ML22070A816

3-10-22 Brief Challenging ISP License (10th Cir.)(Case No. 21-9593)

ML22070A816
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	03/10/2022
From:	Baizel B, Grantham W, Khoury P, Ogaz Z State of NM, Environment Dept, State of NM, Office of the Attorney General
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, 10th Circuit
References
010110655611, 21-9593
Download: ML22070A816 (73)

Text

No. 21-9593 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT STATE OF NEW MEXICO, ex rel. HECTOR H. BALDERAS, Attorney General and the NEW MEXICO ENVIRONMENT DEPARTMENT, Petitioners,

v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

On Petition for Review of Action by the Nuclear Regulatory Commission INITIAL BRIEF OF PETITIONERS STATE OF NEW MEXICO, ex rel. HECTOR H. BALDERAS, Attorney General, and NEW MEXICO ENVIRONMENT DEPARTMENT ORAL ARGUMENT IS REQUESTED P. Cholla Khoury William G. Grantham Zachary E. Ogaz Assistant Attorneys General ckhoury@nmag.gov wgrantham@nmag.gov zogaz@nmag.gov P.O. Drawer 1508 Santa Fe, NM 87504 (505) 717-3500 Bruce C. Baizel New Mexico Environment Department General Counsel Bruce.Baizel@state.nm.us 1190 Saint Francis Drive Santa Fe, NM 87502 (505) 490-5427 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 1

i TABLE OF CONTENTS TABLE OF AUTHORITIES................................................................................ iii STATEMENT OF RELATED CASES................................................................ vi GLOSSARY.......................................................................................................... viii INTRODUCTION.................................................................................................... 1 JURISDICTIONAL STATEMENT....................................................................... 2 Jurisdiction of Agency.......................................................................................... 2 Jurisdiction for the U.S. Court of Appeals for the Tenth Circuit.................... 2 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW....................... 4 STATEMENT OF THE CASE............................................................................... 6 I. STATUTORY BACKGROUND................................................................... 6 II.

PROBLEMS WITH ISP LICENSE NO. SNM-2515............................11 A.

NRC Closed the ISP Administrative Proceeding Before Publishing its Draft EIS and Solicitation of Public Comments......................................12 B.

New Mexico and New Mexican Communities and Stakeholders Have Expressed Concerns and Opposition to the ISP CISF.................................13

SUMMARY

OF THE ARGUMENT...................................................................18 STANDARD OF REVIEW...................................................................................19 ARGUMENT..........................................................................................................21 I. NRCS ISSUANCE OF ISP LICENSE IS ARBITRARY, CAPRICIOUS, AND NOT IN ACCORDANCE WITH THE LAW........................................21 II.

THE NRC VIOLATED NEPA AND APA IN ITS PREPARATION OF THE EIS, ROD, AND ISSUANCE OF THE ISP LICENSE..........................29 A.

NRCs Assumption That a Permanent Repository Will Be Available in the Future Is At Odds with Substantial Evidence in the EIS and Renders NRCs Reliance on ISPs Purpose and Need Statement Is Arbitrary and Capricious............................................................................................................33 B.

NRC Has Improperly Segmented and Failed to Adequately Evaluate Crucial Aspects of Transportation Impacts.....................................................36

1. Transportation of Nuclear Materials is a Necessary Connected Action Inextricably Linked to Privately Owned Away-From-Reactor Consolidated Interim Storage Facility.....................................................................................37 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 2

ii

2. NRCs Imposition of Unfunded Mandates On New Mexico Related to Transportation Is Arbitrary and Capricious...................................................40

3. NRC Must Analyze Site Specific Transportation Impacts.......................42 C. NRC Must Take a Hard Look at Any Potential Risks from Terrorist Attacks, Acts of Malice or Sabotage in a Site-Specific EIS............................44 D. The NRCs Acceptance of ISPs Site Selection Process Disregards NEPA and Requirements to Consult with Impacted States.......................................46 CONCLUSION.......................................................................................................49 STATEMENT REGARDING ORAL ARGUMENT.........................................49 CERTIFCATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQURIEMENTS AND TYPE STYLE REQUIREMENTS....52 RECORD OF DECISIONATTACHMENT 1 LICENSE NO. 2515..ATTACHMENT 2 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 3

iii TABLE OF AUTHORITIES Cases Action on Smoking & Health v. CAB, 713 F.2d 795 (D.C. Cir. 1983)....................33 All Indian Pueblo Council v. United States, 975 F.2d 1437 (10th Cir. 1992)........... 4 Baltimore Gas & Elec. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (1983).... 30, 36 Bond v. U.S., 564 U.S. 211 (2011)...........................................................................27 Bullcreek v. Nuclear Reg. Commn, 359 F.3d 536 (D.C. Cir. 2004)...................8, 22 Citizens Awareness Network, Inc. v. Nuclear Reg. Comm'n, 854 F. Supp. 16 (D.

Mass. 1994)............................................................................................................. 4 City of Arlington, Texas v. FCC, 569 U.S. 290 (2021)............................................19 City of Oxford, Ga. v. F.A.A., 428 F.3d 1346 (11th Cir. 2005)...............................31 Dont Waste Michigan, et al., Docket No. 21-1048 (D.C. Cir.).............................. ix FCC v. NextWave Pers. Commcns Inc., 537 U.S. 293 (2003)...............................33 Florida Power & Light v. Lorion, 470 U.S. 729 (1985)............................................ 4 Friends of the Bow v. Thompson, 124 F.3d 1210 (10th Cir. 1997).........................20 Idaho v. DOE, 945 F.2d 295 (9th Cir. 1991)............................................................. 6 Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory Commn, 869 F.2d 719 (3d Cir. 1989)........................................................................................................29 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989).............................................29 Motor Vehicle Mfrs Assn v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983)..20 Murphy v. Natl Collegiate Athletic Assn, 138 S. Ct. 1461 (2018)........................27 NARUC v. DOE, 736 F.3d 517 (D.C. Cir. 2013)....................................................... 9 NARUC v. DOE, 736 F.3d at 518-19.......................................................................10 Natl Fedn of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)..................................27 New Jersey Dept Envtl. Prot. v. Nuclear Reg. Commn, 561 F.3d 132 (3d Cir.

2009).....................................................................................................................45 New Mexico v. U.S. Nuclear Regulatory Commission, 21-00284, (D.N.M.)............ x New York v. Nuclear Reg. Commn, 681 F.3d 471 (D.C. Cir. 2012)........................ 6 New York v. United States, 505 U.S. 144 (1992).....................................................27 North Carolina v. City of Virginia Beach, 951 F.2d 596 (4th Cir. 1991)...............37 Oglala Sioux Tribe v. Nuclear Regulatory Commn, 896 F.3d 520 (D.C. Cir. 2018)

........................................................................................................................ 30, 31 Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994).................19 Printz v. United States, 521 U.S. 898 (1997)...........................................................27 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006).. 41, 45 Sierra Club, Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Sustainable Energy and Economic Development Coalition v. United States Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 4

iv Nuclear Commission and United States of America, Docket No. 21-1229 (D.C.

