

[00:34:03] Speaker 04:
Well, that's what they say now.

[00:34:05] Speaker 04:
And they somehow suggested that they were somehow eliminated in that regard by virtue of the 2019 letter.

[00:34:11] Speaker 07:
But I point the court to- The 2019 decision not to rescind.

[00:34:15] Speaker 07:
The agency decision not to rescind.

[00:34:17] Speaker 07:
Yes.

[00:34:18] Speaker 04:
Wait.

[00:34:18] Speaker 04:
Sure.

[00:34:18] Speaker 07:
Yes.

[00:34:19] Speaker 07:
So they've identified harms and appreciable legal consequences.

[00:34:22] Speaker 07:
I didn't hear you in your brief saying those are not appreciable legal consequences.

[00:34:27] Speaker 04:
Well, I want to make clear that

[00:34:29] Speaker 04:
as an initial matter, any appreciable legal consequences that may result from the agency's interpretation don't come from the 2019 letter.

[00:34:38] Speaker 04:
And in fact, I would draw the court's attention to J42, which was the letter that NEI wrote to the NRC after this sequence of events that Mr. Crowley described.

[00:34:51] Speaker 04:
And the position that NEI is adopting here, this sudden illumination that, oh my gosh, now

[00:35:00] Speaker 04:
licensees who had previously existing arrangements are now going to have to comply with NRC requirements.

[00:35:08] Speaker 04:
NEI acknowledged that very circumstance back in February 28, 2019, and this is on the bottom of page JA42, and it wrote,

[00:35:17] Speaker 04:
The change interpretation provided in the risk regulatory information summary requires, they actually emphasize the word requires, licensees that have obtained approval from an agreement state for alternate disposal of LLW to obtain approval from the NRC

[00:35:37] Speaker 04:
prior to continuing such disposals or risk enforcement.

[00:35:42] Speaker 07:
That was based not on the risk itself, but on the subsequent enforcement action against South Texas.

[00:35:47] Speaker 04:
The statement says, I'm sorry, respectfully, it says the changed interpretation provided in the risk.

[00:35:55] Speaker 04:
They fully understood the consequence of the risk.

[00:35:58] Speaker 07:
I think we just need to stop and be fair here.

[00:36:01] Speaker 07:
Let's just be fair all around.

[00:36:03] Speaker 07:
I understand your arguments about the risk.

[00:36:06] Speaker 07:
Did you dispute that prior to 2016, the long standing established practice was that the agreement state provided the approval, assuming it's in the same state, that's all I'm talking about, the agreement state provided the approval for disposal of low level waste.

[00:36:24] Speaker 07:
Do you dispute that?

[00:36:25] Speaker 04:
I dispute that in as much as it suggests that it was prior to 2016.

[00:36:30] Speaker 07:
In 2012, the agency- No, no, that was about interstate quite clearly.

[00:36:35] Speaker 07:
Well, you guys issued guidance in 2009 on low-level waste disposal processes.

[00:36:42] Speaker 07:
And that guidance said, for reactor licensees submitting 20.202 requests, if both the reactor and the proposed disposal facility are located in the same agreement state,

[00:36:54] Speaker 07:
Typically the state regulator would perform the review of the request, not NRC staff.

[00:37:00] Speaker 07:
That's your 2009 guidance.

[00:37:02] Speaker 07:
So let's start with that question.

[00:37:04] Speaker 07:
As of 2009 was the practice that the agreement state provided the approval and not the NRC.

[00:37:12] Speaker 04:
I would say that in certain, some circumstances that was the case.

[00:37:15] Speaker 07:
Tell me what language in this, your guidance from 2009.

[00:37:21] Speaker 04:
What I'm trying to suggest is that candidly there was a bit of a mess and I don't deny that, but we've cited to two different federal register notices reflecting licensees in agreement States seeking NRC approval prior to 2012.

[00:37:37] Speaker 04:
I don't recall the exact date.

[00:37:38] Speaker 04:
So I believe one of them was 2010, one was 2005.

[00:37:42] Speaker 04:
And going to the- How many?

[00:37:45] Speaker 04:
I'm sorry?

[00:37:45] Speaker 07:
How many?

[00:37:47] Speaker 04:
I don't know the denominator in that.

[00:37:49] Speaker 07:
Right.

[00:37:50] Speaker 07:
More than two.

[00:37:52] Speaker 04:
It was more than two.

[00:37:53] Speaker 04:
We point to those two because they were published and the court could take judicial notice.

[00:37:56] Speaker 07:
So all right, and you just said at best you had a mess.

[00:38:00] Speaker 07:
But you had a 1986, I forget all these different names you have for these things, but a 1986 notice.

[00:38:08] Speaker 07:
Right.

[00:38:09] Speaker 07:
And then you had in the late 1980s, a proposed regulatory amendment that would do exactly what you now say the risk did and was withdrawn, but an acknowledgement that you had to make any change to the 1986, that practice memorialized in 1986 through a regulatory process.

[00:38:31] Speaker 07:
And then you have this 2012 letter that comes along.

[00:38:34] Speaker 07:
Well, you got the 2009 guidance, which I don't think has been replaced until your 2020 guidance.

[00:38:41] Speaker 07:
Unless you can tell me you've had intervening guidance that changed that language and says the states are going to do it generally.

[00:38:47] Speaker 04:
No, Your Honor.

[00:38:48] Speaker 04:
We embarked on it.

[00:38:48] Speaker 07:
That was the guidance that they had.

[00:38:50] Speaker 07:
States are going to do it.

[00:38:51] Speaker 07:
So you had conflicting stuff all over the place.

[00:38:54] Speaker 07:
You had tried a regulation and then withdrawn it to make this very change.

[00:39:00] Speaker 07:
And then you and you have a 2012 letter that's talking, really, at least as I read it most fairly about interstate which is why I limited my question to in state.

[00:39:10] Speaker 07:
And then you've got this risk which has language that's been quoted that seems to say we're changing our position but

[00:39:18] Speaker 07:
for an agency that had said, we're gonna try to do it through a regulation and we were withdrawing that and we need to do a regulation and now to have this in the risk, industry is confused.

[00:39:28] Speaker 07:
You might be right, you might be wrong.

[00:39:30] Speaker 07:
That's a merits issue whether the 2016 risks lawfully accomplish that change.

[00:39:37] Speaker 07:
And you've got language in there that seems to announce the change.

[00:39:40] Speaker 07:
But this seems rather, it seems rather odd to me that on issues of this importance,

[00:39:48] Speaker 07:
the NRC buries such a massive change in a sentence in an issue statement rather than a regulation and then adds to that very issue statement compliance with current regulations is strictly voluntary.

[00:40:06] Speaker 07:
The compliance with the risks ensure it'll be strictly voluntary on page JA 18.

[00:40:13] Speaker 07:
I can't blame them for being entirely confused.

[00:40:15] Speaker 07:
I mean, does the NRC at least acknowledge

[00:40:18] Speaker 07:
This is not good government, how this has been done.

[00:40:21] Speaker 04:
You are.

[00:40:23] Speaker 04:
They're number.

