[00:00:00] Speaker 00: Case number 21-1048 Ed Al. [00:00:03] Speaker 00: Don't waste Michigan's Ed Al petitioners versus U.S. [00:00:06] Speaker 00: Nuclear Regulatory Commission and United States of America. [00:00:10] Speaker 00: Ms. [00:00:11] Speaker 00: Jaren for the petitioner Beyond Nuclear Inc. [00:00:14] Speaker 00: Mr. Taylor for the petitioners Don't Waste Michigan Ed Al. [00:00:17] Speaker 00: Mr. Tanner for the petitioner Fascon Land and Minerals Limited. [00:00:21] Speaker 00: Mr. Aberbat for the respondents. [00:00:23] Speaker 00: Mr. Fatt for the intervener. [00:00:26] Speaker 02: Ms. [00:00:26] Speaker 02: Curran, before you begin, I'd just like to note that today marks the first day of sitting for our newest colleague, Florence Pan, Judge Pan. [00:00:37] Speaker 02: Welcome to the D.C. [00:00:38] Speaker 02: Circuit. [00:00:38] Speaker 05: Thank you. [00:00:39] Speaker 02: Please proceed. [00:00:41] Speaker 05: Good morning, Your Honors. [00:00:43] Speaker 05: My name is Diane Curran. [00:00:45] Speaker 05: I'm here for Beyond Nuclear. [00:00:47] Speaker 05: With me on the front row, in the front row is my co-counsel, Judy Goldstein. [00:00:53] Speaker 05: I'd like to take seven minutes for my opening argument. [00:00:57] Speaker 05: In this case, all parties agree that the NRC issued a license that would violate the Nuclear Waste Policy Act if one of its conditions were fulfilled by allowing the licensee to rely on contracts with the U.S. [00:01:12] Speaker 05: Department of Energy to take federal ownership and financial responsibility for interim spent fuel stored at the licensee's private facility before the opening of federal repository for permanent disposal. [00:01:27] Speaker 05: The only issue before this court is whether you should disregard the plain terms of the license condition as suggested by the NRC based on extraneous promises by the agency that fulfillment of the unlawful condition will never be carried out or allowed unless until Congress changes the law. [00:01:48] Speaker 02: Forget about the extraneous promises. [00:01:51] Speaker 02: Let's just look at the face of the condition. [00:01:54] Speaker 02: It can be lawfully satisfied to the extent they are taking waste from privately owned waste for which a private entity has title. [00:02:08] Speaker 05: That's absolutely true, Your Honor. [00:02:10] Speaker 05: And the license contains language that would allow private fuel in-arm storage partners to store federally owned spent fuel. [00:02:20] Speaker 05: It's our position that every word of this license [00:02:23] Speaker 05: has to be read, the license condition has to be fully enforceable. [00:02:29] Speaker 06: You say that's your position, but what supports that? [00:02:33] Speaker 06: Why? [00:02:34] Speaker 06: Can I finish my sentence? [00:02:38] Speaker 06: Why? [00:02:38] Speaker 06: What is it that requires that every part of the license provision be enforceable? [00:02:44] Speaker 06: Sorry, I couldn't hear. [00:02:45] Speaker 06: I'm sorry. [00:02:46] Speaker 06: What is it that says, you said you believe that all provisions of the license requirement must be enforceable, but what requires that? [00:02:57] Speaker 06: What do you cite for that proposition? [00:02:59] Speaker 05: It is the private fuel storage case cited in page eight of our reply group. [00:03:04] Speaker 05: This is NRC's own jurisprudence that license conditions should be fulfillable at the time a license is approved. [00:03:12] Speaker 05: The point of a license condition is that it should be something that's easy to fulfill administratively without having to question what the law might be. [00:03:22] Speaker 06: Well, one of them is easy to fulfill. [00:03:24] Speaker 06: I'm sorry. [00:03:25] Speaker 06: One of them is easy to fulfill. [00:03:27] Speaker 05: Yes, but all the words of the license must be. [00:03:31] Speaker 06: You keep stating that, but I'm asking you what your authority is for that. [00:03:36] Speaker 05: My authority is the Administrative Procedure Act and the NRC's own jurisprudence. [00:03:41] Speaker 06: Let's start with the Administrative Procedure Act. [00:03:43] Speaker 06: What in that requires that every word be enforced? [00:03:47] Speaker 05: The NRC may not act [00:03:49] Speaker 05: contrary to the law. [00:03:51] Speaker 05: The administrative procedure does not... But they're not acting. [00:03:54] Speaker 06: Why are they acting contrary to the law? [00:03:56] Speaker 06: They say, what's contrary to law here? [00:03:59] Speaker 05: They have approved a license that would allow the licensee to take unlawful conduct, that would approve unlawful conduct under the Nuclear Waste Cosmetic Act. [00:04:10] Speaker 05: There's no temporal exception in the administrative procedure act. [00:04:14] Speaker 05: It doesn't say if the law changes in the future, it's okay to put an unlawful condition in right now. [00:04:21] Speaker 05: The law has to be met at the time of licensing. [00:04:25] Speaker 05: That's basic APA requirement that the agency may not act contrary to the law. [00:04:33] Speaker 05: And in this case, the NRC has admitted that its whole purpose here is to create a license that is valid now [00:04:42] Speaker 05: that does not need to be amended in the future. [00:04:45] Speaker 05: So they can't have it both ways. [00:04:47] Speaker 05: They can't tell you, well, you can disregard this unlawful language now, but it's going to be effective if and when the law changes so that this company can bid for NRC contracts without having to amend the license. [00:05:02] Speaker 05: That's page 468 of the NRC's decision. [00:05:06] Speaker 02: Suppose you're correct. [00:05:09] Speaker 02: that the language in the license seeming to authorize arrangements for government owned waste is unlawful. [00:05:21] Speaker 02: But there's still the other language authorizing arrangements with privately owned waste and you have no argument against that. [00:05:32] Speaker 02: Why wouldn't we at most just [00:05:36] Speaker 02: excise the offending language and sever the rest. [00:05:41] Speaker 02: There's no reason why the provision can't operate as applied to privately owned waste. [00:05:48] Speaker 05: Your honor, it would certainly address our concerns about the language of the license if you were to sever the unlawful language and that is very well accepted remedy in the court. [00:06:01] Speaker 05: The only problem here is that we also ask the NRC [00:06:06] Speaker 05: not to go ahead with this licensing proceeding in the first place because the license applicant was asking the NRC to take action that was contrary to the Nuclear Waste Policy Act. [00:06:18] Speaker 05: That would not be resolved and we would ask you to declare that the NRC [00:06:23] Speaker 05: should not entertain license applications that are clearly unlawful. [00:06:28] Speaker 05: At the time, we asked the NRC to sever and to tell the applicant, you may not include that provision. [00:06:35] Speaker 06: Excuse me. [00:06:37] Speaker 06: Why, if we granted the relief that Judge Kansas suggests, wouldn't that solve the problem completely? [00:06:45] Speaker 05: It would not solve the problem. [00:06:48] Speaker 05: Understand why. [00:06:49] Speaker 05: That the NRC went ahead with a licensing procedure [00:06:54] Speaker 05: that included an unlawful provision. [00:06:58] Speaker 06: But if the unlawful provision is gone, what's left? [00:07:06] Speaker 05: What's left is that the NRC has stated that it can issue a license that violates the law if the law changes. [00:07:15] Speaker 05: And that's where we get to the separation of powers problem. [00:07:18] Speaker 06: Before you go to separation of powers, let me just give you a slight modification of Judge Katz's question. [00:07:23] Speaker 06: Suppose we said, instead of excising that provision, suppose we said in our opinion that our opinion denying the petition is based on the assurances of the United States government that the unlawful provision will never be implemented. [00:07:42] Speaker 06: Wouldn't that do it too? [00:07:45] Speaker 05: Honor, I still think that the law requires the NRC to issue a license. [00:07:52] Speaker 05: That is lawful at the time of issue. [00:07:54] Speaker 06: So then your answer to Judge Kansas's question is no, right? [00:07:58] Speaker 06: It wouldn't satisfy. [00:07:59] Speaker 05: No, no. [00:07:59] Speaker 05: But separating that provision would address the problem significantly. [00:08:06] Speaker 07: May I ask a question? [00:08:07] Speaker 07: Ms. [00:08:09] Speaker 07: Curran, I think there might be a more simple way to approach this issue, and that is by focusing on the language of the contention that Beyond Nuclear filed. [00:08:18] Speaker 07: And so we are here reviewing the Commission's decision to uphold the Board's decision to reject the contention. [00:08:29] Speaker 07: And the words of the contention are as follows. [00:08:31] Speaker 07: The proceeding must be dismissed because the central premise of ISP's application that the US Department of Energy will be responsible for the spent fuel that is transported to and stored at the proposed interim facility violates the NWPA. [00:08:49] Speaker 07: That was the contention. [00:08:51] Speaker 07: So on its