Cir.)....................................................................................................................... ix State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Ltd.; and Permian Basin Land and Royalty Owners v. Nuclear Regulatory Commission and United States of America, Docket No. 21-60743 (5th Cir.)........................................................ ix Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987)....................38 The New River Valley Greens, et al. v. Dep't of Transp., 1998 U.S. App. LEXIS Union of Concerned Scientists v. Nuclear Regulatory Commn, 920 F.2d 50 (D.C. Cir. 1990)....................................................................................................31 Utah Shared Access Alliance v. Wagner, 98 F.Supp.2d 1323, 1331 (D. Ut. 2000) 38 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 535 n.14 (1978)..................................................................................................... 20, 31 Statutes 28 U.S.C. § 2344........................................................................................................ 3 28 U.S.C. § 2342(4)................................................................................................... 2 42 U.S.C. § 1056......................................................................................................25 42 U.S.C. § 2099........................................................................................................ 6 42 U.S.C. § 2011....................................................................................................1, 6 42 U.S.C. § 2239........................................................................................................ 2 42 U.S.C. § 4321..................................................................................................2, 29 42 U.S.C. § 4332(C).................................................................................................30 42 U.S.C. § 5841(a), (f)............................................................................................. 2 42 U.S.C. § 10101 (18).............................................................................................. 9 42 U.S.C. §§ 10111..................................................................................................21 42 U.S.C. § 10121...................................................................................................... 1 42 U.S.C. § 10131(a)(3-6)......................................................................................... 8 42 U.S.C. § 10131(a)(5)...........................................................................................24 42 U.S.C. § 10131(b)(3)..........................................................................................10 42 U.S.C. § 10134...................................................................................................... 9 42 U.S.C. § 10136............................................................................................. 10, 25 42 U.S.C. § 10139(a)(1)(D)....................................................................................... 4 42 U.S.C. § 10143............................................................................................. 24, 25 42 U.S.C. § 10151...................................................................................................... 9 42 U.S.C. § 10151(b)(2)..........................................................................................10 42 U.S.C. § 10155....................................................................................................25 42 U.S.C. § 10155(d)...............................................................................................10 42 U.S.C. § 10156(e)...............................................................................................10 42 U.S.C. § 10155(h)...............................................................................................22 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 5

v 42 U.S.C. § 10161...................................................................................................... 9 42 U.S.C. § 10164(2)................................................................................................. 8 42 U.S.C. § 10165....................................................................................................25 42 U.S.C. § 10166....................................................................................................10 42 U.S.C. § 10166(e)...............................................................................................25 42 U.S.C. § 10168(b)...............................................................................................10 42 U.S.C. § 10169............................................................................................. 10, 25 42 U.S.C. § 10172(a)................................................................................................. 9 42 U.S.C. § 10222(a)(5)(A).......................................................................... 9, 24, 25 43 U.S.C. § 4332(2)(c).............................................................................................29 5 U.S.C. § 706......................................................................................................4, 24 5 U.S.C. § 706(2).....................................................................................................33 5 U.S.C. § 706(2)(A)................................................................................................20 Code of Federal Regulations 10 C.F.R. § 2.206....................................................................................................... 3 10 C.F.R. § 51.70(b)................................................................................................32 10 C.F.R. § 72.108...................................................................................................36 40 C.F.R. § 1502.14.................................................................................................35 40 C.F.R. § 1502.21(d)............................................................................................45 40 C.F.R. § 1502.22(b)(4)........................................................................................30 40 C.F.R. § 1506.2(b)..............................................................................................32 Federal Register 43 Fed. Reg. 46,309, 46,309 (Oct. 6, 1978)............................................................... 7 45 Fed Reg. 74,693.................................................................................................... 7 45 Fed. Reg 74,696.................................................................................................... 7 45 Fed. Reg. 74,693 (Nov. 12, 1980)......................................................................... 7 85 Fed. Reg. 44330..................................................................................................13 94 Fed. Reg. Notice; 97...........................................................................................13 Other Authorities Matter of Interim Storage Partners, LLC, Docket No. 72-1050-ISFSI, LBP-19-07 (August 23, 2019) (ASLB ISP Order)...............................................................30 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 6

vi STATEMENT OF RELATED CASES There are no prior or related appeals pending in this Circuit.

State of Texas; Greg Abbott, Governor of the State of Texas; Texas Commission on Environmental Quality; Fasken Land and Minerals, Ltd.; and Permian Basin Land and Royalty Owners v. Nuclear Regulatory Commission and United States of America, Docket No. 21-60743 (5th Cir.), currently pending in the United States Court of Appeals for the Fifth Circuit, involves challenges to the same final agency actions.1 Dont Waste Michigan, et al., Docket No. 21-1048 (D.C. Cir.), includes multiple, consolidated appeals, Docket Nos. 21-1055, 21-1056, 21-1179, 21-1227, 21-1230, 21-1231 (D.C. Cir.), involving challenges to final agency actions in the underlying Nuclear Regulatory Commissions Interim Storage Partners, LLC adjudicatory proceeding and challenges to the same final agency action here.

Sierra Club, Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Sustainable Energy and Economic Development Coalition v. United States Nuclear Commission and United States of America, Docket No. 21-1229 (D.C. Cir.) was recently consolidated with the above-referenced matters pending in the United States Court 1 Petitioners Initial Briefs were filed in the Fifth Circuit on February 7, 2022.

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vii of Appeals for the D.C. Circuit and involves a jointly-filed challenge to the same Nuclear Regulatory Commissions Record of Decision.

New Mexico v. U.S. Nuclear Regulatory Commission, 21-00284, (D.N.M.)

was filed in New Mexico Federal District Court and was dismissed on March 10, 2022 for lack of subject matter jurisdiction, finding that the Court of Appeals had jurisdiction over all ripe claims, and the time for appeal has not run. The issues there involved challenges to the Nuclear Regulatory Commissions authority to review the subject ISP license application and an application filed by Holtec International for a similar license in New Mexico, and the imposition of alleged unfunded mandates.

This suit was filed prior to license approval.

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viii GLOSSARY The following abbreviations and acronyms are used in this brief:

APA The Administrative Procedure Act ASLB The Atomic Safety and Licensing Board CISF Consolidated Interim Storage Facility DEIS Draft Environmental Impact Statement EIS Environmental Impact Statement ISFSI Independent Spent Fuel Storage Installation ISP Interim Storage Partners, LLC MRS Monitored Retrievable Storage Facility MTU Metric Ton of Uranium NEPA The National Environmental Policy Act NMED New Mexico Environment Department NRC The federal agency known as the United States Nuclear Regulatory Commission NUREG United Stated Nuclear Regulatory Commission Report NWPA The Nuclear Waste Policy Act ROD Record of Decision SNF Spent Nuclear Fuel WCS Waste Control Specialist, LLC Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 9

1 INTRODUCTION The U.S. Nuclear Regulatory Commission (NRC) is undertaking a risky and unauthorized approach to consolidated nuclear waste storage in granting License No.

SNM -2515 (ISP License or License) to Interim Storage Partners, LLC (ISP).

The License allows ISP, a private company, to store high level nuclear waste material in Andrews County, Texas, near the New Mexico-Texas border, at what is supposedly a temporary facility. Yet there is no need for such a facility based on NRCs determinations that waste stored at existing reactors is safe there until 2048, when a permanent repository will supposedly be available. However, the License was issued for a forty-year term, is renewable, and is unaccompanied by any plan to eventually transfer the waste to a permanent repository. Furthermore the NRC has not fully evaluated the impact this facility will have on the environment at the facility or along the railways and roads that will be used to transport the nuclear waste from all over the country to the Texas-New Mexico border, and the nuclear waste that would be stored at the ISP facility is safe in its current location and each time the waste is unnecessarily moved, the risk of contamination and increased exposure is multiplied more than necessary.

The NRC is circumventing the intent of the Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq. (AEA) and the National Waste Policy Act, 42 U.S.C. § 10121, et seq. (NWPA), as the NRC does not have the authority to issue ISP Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 10

2 License that either allows for DOE to take title of nuclear waste without a permanent storage repository available or that creates a de facto permanent consolidated waste storage facility. NRCs Record of Decision (ROD) and Environmental Impact Statement (EIS) did not meet the standards required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). Accordingly, New Mexico requests the license be vacated.

JURISDICTIONAL STATEMENT Jurisdiction of Agency The license to store spent nuclear waste, including the distinct but associated ROD and EIS, that is challenged in this action was issued by the NRC purportedly under the authority of the AEA.

Jurisdiction for the U.S. Court of Appeals for the Tenth Circuit Under the Hobbs Act, 28 U.S.C. § 2342(4),2 the Courts of Appeals have exclusive jurisdiction to enjoin, set aside, suspend, or determine the validity of final orders of the NRC made reviewable by 42 U.S.C. § 2239 (Section 189 of the AEA).

Petitioners seek judicial review of the NRCs final order issuing the ISP License to 2 Although the Hobbs Act refers to final orders of the Atomic Energy Commission, the Energy Reorganization Act of 1974 abolished the Atomic Energy Commission and transferred all licensing and related regulatory functions to its successor, the NRC. 42 U.S.C. § 5841(a), (f).