[00:40:24] Speaker 07:
Voluntary.

[00:40:25] Speaker 04:
What we meant.

[00:40:26] Speaker 07:
We voluntary.

[00:40:27] Speaker 04:
I'll start with that.

[00:40:31] Speaker 04:
When the agency said it was strictly voluntarily, what it was referring to was the fact that twenty two thousand one.

[00:40:38] Speaker 04:
sets forth a series of different ways in which a NRC licensee can dispose of low-level waste, one of which is to deliver to an authorized recipient under 22,001A1.

[00:40:53] Speaker 04:
Then there's a list, and there are several enumerated methods that have been approved through notice and comment rulemaking.

[00:41:00] Speaker 04:
The sort of safety valve, if you will, is- What's that, what the accountant says?

[00:41:05] Speaker 07:
Any action that licensees take to implement changes or procedures in accordance with the information contained in this risk ensures compliance with current regulations is strictly and strictly voluntary.

[00:41:20] Speaker 04:
If I may finish, Your Honor.

[00:41:22] Speaker 04:
When it says it's strictly voluntary, what it's saying is you don't have to capitalize on the 22,002 safety valve.

[00:41:28] Speaker 04:
You can use any of the things that the agency has previously evaluated through a notice in common.

[00:41:34] Speaker 07:
That's not what it says.

[00:41:36] Speaker 07:
That's just not what it says at all.

[00:41:39] Speaker 07:
This is to get out of the backfitting.

[00:41:41] Speaker 07:
This is all to get out of backfitting.

[00:41:45] Speaker 07:
We wouldn't have any backfitting obligation if they were just going to use already approved forms of disposal.

[00:41:53] Speaker 07:
The only reason you're talking about backfitting is something must have changed.

[00:41:56] Speaker 07:
or someone might think something changed.

[00:41:59] Speaker 04:
Well, right.

[00:41:59] Speaker 04:
And that's why at the beginning of that document, of the regulatory information summary, the agency made clear that it was rescinding the prior guidance, that it was incorrect, and it was superseding the entirety of that document.

[00:42:11] Speaker 04:
And this attempt to sort of refashion it as only partial superseding or partial repeal of the prior guidance, I think it isn't a fair characterization of what happened.

[00:42:23] Speaker 04:
The agency recognized that it provided inaccurate guidance and confusing guidance in the past.

[00:42:28] Speaker 04:
It endeavored in 2012 and then in 2016 to replace that guidance with something that was true.

[00:42:35] Speaker 07:
I don't think there's any way to say that you endeavored to be open, clear, and transparent in 2016 because you were, you know, coming and going in the same document.

[00:42:45] Speaker 04:
I respectfully disagree with that, your honor, but I certainly, I think that as I made clear when I cited to page A42, NEI understood the consequences of what had been done in 2016 when it said this new regulatory information summary requires its language by us or our licensees who have these preexisting arrangements.

[00:43:08] Speaker 07:
It also says it's informational.

[00:43:11] Speaker 07:
and pertains to a staff position that does not represent a departure from current regulatory requirements and practice.

[00:43:20] Speaker 04:
It says that, Your Honor, and two points about that.

[00:43:22] Speaker 04:
Number one, the current regulatory practice was based on the 2012... 2012... A letter about interstate.

[00:43:34] Speaker 07:
As to in-state.

[00:43:35] Speaker 04:
But if I may, Your Honor, some of the, I believe the first scenario in the 2012 letter actually referenced an interstate situation.

[00:43:43] Speaker 04:
So while that was what was being discussed, and I think this is an important point here, we're not focusing, the regulation and the statutory basis for the agency's position doesn't depend on whether or not we're in an interstate or an intrastate situation.

[00:44:01] Speaker 07:
They were supposed to discern this from a letter that wasn't,

[00:44:05] Speaker 07:
the regulated parties here were supposed to discern from a scenario in a letter to states, not to them that was never published.

[00:44:19] Speaker 07:
That's when you're saying the change happened in scenario four?

[00:44:24] Speaker 07:
That's how you openly and clearly and transparently change?

[00:44:28] Speaker 07:
Without bothering to change your guidance?

[00:44:32] Speaker 04:
If I may, Your Honor.

[00:44:35] Speaker 04:
there was continuing ambiguity post-2012, which is why the agency further attempted to clarify the record in 2016.

[00:44:41] Speaker 07:
So if there was continuing ambiguity between 2012 and 2016, then the current state would have been ambiguity and would have included, I think, countless.

[00:44:57] Speaker 07:
Maybe not all.

[00:44:57] Speaker 07:
Maybe there were two exceptions.

[00:45:00] Speaker 07:
But there would have been countless plants that were

[00:45:04] Speaker 07:
relying on their agreement states to approve low level ways, would you agree with me that that was the state of practice up to 2016 that that was going on.

[00:45:15] Speaker 04:
I certainly the three licensees that any I has provided.

[00:45:22] Speaker 04:
affidavits from were subject to that.

[00:45:24] Speaker 07:
I'm not aware of there being any more- How many applications did NRC get between 2012 and 2016 to approve low-level waste in an agreement state?

[00:45:35] Speaker 04:
Your Honor, I don't know the answer to that.

[00:45:38] Speaker 07:
But what I do know- A lot of you were getting flooded with them.

[00:45:40] Speaker 07:
You would have known that.

[00:45:42] Speaker 04:
Well, I can't suggest to you that we were getting flooded with them.

[00:45:45] Speaker 07:
And your guidance at the time told them, don't bother coming to us.

[00:45:48] Speaker 07:
It's not for NRC staff to approve.

[00:45:50] Speaker 04:
Right, which is why we endeavored to provide further guidance in 2016 and to remove any existing confusion that may have continued to exist.

[00:46:00] Speaker 04:
I wanted to make the fundamental point.

[00:46:02] Speaker 07:
Do you really think this was the clearest you could have said it?

[00:46:06] Speaker 04:
I suppose not.

[00:46:06] Speaker 07:
We're not departing from current regulatory practice?

[00:46:09] Speaker 07:
We're not departing from current practice?

[00:46:12] Speaker 04:
If I were to go back five years in time, perhaps I would have written it differently.

[00:46:17] Speaker 04:
But what we're talking about here is

[00:46:21] Speaker 04:
a position that NEI understood, that NEI understood the consequences of, and that fundamentally stemmed.

[00:46:30] Speaker 07:
Let's not put words in your friend's mouth there.

[00:46:34] Speaker 07:
It didn't understand the consequences, at least before the 2018 Enforcement Action.

[00:46:41] Speaker 04:
Well, okay, I don't necessarily agree with that.

[00:46:44] Speaker 07:
And the company there, South Texas, was surprised.

[00:46:48] Speaker 06:
It may well have been I don't know how much for your can I ask a slightly different question, which is, you know, I think in your brief at an abstract level, you do a helpful job of distinguishing

[00:47:03] Speaker 06:
between what's involved in regulatory approval on the sending generator side and the regulatory approval of the receiving disposal facility side.

[00:47:14] Speaker 06:
I mean, it seems to me that that's fundamental to your position that these are two separate functions, or at least can be.