face, doesn't this contention fail to raise a genuine dispute about a material issue? [00:08:58] Speaker 07: Because it says the central premise is that the DOE will be responsible for the spent fuel that is transported and stored at the proposed interim facility. [00:09:07] Speaker 07: It doesn't acknowledge the alternative way. [00:09:09] Speaker 07: And so it's not the central premise. [00:09:12] Speaker 07: And so this contention was correctly rejected. [00:09:14] Speaker 07: We don't have to get into any of these legal arguments about [00:09:18] Speaker 07: you know, is this a legal thing or not? [00:09:20] Speaker 07: This contention fails. [00:09:23] Speaker 05: But Your Honor, the basis for the NRC's rejection of the contention was that there's no legal dispute that the license provision is currently unlawful, but the provision could never be fulfilled because the NRC and GOE would [00:09:42] Speaker 05: would forbear from doing it. [00:09:44] Speaker 05: So that is the ruling that we are appealing. [00:09:47] Speaker 07: The commission said in its ruling, beyond nuclear has not shown error in the board's interpretation of the legal force of the disputed license condition. [00:09:55] Speaker 07: So why can't we just uphold that and say your contention fails? [00:09:58] Speaker 05: Well, that's where the Catch 22 comes in here. [00:10:01] Speaker 05: The NRC said to, when we file a hearing request, we have to show there's a dispute with a licensed applicant about what the law requires. [00:10:10] Speaker 05: And the NRC said, [00:10:11] Speaker 05: Well, there's no dispute here. [00:10:13] Speaker 05: Everyone agrees that this license condition would be unlawful if under current law, but nobody's going to fulfill it or enforce it. [00:10:22] Speaker 05: So we were caught in a catch-22. [00:10:24] Speaker 05: We can't win that game. [00:10:26] Speaker 07: Well, my understanding is in the board's decision, it noted that you filed your contention [00:10:35] Speaker 07: The NRC said there's no dispute about the illegality of one portion of this. [00:10:41] Speaker 07: And you didn't amend your contention. [00:10:43] Speaker 07: So the contention that they rejected fails. [00:10:49] Speaker 07: You didn't amend your contention to take this into account. [00:10:52] Speaker 07: So what we have before us is a contention that was rejected and apparently properly so on its face. [00:10:59] Speaker 07: I don't know that we need to get into any of this other argument. [00:11:03] Speaker 05: But the contention said that it was the central claim of the license application. [00:11:10] Speaker 05: And that is a proper reading. [00:11:12] Speaker 05: And the central claim is invalid, that the DOE can store spent fuel. [00:11:20] Speaker 05: We did not argue. [00:11:20] Speaker 07: But it's not the central claim because there's an alternative way to fund this, which is [00:11:26] Speaker 07: through people were, I guess, non DOE title holders spent fuel. [00:11:32] Speaker 07: So it's not the central premise and your contention failed. [00:11:37] Speaker 05: But the contention [00:11:41] Speaker 05: said that there is a claim in this license application that violates the Nuclear Waste Policy Act. [00:11:48] Speaker 05: We did not contest the lawful part of the license application that would allow private storage of spent fuel. [00:11:56] Speaker 07: I understand what you intended, but you didn't say that in your contention. [00:11:59] Speaker 07: And the contention on its face, in my opinion, seems inadequate. [00:12:04] Speaker 05: Your Honor, I also want to point out that we filed a motion to dismiss the entire proceeding. [00:12:10] Speaker 05: and the NRC referred it to the NRC's hearing notice is supposed to allow us an opportunity to litigate whether the license application fulfills the NRC's regulations for protection of health and safety. [00:12:30] Speaker 05: The issue of whether this license included a provision that violated the Nuclear Waste Policy Act was not really encompassed by the hearing notice [00:12:39] Speaker 05: Therefore, we filed a motion to dismiss the proceeding which the NRC refused to deal with. [00:12:46] Speaker 05: It would not rule on our claim and said, we're going to buck this to the licensing board. [00:12:53] Speaker 05: But our claim was not a dispute over whether NRC satisfy the NRC's, whether ISP satisfy the NRC's safety requirements. [00:13:03] Speaker 05: It was a threshold claim that the entire proceeding [00:13:07] Speaker 07: was unlawful and we're asking you to rule on that threshold. [00:13:10] Speaker 07: No, I understand. [00:13:11] Speaker 07: So, but are you conceding that if the contention fails, then all that's before us is your motion to dismiss based on this? [00:13:18] Speaker 07: Yes. [00:13:19] Speaker 07: Okay. [00:13:19] Speaker 07: Thank you. [00:13:21] Speaker 02: Thank you. [00:13:22] Speaker 02: We'll give you a few minutes. [00:13:23] Speaker 04: Mr. Taylor. [00:13:38] Speaker 10: Mr. Taylor, please, the court. [00:13:41] Speaker 10: I'm Wally Taylor, representing the Sierra club and a coalition led by don't waste Michigan. [00:13:47] Speaker 10: Very large actually represents building Michigan and he is here in spirit. [00:13:51] Speaker 10: But we really briefed this case at the court's direction. [00:13:55] Speaker 10: So I'm arguing for all of the parties. [00:14:00] Speaker 10: We raised several issues relative to the contentions we filed in the NRC adjudicated proceeding. [00:14:07] Speaker 10: We also filed separate petitions for review regarding the environmental impact statement. [00:14:13] Speaker 06: Yeah, I want to ask you about those. [00:14:16] Speaker 06: You have, as I count, seven of those, right? [00:14:20] Speaker 06: You have seven challenges to the environmental impact statement. [00:14:25] Speaker 06: And are this court's November 10 [00:14:32] Speaker 06: order directed that you include in your briefs an argument about jurisdiction, right? [00:14:39] Speaker 06: Yes. [00:14:40] Speaker 06: And you didn't, right? [00:14:42] Speaker 10: Not in the initial brief. [00:14:44] Speaker 06: Was there a reason for that? [00:14:46] Speaker 06: Pardon? [00:14:47] Speaker 06: Was there a reason for that? [00:14:51] Speaker 06: Why didn't you do it? [00:14:54] Speaker 10: Primarily because of the page number of the word limitation. [00:15:00] Speaker 06: And you were under direct order to include a jurisdictional discussion in your opening brief. [00:15:09] Speaker 10: We just overlooked it, Your Honor, and we're concerned about getting our arguments in the word limit. [00:15:16] Speaker 06: Do you know that, I mean, I know you've got eight pages on it in your reply brief, but are you aware of this circuit's case law that raising arguments in a reply brief for the first time is unacceptable? [00:15:27] Speaker 06: It's a waiver of the argument. [00:15:29] Speaker 10: We were responding to the argument of the NRC and the United States. [00:15:36] Speaker 06: But your jurisdictional argument should have been in your opening brief. [00:15:40] Speaker 06: It's too late to include it in the reply brief and I didn't even see in your reply brief any explanation for this. [00:15:48] Speaker 06: Usually when a party waves or fails to that, they put in an argument about trying to explain to the court, well, [00:15:55] Speaker 06: We had these problems. [00:15:57] Speaker 06: It's not jurisdictional, but you have none of that. [00:16:00] Speaker 06: In fact, your reply brief doesn't even acknowledge. [00:16:03] Speaker 06: The government pointed out in its brief that this court had ordered you to include the jurisdictional analysis in your opening brief. [00:16:11] Speaker 06: You hadn't done it, and the government says that's sufficient alone for us to dismiss these claims. [00:16:18] Speaker 06: No response to that in your reply brief. [00:16:23] Speaker 10: Of course, the court can [00:16:25] Speaker 10: I'm going to address the jurisdiction issue at any time. [00:16:29] Speaker 02: But we would ask the court to... Objections to jurisdiction are not forfeitable. [00:16:37] Speaker 02: Assertions of jurisdiction are forfeitable. [00:16:48] Speaker 09: That's my explanation, Your Honor. [00:16:49] Speaker 09: I'm sorry. [00:16:50] Speaker 09: Okay. [00:16:51] Speaker 06: Well, [00:16:53] Speaker 06: Well, why don't you go ahead? [00:16:56] Speaker 06: The court will decide this question, but you heard my question. [00:17:01] Speaker 06: It looks to me like just a classic forfeiture of an argument. [00:17:05] Speaker 06: It's not even that you failed to include it until your reply brief, it's that you were directly ordered to include it in your opening brief. [00:17:14] Speaker 06: And the government invoked waiver and you didn't respond. [00:17:17] Speaker 06: It's difficult for me to see how this court can hear any of those claims [00:17:22] Speaker 06: challenges to the EIS? [00:17:27] Speaker 09: Well, in the few seconds I have left, I would note that we. [00:17:34] Speaker 06: Well, then let me let me just help forward your argument. [00:17:36] Speaker 06: So you have six. [00:17:38] Speaker 06: If that's right, that leaves six challenges to the denial of intervention. [00:17:42] Speaker 06: That's the way I count it. [00:17:43] Speaker 