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3 store nuclear waste at a storage facility just miles from New Mexicos southeast border in Andrews County, Texas. See REC. 130, Materials License No. NMS-2515.

The Hobbs Act provides that [a]ny party aggrieved3 by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. 28 U.S.C. § 2344. New Mexico filed its Petition for Review in this Court on November 12, 2021.4 The NRCs Record of Decision (ROD) and issuance of the ISP License are dated September 13, 2021. Thus, New Mexicos Petition was filed within 60 days of NRC final order and is timely. Venue is appropriate here because it is the judicial circuit in which the petitioner[s] reside[]

and have their principal offices. Id. § 2343.

Prior to issuing the License, NRC prepared an EIS and ROD in an effort to comply with NEPA. New Mexico challenges the sufficiency of the EIS and ROD.

Judicial review of the sufficiency of an EIS is available through the Administrative 3 As outlined in New Mexicos Response to Respondents Motion to Dismiss, New Mexico is a party aggrieved for purposes of the Hobbs Act and judicial review, independent of any agencys labeling of an entity as a party for adjudicatory proceedings. New Mexicos Response to Respondents Motion to Dismiss at 9-15.

4 In its Petition for Review, New Mexico noted that the Petition was protective in nature because it intended to file a petition to modify, suspend, and/or revoke the license pursuant to 10 C.F.R. § 2.206. New Mexico submitted such a petition on December 20, 2021. On February 11, 2022, the NRCs Petition Review Board notified New Mexico by email that its initial review determined that the petition did not meet NRCs criteria for acceptance. This is clearly incorrect, but nevertheless exhausts New Mexicos administrative options. Accordingly, New Mexico is proceeding with the Petition for Review in this Court as filed.

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4 Procedures Act, 5 U.S.C. § 706 (APA). See, e.g., All Indian Pueblo Council v.

United States, 975 F.2d 1437, 1443 (10th Cir. 1992). Because the EIS and the Record of Decision (ROD)5 associated with it are ancillary to the license, jurisdiction to review them lies exclusively with the courts of appeals. Citizens Awareness Network, Inc. v. Nuclear Reg. Comm'n, 854 F. Supp. 16, 17 (D. Mass. 1994) (holding under Hobbs Act decisions that are ancillary to licensing decisions may be challenged only in the court of appeals) (citing Florida Power & Light v. Lorion, 470 U.S. 729 (1985)).

In addition, this Court has jurisdiction to review the EIS pursuant to the Nuclear Waste Policy Act (NWPA), 42 U.S.C. § 10139(a)(1)(D).6 Because the License creates a de facto permanent repository, it clearly violates the NWPA.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW In the face of the failure of the federal government to execute the plan laid out by Congress in the NWPA, NRC now seeks to invoke authority under a different 5 Pursuant to the Courts January 18,2022 Order Concerning Briefing Schedule and Citation, New Mexicos citation to the Record ID is cited as REC, followed by the corresponding record ID number, and where necessary the associated page number. For any materials that are stored in an ADAMS package New Mexico has designated which sub-document within the package is being cited with a number separated from the Record ID by a period.

6 Although Respondents dispute the applicability of the judicial review provisions of the NWPA, Motion to Dismiss at 19-21, the terms of the ISP License necessarily implicate the NWPA, despite NRCs attempt to characterize issuance of the license as authorized solely by the AEA. See Resp. to Motion to Dismiss, Doc.

1. 010110623881 at 19-20.

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5 statute, the AEA, in order to fulfill its desire to aggregate the nations spent nuclear fuel into a private consolidated facility that is permanent in all but name. But despite NRCs attempted reliance on the AEA, the License issued to ISP violates specific provisions and runs counter to the legislative intent of the NWPAs procedural and substantive requirements and further violates NEPA.

The issues presented for review are:

1. Whether the NRC acted arbitrarily, capriciously and unlawfully in violation of the APA in issuing the ISP License that contains conditions that fundamentally contradict Congresss policy for disposing of the nations spent nuclear fuel as set forth in the NWPA, and that imposes unfunded mandates upon the state in the form of transportation infrastructure and emergency response costs.

2. Whether the NRC acted arbitrarily, capriciously and unlawfully in violation of the APA and NEPA in its preparation of the EIS through, among other things: the use of unsupported and unrealistic assumptions regarding the prospects for a permanent repository; a segmented analysis of nuclear waste transportation impacts that relied on prior generic analyses; a refusal to consider the potential for acts of terrorism; and reliance on the proponents site selection process without consideration of relevant and contrary evidence.

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6 STATEMENT OF THE CASE I. STATUTORY BACKGROUND In 1954, Congress passed the AEA, under which the NRC is generally authorized to license facilities dealing with the nuclear energy sector. However, the AEA contains no specific provision authorizing the NRC to license a consolidated interim storage facility (CISF). 42 U.S.C. §§ 2011, et seq. Under the AEA, the NRC is prohibited from licensing any facility that would be inimical to... the health and safety of the public. Id. at § 2099.

Nuclear fuel rods no longer efficiently produce energy in a nuclear power plant after four to six years of use in a reactor and are thereafter considered spent nuclear fuel. New York v. Nuclear Reg. Commn, 681 F.3d 471, 474 (D.C. Cir.

2012). Even though no longer useful for producing nuclear power, SNF poses a dangerous, long-term health and environmental risk. It will remain dangerous for time spans seemingly beyond human comprehension. Id. (internal quotation omitted).

Initially, private utilities operating nuclear reactors intended to reprocess SNF for further use; thus, there was little concern with its storage. Idaho v. DOE, 945 F.2d 295, 298 (9th Cir. 1991). However, when the reprocessing industry collapsed in the mid-1970s, long-term storage of SNF became a real problem. Id.

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7 To deal with this growing problem, the NRC promulgated rules and regulations for novel away-from-reactor storage facilities, despite the lack of a specific regulatory basis for such storage. See NRC, Proposed Rule, Storage of Spent Fuel in an Independent Spent Fuel Storage Installation, 43 Fed. Reg. 46,309, 46,309 (Oct. 6, 1978); NRC, Final Rule, Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation (ISFSI), 45 Fed. Reg.

74,693 (Nov. 12, 1980). Stakeholders, however, expressed grave concerns with ISFSIs and the NRCs new rule. Some thought the waste should remain at the reactors where it was already housed in order to avoid transportation risks from moving such dangerous material. Id. at 74,696. Others expressed a concern that the promulgation of a rule covering this issue would decrease pressures on both industry and government to solve the radioactive waste problem. Id. at 74,693. The NRC proceeded with the off-site rule nevertheless.

Shortly thereafter, in 1982 Congress enacted the NWPA which was specifically directed towards both the immediate and long-term problems associated with storage of SNF. The NWPA codified Congress intent for a deep geological permanent repository for the disposal of SNF to serve as the solution to the storage problem. 42 U.S.C. §§ 10131-32. The NWPA made the NRC responsible for licensing a permanent repository. 42 U.S.C. § 10134.

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8 The NWPA contained Congress express findings that, while the federal government has the responsibility to provide for permanent disposal of SNF, the costs of such disposal, as well as the costs of interim storage, should be the responsibility of the generators and owners, and that State and public participation in the planning and development of repositories is essential in order to promote public confidence in the safety of disposal of such waste and spent fuel. 42 U.S.C.

§ 10131(a)(3), (4), (6).

Congress also expressed concerns that federal interim storage of SNF would detract from efforts to develop a permanent repository and lead to increased transportation of fuel. Private Fuel Storage, 56 N.R.C. 390, 404 (2002) (citing 128 Cong. Rec. 28,032-33 (1982)); affd Bullcreek v. Nuclear Reg. Commn, 359 F.3d 536 (D.C. Cir. 2004). As a consequence, provisions of the NWPA are geared towards minimizing transportation of SNF and related radioactive wastes. 42 U.S.C. § 10164(2) (requiring potential federal interim storage sites under NWPA to...

minimize the impacts of transportation and handling of such fuel and waste); see also Spent Nuclear Fuel: Legislative, Technical and Societal Challenges to its Transportation, GAO 16-121 (October 2015) at pp. 3-4 (acknowledging the complexities and decades of planning required to transport SNF depending on variables like distance, quantity of material, mode of transport, rate of shipment, level of security, and coordination with state and local authorities as well as routes Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 17

9 and critical elements of infrastructure and equipment to be designed and deployed). The primary focus under the act was the development of the permanent repository at Yucca Mountain. NARUC v. DOE, 736 F.3d 517, 519 (D.C. Cir. 2013)

(The statute is obviously designed to prevent the Department from delaying the construction of Yucca Mountain as the permanent facility while using temporary facilities.).