[00:47:21] Speaker 06:
And in the view of the commission, it's important when NRC licensed generators are involved, it's important to keep them separate and that the

[00:47:31] Speaker 06:
the sending side, just for shorthand, is not delegated to agreement states.

[00:47:38] Speaker 06:
So I understand that in a sort of abstract sense.

[00:47:43] Speaker 06:
And for its part, the Institute refers to the Commission's new interpretation requiring duplicative NRC approval.

[00:47:54] Speaker 06:
And then I thought it was very helpful.

[00:47:55] Speaker 06:
Mr. Crowley today said all he's concerned about is the

[00:48:02] Speaker 06:
what I refer to for shorthand as the dump, putting the stuff in the ground.

[00:48:06] Speaker 06:
Can you just in somewhat more concrete terms explain what the distinct inquiries are?

[00:48:16] Speaker 06:
Where under the 2016 regime, where the NRC is looking at the generators,

[00:48:26] Speaker 06:
permission to use an alternate site and the agreement state is looking at the alternate sites eligibility.

[00:48:36] Speaker 06:
What are they, what's going on?

[00:48:38] Speaker 06:
What are they regulating?

[00:48:39] Speaker 06:
What are they looking at?

[00:48:39] Speaker 06:
How do they differ?

[00:48:40] Speaker 06:
And just in a really functional, practical sense.

[00:48:44] Speaker 04:
Okay.

[00:48:44] Speaker 04:
I'll start with the proposition that the NRC is not regulating what your honor refers to as the dump.

[00:48:52] Speaker 04:
that is not an NRC licensee, at least in agreement states.

[00:48:58] Speaker 04:
And so the NRC isn't somehow taking away jurisdiction from agreement states to regulate the place of the dump, the actual depositing of the material into the ground.

[00:49:16] Speaker 04:
Those are all decisions that the states remain free to make consistent with-

[00:49:22] Speaker 06:
putting it in, not the lining, not the supervision of it, not the freedom or not from water.

[00:49:31] Speaker 04:
Those continue to be within the state jurisdiction.

[00:49:36] Speaker 04:
I'm sorry to interrupt you, Your Honor.

[00:49:38] Speaker 06:
No, no, no, I interrupted you.

[00:49:42] Speaker 04:
What I'm trying to get at is this idea that under 10 CFR Part 20,

[00:49:48] Speaker 04:
which is applicable to all NRC licensees, including those who are licensed under part 50, part 50 being the one where all the nuclear power plants have perceived licenses in the NRC.

[00:49:59] Speaker 04:
Part 20 requires NRC licensees, including nuclear power plants, to submit a plan for procedures to be employed for the sort of post handoff disposal of nuclear power plants

[00:50:17] Speaker 04:
And the reason for that is that the NRC doesn't want material transported offsite without understanding that there is a plan that has been previously evaluated and approved by the NRC either through notice and comment rulemaking or through at least understanding what the plan is.

[00:50:34] Speaker 06:
uh the nrc wants to make sure that you refer to the to procedures you refer to packaging and transportation you refer to the method by which they seek to dispose you refer to the handling of waste before it becomes subject to agreement state authority and you distinguish between the disposal method and the disposal itself so what is in the former category in all of those diets what is the procedures that the nrc

[00:51:04] Speaker 06:
needs to supervise before the low level radioactive waste is at the dump?

[00:51:14] Speaker 04:
Well, the NRC has to understand what the radioactive dose of the underlying material is.

[00:51:18] Speaker 04:
It has to understand

[00:51:21] Speaker 04:
the time it's going to take for this material to actually be disposed of as a fund, which will dictate in turn how much exposure employees or the public may have to this waste.

[00:51:36] Speaker 04:
It needs to understand.

[00:51:37] Speaker 07:
You mean in transit.

[00:51:42] Speaker 07:
Are you talking about in transit or at the dump itself?

[00:51:44] Speaker 04:
In transit and up to the point where it is accepted for disposal by transit.

[00:51:50] Speaker 04:
It's transit, but keep in mind that we're going back.

[00:51:54] Speaker 07:
Isn't transit already regulated?

[00:51:57] Speaker 04:
It is.

[00:51:57] Speaker 07:
And is the packaging already regulated?

[00:52:00] Speaker 04:
Sure, but this is part of the NRC is what it refers to as its defense in depth approach to making sure that all the I's are dotted and T's are crossed.

[00:52:09] Speaker 07:
All right, so I'm very simple on this.

[00:52:12] Speaker 07:
So I've got a barrel of this very low level waste.

[00:52:16] Speaker 07:
Sitting on my nuclear plant site and I've done everything lawfully and packaging it up consistent with regulations and it qualifies as low level waste.

[00:52:26] Speaker 07:
There's no dispute about that.

[00:52:28] Speaker 07:
And so

[00:52:31] Speaker 07:
And so the packaging, the definition of low-level waste has already addressed and been resolved.

[00:52:37] Speaker 07:
The packaging is compliant with existing regulations.

[00:52:40] Speaker 07:
I'm using an approved transportation system to the done.

[00:52:46] Speaker 07:
So tell me exactly what again it is that you're regulating under tools.

[00:52:51] Speaker 07:
Are you asking them to, I'm really confused.

[00:52:55] Speaker 07:
Are you asking them to document that they've,

[00:52:58] Speaker 07:
that it's low level ways to document that they're using the right container to document that they're doing the right transportation.

[00:53:04] Speaker 07:
It's just documenting the regulations you're already imposed, or is there something else when it goes on the NRC approved truck and goes, drives in the NRC approved way to this agreement state approved dump?

[00:53:19] Speaker 04:
Well, we want to understand what they're going to do with it once it gets to the dump.

[00:53:23] Speaker 04:
For example, are they going to open?

[00:53:24] Speaker 07:
This is where I'm very confused.

[00:53:26] Speaker 07:
So I thought you said once it gets the dump, the state takes it.

[00:53:29] Speaker 07:
I'm sorry, just fill it.

[00:53:29] Speaker 07:
I'm going to jump into your question.

[00:53:31] Speaker 07:
I'm just very confused.

[00:53:32] Speaker 07:
What do you mean when it gets to the dump?

[00:53:34] Speaker 07:
I thought you said the state took care of that.

[00:53:36] Speaker 04:
The state regulates that.

[00:53:37] Speaker 04:
Certainly the NRC has a role to understand what exactly is going to happen.

[00:53:43] Speaker 04:
And it's within its... At the dump.

[00:53:45] Speaker 04:
Yes.

[00:53:46] Speaker 07:
And again, it's not you already cleared all that when you agree, when you when you license someone to be an agreement state, don't you go through all that already?

[00:53:56] Speaker 04:
When we license someone to to be an agreement for lack of putting aside the nomenclature, essentially, yes, but we as part 20 licensees, and this is part of the legislative rules that are in place that all NRC licensees must comply with, they still need to comply with twenty two thousand two so that the NRC

[00:54:14] Speaker 04:
before it just simply authorizes ways to be driven off to some out-of-state.