06: You have six separate challenges to the denial of intervention. [00:17:48] Speaker 06: Which of those do you think? [00:17:49] Speaker 06: And those are properly before us. [00:17:51] Speaker 06: Which of those do you think, which one is your most persuasive? [00:17:56] Speaker 10: I was going to argue the transportation issue, Your Honor. [00:17:58] Speaker 06: That's the most persuasive? [00:18:00] Speaker 10: I believe that's the one that's, that, uh, Sierra Club and Dole West Michigan both. [00:18:05] Speaker 06: Well, why don't you speak about that then? [00:18:07] Speaker 06: Sure. [00:18:07] Speaker 06: Okay. [00:18:08] Speaker 10: Yes. [00:18:09] Speaker 10: Um, that was Sierra Club's contention number four. [00:18:14] Speaker 10: And, um, we presented the expert opinions of Dr. Marvin Resnickoff and Dr. Gordon Thompson. [00:18:20] Speaker 10: The environmental report section 4.2.6 and 4.2.8 did not adequately address those opinions. [00:18:30] Speaker 10: The environmental report does nothing more than create a dispute, justifying an evidentiary hearing, and that's sufficient for a contention to be admitted. [00:18:40] Speaker 10: We did set forth the standards for admission of contention. [00:18:48] Speaker 10: contention also. [00:18:50] Speaker 06: Um, well, the commission, the commission said, as I understand what the commission said about this, it said, I mean, I, I get your point. [00:18:58] Speaker 06: Transportation is a big part of this, but the commission said that, um, that, um, ISP had identified a dozen representative roots, a dozen representative roots, and you know where explain why [00:19:17] Speaker 06: That analysis was defective. [00:19:21] Speaker 06: And you haven't said in your brief why that commission finding about the inadequacy of your response was arbitrary and capricious. [00:19:33] Speaker 10: There were two problems. [00:19:36] Speaker 10: First of all, there was a claim that transportation issues are irrelevant. [00:19:40] Speaker 06: And then also that... Could you answer my question? [00:19:44] Speaker 06: about the representative roots. [00:19:46] Speaker 06: Specifically, please respond to that person. [00:19:51] Speaker 06: You didn't explain, you didn't say to the commission why you thought there was anything wrong with that analysis, right? [00:19:57] Speaker 10: I think we pointed out that the agency and ISP can't get by with saying, well, we don't know where the ropes are going to be because the weights hasn't been shipped yet. [00:20:14] Speaker 10: of argument is that it's going to be my rail. [00:20:18] Speaker 10: We know where the rail lines are. [00:20:21] Speaker 10: So there's much imagination to know where the impacted communities and individuals will be. [00:20:32] Speaker 10: And that's why we felt that the the commission was wrong in in in arguing that because [00:20:42] Speaker 10: the routes haven't been officially designated, but it was okay for ISP to just say that we don't know what the routes are going to be, so therefore we don't have to consider transportation. [00:21:04] Speaker 06: Are there any other of these 6 you want to focus on in your time? [00:21:12] Speaker 10: And as far as our contention on the transportation, those are the two main points that we did address the allegations in the environmental report with expert testimony. [00:21:29] Speaker 10: And that is sufficient for the admission of the contention and that the routes [00:21:38] Speaker 10: that we can say that ISP should have done a better job and that the Commission should have allowed that contention into evidence. [00:22:11] Speaker 04: You are Mr. Caner for baskin. [00:22:14] Speaker 03: Yes. [00:22:14] Speaker 03: Good morning. [00:22:15] Speaker 03: Good morning. [00:22:16] Speaker 03: And may it please support Alan Canter for petitioners baskin land and minerals and a permit based on land and royalty owners with court's permission of reserve for a minute. [00:22:28] Speaker 03: Um, the NRC air in denying baskins motions reopen the record and file a new contention based on new information. [00:22:38] Speaker 03: in the DEIS that was not in ISP's environmental report. [00:22:43] Speaker 03: The information was that the privately titled waste would not involve reimbursement to local government for emergency response and preparedness as well as for infrastructure improvements. [00:22:58] Speaker 03: As you know this the original filing was for DOE only facility with DOE [00:23:07] Speaker 03: the NRC's general standards. [00:23:11] Speaker 03: Baskin's new contention was focused on local site-specific impact and local cost-benefit analysis, which NRC is obligated by its regulations to evaluate. [00:23:24] Speaker 03: Specifically, we focus most of our new information on the stretch of the Permian Basin within the 50-mile radius [00:23:36] Speaker 03: of this facility, we and the NRC and ISP agreed that that route will definitely be used. [00:23:46] Speaker 03: In that sense, the focus on site-specific information distinguishes our claim from that in the Sierra Club, which is talking about national information. [00:23:57] Speaker 03: What we're looking for in the site-specific information is the fact that we don't really fully know what [00:24:04] Speaker 03: the rules are going to be. [00:24:06] Speaker 03: But they are obligated to at least explain the local issues with respect to emergency preparedness. [00:24:14] Speaker 07: Mr. Cantor, why weren't all of your claims ascertainable from the E.R., from the environmental report? [00:24:22] Speaker 03: It wasn't ascertainable. [00:24:26] Speaker 03: I mean, I think the assumption was that DOE standards would apply across the board. [00:24:33] Speaker 03: the DOE transport standard would be utilized across the board. [00:24:39] Speaker 03: The ERC says we should have seen this coming. [00:24:44] Speaker 03: I think it's just as likely that it would have been the DOE's regulations. [00:24:51] Speaker 03: And frankly, this ascertainability is not a part of the rules that we're dealing with here. [00:24:59] Speaker 03: They just ask if the language is different. [00:25:01] Speaker 03: The order we're appealing from the commission specifically says we agree the language is different. [00:25:09] Speaker 02: You need to show good cause, right? [00:25:12] Speaker 02: Sorry, you need to show good cause. [00:25:16] Speaker 02: Part of that is that the contention wasn't fairly apparent. [00:25:22] Speaker 02: Correct. [00:25:23] Speaker 02: I don't want to fight over the adjectives. [00:25:25] Speaker 03: Correct. [00:25:27] Speaker 03: And we also feel that this was, unlike many other NRC proceedings, this was a brand new thing, very unique, CISF. [00:25:37] Speaker 03: There are regulations for the creation of an IS, FSI, such as we have in the Bull Creek case, and they said Congress knew about this. [00:25:47] Speaker 03: There are also regulations for an MRS. [00:25:50] Speaker 03: This was new. [00:25:51] Speaker 03: It was constantly changing. [00:25:52] Speaker 03: The NRC in its order said, well, we can't stop them from changing the application. [00:25:58] Speaker 03: So I think that to shift the burden of ascertainability to us in addition to the other burdens, this doesn't make sense in the context of this language, the pedigree of the program over time. [00:26:15] Speaker 02: The environmental report [00:26:19] Speaker 02: on its face contemplates that this might have shipments involving DOE waste or you might have shipments involving private waste. [00:26:33] Speaker 02: Indeed, the latter one, as we discussed earlier, is the only one that could happen. [00:26:37] Speaker 02: DOE would be responsible, as I understand it, [00:26:43] Speaker 02: making the safety arrangements if it's DRE waste, but not otherwise. [00:26:49] Speaker 02: So why doesn't that pretty clearly signal that someone else is going to have to make arrangements for safe transportation if it's privately owned waste and [00:27:01] Speaker 02: If that's not the federal government, who else is it going to be? [00:27:05] Speaker 03: I'll tell you exactly why later. [00:27:06] Speaker 03: Congress looked at the issue of transportation in the NWPA. [00:27:11] Speaker 03: They looked at transportation with respect to taking it to the final repository. [00:27:17] Speaker 03: This is not that. [00:27:18] Speaker 03: Congress concluded the title should go to DOE and they should be responsible for transportation. [00:27:27] Speaker 03: This whole [00:27:29] Speaker 03: a license predicated on Congress changing the law to allow DOE to put its waste in a privately owned facility and commingle it with privately owned waste, privately titled waste. [00:27:43] Speaker 03: My position is, why wouldn't that law require DOE to do all the transport? [00:27:49] Speaker 03: DOE has a slew of regulations that are much stricter than anything NRC has done. [00:27:55] Speaker 03: But to say that that is an unreasonable assumption and even to get into the subjective state of mind of the people filing contentions, I find sort of inconsistent. [00:28:07] Speaker 02: So I'm sorry, are you saying there was a there is a legal requirement for DOE to. [00:28:17] Speaker 02: Arrange for safe transportation, even when the waste is privately owned, or are