In 1987, Congress amended the NWPA to direct the DOE to solely consider Yucca Mountain in Nevada as the primary site for a permanent repository. 42 U.S.C.

§§ 10134, 10172(a). These NWPA amendments also provided limited stop-gap measures to deal with SNF in the interim, but made clear that any federal interim storage of nuclear waste was to be temporary and statutorily limited (i.e., not a substitute for ultimate disposal in a permanent repository). See 42 U.S.C. §§ 10151, et seq. (federal interim storage facilities) and 42 U.S.C. §§ 10161, et seq. (Monitored Retrievable Storage (MRS)). The NWPA framework that Congress laid out: (i) permits DOE to take title to SNF only upon commencement of operation of a

[permanent deep geologic] repository, 42 U.S.C. § 10222(a)(5)(A), 42 U.S.C. § 10101 (18), with limited exceptions;7 and (ii) expressly limits construction of federal 7 This exception exists only if reactor licensees could demonstrate a lack of onsite storage capacity that was both severe enough to disrupt ongoing operations and incapable of a timely remedy. 42 U.S.C. § 10155(b). The exception is further limited to maximum storage capacity of only 1,900 MTUs, for maximum of only three years, Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 18

10 interim storage facilities to the DOE, 42 U.S.C. §§ 10151(b)(2) (for Interim Storage facilities); 10168(b) (for MRS).

Consistent with the NWPAs purpose, while also defining the relationship between the Federal Government and the State governments with respect to the disposal of SNF (42 U.S.C. § 10131(b)(3)), Congress recognized that these interim facilities could impose substantial burdens on states and local governments. To alleviate those burdens, affected local governments and communities were given: (i) detailed participation rights (including participation in siting decisions and consultation on a wide range of impacts); (ii) generous procedural rights, including the right to veto the facility (subject to override by majority vote of both Houses of Congress); and (iii) rights to substantial financial assistance if a facility was built within its borders. See 42 U.S.C. §§ 10136, 10155(d), 10156(e), 10166, 10169.

Unfortunately, progress towards completionand even initial construction of a permanent repository has all but halted. Courts and the NRC alike have openly and publicly acknowledged the lack of progress and prospects for establishing a permanent repository in the foreseeable future. See e.g., NARUC v. DOE, 736 F.3d at 518-19 (noting the government has abandoned the Yucca Mountain program and referring to the anticipated 2048 date for establishing a permanent repository as and any contracts entered between reactor licensees and DOE must have been entered prior to January 1990. 42 U.S.C. § 10156(a)(1).

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11 truly pie in the sky); NRC Letter to Honorable Frank Pallone, Jr. (Feb. 22. 2022)

(NRC reporting it has provided limited program planning and support activities recently for purposes of licensing Yucca Mountain).

II. PROBLEMS WITH ISP LICENSE NO. SNM-2515 On April 28, 2016, Waste Control Specialist, LLC (WCS) applied for a license to construct and operate a CISF. REC. 5, 6. The initial CISF application sought to store above-ground up to 40,000 metrics ton units (MTUs) of SNF in dry-cask storage systems in Andrews County, Texas. REC. 5, App. The original license application clearly indicated that DOE would take title to the SNF, transport the SNF to the ISP CISF, subsequently transport it from the CISF to a permanent repository (which would be established by 2048), and be responsible for emergency services and first responder coverage throughout transport. Id., ER, Rev. 0 (April 28, 2016) at 1-1, 1-6; REC. 25, ER, Rev. 1 (March 16, 2017) at 1-2, 1-4, 3-5 to 3-6, 4-

9. The initial license was to be valid for 40 years, with WCS indicating it would seek renewal for an additional 20 years. REC. 25 at 1-1.

After multiple parties challenged the legality of the WCS license application as violative of the NWPA, which, as discussed below, prohibits DOE ownership of SNF prior to the establishment of a permanent repository, WCS requested that the Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 20

12 NRC suspend review of its application.8 The NRC issued notice of WCS withdrawal of its application to the public in July 2017. REC. 2, Withdrawal Notice.

Just over a year later, WCS created a joint venture with ISP and submitted a revised application for a CISF license. REC. 3, Rev. App. ISPs revised application sought the same maximum storage capacity for the Texas site but was contingent on contracts with either DOE or holders of the title to spent nuclear fuel at commercial nuclear power facilities (SNF Title Holder[s]). REC. 31, ER, Rev. 2 (July 19, 2018).

Significantly, ISPs application seeks only 5,000 MTUs of storage during the initial license period of 40 years (between approximately 2021 and 2061), as ISP and the NRC assume the remaining 35,000 MTUs of storage (or seven times the initial license amount of nuclear waste) will not only be transported from all over the country to the ISP CISF for storage, but will also then be expeditiously shipped again from the Andrews County facility to a yet -to-be-determined permanent repository in the following 20 years (2061 to 2081). Furthermore, ISP intends to seek renewal and amend its License to allow storage of even more nuclear waste at the site for even longer periods of time.

A. NRC Closed the ISP Administrative Proceeding Before Publishing its Draft EIS and Solicitation of Public Comments 8 Withdrawal of the initial CISF application notably came after the agency held four public meetings soliciting comments to determine the scope of the agencys forthcoming preparation of the EIS. See REC. 16, 17, 21, and 26.

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13 In unprecedented fashion, the NRCs Atomic Safety and Licensing Board (ASLB) rejected under the AEA intervention rules each and every contention challenging the ISP CISF and officially terminated the ISP adjudicatory proceeding in December 2019, closing the administrative record five months before publication of its draft EIS (DEIS), and before the agency issued notice soliciting public comments pursuant to NEPA. REC. 94, Fed. Reg. Notice; 97, DEIS. In May 2020, during the initial months of the COVID-19 pandemic, the NRC first issued public notice regarding availability of its DEIS, soliciting feedback and comments by September 4, 2020, but this date was later extended to November 3, 2020. REC. 94; 85 Fed. Reg. 44330. Given the NRCs predetermination to license the ISP facility, negative comments by any party, and New Mexicos 2.206 Petition, have been futile.

Meanwhile, the NRC continued to work with ISP on updates to ISPs license application documents, even after the premature closure of the administrative record.

See REC. 95, 100-102, RAI Resp. and Suppl. Information. The agencys actions unreasonably obscured the decision-making process by presenting conflicting information and creating a perpetually moving target upon which the public could comment. By soliciting comments while delaying publication of relevant and updated information, NRC denied meaningful participation to any interested party, including New Mexico.

B. New Mexico and New Mexican Communities and Stakeholders Have Expressed Concerns and Opposition to the ISP CISF Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 22

14 Given the pandemic, NRC did not hold in-person meetings. REC. 125, EIS at 1-5. Nevertheless, members of the public commented in opposition to the ISP CISF, with several hundred unique public comments. Common themes in opposition quickly became apparent, with commenters identifying fundamental flaws and technical deficiencies with the NRCs DEIS. Numerous commenters expressed concerns about the illegality of the CISF under the NWPA, that consolidated interim storage would become de facto permanent storage in the absence of a repository, that transporting the nuclear waste multiple times creates unnecessary public risks and that the location in the middle of the nations most productive oil patch is illogical, posing a threat to national security, energy security and potentially devastating impacts to regional economies.

Throughout the process, New Mexico has expressed adamant opposition to the ISP CISF, identifying serious and substantial concerns and material omissions in objecting to the NRCs issuance of the ISP License. In addition to the plain statutory problems discussed in the Argument, § I, infra, the Governor, New Mexico Environment Department (NMED) and other New Mexico agencies have submitted correspondence to the NRC addressing site-specific problems with the ISP CISF.