[00:54:20] Speaker 07:
Your language keeps changing.

[00:54:21] Speaker 07:
I don't want to talk about out-of-state.

[00:54:23] Speaker 07:
I only want to talk about in-state.

[00:54:24] Speaker 07:
Don't get me out.

[00:54:24] Speaker 07:
OK, I don't want to out-of-state.

[00:54:26] Speaker 04:
All right, I didn't mean to call.

[00:54:27] Speaker 04:
Our position applies in-state and out-of-state.

[00:54:29] Speaker 07:
So on in-state, I don't know what procedures you're regulating because you said it's not at the dump.

[00:54:37] Speaker 07:
it's the plants procedures and getting the stuff to the dump.

[00:54:43] Speaker 07:
But then your answers have been all about, well, what's the dump gonna do with it?

[00:54:46] Speaker 07:
But that's what you said the state's regulating and you are not policing.

[00:54:53] Speaker 07:
So you can understand why industry is profoundly confused here.

[00:54:56] Speaker 04:
I can understand their reluctance to be subject to dual regulation, but respectfully, I don't think that that's what's going on here.

[00:55:04] Speaker 04:
The agency is simply saying

[00:55:06] Speaker 04:
look, before we can authorize anything to leave a site and whether it goes in state or out of state, we want to understand what you plan to do with it.

[00:55:13] Speaker 07:
And we want to understand either.

[00:55:18] Speaker 07:
Has there been a problem that they haven't been taking it to agreement state approved locations?

[00:55:25] Speaker 04:
No, but I agree.

[00:55:27] Speaker 07:
But they said they would do at their disposal sites.

[00:55:30] Speaker 04:
Well, we have, I can't speak.

[00:55:33] Speaker 04:
as to whether there's been an individual problem or not.

[00:55:36] Speaker 04:
But I'd like to attribute the lack of problems to the fact that we have regulatory requirements in place saying, hey, look, before this goes out- But you did in your compliance manual, it didn't require any of this.

[00:55:45] Speaker 07:
So it hadn't been done before maybe 2018?

[00:55:50] Speaker 04:
Well- 2016?

[00:55:50] Speaker 04:
We're trying to improve our processes.

[00:55:54] Speaker 04:
I don't think that that's a bad thing.

[00:55:57] Speaker 07:
Change your processes.

[00:56:00] Speaker 07:
Um, I'm sorry to interrupt Judge Pillers question, but I still don't, I don't, I don't understand with my barrel.

[00:56:06] Speaker 07:
What it is that you're approving under 20, 2002.

[00:56:10] Speaker 07:
What is it that there's that you are approving that you haven't already approved by authorizing the agreement state to handle the disposal stage?

[00:56:20] Speaker 04:
Well, the point is that all of the other.

[00:56:24] Speaker 04:
methods in 2000, 22,001 have been approved by the agency through notice and common and rulemaking.

[00:56:30] Speaker 04:
When a licensee tries to use the safety valve of 22,002, this is something that the NRC won't have previously considered.

[00:56:38] Speaker 07:
And the agency is simply saying, just like all the other provisions- Didn't you consider it when you agreed with agreements to date that they're in charge of disposal?

[00:56:48] Speaker 07:
Is this, are you, I guess, I thought you told Judge Piller that you were not,

[00:56:52] Speaker 07:
regulating the disposal site, but that was for the state.

[00:56:57] Speaker 04:
We are not, but we want to understand what is going to be done, what is proposed to be done.

[00:57:02] Speaker 04:
By whom?

[00:57:03] Speaker 04:
By the licensee.

[00:57:05] Speaker 07:
By the licensee at the disposal site?

[00:57:08] Speaker 04:
Yes.

[00:57:09] Speaker 06:
What do they do?

[00:57:09] Speaker 06:
It's information as opposed to regulation.

[00:57:13] Speaker 06:
It's saying before we sign off on our, the

[00:57:19] Speaker 06:
facilities in our primary regulatory ambit before we sign off on them passing this off to a state supervised dump, we want some communication about why the state is satisfied that this is going to be secure.

[00:57:38] Speaker 06:
So some of the information that they're in charge of, but we just want that information.

[00:57:42] Speaker 06:
And also, but that's not the only thing.

[00:57:44] Speaker 06:
There's also, as you say, questions about packaging, transport, timing, and the like of the low-level nuclear waste.

[00:57:57] Speaker 04:
So there's a... I think that's a fair characterization.

[00:58:00] Speaker 06:
I mean, by whom?

[00:58:02] Speaker 06:
By the generator, as I understand it.

[00:58:04] Speaker 06:
Can I ask you on the...

[00:58:08] Speaker 06:
Wait, I'm sorry.

[00:58:08] Speaker 07:
Is it timing by, are you talking about timing how long it takes?

[00:58:12] Speaker 04:
When it's going to happen, how long it's going to take.

[00:58:15] Speaker 07:
What's the, I'm sorry, I'm getting confused.

[00:58:18] Speaker 04:
The transportation, the amount of time to which, the amount of time that the material might be exposed to the air, things like that.

[00:58:27] Speaker 07:
That's okay.

[00:58:28] Speaker 07:
So the amount of time exposed to the air, you mean in the transportation process or do you mean in the dump?

[00:58:33] Speaker 04:
I mean in the dump, but I also mean how long it's going to take to transport it from point A to point B.

[00:58:37] Speaker 04:
things like that, which have to be.

[00:58:39] Speaker 07:
So you are regulating the dumps now too?

[00:58:42] Speaker 04:
I wouldn't suggest that, Your Honor.

[00:58:43] Speaker 04:
We want to understand what's happening before we authorize shipment off site.

[00:58:48] Speaker 04:
And frankly, if necessary, communicate with the state authorities to make sure that we're all on the same page.

[00:58:53] Speaker 07:
Will the plant know how long the people operating the disposal site take to?

[00:59:01] Speaker 04:
The procedures would contemplate information for when something's going to happen for sure.

[00:59:07] Speaker 07:
Wouldn't the state have that information?

[00:59:09] Speaker 07:
They're the one that licensed the disposal time.

[00:59:12] Speaker 04:
I don't.

[00:59:13] Speaker 04:
There have to be procedures.

[00:59:16] Speaker 04:
And to be clear, Your Honor, there are the

[00:59:20] Speaker 04:
facility, the disposal facility is licensed by the state, but they don't necessarily know what their customers, for lack of a better word, how they necessarily intend to operate.

[00:59:34] Speaker 07:
And there's a- Okay, so what you're addressing here is a problem.

[00:59:40] Speaker 07:
The states are not policing their disposal sites well enough.

[00:59:44] Speaker 07:
And so you want information from the plants about

[00:59:49] Speaker 07:
how the disposal site that's been licensed by the state in an agreement state is actually doing it?

[00:59:58] Speaker 04:
Well, I wouldn't characterize it as the agency addressing a problem.

[01:00:03] Speaker 04:
I think it's preventing a problem so that it understands what is going to happen to this waste.

[01:00:09] Speaker 07:
At the disposal site?

[01:00:11] Speaker 04:
Yes, at the disposal site.