you saying that's just [00:28:24] Speaker 02: so obvious that you couldn't even foresee that the states might have to. [00:28:29] Speaker 03: If you were shipping to the final repository, I think we all agree the law is that DOE would do the shipping. [00:28:38] Speaker 03: I think we also agree that this license has a hypothetical in it. [00:28:43] Speaker 03: What if Congress passes a law allowing DOE to ship weight? [00:28:47] Speaker 03: Well, it follows that they would probably have DOE take title to that private waste [00:28:54] Speaker 02: But I mean, it's no secret that we're talking about something other than shipment to the final repository. [00:29:05] Speaker 02: The Yucca Mountain's been on ice for 20 years. [00:29:09] Speaker 03: But are we really? [00:29:10] Speaker 03: I mean, Congress, with Yucca Mountain and the NRC, Congress decided it should go to a single-use location, deep geological repository. [00:29:20] Speaker 03: The NRC is now saying, [00:29:22] Speaker 03: We can put this on top of the permian base and rolling gas activities are going on. [00:29:26] Speaker 03: We can put it basically on a parking lot. [00:29:28] Speaker 03: We can put these tasks on top of the parking lot. [00:29:32] Speaker 03: I don't know that one could reasonably assume that transportation would be left to private parties. [00:29:38] Speaker 03: As your honor recalls, from Bull Creek, there was a facility that was created. [00:29:44] Speaker 03: It ultimately was not usable because of different issues. [00:29:50] Speaker 03: Do you really think any private entity or utility would take the risk of shipping its waste? [00:29:55] Speaker 03: If there's going to be a change in the law, they're going to have POE do the shipping, just like they did in the NWPA, that is not [00:30:02] Speaker 03: a far fetched reading of this application, one that is unique. [00:30:09] Speaker 03: And so I think a little bit of deference and ever changing as the NRC admits. [00:30:15] Speaker 03: So a little bit of latitude, I think, is owed to the petitioner who's trying to focus on site-specific issues, which the NRC says are essential in their regulations. [00:30:27] Speaker 03: There are numerous places where they say that. [00:30:30] Speaker 03: We raise site-specific issues, and they refuse to hear any of them. [00:30:34] Speaker 03: All we request is that we have an opportunity to hear this. [00:30:38] Speaker 03: And one of the problems, Your Honor, you said earlier, and I'm not second-guessing or arguing outside my lane, you suggested, well, we could just excise the DOE part and go forward. [00:30:51] Speaker 03: The only problem with that is you have to understand the history of this proceeding. [00:30:56] Speaker 03: It started as a DME only facility. [00:30:59] Speaker 03: When you started commingling private waste, you necessarily created a certain element of confusion. [00:31:05] Speaker 03: The burden was on ISP or the NRC to clarify for people because NEPA, the Atomic Energy Act, all required people to have an opportunity to participate [00:31:21] Speaker 03: If they're not going to be clear in the first instance, they're not going to be thorough. [00:31:26] Speaker 03: Because basically, if you're going to file a contention, you're supposed to go to the environmental report, right? [00:31:33] Speaker 03: You're supposed to look at specific language, object to that language, explain all the information that you're going to use associated with that language. [00:31:45] Speaker 03: Where would we have pointed to in the environmental report that says, in fact, [00:31:50] Speaker 03: for emergency response preparedness for privately titled waste. [00:31:54] Speaker 03: And if there's not, that changes the cost benefit analysis. [00:31:58] Speaker 03: Right now, the NRC says it's a small to moderate benefit to this area in the Permian Basin to have this facility here, presumably, I guess, taxes or something. [00:32:10] Speaker 03: Nobody can say that with a straight face. [00:32:12] Speaker 03: I mean, you read Tommy Taylor's declaration. [00:32:16] Speaker 03: This is a huge burden, a huge burden on the community. [00:32:20] Speaker 02: Thank you, Judge Tatel. [00:32:21] Speaker 02: Anything else, Judge Pan? [00:32:22] Speaker 02: No. [00:32:23] Speaker 02: Thank you. [00:32:23] Speaker 02: We'll give you a minute or two on rebuttal. [00:32:27] Speaker 02: Let's hear from the government. [00:32:40] Speaker 04: Whenever you're ready. [00:32:43] Speaker 11: May it please the court? [00:32:45] Speaker 11: My name is Andrew Averbeck. [00:32:46] Speaker 11: United States Nuclear Regulatory Commission. [00:32:50] Speaker 11: here today on behalf of both the NRC and the United States. [00:32:54] Speaker 11: Each of the petitions for review in this matter should be dismissed or denied for a variety of reasons. [00:33:01] Speaker 06: Could you try to speak up? [00:33:04] Speaker 02: Yeah, I'm in trouble as well. [00:33:07] Speaker 06: The podium adjusts, so if that's easier for you. [00:33:13] Speaker 11: Each of the petitions for review should be dismissed or denied for a variety of reasons ranging from a lack of jurisdiction [00:33:20] Speaker 11: to a failure to identify, but it'll improve any error by the agency. [00:33:25] Speaker 11: I'd like to begin today by talking about the court's jurisdiction to review the NRC's efficiency. [00:33:30] Speaker 06: I just said, before you get into jurisdiction, I just have a factual question. [00:33:34] Speaker 06: So maybe you can answer it. [00:33:39] Speaker 06: This site's going to have about 40,000 tons of waste, right? [00:33:45] Speaker 06: Isn't that right? [00:33:46] Speaker 06: And there's another one 40 miles away that's going to have more waste? [00:33:51] Speaker 06: Is that right? [00:33:52] Speaker 11: That's generally correct. [00:33:53] Speaker 11: I would just know that this is the first phase of the first facility, but there is a potential for expansion. [00:33:58] Speaker 06: Yeah, I understand. [00:33:59] Speaker 06: Is this all the nation's current nuclear waste from power plants, or a percentage of it? [00:34:06] Speaker 11: It's a substantial percentage. [00:34:07] Speaker 11: I don't have the exact figures, but it is a lot. [00:34:13] Speaker 11: And certainly, the amount of nuclear waste that gets generated increases over time because of the power operating back. [00:34:19] Speaker 11: But this is a substantial amount that has been generated. [00:34:26] Speaker 11: Let me begin with jurisdiction. [00:34:28] Speaker 11: Because I think that provides the lens through which to view all the issues that have been presented today. [00:34:36] Speaker 11: And I'll begin by saying that under the Hobbs Act and the Atomic Energy Act, this court's jurisdiction to review licensing decisions of the NRC, i.e. [00:34:46] Speaker 11: proceedings in which we granted a license and for which a hearing is available, [00:34:50] Speaker 11: requires a petitioner first to come to the agency and invoke its adjudicatory proceedings under 10 CFR Part 2. [00:34:58] Speaker 11: And this court stated in NRDC versus NRC that the way to get to this court is to submit admissible contention. [00:35:08] Speaker 11: And I'll note that there are sort of two offshoots of it. [00:35:12] Speaker 11: One is that if you're admitted to the proceeding, then you get to appeal the final [00:35:17] Speaker 11: license that's issued by the NRC. [00:35:20] Speaker 11: If you're not anymore in a situation where you have the immediate right with 60 days of the denial of your request to intervene, you have the right to seek review of the agency decision that denies the request to intervene. [00:35:34] Speaker 11: And that's what, in the main, the petitioners did with regard to their first wave of petitions. [00:35:39] Speaker 11: And we don't deny that those petitions for review [00:35:43] Speaker 11: properly before the court. [00:35:45] Speaker 11: But with regards to the second wave, the ones pertaining to the license itself or the EIS, those are not matters that are appealable to this court, because the sole remedy for someone who's not admitted as a party is to seek judicial review of the decision denying party status. [00:36:05] Speaker 11: Now, that has immediate consequences for this case, and it has two sets of immediate [00:36:11] Speaker 11: First is that conditions sort of well purchase the following conditions at post state issuance of the license. [00:36:18] Speaker 11: Those the court should dismiss a lack of jurisdiction. [00:36:22] Speaker 11: Um, and let me just note with respect to that on page four of the reply brief, don't waste Michigan and Sierra club do assert that well, this rule that I've articulated somehow doesn't apply to NEMA claims because the M R D C case [00:36:37] Speaker 11: didn't involve NEPA. [00:36:38] Speaker 11: I just want to point out to the court that that's not correct. [00:36:40] Speaker 11: In fact, the only issue that was before the court in NRDC was a NEPA issue. [00:36:45] Speaker 11: And the court made the statement that I referred to here, talking about how to get to this court, you need to find admissible detention. [00:36:52] Speaker 11: But the second takeaway from the sets of rules that are articulated and their applicability to this