See, e.g., REC. 645, Senator Gary Kernan comment on EIS Scoping; 1295, Governor Lujan-Grisham comment on DEIS; 1386, NMED comment on DEIS; 1432, NMED Teresa McDill comment at DEIS Public Meeting; 1484, Energy Minerals and Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 23

15 Natural Resources Secretary Sarah Propst comment on DEIS; 131 and 132 (letters on EIS).

Specifically, during the EIS scoping process, State Senator Gary Kernan objected to the proposed CISF and expressed concern for having a facility storing high-level material that will be stored for a considerable time so close to the URENCO, USA facility and to the Town of Eunice, NM. REC. 645. Senator Kernan asked the NRC to reject the application and to review other potential sites that would provide a more secure location and avoid the risks associated with transportation. Id.

Similarly, in response to the NRCs publication of the DEIS, Governor Lujan-Grisham expressed her opposition to the proposed project and commented on a number of deficiencies in the DEIS, noting that New Mexicans in the immediate area of the site would be disproportionally impacted by the CISF. REC. 1295. Governor Lujan-Grisham noted that the lack of active planning for a permanent repository for SNF creates a significant risk that the CISF would become a de facto permanent repository. Id. at 3. Governor Lujan-Grisham also pointed out the unfunded mandates associated with safety and transportation placed on New Mexico and local communities. Id. Finally, Governor Lujan-Grisham noted the economic risks to New Mexicans posed by the proposed CISF, in light of the siting of the CISF in the Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 24

16 Permian Basin, impacting agricultural and oil and gas industries, two of New Mexicos biggest industries. Id.

NMED submitted similar comments, noting the unnecessary risk to public health, safety and the environment caused by moving SNF multiple times. REC.

1386 at 4. In addition, NMED pointed out technical deficiencies with the DEIS that precluded a thorough evaluation of environmental impacts, including hydrogeologic characterization of groundwater, among other things, precluding an appropriate analysis of migration and exposure pathways in the event of contaminant release; specific impacts of seismic events on the CISF; permit requirements from NMED regarding groundwater discharges that were not considered; and the minority and low-income populations in New Mexico who already suffer from disproportionately high human health and environment effects from the countrys nuclear energy programs. Id. at 5-8; see also REC. 1432 at 107 (noting the inadequate analysis of pathways from the site to groundwater and springs in New Mexico, the failure to include all applicable New Mexico state regulatory oversight and environmental impact controls, failure to provide a thorough evaluation of radioactive waste characterization, and omission of a complete assessment of environmental justice concern). New Mexicos Energy, Minerals and Natural Resources Department submitted similar comments, noting that the project created unnecessary risks by requiring SNF to be transported multiple times across the country, the EIS failed to Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 25

17 consider potential acts of terrorism or sabotage along transportation routes, and the EIS failed to evaluate the potential geologic hazards such as subsidence, sinkholes, and seismicity in the area. REC. 1484.

Likewise, prior to the September 17 publication of the NRCs ROD and issuance of the ISP License, New Mexico submitted extensive comments citing the material omissions and deficiencies in the NRCs preparation of the final EIS, reiterating previously present points of view and highlighting the agencys lack of collaboration and consultation with New Mexico and local entities. REC. 131, 132.

Despite the overwhelming opposition, on July 31, 2021, the NRC published its final EIS, without changing a single material aspect of its DEIS, and on September 13, 2021, the NRC issued its ROD and the ISP License. See REC. 125, 129, 130. New Mexico challenges the NRCs EIS, associated ROD and issuance of the ISP License and respectfully requests that this Court hold the NRCs actions unlawful and set aside its final order and vacate the ISP License. In the alternative, New Mexico asks that the NRCs order be remanded for further consideration until the NRC complies with NEPA, the APA and any and all applicable state and federal laws.9 9 The Texas Legislature passed legislation that bans high-level radioactive waste from entering Texas except in limited circumstances. See Act of Sept. 2, 2021, 87th Leg., 2d C.S., ch. 2, 2021 Tex. Sess. Law Serv. 3813. Additionally, numerous governmental entities throughout New Mexico and Texas have passed resolutions Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 26

18

SUMMARY

OF THE ARGUMENT The NRCs issuance of the ISP License should be set aside under the APA as arbitrary, capricious and not in accordance with law. The scope of NRCs authority is delineated by statute, and the NRC cannot substitute its own preferences for Congresss policy regarding the disposition of the nations SNF as provided in the NWPA. That policy contemplates prioritizing a final resting place for nuclear waste in a permanent geological repository with narrowly prescribed storage in the interim.

In issuing the license, NRC violated the NWPA, which expressly does not authorize a private, away from reactor interim storage facility amounting to a de facto permanent depository, and which prohibits the DOE from taking title to SNF before a permanent repository is established. In granting a license to a facility where the proponents site selection process falsely concluded there was state and local consent, NRC also failed to meaningfully consult with New Mexico and ran afoul of the NWPAs safeguards of States rights. Finally, in issuing the license NRC unlawfully imposed unfunded mandates on New Mexico, in violation of anti-commandeering principles.

In addition, in its preparation of the EIS and ROD the NRC violated NEPA and the APA and acted arbitrarily, capriciously and unlawfully by: (i) making the banning the transport of nuclear waste materials and/or the storage of high-level radioactive waste in their respective communities.

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19 unreasonable and unsupported assumption that a permanent repository will be operational by 2048 and inconsistently applying that assumption, (ii) improperly segmenting its analysis of transportation impacts, (iii) failing to consider the costs imposed on the state by the unfunded mandates of addressing transportation impacts, (iv) failing to conduct appropriate site-specific transportation analyses and improperly relying on inapplicable assumptions of generic analyses, (v) failing entirely to evaluate any potential for terrorist attacks, acts of malice and sabotage at the facility despite the provocative nature of storing large quantities of high level nuclear waste in the midst of the worlds most productive oil field, and (vi) arbitrarily accepting ISPs unreasonable site selection process without independent investigation or evaluation of relevant factors.

STANDARD OF REVIEW Agencies power to act and how they are to act is authoritatively prescribed by Congress. City of Arlington, Texas v. FCC, 569 U.S. 290, 297 (2021). In determining whether or not an agencys acts are ultra vires, the question whether framed as an incorrect application of agency authority or an assertion of authority not conferredis always whether the agency has gone beyond what Congress has permitted it to do.... Id. at 298 (emphasis added). Determination of whether the agency acted within the scope of its authority requires a delineation of the scope of the agencys authority and discretion, and consideration of whether on the facts, the Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 28

20 agencys action can reasonably be said to be within that range. Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). The Courts role in reviewing the adequacy of the EIS is governed by the APA, which requires the Court to hold unlawful and set aside any agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); Vt. Yankee Nuclear Power Corp. v. Nat. Res.

Def. Council, Inc., 435 U.S. 519, 535 n.14 (1978) (arbitrary and capricious review applies to Commission licensing). It is textbook arbitrary and capricious action for an agency to rel[y] on factors which Congress has not intended it to consider.

Motor Vehicle Mfrs Assn v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

Courts in the Tenth Circuit have found agency actions arbitrary and capricious or otherwise held them as unlawful where:

The agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view of the product of agency expertise.

Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997) (quoting Motor Vehicle Mfrs., 463 U.S. at 43). In the present case, the NRC decision fails under each of these factors.

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21 ARGUMENT I. NRCS ISSUANCE OF ISP LICENSE IS ARBITRARY, CAPRICIOUS, AND NOT IN ACCORDANCE WITH THE LAW The NWPA was enacted to address the nations need for permanent storage of rapidly amassing volumes of high-level nuclear waste and codifies Congressional intent that DOE establish a deep geologic repository for the permanent safe disposal of such waste. See 42 U.S.C. §§ 10111 et seq. The NWPA provides clear directives, establishing procedures and assigning overlapping responsibility to multiple federal agencies in evaluating and licensing a permanent repository. The NRCs actions here exceed the scope of the agencys delegated authority and fail to comply with Congresss non-discretionary objectives in creating a position on permanent nuclear waste storage.