[01:00:14] Speaker 07:
OK.

[01:00:15] Speaker 07:
Sorry, Judge Pillard.

[01:00:16] Speaker 07:
I interrupted you.

[01:00:16] Speaker 06:
I apologize.

[01:00:21] Speaker 06:
What's your response to Mr. Crowley's point?

[01:00:24] Speaker 06:
I had taken you to be relying really quite significantly on 20.2002.

[01:00:31] Speaker 06:
And Mr. Crowley says, well, but that's only half the story.

[01:00:34] Speaker 06:
That really doesn't apply here at all.

[01:00:36] Speaker 06:
What we're really, I think if I'm remembering correctly, he said what we're really looking at here is 150.15.

[01:00:43] Speaker 06:
And I had read that as actually not exempting this activity, but I'm a bit of a novice in this area.

[01:00:52] Speaker 06:
So can you explain why you think that his answer is not

[01:00:59] Speaker 06:
problematic from your perspective.

[01:01:00] Speaker 04:
Yes, and actually I'm glad the court raised that because that's an issue I would like to address.

[01:01:07] Speaker 04:
I don't think it's correct to say that NRC licensees are exempt pursuant to, let me begin that sentence again, I don't think it's correct to say that

[01:01:22] Speaker 04:
any NRC licensee is exempt from NRC regulations merely because they happen to be in agreement states.

[01:01:28] Speaker 04:
And that's effectively the import of Mr. Crowley's argument about 150.10.

[01:01:32] Speaker 04:
And in particular, nuclear power plant licensees, which is what we're talking about here, actually don't fall within the scope of the 150.10 exemption because they will necessarily, and I'm quoting here from 150.10,

[01:01:48] Speaker 04:
They will possess special nuclear material in quantities, it says here, not sufficient.

[01:01:53] Speaker 04:
The people who get exemption are the ones who have it not sufficient to form a critical mass.

[01:01:58] Speaker 04:
Nuclear power plants have special nuclear material in quantities sufficient to form a critical mass.

[01:02:07] Speaker 04:
And what that means is that they're not somehow exempt from

[01:02:10] Speaker 04:
NRC requirements.

[01:02:11] Speaker 04:
And what that further means is that they are therefore subject to all of the requirements set forth in 10 CFR Part 20, including the need to comply should they choose voluntarily to pursue an alternate means of disposal, the requirements of 20.2002.

[01:02:28] Speaker 04:
And so there's no need for the agency to somehow claw back jurisdiction over nuclear power plants.

[01:02:35] Speaker 04:
Nuclear power plants are subject to NRC regulation.

[01:02:38] Speaker 06:
And is, I'm sorry.

[01:02:39] Speaker 04:
Yeah.

[01:02:41] Speaker 04:
Sorry.

[01:02:42] Speaker 06:
I was just going to say, I had, I gather incorrectly referred to one.

[01:02:46] Speaker 06:
I think Mr. Carly mentioned both 150.10 and 150.15.

[01:02:51] Speaker 06:
And is the waste we're talking about here covered in 150.15?

[01:02:56] Speaker 06:
Non-exempt specifically, I mean, A4 or

[01:03:09] Speaker 04:
We're not invoking the clawback provisions of 150A4, but to be perfectly clear here, we don't feel the need to somehow suggest that the disposal of waste is part and parcel of plant operations.

[01:03:32] Speaker 04:
The need to comply with part 20 exists irrespective of someone is or is not

[01:03:39] Speaker 04:
is or is not a power plant.

[01:03:42] Speaker 04:
The need to comply with part 20 stems from the fact that you as an NRC licensee and someone who is not exempt under 150.10 need to comply with all applicable provisions of 10 CFR, including 10 CFR part 2001 and 2002.

[01:03:58] Speaker 04:
And to really drive it home, 10 CFR 2001 says a licensee, meaning

[01:04:06] Speaker 04:
any kind of NRC licensee, including a nuclear power plant licensee, shall dispose of waste only, it says, in accordance with any of the enumerated methods, one of which happens to be 22,002.

[01:04:19] Speaker 04:
But an NRC licensee is bound by that provision.

[01:04:23] Speaker 07:
And that provision was- Is one of those approved methods operating within an agreement state?

[01:04:33] Speaker 04:
is an approved method of disposal?

[01:04:35] Speaker 07:
All the things that they can do.

[01:04:37] Speaker 07:
That's four.

[01:04:38] Speaker 07:
Only, because the agreement state provisions statutorily only applies to very low level, low risk aspects of nuclear material.

[01:04:48] Speaker 07:
No one's suggesting anything that's remotely risky goes out of your hand.

[01:04:55] Speaker 04:
I don't think that's the point of your question, but I'm not sure that that's a fair characterization.

[01:05:01] Speaker 04:
So I don't think it's fair to say that the mere fact that it's a little of a waste doesn't mean that there are not hazards associated with it.

[01:05:11] Speaker 07:
I didn't say that at all.

[01:05:12] Speaker 07:
I just said that the agreement state program, as I understand it, is the only thing as to which the NRC will, in the NRC's word, discontinue its regulatory authority is specified

[01:05:27] Speaker 07:
low level risk aspects of nuclear power production.

[01:05:34] Speaker 07:
Right?

[01:05:35] Speaker 05:
Okay.

[01:05:37] Speaker 07:
And discontinue is the NRC's word.

[01:05:41] Speaker 07:
Correct?

[01:05:41] Speaker 07:
Discontinue regulatory authority as just to those aspects.

[01:05:45] Speaker 07:
Is that correct?

[01:05:46] Speaker 04:
That is correct.

[01:05:47] Speaker 07:
And that's why... Disposal, allowing agreement states consistent with your 2009 guidance, which has been in existence at least till 2020, allowing the agreement states to approve the disposal of land low level radioactive waste in state.

[01:06:12] Speaker 04:
Was that... Yes, Your Honor.

[01:06:14] Speaker 04:
I don't think I'm disagreeing with you when I say that the agency has not undermined or prevented states from maintaining full authority.

[01:06:27] Speaker 07:
No, I was responding to your argument that you hadn't given up any regulatory authority and you weren't clawing anything back, but then your own verb is discontinue, regulatory.

[01:06:37] Speaker 07:
Obviously, the great cabin is very narrow, but discontinue sounded to me like

[01:06:42] Speaker 04:
Like you were- The sense in which the NRC's authority is discontinued means that it does not regulate the recipients of nuclear waste, the facilities at which- That's not what your 2009 guidance said.

[01:07:00] Speaker 07:
That's not what your 2009 guidance said.

[01:07:04] Speaker 07:
Approval of perverse of 2022 requests

[01:07:11] Speaker 07:
the state regular will perform the review of the request and not NRC staff for reactor licensees.

[01:07:17] Speaker 07:
Well, again, the disposal places for reactor licensees submitting 20.202 requests.

[01:07:25] Speaker 07:
The facility are in the same state and the same agreement state.

[01:07:30] Speaker 07:
The state regulator will perform the review.

[01:07:32] Speaker 04:
Well, that's why the agency endeavored to correct that guidance, your honor, which is because 2000 till last year.