case is that the court's review here is confined to the question about whether the agency acted reasonably when it [00:37:06] Speaker 11: denied admission of various requests to intervene. [00:37:10] Speaker 11: And when considering that question, we need to understand that what the agency did there was to interpret its own rules concerning contention admissibility, and in particular, 10 CFR 2.309, and in applying those rules to the various contentions that have been raised. [00:37:25] Speaker 11: Now, petitioners have raised a number of arguments in their briefs, and we've heard some of them today as well, suggesting that somehow the NRC's rules aren't fair. [00:37:35] Speaker 11: Well, I want to make clear two points about that. [00:37:39] Speaker 11: First, that's not what this case is about. [00:37:41] Speaker 11: This case is about the application of the NRC's rules to this particular set of circumstances. [00:37:52] Speaker 11: This court has repeatedly endorsed the NRC's rules. [00:38:00] Speaker 02: We understand that. [00:38:06] Speaker 02: I know I promised two points, but I'll raise a third one, too. [00:38:08] Speaker 02: And this argument doesn't address the beyond nuclear arguments or the Fasken argument? [00:38:14] Speaker 11: Well, I think it's fair to say that that question raises a question of law that the agency looked at de novo. [00:38:21] Speaker 11: And in that sense, we're not talking about reducing the application of rules. [00:38:28] Speaker 11: We're not talking about arbitrary and coercive review or use of discretion. [00:38:31] Speaker 11: We're talking about the agency's religion. [00:38:34] Speaker 11: I certainly am happy to speak to that if the court has questions about it. [00:38:40] Speaker 02: I mean, you can use your time however you want. [00:38:42] Speaker 02: It's just narrowing the scope of what's before us for one of the three petitioners. [00:38:47] Speaker 02: So you're going to have to address each of the three pieces anyway. [00:38:52] Speaker 11: Let me just finish the jurisdictional point and then I'll move from one to the next. [00:39:00] Speaker 11: The idea that's been asserted here that somehow [00:39:03] Speaker 11: the environmental impact statement is immune from judicial review, or comments on the environmental impact statement are immune from judicial review, is incorrect. [00:39:13] Speaker 11: And the reason I say that is because the rules are set up. [00:39:15] Speaker 11: And again, this is rules that have survived this court's script. [00:39:19] Speaker 06: I'm sorry. [00:39:20] Speaker 06: I didn't understand what you just said. [00:39:22] Speaker 06: That somebody's arguing they're immune from judicial review? [00:39:25] Speaker 11: The argument has been raised that the NEPA comment process [00:39:31] Speaker 11: is essentially a dead end for petitioners who seek judicial review of the contingency's disposition of those comments. [00:39:39] Speaker 11: And I want to make clear that that's not the case. [00:39:42] Speaker 06: Is your point that we don't have jurisdiction over the challenges to the environmental impact statement? [00:39:47] Speaker 06: That's one of my points. [00:39:48] Speaker 06: That's your point, right? [00:39:49] Speaker 11: Yes. [00:39:51] Speaker 11: I'll move on from that then. [00:39:52] Speaker 11: Yeah, OK. [00:39:53] Speaker 11: I think we got that. [00:39:55] Speaker 11: Let me begin with beyond nuclear. [00:40:00] Speaker 11: I want to make clear that the provision at issue here is not a grant of authority to the NRC to do anything. [00:40:08] Speaker 11: Rather, it's a restriction on what, not a grant of authority to the licensee to do anything. [00:40:14] Speaker 11: It's a restriction on what the licensee is permitted to do. [00:40:19] Speaker 11: And it's a means of ensuring as the NRC's mission necessitates [00:40:26] Speaker 11: that there is financial assurance provided by the licensee that they're not simply going to walk away, that they're not going to declare bankruptcy tomorrow and leave the nation with stranded waste. [00:40:36] Speaker 11: So what they've done or what the agency did is to address contingencies that may arise, perhaps because Congress decides to revisit this issue, and to make clear that no matter who the title holder is of the fuel that's being stored, that there will be financial assurance provided [00:40:55] Speaker 11: So it's to ensure the public health and safety. [00:40:57] Speaker 11: And that's what the NRC is in the business of doing. [00:40:59] Speaker 11: This condition is a means not of granting affirmative authority to do more than what the law provides, but rather to just make sure that there's no concern that licensing won't have funds to ensure obligation. [00:41:15] Speaker 07: So I was wondering if, so the position that you're stating now, [00:41:19] Speaker 07: is also what is reflected in the commission's ruling on this issue. [00:41:24] Speaker 07: I was just wondering if we owe any deference to an agency's interpretation of its own license, a license that the agency issued. [00:41:34] Speaker 07: That doesn't seem to fall neatly into any of the deference doctrines, yet it seems to be something that [00:41:41] Speaker 07: the agency issued, the agency has stated what it meant when it issued the license. [00:41:46] Speaker 07: And I just am wondering if we owe any deference to that. [00:41:48] Speaker 11: I don't know that a traditional deference doctrine applies, but as the court's question before, I think suggests, the NRC will abide by the representations it makes to the court or that represented a statement in a judicial decision that we expect the NRC to adhere to its statement made [00:42:07] Speaker 11: in its commission decision that it will not authorize the storage of DOE-titled fuel if that's illegal, as long as it's legal. [00:42:17] Speaker 11: So in that sense, I think that the commission's statement that this is not permissible is entitled to... For the DOE to take title to fuel, would it have to go through the NRC? [00:42:29] Speaker 07: Would the NRC have to approve that? [00:42:31] Speaker 11: DOE to take title to the fuel. [00:42:34] Speaker 07: Because you're saying that you would stand by what you said in your license, but I'm wondering if you have any role in that. [00:42:41] Speaker 11: I think that there is a technical matter. [00:42:42] Speaker 11: This is outside the purview of the NRC's. [00:42:46] Speaker 11: Jurisdiction as to what DOE is or is not doing, but what I can say is that if the licensee licensees requirement is to provide proof of contract and if the contract that it relied on in order to satisfy the condition were illegal, the NRC will say no and give this to us. [00:43:02] Speaker 11: This isn't enough. [00:43:03] Speaker 11: You can't be. [00:43:04] Speaker 11: you need to have financial assurance and financial assurance via an instrument that's illegal doesn't satisfy your application. [00:43:11] Speaker 07: So that would have to go through the NRC again if there were actually a contract? [00:43:14] Speaker 11: It wouldn't have to go through the NRC, but the NRC would enforce pursuant to its enforcement program requirements of all licensees. [00:43:21] Speaker 07: So you're saying somebody would sue and then it would come before the NRC and you would say that's not? [00:43:25] Speaker 11: That's one vehicle. [00:43:27] Speaker 11: I think another vehicle is a suit by someone who doesn't like this outcome. [00:43:31] Speaker 11: under the Nuclear Waste Policy Act. [00:43:32] Speaker 11: There's a specific judicial review provision of the NWPA. [00:43:36] Speaker 11: And if someone wanted to make the assertion that, hey, DOE, you can't do that, it wouldn't necessarily be a case against the NRC. [00:43:42] Speaker 11: It would certainly be judicial recourse in that circumstance. [00:43:46] Speaker 02: Even apart from the question of who might bring what lawsuit, your position is that notwithstanding the reference to government-owned waste in this [00:43:59] Speaker 02: condition, it is not presently, it would not be presently lawful for this licensee to make arrangements with regard to government owned nuclear waste. [00:44:10] Speaker 11: That's correct, Your Honor. [00:44:12] Speaker 11: And the one point I'll make too in response to Judge Pan's question earlier is that I think it is fair to say that the central premise of this license as it's been presented to the agency and that the agency has based its evaluation on [00:44:25] Speaker 11: is in fact that it will be storing bent fuel from or to which private entities, i.e. [00:44:33] Speaker 11: NRC reactor licensees, currently own title and will continue to hold title. [00:44:37] Speaker 11: And if one were to look at, for example, the purpose and need statement in the environmental impact statement, you can see, this is on page J1070, you can see that the way that the agency has analyzed the [00:44:53] Speaker 11: project is in response to the demand of private fuel owners to have an offsite place to store spent fuel. [00:45:03] Speaker 11: Not talking about DOE taking title, talking about private licensees doing something with the fuel that they currently own title to and continue to own title to until one of the last changes. [00:45:16] Speaker 