A. Licensing De-Facto Permanent Storage of SNF to a Private CISF Violates the NWPA As discussed in the Statement of the Case, to keep the focus on the development of a permanent repository, Congress provided for only limited options for interim off-site, federal storage of SNF, and Congress did not grant the NRC the authority to license a private interim storage facility to collect and store the countrys nuclear waste, hundreds of miles from where the materials were generated for an indefinite period of time.

Congresss explicit language in the NWPA reads:

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22 Notwithstanding any other provision of law, nothing in this chapter shall be construed to encourage, authorize, or require private or Federal use, purchase, lease, or other acquisition of any storage facility located away from the site of any civilian nuclear power reactor and not owned by the Federal Government on January 7, 1983.

See 42 U.S.C. § 10155(h) (emphasis added).

But, instead of promoting the establishment of a permanent repository as directed by Congress, the NRC is undertaking a risky, unauthorized approach in issuing a license to allow a private entity to take de facto permanent possession of nuclear waste and transport it from numerous locations from across the country where it is currently being safely stored to an above-ground storage site in Andrews County, Texas, far from the reactor sites where the waste was generated and the energy is used.10 10 Unlike the ISFSI interim facility NRC licensed in Bullcreek, which dealt with private companies contemplating storage of privately-owned nuclear waste, the ISP CISF License includes DOE contract contingencies and conditions for storage of DOE-owned SNF. And unlike the NRCs analysis and ROD for Bullcreek, which pursuant to NEPA requirements, evaluated other reasonable alternatives to the proposed private ISFSI, including consideration of alternative site locations, NRC failed to consider a single reasonable alternative for proposed ISP CISF (including the Holtec CISF, with an identical purpose and need, and a pending proposal before the NRC for CISF to be located less than 50 miles away from the ISP site considered only for cumulative impact analyses). Also, the Bullcreek EIS involved NRC collaboration with several other federal agencies in determining environmental impacts - such collaboration with federal agencies and State and local governments as alleged herein, is absent in the ISP EIS. Finally, the scope and magnitude of the proposed ISP and Holtec CISF projects here far exceeds the amount of storage proposed for Bullcreek. In fact, the combined CISFs propose a Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 31

23 The Commission claims that this storage of the high-level nuclear waste is interim, yet the License was issued for a forty-year term, is renewable, and is unaccompanied by any plan to transfer the waste to a permanent repository.

Furthermore, there are no credible plans from the federal government in place for a permanent storage repository anywhere in the country. Thus, the waste stored at ISP will presumptively be stored at the site permanently.

Moreover, establishing a de facto permanent repository increases the risks involved with SNF storage. As pointed out in a 2019 letter by then New Mexico Congresswoman and current Secretary of Interior Deb Haaland to former NRC Chairman Kristine Svinicki and former U.S. Department of Energy Secretary Rick Perry11:

the lack of a permanent high-level radioactive waste repository means that any interim storage facility will serve as a de-facto permanent repository that will not meet the technical requirements for permanent waste isolation. As a result, the waste stored at an interim facility will require repackaging over time, which will increase the risk of accidents greater maximum storage capacity than even that of Yucca Mountain for the permanent repository.

11 This document is not available online and does not appear to have been included in the NRCs Certified Index of the Record. A copy of the document will be included in the record excerpts filed pursuant to the Courts January 18, 2022 Order.

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24 Ignoring all such comments, NRC proceeded to issue the License, thereby authorizing essentially permanent consolidated away-from-reactor storage, in violation of the NWPA.

B. Allowing DOE to Take Title to SNF at a Temporary Facility Violates the NWPA The inclusion of a condition in the license that allows the ISP CISF to store DOE-titled SNF violates the plain language of the NWPA and thus the APA. 5 U.S.C. § 706 (providing that the reviewing court must hold unlawful and set aside agency action found to be not in accordance with law or in excess of statutory authority). Congress prohibited the federal government from taking title to and assuming responsibility for privately held SNF until a permanent repository is operational. 42 U.S.C. § 10222(a)(5)(A), § 10131(a)(5). Until that point in time, the legal responsibility for SNF storage lies with the generators and private entities. Id.

Nevertheless, despite this clear prohibition, the NRC issued the ISP License that allows for DOE to take title to and responsibility for SNF before the operation of a permanent repository.12 12 The original application submitted by WCS provided only for DOE to take title of and transport SNF. REC. 5, App. at 1-1, 1-6 (emphasis added). ISPs revised application maintained this illegal condition but added the option for private entities to take title of and responsibility for SNF. REC. 31, App. Rev. 2, at 1-1 (DOE or other holders of the title to SNF at commercial nuclear power facilities (SNF Title Holder(s)) will hold title to the SNF during transportation to and from and while in storage at the CISF); 1-6 (ISP will obtain funds to operate the CISF pursuant to future contracts with the DOE or other SNF Title Holder(s).).

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25 Under Sections 123 and 302 of NWPA the Secretary of Energy, and therefore the DOE, are without authority to take title of SNF and may only enter into contracts with SNF generators or power plant owners following commencement of operation of a repository. 42 U.S.C. § 10143, 10222(a)(5)(A). In other words, DOE is precluded from taking title to SNF unless and until a permanent repository is established. 42 U.S.C. §§ 10222(a)(5)(A), 10143 (emphasis added). This makes perfect sense given the government and scientific communities consensus that transport of irradiated nuclear fuel should be kept to a minimum to mitigate risks, and that disposal of SNF, due to its long life and high potential for harm, is only appropriate in deep, geological repositories at suitable locations.

This use of self-granted authority is outside the boundaries of the NRCs actual authority, and therefore the license should be vacated.

C. NRC Failed to Meaningfully Consult with New Mexico in Contravention of the NWPA Recognizing the importance of States rights and the role they play in the nuclear waste storage process, Congress laid out certain procedural rights and protections for States under the NWPA - including notification, consultation and cooperation and financial assistance requirements relating to the siting of a permanent repository and interim storage facilities. See e.g., 42 U.S.C. §§ 10136, 10155, 1056, 10165, 10166(e), 10169. These State protections are further Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 34

26 underscored by the consent-based siting recommendations of the Secretary of Energy for new nuclear waste management facilities. See Blue Ribbon Commission on Americas Nuclear Future (2012).13 The NRC cannot circumvent such State protections through its adoption of a site selection process that violates both NEPA and APA (discussed below). Yet, the NRC adopted ISPs site selection process, which was predicated on the false and self-serving assumption that both New Mexico and Texas are perceived to have the required general support at the state and community level consistent with the consent-based siting philosophy as recommended by the Blue Ribbon Commission, REC. 88, ER Rev. 3 at 2-10 (emphasis added). This is patently false and contrary to the substantial evidence before the agency. As discussed herein, New Mexico has expressed its objections and opposition to the ISP CISF time and time again.

The NRC is without authority here to disregard Congressional directives to safeguard States rights in the site selection process for nuclear storage facilities.

D. The Issuance of the ISP License Imposes Unfunded Mandates on New Mexico Requiring New Mexico and its communities to shoulder the burden of all costs associated with emergency response, which is completely unaccounted for in the EIS, not only runs afoul of NEPA and the APA, but also violates the Tenth 13 https://www.energy.gov/sites/prod/files/2013/04/f0/brc_finalreport_jan2012.pdf Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 35

27 Amendment, barring federal action that commandeer[s] state governments into service of federal regulatory purposes. Such commandeering is inconsistent with the Constitutions division of authority between federal and state governments.

New York v. United States, 505 U.S. 144, 175 (1992). Impermissible interference with state sovereignty is not within the enumerated powers of the National Government and action that exceeds the National Governments enumerated powers undermines the sovereign interests of States. Bond v. U.S., 564 U.S. 211, 225 (2011) (internal citation omitted).

The Supreme Court has held that the federal government cannot compel a state to enact or administer a federal regulatory program or command state legislatures to adopt certain policies (New York, 505 U.S. at 188), command state executives to carry out federal programs (Printz v. United States, 521 U.S. 898 (1997)), or coerce states into adopting a federal regulatory system as their own (Natl Fedn of Indep.