[01:07:41] Speaker 04:
Well, right.

[01:07:41] Speaker 04:
And that's why, in fact, the agency responded to both NEI and to South Texas and said, we are endeavoring to provide additional guidance as to what to do, having recognized that the prior guidance had not necessarily provided all the accurate information.

[01:08:04] Speaker 04:
That's not what's what's at issue anymore though what's at issue and right now is whether or not in 2019 when it said no our interpretation of our own legislative rule is is correct.

[01:08:15] Speaker 04:
whether or not that constitutes final agency action.

[01:08:19] Speaker 07:
One other thing too, I know with Texas, and there was a statement there that you would, because of all the confusion, would exercise enforcement discretion.

[01:08:30] Speaker 07:
When you exercise enforcement discretion, I assume that means there's not going to be any kind of penalty or write-up, but I assume they still are expected to come into compliance going forward.

[01:08:43] Speaker 04:
Well, what the letter to South Texas said was we won't seek any kind of enforcement for past conduct.

[01:08:55] Speaker 04:
And until we put forward this guidance, we won't, likewise, we'll allow you to permit to continue to dispose of waste in accordance with the existing arrangement with the state of Texas.

[01:09:07] Speaker 04:
The implication, I think, from that letter is after the issuance of guidance, now you've got to comply.

[01:09:12] Speaker 07:
Okay, so then there wasn't actually a regime requiring them to change their behavior until the guidance issue.

[01:09:22] Speaker 07:
So in 2018 they didn't even they still didn't even have to change.

[01:09:25] Speaker 07:
Was it just South Texas or all of industry did wasn't expected for in state disposal wasn't expected to change until you had the new guidance after meeting and everything.

[01:09:36] Speaker 04:
We expected the licensees to comply and really the guidance and the specific thing that we wanted to address with respect to licensees like South Texas was what to do with licensees like South Texas that had in fact previously obtained an authorization from the state.

[01:10:01] Speaker 04:
We've been notified about three and I have to confess one of them we only learned about through this litigation.

[01:10:06] Speaker 04:
meaning Arizona, but the remaining licensees have been aware of this obligation since 2016 at least.

[01:10:16] Speaker 04:
I think as we pointed out before, they didn't sue and in fact what I've heard is that they actually don't disagree with the underlying logic of the agency's position.

[01:10:27] Speaker 04:
And I think it is correct to say that had they disagreed with it, we probably would have been in court.

[01:10:32] Speaker 04:
It's strange to me that here we are three years after the issuance of the 2016 Regulatory Information Summary, the NEI is advancing the interests of three of its members.

[01:10:46] Speaker 04:
And notice, not a notice, but the existence of a violation was communicated to Energy Northwest

[01:10:56] Speaker 04:
in I think it was 2019.

[01:10:58] Speaker 04:
And that's referenced in the Braves.

[01:11:01] Speaker 04:
To my knowledge, that's the only one.

[01:11:03] Speaker 06:
So Mr. Avak, just zooming back and looking at this at a much more simple level, the commission has acknowledged that its interpretation of 20.2002 has shifted at least from the interpretation announced in the 1986 information notice, which it refers to in a 2016 regulatory issue summary as incorrect.

[01:11:28] Speaker 06:
But at the same time, the commission has said that none of the particular communications

[01:11:33] Speaker 06:
has created a new legal obligations for NRC licensees.

[01:11:38] Speaker 06:
And is that because no enforcement action has yet been taken or what?

[01:11:46] Speaker 06:
I mean, it seems like if the interpretation has shifted, there is a new legal obligation.

[01:11:52] Speaker 06:
And when and how did that crystallize?

[01:11:59] Speaker 04:
I think the clearest answer I can,

[01:12:03] Speaker 04:
posed to that or put to that question is that the obligation itself doesn't stem from the NRC staff's interpretation of the regulation.

[01:12:13] Speaker 04:
It certainly, if licensees voluntarily choose to comply, that's their own decision.

[01:12:20] Speaker 06:
The obligation stems from the regulation, but the agency had an authoritative interpretation of the regulation in 86 that it didn't apply to in the way that you've now said it does.

[01:12:36] Speaker 04:
Now meaning between sometime between 2012 and now.

[01:12:41] Speaker 04:
Yes, I agree with that.

[01:12:42] Speaker 06:
And so the question is, given that, I mean, maybe the position is, well, I gather the position is that the 1986 interpretation was wrong and invalid, but nonetheless, it was something that had some operative force.

[01:12:57] Speaker 06:
And so if there's a change, what's really confounding is that the agency has both said, yes, we've changed.

[01:13:08] Speaker 06:
our interpretation, but at the same time, it said nothing to see here in 12 and 16, in 18 and 19.

[01:13:17] Speaker 06:
And the nature of the nothing to see here has shifted, but it's sort of like, when did the agency say, okay, rubber's hit the road here, folks, you know, let's bracket the enforcement issue, but you've got to do this.

[01:13:33] Speaker 06:
Like, has that yet been done?

[01:13:36] Speaker 04:
Well, I think the 2016 information summary

[01:13:39] Speaker 04:
accomplishes that task when it says that NRC licensees, as distinct from agreement state licensees, have to go to the NRC in accordance with 22,001 and 22,002 in order to get approval for alternate disposal methods.

[01:13:55] Speaker 04:
I understand that we communicated, the NRC I think had a sense

[01:14:00] Speaker 04:
that this was public knowledge in 2012.

[01:14:02] Speaker 04:
I understand Judge Millett's concern that perhaps it could have been stated more clearly and more expansively to both intrastate and interstate situations.

[01:14:14] Speaker 06:
But certainly- Mr. Crowley's client might've had an opportunity to say, okay, you should've done a back fit or you should've done a notice and comment or whatever, but that's time barred in your view.

[01:14:25] Speaker 04:
Yes, I would agree with that.

[01:14:27] Speaker 04:
Now, there are certainly other opportunities for those particular clients to contest the agency's interpretation or to seek judicial review.

[01:14:37] Speaker 04:
But it's odd here to write a letter to the NRC in 2019 and have us simply say, no, we meant what we said in 2016.

[01:14:46] Speaker 04:
And to have that suddenly be the impetus for judicial review under the Hobbs Act.

[01:14:54] Speaker 04:
And I want to make

[01:14:56] Speaker 04:
I want to emphasize this too, because the Hobbs Act has specific qualifications on what this court is empowered to hear that tie back to section 189A of the Atomic Energy Act.

[01:15:07] Speaker 04:
And in particular, the only avenue that NEI could get this court's jurisdiction right now is if what it's reviewing is a final order in a rulemaking proceeding.

[01:15:21] Speaker 04:
And I understand that the court has

[01:15:23] Speaker 04:
said that, okay, when the NRC issues a legislative rule, that those legislative rules fall within the meaning of a final order in a section 189 proceeding.

[01:15:35] Speaker 04:
But all the agency has done here is adhere to a previously existing interpretive rule.

[01:15:42] Speaker 07:
And- So under that period, would a challenge to the 2016 RIS have qualified for hops after you?