07: So do you agree with my prior line of questioning about [00:45:20] Speaker 07: focusing on the contention itself and its framing of what the central premises. [00:45:25] Speaker 07: If we agree that this is not the central premise, isn't that reason in itself to uphold what the commission did in this case? [00:45:31] Speaker 11: I think that's a fair conclusion. [00:45:33] Speaker 11: Yes, Ron. [00:45:33] Speaker 11: It's one of several, but it's certainly one of the ways the court would rule and we would have no objection. [00:45:39] Speaker 07: And if we ruled that way, would we have to address all the ins and outs of this potentially illegal application of the license? [00:45:48] Speaker 11: I don't think the court would, no. [00:45:50] Speaker 07: Because there was a statement that we would still have to decide the motion to dismiss. [00:45:55] Speaker 07: And then we'd still have to get into these issues. [00:45:57] Speaker 07: What do you think of that? [00:45:58] Speaker 11: I don't know that the core. [00:45:59] Speaker 11: I mean, first of all, let me back up on the motion to dismiss. [00:46:02] Speaker 11: There hasn't actually been any briefing about what the agency did wrong, basically, the motion to dismiss. [00:46:07] Speaker 06: I'm sorry. [00:46:07] Speaker 06: There hasn't what? [00:46:09] Speaker 11: Hasn't been any briefing or any argument from beyond nuclear about, although they reference the resolution of the motion to dismiss as one of the items that they're seeking review of, they haven't in their brief [00:46:20] Speaker 11: argued what it is that the agency did incorrect. [00:46:24] Speaker 11: We refer those arguments to the licensing board because that seemed like the appropriate thing to do. [00:46:29] Speaker 11: These are issues that we want to be able to adjudicate. [00:46:33] Speaker 11: The way we adjudicate things is through our 10 CFR 2 process. [00:46:38] Speaker 11: The motion dismissed isn't even something that's contemplated by the United States regulations. [00:46:42] Speaker 11: So in an effort to accommodate, it's the best word, arguments that had been raised and to give [00:46:49] Speaker 11: person's an opportunity to be heard, we channel those arguments to the NRC's digital process. [00:46:58] Speaker 11: I plan on moving to the next phase, and I'll support those additional questions about beyond the clear. [00:47:02] Speaker 11: Yeah, that probably makes sense. [00:47:05] Speaker 11: Let me move to the next, to the fast one. [00:47:11] Speaker 11: And the general theme of what I'd like to say is simply that the agency acted reasonably in ruling as it did, [00:47:18] Speaker 11: that the contention that had been raised was both untimely, because the various facts that had been represented as new, or in fact, either A, not new, would be certainly ascertainable from the existing record. [00:47:35] Speaker 11: And that B, even if these arguments had been timely, they still wouldn't present an admissible contention. [00:47:42] Speaker 11: Let me focus on the latter half first. [00:47:46] Speaker 11: I heard Mr. Tanner say earlier that the focus of the arguments that he wanted to make and that distinguished his claim from those presented by the Sierra Club and Domeways Michigan, and that had already been addressed by the commission, were somehow pertaining to the local flavor of the impacts that were going to be experienced in terms of transportation to and from the interim storage facility. [00:48:12] Speaker 11: The fact that Fasken has identified that somehow opened up, opened Fasken's eyes to new information here, isn't a fact that has to do with local impacts or localized impacts. [00:48:31] Speaker 11: Rather, this is at page B, I'm sorry, 4-74, the EIS, which is the AA-70. [00:48:39] Speaker 11: This comes in as part of a discussion about [00:48:42] Speaker 11: nationwide with the impact of transportation or of transportation to and from a consolidated interim storage facility will be. [00:48:51] Speaker 11: And it's talking about national impacts or the impacts on the nationwide shipment of spent fuels from Maine, Washington State, Florida to Texas. [00:49:06] Speaker 11: And what's interesting about that is that that discussion has nothing to do with [00:49:11] Speaker 11: Texas or with New Mexico or anything like that. [00:49:13] Speaker 11: It's about a nationwide shipping. [00:49:15] Speaker 11: And in fact, the page of the draft EIS was the basis for the motion to admit new information, which is page 4-75, actually says two things. [00:49:30] Speaker 11: And they're rather interesting because they illustrate that there's really no contention here to be raised or any problem that's been identified underneath it. [00:49:37] Speaker 11: The first statement is that, well, we actually don't expect any additional [00:49:41] Speaker 11: significant costs to be incurred for emergency planning or emergency preparedness along this nationwide level. [00:49:48] Speaker 11: Because in fact, those emergency preparedness costs are already being incurred by various states and municipalities as a consequence of the existing radioactive and hazardous traffic, hazardous shipment traffic across the nation. [00:50:05] Speaker 11: So we don't actually expect any additional costs. [00:50:08] Speaker 11: So to the extent that the assertion here is that, oh, there are going to be more costs. [00:50:12] Speaker 11: Well, that's belied by the text of the provision itself that Fasten is relying on. [00:50:18] Speaker 11: The second point is really just that all that statement does is a statement that talks about what will happen in terms of alleged additional costs. [00:50:31] Speaker 11: What it's really saying is that, oh, we just want to point out [00:50:34] Speaker 11: In the event that DOE were the shipper, i.e. [00:50:36] Speaker 11: in the event that we're talking about a national shipping campaign to the Yellow Mountain, there would be grants available under the Nuclear Waste Policy Act, and these aren't NWPA shipments, so therefore there will be no additional grants. [00:50:50] Speaker 11: Those aren't costs of this project. [00:50:52] Speaker 11: It's just pointing out that unlike a national shipping campaign to the Yellow Mountain, [00:50:58] Speaker 11: These are going to be costs incurred. [00:51:00] Speaker 11: These will be costs that will be incurred by distributors themselves within the federal grants. [00:51:05] Speaker 11: Essentially, there's no federal windfall, no federal backup, nothing more. [00:51:10] Speaker 11: And certainly not a cost or a deficiency in cost analysis related to this particular project. [00:51:18] Speaker 11: Let me briefly reference some of the arguments that Donald White's Michigan and Sierra made. [00:51:27] Speaker 11: Mr. Taylor, [00:51:28] Speaker 11: referred to the arguments concerning transportation as the most important ones for it to consider. [00:51:36] Speaker 11: But what I'd like to point out is simply that the argument to this board is simply that, well, the agency should have provided more, should have agreed more with the conclusions that his experts or the experts that he cited, rather than, and in particular, should have adopted the worst case scenario analysis that had been compared in connection with [00:51:58] Speaker 11: the up and out map and that somehow error for the agency to go with a different analysis. [00:52:05] Speaker 11: But that's not an recognizable criticism of an EIS, either before the agency or before this court. [00:52:12] Speaker 02: If we were reviewing the merits of the EIS and it had said, agency had said, we have all these studies and we don't find credible [00:52:26] Speaker 02: the competing study or we're not going to do a worst case analysis or whatever, and we're reviewing for arbitrariness. [00:52:33] Speaker 02: You win, no doubt. [00:52:35] Speaker 02: But this is a different posture here. [00:52:38] Speaker 02: The question is, did that study create a genuine dispute of material fact, which seems to mirror summary judgment language, just for the limited purpose of being admitted into the record. [00:52:57] Speaker 02: And if you think of it that way, and you posit different studies reaching different conclusions, and if the right analogy is to summary judgment standards in civil litigation, it should come in. [00:53:10] Speaker 02: Two points, Your Honor. [00:53:11] Speaker 11: First, I don't think that that's quite the proper analogy, and the Commission- I'm not sure it is. [00:53:16] Speaker 02: I was just struck by the language in the reg that seemed patterned on Rule 56. [00:53:21] Speaker 11: It's similar to, but I think it's important to stress that it's not. [00:53:25] Speaker 11: And the Commission has, and this is in the same set of cases that have outheld the Commission's intention and miscibility standards, it wanted to make clear that a commissioner [00:53:37] Speaker 11: or an intervener has a burden that's more stringent than summary judgment in order to raise tension before the agency. [00:53:46] Speaker 11: And then again, those rules have been addressed and challenged on appeal and confirmed. [00:53:53] Speaker 11: But what the commission's precedents have indicated, and this is what we cite in our brief, and also what the sports precedents have