Bus. v. Sebelius, 567 U.S. 519, 577-78 (2012)); see also Murphy v. Natl Collegiate Athletic Assn, 138 S. Ct. 1461 (2018) (invalidating Professional and Amateur Sports Protection Act on Tenth Amendment anti-commandeering grounds, collecting cases, and affirming importance of the anti-commandeering principle). Here, the NRC exceeded the scope of its authority and overstepped the boundaries of the Tenth Amendment when it saddled New Mexico with funding emergency response training, staffing, and equipment to accommodate a CISF that violates the NWPA.

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28 Only after the closing of the administrative record, NRC acknowledged for the first time in its DEIS, that the responsibility and costs associated with emergency-response training and equipment around the storage site and along transportation routes will fall on states, tribes, and municipalities. The NRC staff also recognizes that the presence of a facility that stores nuclear materials may require additional preparedness of first responders in the event of an incident requiring fire, law enforcement, and health service support. And yet, ISP, as the license holder, provided no detailed estimate of the additional training and equipment necessary to respond to an incident at the proposed CISF project that are not currently available to first responders, and local agencies and officials have not conducted studies to produce this type of information. REC. 125, EIS at 4-74 -75; see also id. at 8-12 (States are recognized as responsible for protecting public health and safety during radiological transportation accidents.). Therefore, not even a cursory analysis of the costs associated with these potential additional resources are included in this EIS.

Accordingly, the associated costs described above will be borne by New Mexico, a state which does not have any privately owned reactors, and no determination was made as to whether such costs outweigh the alleged economic benefits of the project. Moreover, the NRC did not meaningfully consult with New Mexico in the EIS process, and these concerns, as well as issues associated with state agency approvals and permits, were never discussed with New Mexico. See REC.

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29 131, Grantham letter at 9, 16; REC. 132, Kenney letter at 2; REC. 1295, Grisham letter at 4; REC. 1386, Kenney letter at 7.

The NRCs issuance of the ISP License and imposes an unfunded mandate on the State, under the self-granted authority of the NRC. The NRCs decision is arbitrary, capricious, and outside the law. The State therefore requests the License be vacated.

II. THE NRC VIOLATED NEPA AND APA IN ITS PREPARATION OF THE EIS, ROD, AND ISSUANCE OF THE ISP LICENSE NEPA requires agencies, including the NRC, to take a hard look at the cumulative impacts14 of a proposed action before taking any major Federal actions significantly affecting the quality of the human environment. See 43 U.S.C. § 4332(2)(c). The NRC is without discretion to disregard with the mandates of NEPA.

42 U.S.C. §§ 4321, et seq.; see Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989) (NRC is subject to NEPA mandates); Limerick Ecology Action, Inc. v. U.S.

Nuclear Regulatory Commn, 869 F.2d 719, 741 (3d Cir. 1989) (finding the NRCs compliance with the AEA did not exempt it from NEPA obligations); Oglala Sioux Tribe v. Nuclear Regulatory Commn, 896 F.3d 520, 536 (D.C. Cir. 2018) (finding 14 Council on Environmental Quality (CEQ) Regulations define cumulative impacts as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. 40 C.F.R. § 1508.7 (emphasis added).

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30 NRC fail[ed] to identify any statute that authorizes it not to comply with NEPA on equitable grounds). Indeed, the NRC itself acknowledges it is subject to such NEPA requirements. See, e.g., Matter of Interim Storage Partners, LLC, Docket No. 72-1050-ISFSI, LBP-19-07 (August 23, 2019) (ASLB ISP Order), available at:

https://www.nrc.gov/docs/ML1923/ML19235A165.pdf (recognizing NEPA imposes a duty upon the agency to both consider every significant aspect of the environmental impact of a proposed action and inform the public of its analysis and conclusion) (quoting Baltimore Gas & Elec. v. Nat. Res. Def. Council, Inc.,

462 U.S. 87, 97 (1983) (internal quotations and citations omitted)).

At the core of an agencys NEPA obligations is preparation of an EIS, which must include careful consideration of reasonably foreseeable impacts which have catastrophic consequences, even if their probability of occurrence is low.... 40 C.F.R. § 1502.22(b)(4). Pursuant to 42 U.S.C. § 4332(C), NEPA mandates that agencies address five issues in their EIS that significantly affect[] the quality of the human environment and include a detailed statement on:

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 39

31 (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Because an agencys preparation of an EIS serves as the basis for a host of governmental decisions, agencies must meet the standards under NEPA. See Vt.

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 535, n.14 (1978) (preparation of EIS is subject to arbitrary and capricious standard of APA);

City of Oxford, Ga. v. F.A.A., 428 F.3d 1346, 1353-54 (11th Cir. 2005) (noting that an agencys consideration of future cumulative impacts should further the informational purposes of NEPA with details that are sufficiently concrete for the agency to gather information useful to itself and the public). Similarly, an agency has a continuing duty to consider new and material information pertinent to environmental impacts in its decision-making process when substantial impacts or relevant factors arise that may impact its analyses, conclusions, or underlying premises. See Calvert Cliffs, 449 F.2d 1109; Oglala Sioux Tribe, 896 F.3d 520; see also, Union of Concerned Scientists v. Nuclear Regulatory Commn, 920 F.2d 50, 55-56 (D.C. Cir. 1990) (emphasizing the importance of NRC not foreclosing new issues and new information in context of adjudicatory proceedings). Finally, and importantly here, agencies also have duties under NEPA to consult and collaborate Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 40

32 with local entities in its independent investigation into the reliability and accuracy of evidence and information gathered on the impacts of a proposed action. E.g., 40 C.F.R. § 1506.2(b) (agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements); 10 C.F.R. §§ 51.70(b) (requiring draft EIS prepared by the NRC to be supported by evidence that the necessary environmental analyses have been made... [and] independently evaluate[d]), 51.71(b) (requiring same include[s]

consideration of major points of view concerning the environmental impacts of the proposed action and the alternatives, and contain an analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian Tribes, and by other interested parties).

In the present case, the NRCs preparation of the EIS and Record of Decision ignores known, crucial transportation aspects that are inextricably linked to the operation of the CISF and relies on fatally flawed, implausible underlying assumptions that are contradicted throughout the EIS. The NRCs decision to not conduct any evaluation of reasonable alternatives is fundamentally at odds with the purpose of preparing an EIS. And the agencys total failure to conduct any risk assessment of potential for terrorist attacks given the magnitude of nuclear materials to be stored at the CISF and heightened risk of multiple rounds of transportation located in the heart of the countrys most productive energy sector is unreasonable, Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 41

33 is inconsistent with NRC guidance, and is contrary to the substantial evidence in the record in further violation of NEPA and the APA. As such, the ISP License should be vacated until the agencys decision-making process complies with the requirements of NEPA and the law.15 A. NRCs Assumption That a Permanent Repository Will Be Available in the Future Is At Odds with Substantial Evidence in the EIS and Renders NRCs Reliance on ISPs Purpose and Need Statement Arbitrary and Capricious The NRC evaluated the impacts of the facility under the assumption that a permanent repository will be available by 2048. E.g., REC. 125, EIS at 2-2 (NRC staff expects SNF to be shipped to permanent repository by the end of 40-year license term and concludes repository will be available by 2048) (emphasis added).

Yet, this stated assumption is problematic in at least two ways. First, it is not supported by evidence and is in fact contradicted by NRCs own statements elsewhere - that no permanent repository is likely to be operational by 2048.

Second, assuming arguendo the assumption could be justified, it would undermine the stated purpose and need for this facility - that an interim storage facility for SNF was actually needed. If a permanent repository is likely to be operational by 2048, 15 The APA provides that all invalid agency action should be set aside. 5 U.S.C. § 706(2); FCC v. NextWave Pers. Commcns Inc., 537 U.S. 293, 300 (2003) (The

[APA] requires federal courts to set aside federal agency action that is not in accordance with law.). And it is well established that set aside means vacate.