[01:15:48] Speaker 07:
Because you said that was just adhering to 2012.

[01:15:52] Speaker 07:
So that would have challenged the 2016 RISM.

[01:15:54] Speaker 04:
Your honor, the agency's position and the government's position is that an interpretive rule is not cognizable in a Hobbs Act proceeding.

[01:16:06] Speaker 04:
I want to make clear.

[01:16:08] Speaker 07:
I just want a yes or no answer.

[01:16:09] Speaker 07:
Would a challenge to the 2016 RISM have qualified for Hobbs Act review?

[01:16:18] Speaker 04:
I don't think it would, but I want to, I want to qualify under the Hobbs Act in my view.

[01:16:24] Speaker 04:
Yes.

[01:16:25] Speaker 04:
I do want to just make this qualification though, that there is a case from 1982 entitled New England power company versus, uh, NRC, which purported to challenge what it called an interpretive rule.

[01:16:37] Speaker 04:
Didn't really assess jurisdiction, but when one does a search of previous cases, it is

[01:16:42] Speaker 04:
in fact, analyzing an interpretive rule.

[01:16:45] Speaker 04:
I don't think that's proper under the Hobbs Act, and the Third Circuit is held otherwise in the case of New Jersey versus NRC.

[01:16:52] Speaker 07:
But I think that the- Just to be clear, the agency's position is that the only way to challenge this change, I think, would be through an actual enforcement proceeding.

[01:17:05] Speaker 07:
Is that right?

[01:17:06] Speaker 04:
In enforcement proceeding, the court referenced a petition for rulemaking, which is an avenue too.

[01:17:11] Speaker 07:
That's a pretty hard avenue.

[01:17:12] Speaker 04:
I don't disagree that the standard of review was favorable.

[01:17:18] Speaker 07:
Right.

[01:17:18] Speaker 07:
I just want to be clear that your position, because I had misunderstood from your brief, I had thought you said they should have challenged the 2016 RIS.

[01:17:24] Speaker 07:
But now I understand you've clarified for me, thank you, that you don't think that could have been challenged either under the Hobbs Act.

[01:17:34] Speaker 05:
Fair enough.

[01:17:37] Speaker 02:
Sorry.

[01:17:37] Speaker 02:
Let me make sure I've caught up with this then.

[01:17:40] Speaker 02:
So Mr. Averbeck, so you're saying the only things that are challengeable are a product of a notice and comment rulemaking or the final order in an enforcement proceeding.

[01:17:56] Speaker 04:
In this particular context, yes, certainly an adjudicatory decision that the agency makes, which we see all the time in licensing proceedings are subject to Hobbs Act review as well.

[01:18:06] Speaker 04:
But the

[01:18:07] Speaker 04:
Judicial review provisions under Section 189B of the Hobbs Act are tied back to that which is set forth in Section 189A.

[01:18:16] Speaker 04:
And Section 189A is limited to proceedings of three or four different types, one of which is a final order in a proceeding issuing or modifying a

[01:18:32] Speaker 04:
ruler regulation and the word, the language that the act uses is dealing with the activities of licensees.

[01:18:39] Speaker 04:
So a final order in a rulemaking proceeding, and which I think is appropriately read to include legislative rules like 20, 2001 or 20, 2002, but not interpretive rules would be reviewable as would be a denial of a petition for rulemaking.

[01:18:58] Speaker 02:
Right.

[01:18:58] Speaker 02:
I have just one question coming out of an adjudication.

[01:19:02] Speaker 02:
Yes.

[01:19:04] Speaker 06:
Why does everything take so long?

[01:19:09] Speaker 04:
Can the court be more specific?

[01:19:13] Speaker 06:
Well, there's a reference in each of the communications to the regulated community and to the states.

[01:19:24] Speaker 06:
The agency sort of hopefully says, oh, but we're going to issue something.

[01:19:28] Speaker 06:
We're going to clear this up.

[01:19:30] Speaker 06:
Forthcoming is more guidance.

[01:19:34] Speaker 06:
And then years go by.

[01:19:36] Speaker 06:
For example, at JA 14,

[01:19:38] Speaker 06:
In order to inform licensees and interested stakeholders, this is the 2012, you know, specific guidance is under development.

[01:19:48] Speaker 06:
This will be shared once it's been finalized.

[01:19:52] Speaker 06:
And four years go by, and then there's the 2016.

[01:19:56] Speaker 06:
And then 2016 talks about, I think similarly, further clarification

[01:20:07] Speaker 06:
Anyway, you get the picture and then there's a meeting and they just sort of keep saying like, we're gonna think about this.

[01:20:18] Speaker 06:
And it just years and years go by.

[01:20:20] Speaker 06:
And so I just thought there was something about the industry or about what's happening in the interim that isn't apparent from the paper.

[01:20:30] Speaker 04:
I can't necessarily give a comprehensive answer as to why things take the length of time they do.

[01:20:35] Speaker 04:
One thing I can point to though is

[01:20:37] Speaker 04:
that the NRC has actually endeavored here to improve its processes, to listen to interested parties.

[01:20:47] Speaker 04:
And one of the things we point out in our brief is that when NEI wrote this letter, the agency said, hey, you know what?

[01:20:55] Speaker 04:
We'd like to get the views of interested parties.

[01:20:58] Speaker 04:
And yes, I mean, I think that's a desirable means of governing, but the flip side of it is that

[01:21:06] Speaker 04:
it can take time to arrange this, to hear what licensees have to say, and not just licensees, but other stakeholders might have to say.

[01:21:14] Speaker 04:
And regrettably, the process may take months, years, and we find ourselves in a situation where we're in.

[01:21:20] Speaker 04:
But I do think that the agency has endeavored to fix a problem.

[01:21:27] Speaker 04:
It began that in 2012 when it realized that there was a mismatch between what licensees were doing under

[01:21:35] Speaker 04:
2002 and what some of its original legal analysis had suggested.

[01:21:40] Speaker 04:
And since 2012, it has been endeavoring to issue as much clarity as it can about what it expects of licensees.

[01:21:46] Speaker 04:
And I certainly think that as of 2016, the regulated community was on notice that as an NRC licensee, if you want approval to do this, you have to go to the NRC rather than to agreement states.

[01:21:58] Speaker 07:
My colleagues have any more questions?

[01:22:01] Speaker 07:
All right, we've covered you up a long time, Mr. Averbeck, thank you.

[01:22:05] Speaker 07:
Right.

[01:22:06] Speaker 07:
And Mr. Pulley will give you two minutes of rebuttal if that's what you reserve.

[01:22:10] Speaker 03:
Yes, thank you.

[01:22:11] Speaker 03:
So first to disposal, I'd like to draw attention to this is in response to Judge Pillard's question.

[01:22:19] Speaker 03:
It's important that disposal is defined under the AEA itself.

[01:22:23] Speaker 03:
We cite this at page nine.

[01:22:24] Speaker 03:
The language is the term disposal means the permanent isolation of low level waste pursuant to the requirements established by the NRC under applicable laws or by an agreement state.