indicated, is that when you're coming in challenging an analysis on an environmental impact statement, [00:54:07] Speaker 11: It's not enough to just say, well, you should accept my people and disregard yours. [00:54:13] Speaker 11: You have to come in and actually say, what is wrong? [00:54:16] Speaker 11: Why would it be unreasonable for the agency to rely on the analysis that, in this case, the applicant provided? [00:54:22] Speaker 11: Why would it be wrong for the agency to rely on the analysis in the final environmental impact statement? [00:54:32] Speaker 11: You have to come in and say, it would be unreasonable because of XYZ reason. [00:54:35] Speaker 11: You have to come in and say that I have someone who knows what they're talking about, most usually an expert, saying that this analysis is inaccurate or that it's odd to a point. [00:54:48] Speaker 02: Judge Tatel, anything further? [00:54:50] Speaker 04: Okay, thank you. [00:54:52] Speaker 04: Thank you. [00:55:02] Speaker 08: Thank you may please support for intervene or in storage partners. [00:55:07] Speaker 08: Just a handful of things to go over. [00:55:08] Speaker 08: First, just a little bit of elaboration on your question. [00:55:11] Speaker 08: Just get all about the amounts and is through 40,000 empty use metric tons of uranium. [00:55:17] Speaker 08: ultimately potentially of all phases play out. [00:55:20] Speaker 08: This particular license is 5,000 MTUs and the joint appendix in 1969 identifies that. [00:55:28] Speaker 08: So just that as a threshold. [00:55:29] Speaker 08: It still seems like a big number, but go ahead. [00:55:34] Speaker 08: A few words about the Nuclear Waste Policy Act arguments. [00:55:37] Speaker 08: This license is not and should not be a mechanism to enforce DOE's compliance with the nuclear waste policy. [00:55:45] Speaker 08: If DOE were to do what the petitioners are concerned about, enter into a contract, then [00:55:51] Speaker 08: with utilities or with ISP that they say violates the Nuclear Waste Policy Act, there was a ready-made mechanism to challenge that. [00:55:59] Speaker 08: The Nuclear Waste Policy Act itself contains judicial review provisions. [00:56:02] Speaker 08: There's a number of cases out there, but the Alabama Tower case and the 11th Circuit 307 F-1300 is one of those. [00:56:10] Speaker 08: Almost the same situation here. [00:56:11] Speaker 08: DOE entered into a contract. [00:56:13] Speaker 08: Their evolving compensation allegations were that it violated the act, and the 11th Circuit ultimately struck that [00:56:20] Speaker 08: Now, that mechanism is in place. [00:56:24] Speaker 08: In response to some discussion about severing, should we just eliminate the tissue? [00:56:32] Speaker 08: Two reasons to not do that. [00:56:33] Speaker 08: One, it's not illegal for all the reasons we've described. [00:56:36] Speaker 08: This is not an authorization to do anything. [00:56:39] Speaker 08: This is a restriction on what can be done under this license. [00:56:43] Speaker 08: And secondly, it makes no sense. [00:56:46] Speaker 08: Some of the amicus, both NEI [00:56:48] Speaker 08: and even the NRDC talk about all the bills that are floating around. [00:56:51] Speaker 08: I get these alerts. [00:56:52] Speaker 08: It's too many to count. [00:56:53] Speaker 08: I'm sorry, the what? [00:56:54] Speaker 08: The bills introduced into Congress that are floating around. [00:56:57] Speaker 08: The possibility, you know, I don't think anybody in this courtroom would disagree that the nuclear waste program in the United States is broken, but there's always and continues to be efforts and, you know, potential to change that landscape. [00:57:15] Speaker 08: This was a years long, [00:57:17] Speaker 08: It's an expensive process and to, if magically, or not so magically, but something happens to change the landscape to say, well, OK, now you got to go back and do it all over again makes no sense. [00:57:29] Speaker 08: And again, because of the lack of illegality and the lack of sensibility, we don't think there should be any blue penciling going on with respect to the license. [00:57:37] Speaker 08: Um, final point on, on the new flow is policy act. [00:57:40] Speaker 08: It was some discussion about going back to the motion to dismiss, uh, and the original contentions. [00:57:44] Speaker 08: We did talk about that, uh, at some, uh, uh, in some measure at page 17 to 18 of our brief, um, uh, insurance for its partners brief and the, the, at the joint appendix, uh, at page 40 is the commission's treatment of that emotion to dismiss. [00:58:01] Speaker 08: It was procedurally improper. [00:58:03] Speaker 01: So for that reason alone, [00:58:05] Speaker 08: That's all that's left of the Nuclear Waste Policy Act arguments. [00:58:08] Speaker 08: That's yet another of what we think are many mechanisms to reject that part of the challenges here. [00:58:16] Speaker 08: Moving from that, unless there's any questions about the Nuclear Waste Policy Act, to the NEPA sort of violations, I think it's important to emphasize the standard. [00:58:26] Speaker 08: In these types of cases, everyone always sorts of recites the standards review and then moves on. [00:58:31] Speaker 08: But when you look at, I think, and with all due respect, fairly, the allegations that are being made here, all of the things that are recited about the deferential standards review. [00:58:41] Speaker 08: NEPA is a series of judgment calls, the Duncan's point they cited by the government. [00:58:47] Speaker 08: NEPA determinations are only reversible for a clear error of judgments. [00:58:52] Speaker 08: These are just disagreements about [00:58:54] Speaker 08: we wish you had done it a different way. [00:58:57] Speaker 08: This isn't the agency said black and the facts are white, right? [00:59:00] Speaker 08: This is judgment calls. [00:59:02] Speaker 08: And I think, and I would like to emphasize that the traditional deference applied in these sorts of situations is outcome determined. [00:59:09] Speaker 02: I take your point, but what's your answer to my question that all of that said the bar should be a good bit lower when the question is simply whether the submission should be admitted into the [00:59:24] Speaker 08: Two responses to that, if I may, Your Honor. [00:59:27] Speaker 08: First, I would agree with a government counsel. [00:59:29] Speaker 08: By design, it's not a summary judgment. [00:59:32] Speaker 08: It's not a local. [00:59:33] Speaker 08: It's by design. [00:59:34] Speaker 08: And secondly, the rules are not on trial here. [00:59:37] Speaker 08: The NRC's rules have been ratified over and over and over again by this court. [00:59:41] Speaker 08: There's a way that you can challenge those rules. [00:59:43] Speaker 08: You can petition for a rulemaking. [00:59:45] Speaker 08: There's all sorts of ways to do that. [00:59:46] Speaker 08: But the only thing that's at issue in this case is whether the agency reasonably applied its rules. [00:59:52] Speaker 08: And the rules, we suggest, are crystal clear. [00:59:55] Speaker 08: And when you frame it in that way, I think, again, the deference owed to the agency here is very unlike the sort of, well, is there an issue with that? [01:00:03] Speaker 08: Is there a possibility for disagreement? [01:00:04] Speaker 08: That is not the standard. [01:00:11] Speaker 08: So moving on from the standards, I really just have one more point with respect to the Fasken arguments. [01:00:17] Speaker 08: Mr. Kenner asked, well, how was I to know? [01:00:19] Speaker 08: How was I to know that there might be [01:00:22] Speaker 08: private transportation here without the backing of DOE funding. [01:00:28] Speaker 08: Well, the answer to that is in the environmental report itself, it's at page 767 of the joint appendix. [01:00:35] Speaker 08: And that talks about if DOE is involved, there'll be funding. [01:00:39] Speaker 08: Obviously, it's crystal clear from that recitation that that wasn't the only type of transportation scheme. [01:00:49] Speaker 08: So, unless there are further questions, those are the points I wanted to make. [01:00:53] Speaker 08: Thank you. [01:00:55] Speaker 02: Thank you. [01:01:04] Speaker 05: Thank you. [01:01:05] Speaker 05: I'd like to make two points. [01:01:07] Speaker 05: In response to Judge Pan, I just wanted to clarify that we do not concede that our contention was properly dismissed. [01:01:16] Speaker 05: The issue of ownership and responsibility for the cost of storing spent fuel is central, that the inclusion of any language in that license condition has to be read. [01:01:32] Speaker 05: All language is central to that license condition. [01:01:35] Speaker 05: It may be the most important thing in a license. [01:01:38] Speaker 05: Who gets the bill for this spent fuel if there are problems with this facility? [01:01:44] Speaker 05: And I think NRC would agree this [01:01:46] Speaker 05: is an extraordinarily important matter. [01:01:50] Speaker 07: If I can ask you then, the language was the central premise of ISP's application is that the US Department of Energy will be responsible for the spent fuel that is transported to and stored at the proposed interim facility. [01:02:07] Speaker 05: That's absolutely true, Your