[01:22:33] Speaker 03:
if such isolation occurs in such agreement state.

[01:22:36] Speaker 03:
So there's no question.

[01:22:38] Speaker 03:
The regulation, of course, is consistent, but the statute itself defines disposal to be- What's the side for that?

[01:22:44] Speaker 03:
Sure, it's the same statute.

[01:22:45] Speaker 03:
It's 42 USC 2021 little b sub seven.

[01:22:51] Speaker 07:
Okay, thanks.

[01:22:52] Speaker 03:
As my clock is rapidly, I'm gonna do speed bullet here.

[01:22:56] Speaker 03:
With respect to your question, Judge Malata about footnote four of the government's brief, those are not two exceptions.

[01:23:03] Speaker 03:
Exceptions involve interstate arrangements.

[01:23:06] Speaker 03:
These are consistent with our view.

[01:23:07] Speaker 03:
It's no surprise that California, an agreement state disposing in Ohio, not an agreement state, there were questions about that.

[01:23:14] Speaker 03:
So our beef here is the narrow one, intrastate disposal.

[01:23:19] Speaker 03:
And there's no question that intrastate disposal is governed by agreement state agreements.

[01:23:23] Speaker 03:
I wanna correct something that with due respect, I think the government misstated or overstated.

[01:23:27] Speaker 03:
22,002 is not the regulatory framework here.

[01:23:31] Speaker 03:
Yes, there are many parts of Part 20, of course, that govern reactors, of course.

[01:23:37] Speaker 03:
But low-level land disposal is not one of them.

[01:23:40] Speaker 03:
Instead, it is 150.10.

[01:23:42] Speaker 03:
150.10 says, if you are in an agreement state and the NRC has consummated an agreement, again, a robust process, you can dispose pursuant to state approval only.

[01:23:56] Speaker 06:
But only if you have quantities not sufficient to form a critical mass.

[01:23:59] Speaker 06:
And the commission says, that's not what we're talking about here.

[01:24:01] Speaker 03:
No, it's definitely what we're talking about here.

[01:24:04] Speaker 03:
Critical mass, this is serious stuff, hot stuff.

[01:24:09] Speaker 03:
This is not left to the states.

[01:24:11] Speaker 03:
Look, the NRC doesn't have to give the states permission to regulate disposal sites.

[01:24:17] Speaker 03:
The states already have that.

[01:24:19] Speaker 03:
What they're disavowing is regulatory authority over low level waste.

[01:24:24] Speaker 03:
By definition, that's not critical mass.

[01:24:26] Speaker 03:
We're talking about protective clothing and, you know, soil and sediment and algae.

[01:24:30] Speaker 03:
It's not, this is, you know, as in the scheme of things, this is not, this is not at the core of of NRC's jurisdiction and never has been.

[01:24:39] Speaker 03:
With the court's permission, I just like to kind of sum up.

[01:24:44] Speaker 03:
There's a right-hand, left-hand problem here, and I don't want to bash on the NRC.

[01:24:48] Speaker 03:
It's a good commission.

[01:24:49] Speaker 03:
The agency, you know, generally speaking, the industry has a good relationship with it, but they're proceeding not in a coordinated way.

[01:24:57] Speaker 03:
It's not just the 2009 guidelines.

[01:25:00] Speaker 03:
On the agency's website today, it says, we disavow regulatory jurisdiction pursuant to agreement state agreements.

[01:25:07] Speaker 03:
That's what it says today.

[01:25:08] Speaker 03:
So there's just a lack of coordination going on, you know, within the agency, and industry's confused.

[01:25:14] Speaker 03:
The AEA is the relevant standard here.

[01:25:17] Speaker 03:
It says if you're going to clawback, if you're going to reclaim, you do so through process.

[01:25:22] Speaker 03:
And something that is titled a summary, summarizing something that's titled a clarification, all of which on the substance speaks to interstate arrangements, and we have no dispute,

[01:25:34] Speaker 03:
That is not good enough under the AEA or the APA or the back end rule.

[01:25:39] Speaker 06:
But let me ask you, I'm having a little bit of a trouble grasping where the disagreement is in the sense that Mr. Averbach says we're not talking about putting it in the ground.

[01:25:50] Speaker 06:
You're saying we're only talking about putting it in the ground.

[01:25:53] Speaker 06:
Do you disagree that the commission can retain a regulatory jurisdiction to look at and sign off on

[01:26:03] Speaker 06:
how the NRC licensees plan to package to transport and choose which authorized facility they're sending stuff to in the case of an alternate site that the state will sign off on.

[01:26:25] Speaker 06:
They just want to know about because alternate site is is by its nature more

[01:26:31] Speaker 06:
ad hoc, they wanna know what did the state sign off on?

[01:26:35] Speaker 06:
They're not gonna second guess it, but they just wanna know.

[01:26:38] Speaker 03:
So I wanna make sure I'm tracking the court's question.

[01:26:41] Speaker 03:
So transportation packaging, yes, there's no disagreement.

[01:26:44] Speaker 03:
The alternate site, it's not, I mean, in the real world, what we're talking about is municipal sites, RCRA sites, right, sort of, right.

[01:26:53] Speaker 03:
So I don't believe the government is arguing in this case, they just wanna know, they are saying

[01:26:59] Speaker 03:
we have reclaimed authority over the disposal, over disposal, because they have already ceded to the states, discontinues is not only the word of the regs, it's the word of the statute.

[01:27:11] Speaker 03:
They have already ceded regulatory authority over dumping in the hole to the states.

[01:27:16] Speaker 03:
So I don't, my client is unfamiliar with this distinction between disposal and disposal procedure and the government's brief with due respect.

[01:27:24] Speaker 03:
It doesn't provide such citations for that, for that distinction.

[01:27:27] Speaker 03:
So I don't know what, you know, I can't speak to what that, what that might mean, but we don't agree to your question that the NRC just wants to know, or has a authority over, you know, what I'm going to call turning the shovel over.

[01:27:41] Speaker 03:
And they have given that authority up again, only in agreement state, you know, situations, of course, because they have decided

[01:27:48] Speaker 03:
that state law, state regulations often promulgated in connection with the agreement, state agreement are good enough.

[01:27:55] Speaker 03:
And there's no reason to think there's no reason to think they are not.

[01:27:58] Speaker 03:
And the NRC is not arguing that they're not.

[01:28:02] Speaker 03:
Have I been responsive?

[01:28:04] Speaker 06:
Yeah, I'm a little bit confused about, I have to say what the commission is claiming and what it's not claiming with respect to what goes on

[01:28:16] Speaker 06:
from with respect to what's anticipated to go on at the dump.

[01:28:26] Speaker 03:
We share that uncertainty.

[01:28:27] Speaker 07:
Are there any further questions?

[01:28:34] Speaker 07:
All right.

[01:28:35] Speaker 07:
Thank you to both counsel.

[01:28:36] Speaker 07:
We kept you both way over your time and we had lots of questions and we needed a lot of information.

[01:28:41] Speaker 07:
So we're grateful to both of you for your assistance.

[01:28:44] Speaker 07:
The case is submitted.