Honor. [01:02:09] Speaker 07: But this ignores that there's an alternative way to do it, which is through the privately owned [01:02:15] Speaker 05: As long as the DOE is in there, you must assume that the DOE will be the owner. [01:02:22] Speaker 05: Why? [01:02:23] Speaker 07: Why must I assume that? [01:02:24] Speaker 05: Because that is how the license is written or means it could be one party or it could be the other. [01:02:31] Speaker 05: And it's just as likely to be the federal government the way this license is written. [01:02:37] Speaker 05: All of the assertions about how this isn't going to happen are [01:02:42] Speaker 05: outside the scope of the license. [01:02:44] Speaker 02: There are two alternatives. [01:02:46] Speaker 02: One is lawful, one is unlawful, presently unlawful. [01:02:49] Speaker 02: Why would we assume that that will shake out with the unlawful alternative? [01:02:56] Speaker 06: Because the administrative procedure... Especially since that's what the government has told us. [01:03:01] Speaker 05: Why should we rely... Why is the NRC issuing a license it knows has an unlawful provision? [01:03:08] Speaker 05: That's the first question. [01:03:10] Speaker 05: Why are we having to litigate whether it's okay to put unlawful language in a license and say, no problem here. [01:03:18] Speaker 05: As Mr. Fagg said, why would we, you know, why waste our time? [01:03:25] Speaker 07: So I understand your position, but I think that you did not reflect your position in your contention. [01:03:32] Speaker 07: So I think that your contention fails on its face. [01:03:35] Speaker 05: And I respectfully disagree because every, [01:03:39] Speaker 05: Every term in that license is central. [01:03:43] Speaker 05: The DOE, the fact that there's an awful language in a license doesn't excuse the unlawful language. [01:03:52] Speaker 05: That is also clearly established in the court. [01:03:56] Speaker 05: No other language in the license must be considered central. [01:04:00] Speaker 07: Why would you use the word central if every word is central? [01:04:05] Speaker 05: Because it is a central issue in this license. [01:04:08] Speaker 05: who gets liability for this bank deal. [01:04:11] Speaker 05: That is one of the important conditions in the license. [01:04:15] Speaker 05: Okay. [01:04:16] Speaker 02: And I would, I would just thank you, Mr. Kern. [01:04:19] Speaker 05: Could I add one more briefly point to judge fatal as why, why can't we rely on the assurances of the court that you would not let this condition be fulfilled again? [01:04:30] Speaker 05: If that's, it begs the question as to why [01:04:33] Speaker 05: We're jumping over hurdles to legitimate the unlawful language. [01:04:37] Speaker 06: We understand that, yeah. [01:04:39] Speaker 06: Thank you very much. [01:04:40] Speaker 05: Thank you very much. [01:04:50] Speaker 10: I can hopefully clarify Judge Casas' questions about whether this is like summary judgment or not. [01:04:57] Speaker 10: It is not. [01:04:59] Speaker 10: The contention admission process [01:05:03] Speaker 10: is more like notice pleading and a motion to dismiss the you think it's even a lower burden. [01:05:11] Speaker 02: You think the burden is even lower in this context? [01:05:14] Speaker 10: Oh, yes. [01:05:15] Speaker 10: And in fact, the N. I. C. Riggs provide for a summary disposition after the contention is admitted and there's some record made. [01:05:27] Speaker 02: What do you do with the cases? [01:05:29] Speaker 02: Just looking at the cases cited at [01:05:33] Speaker 02: Page 52 of the red brief. [01:05:36] Speaker 02: We have a fair number of cases suggesting that even at this admissibility stage, the proponent of the evidence has to not merely suggest other ways this might have been done, but point to a deficiency. [01:05:58] Speaker 10: Well, first of all, I think we did more than that by [01:06:01] Speaker 10: I present our expert testimony and our evidence we presented. [01:06:08] Speaker 10: We have put in our initial brief, under the standard of review, cases from the agency itself, indicating that the NRC has determined that the burden on a petitioner in stating its contentions is not heavy. [01:06:28] Speaker 10: is simply insisting upon some reasonably specific factual and legal basis for the contention, and that the petitions are required only to articulate at the outset the specific issues they wish to litigate. [01:06:42] Speaker 10: The petitioner only needs to come forward with factual issues, not merely conclusory statements and vague allegations. [01:06:51] Speaker 10: there is a in court case we cited Vermont Yankee versus NRDC. [01:06:57] Speaker 10: Uh, the says that then arena simply must make a showing sufficient to require a reasonable minds to inquire further. [01:07:06] Speaker 10: I think we've done that. [01:07:07] Speaker 10: And just as the court can rule on a motion to dismiss at the pleading stage, I think you can rule here. [01:07:13] Speaker 10: I think you have the jurisdiction to do that. [01:07:15] Speaker 10: Thank you. [01:07:15] Speaker 10: That's tail. [01:07:25] Speaker 03: Thank you, your honors. [01:07:28] Speaker 03: A fair reading of the fast and contention would include all of the information contained in the Taylor affidavit, the motion itself, as well as the words of the contention itself. [01:07:42] Speaker 03: It does have a local flavor. [01:07:46] Speaker 03: We focus primarily on local issues. [01:07:49] Speaker 03: What the NRC is saying is, well, [01:07:54] Speaker 03: We don't deny that there are some national facts here. [01:07:57] Speaker 03: Remember the environmental report and the EIS. [01:08:02] Speaker 03: Talk about safe transportation nationwide, not talk about local situation. [01:08:08] Speaker 03: And they do it based on DOE shipments 100%. [01:08:12] Speaker 07: They don't talk about- Can I ask you about that? [01:08:15] Speaker 07: Because looking at JA 767, the environmental report says, if the DOE is the shipper, the federal government through DOE is responsible for providing emergency training to states, tribes, and local emergency responders along the transportation routes. [01:08:32] Speaker 07: where SNF would be transported to the CISF. [01:08:36] Speaker 07: But isn't that by implication if DOE is not the shipper? [01:08:39] Speaker 07: I mean this leaves that open so why isn't that ascertainable to you? [01:08:42] Speaker 07: Why didn't you face this in response to the environmental report? [01:08:46] Speaker 03: Okay fair enough. [01:08:48] Speaker 03: It's not because if DOE does this and they say nothing about the other scenario and if all of the safety data is based on DOE shipments in the past [01:09:02] Speaker 03: then I don't think a reasonable person should read into the if, all of this other stuff. [01:09:10] Speaker 07: But the implication is DOE isn't always the shipper. [01:09:13] Speaker 07: If DOE is a shipper, this happens. [01:09:16] Speaker 07: And I think it's ascertainable that there may be instances where DOE is not the shipper. [01:09:21] Speaker 07: Why are you not on notice that that could happen? [01:09:23] Speaker 03: I think it's ascertainable that the privately titled waste will be shipped. [01:09:28] Speaker 03: But the question is who will ship it and under what standards? [01:09:34] Speaker 03: Nothing is said in that in that in the DEIS with the environmental report, other than referencing these studies based on DOE standards, which I think we all agree are elevated what what the NRC could do, but we haven't been told what they're going to do here. [01:09:53] Speaker 03: I don't think it goes that far, and I think that the issue focuses on [01:09:58] Speaker 03: information not I mean there's no reference to ascertain ability in the order the order the order that I'm appealing specifically says we agree you know the language is different so let's just talk about two things let's talk about material differences and let's talk about uh that what the local emergency issues being beyond the scope of what we're doing and I think that that's what we focus on uh and we need to focus on [01:10:27] Speaker 03: here. [01:10:29] Speaker 03: I would say that the agency can't ignore its own site-specific rules. [01:10:33] Speaker 03: And finally, this whole premise is the agency ignoring all of its rules about ISFSIs, all of its rules about MRSs, creating a new situation to move virtually all the nation's SNF into two facilities without any of the security that we would have had [01:10:56] Speaker 03: the place like Yucca Mountain, and they do it with this whole new thing that keeps changing. [01:11:03] Speaker 03: That's extraordinary, I think, by any, and it's worth noting, every single contention was rejected in this case. [01:11:11] Speaker 03: That's unprecedented. [01:11:13] Speaker 03: Over 2,800 comments were basically ignored because the final EIS didn't reflect any changes from the original EIS. [01:11:22] Speaker 03: That is not how [01:11:23] Speaker 03: The agency and the public deserve to have this kind of decision made. [01:11:28] Speaker 03: Thank you. [01:11:29] Speaker 03: This is a question. [01:11:31] Speaker 02: Thank you. [01:11:33] Speaker 02: Thanks to all council. [01:11:34] Speaker 02: The case is submitted.