Action on Smoking & Health v. CAB, 713 F.2d 795, 797 (D.C. Cir. 1983) (per curiam).

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34 then a reasonable alternative to issuance of this license would be keeping SNF at current storage locations until the permanent repository is ready. However, NRC improperly limited the alternatives analysis by accepting ISPs purpose and need statement on its face, even though this purpose and need was contrary to Congress mandated goal of an operational permanent repository.

As to the first point, the assumption of the creation of a permanent repository by 2048 is not supported by any credible evidence in the record and the NRC points to no evidence in record to justify this assumption, and is also inconsistent with other NRC statements such as its acknowledgement that ISP anticipates storing SNF for at least 60 to 100 years. Id. at 9-16.

Secondly, the repository-by-2048 assumption fundamentally clashes with ISPs asserted purpose and need statement for the project, which is:

to provide an option for storing SNF... from commercial nuclear power reactors before a permanent repository is available.... The proposed CISF is needed to provide away-from-reactor storage capacity that would allow SNF... to be transferred from reactor sites and stored for the 40-year license term, before a permanent repository is available.

REC. 125, EIS at 1-3 (emphasis added). Consistent with NRC guidance in NUREG-1748, the purpose and need statement in an EIS describes what will be accomplished by the proposed action and what provides a reasonable basis for considering alternatives.

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35 Given the NRCs assumption that a permanent repository will be available by 2048 (26 years from now), there is no purpose or need for consolidated SNF storage for the 40 year initial licensing period, i.e. until 2061, let alone the 60 to 100 years that NRC concedes is actually anticipated. As argued above, NRC is essentially admitting that this license is for a de facto permanent storage facility, as 60 to 100 years is practically speaking longer than the lifetime of most people alive today.

NRC takes the position, largely based on ISPs stated purpose and need statement, that the NRC is not required to consider any reasonable alternatives to the ISP CISF. REC. 125, EIS at xx (acknowledging alternatives have been established based on the purpose and need for the proposed project); id. at D-31 (explaining alternatives were eliminated from detailed study because they either would not meet the purpose and need of the proposed project or would cause greater or no less environmental impacts than the proposed action.).

The heart of an agencys EIS is its objective exploration of possible reasonable alternatives. See 40 C.F.R. § 1502.14. NRCs refusal to evaluate a single reasonable alternative in light of the purpose and need statement constitutes arbitrary and capricious decision-making. Without substantive, comparative environmental impact information regarding other possible courses of action, the ability of an EIS to inform agency deliberation and facilitate public involvement would be greatly degraded. See Baltimore Gas & Elec. Co., 462 U.S. at 97. The NRC cannot avoid its Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 44

36 fundamental obligation under NEPA to consider reasonable alternatives in the preparation of the EIS, as it has done in this case.

B. NRC Has Improperly Segmented and Failed to Adequately Evaluate Crucial Aspects of Transportation Impacts NRCs failure to adequately evaluate crucial transportation impacts of the ISP CISF vitiates NEPA requirements, precludes proper discussion of mitigation measures and is in further violation of the AEA and the APA. Evaluation of transportation impacts, like consideration of reasonable alternatives, are essential elements in most (if not all) NRC EISs pursuant to NEPA requirements and is likewise mandated by NRCs own regulations for Part 72 licenses. See, e.g., 10 C.F.R. § 72.108 (proposed ISFSI or MRS must be evaluated with respect to the potential impact on the environment of the transportation of [SNF], radioactive waste, or reactor-related GTCC waste within the region).

Despite the obvious need to do so, the NRC chose to segment its transportation impact determinations for the ISP CISF in the EIS and associated ROD. NRCs segmentation of necessary transport of nuclear waste to the ISP CISF from sites across the country and from the ISP CISF to a yet-to-be-determined permanent repository improperly skews public perception of the effects and downplays the substantial costs and significant risks of the ISP CISF project. NRCs purported justification for such a piecemeal approach is ill-founded and misplaced Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 45

37 as it relies on generic analyses with underlying assumptions that are inapplicable to the known operational characteristics of the ISP CISF. This unlawful segmentation and material omissions of such site-specific transportation determinations frustrate the objectives of NEPA.

1. Transportation of Nuclear Materials is a Necessary Connected Action Inextricably Linked to Privately Owned Away-From-Reactor Consolidated Interim Storage and ISP CISF Under CEQ regulations, for environmental review purposes, agencies are required to consider connected actions, defined as actions that: (i) [a]utomatically trigger other actions which may require environmental impact statements; (ii)

[c]annot or will not proceed unless other actions are taken previously or simultaneously; (iii) [a]re interdependent parts of a larger action and depend on the larger action for their justification. 40 C.F.R. § 1508.25(a)(1) (emphasis added).

The New River Valley Greens, et al. v. Dep't of Transp., 1998 U.S. App. LEXIS 22127, 8 (4th Cir. 1998) ([t]he hallmarks of segmentation are where the proposed component action has little or no independent utility or involves such a large and irretrievable commitment of resources that it may virtually force a larger or related project to go forward notwithstanding the environmental consequences); North Carolina v. City of Virginia Beach, 951 F.2d 596, 603 (4th Cir. 1991) (in determining whether illegal segmentation has occurred, courts ask whether the Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 46

38 completion of the first action has direct and substantial probability of influencing

[the] decision of the second).

Because transport is a reasonably foreseeable action and because away-from-reactor interim storage facilities cannot be utilized without the transport of nuclear waste to such facilities for storage, transportation is by necessity a connected action to the ISP CISF. As such, the impacts of transportation cannot be segmented from NRCs impact determinations here.

As noted by New Mexico, the Government Accountability Office, and numerous other stakeholders throughout the process, the NRC improperly segmented16 the financially and functional connected activity of transportation in the EIS that weaken[] the overall FEIS analysis and do[] not present a clear picture of all impacts. See REC. 131, Grantham letter (citing REC. 128, Great Ecology Report at 5). NRCs segmentation of transportation impacts results in failures to address serious and substantial aspects of the problem, such as:

• Acknowledged illegal and unlawful NWPA condition of ISP License whereby DOE would take title of SNF prior to establishing a permanent repository; 16 The rule against segmentation was developed to insure that interrelated projects, the overall effect of which may be environmentally significant, not be artificially divided into smaller, less significant actions. Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987). Segmentation is illegal where it divides a project into smaller parts, each which taken alone does not have a significant impact but which taken as a whole has cumulative significant impact.... Utah Shared Access Alliance v. Wagner, 98 F.Supp.2d 1323, 1331 (D. Ut. 2000).

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39

• Varying security measures, requirements, operational designs, applicable regulatory framework, levels of risk and costs depending on the entity responsible for transport;

• Heightened risks with graver consequences given location and multiple rounds of transport of SNF from acts of terrorism, sabotage and malice;

• Lack of funding, trained personnel and/or equipment in rural remote communities in the region of ISP CISF necessary to ensure adequate emergency management, first responder and fire services to safeguard against any possible radiological contamination or incident in transit;

• Need for regional infrastructure improvements to rails and roads to accommodate for SNF transport via over-sized railcars and/or heavy haul trucks;

• Competing historical and reasonably foreseeable future regional industry use of limited rails and roads that ISP CISF would need for designated transport of SNF with potentially incompatible materials and/or schedules; and

• Substantially overlapping federal agency responsibility for regulating, enforcing, inspecting and overseeing the transport of nuclear materials that have been largely ignored or discounted by the NRC.

The NRC lacks the discretion and authority to omit consideration and evaluation of these important transportation impacts and has relied on factors that Congress did not intend for the agency to consider. As discussed above, NRCs actions in doing so are contrary to NWPA Congressional framework and directives to minimize transport of nuclear materials in the context of interim storage, REC.

125, EIS at D-79 to D-80 (referencing 2019 Nuclear Waste Technical Review Board Report Preparing for Nuclear Waste Transportation and identifying concerns and Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 48

40 challenges allegedly unanalyzed by NRC including responsibility for transportation of SNF and lack of data on the potential for damage to SNF during transportation after storage among others).

In sum, NRCs improper segmentation of transportation unfairly obscures significant impacts on the human environment and fails to inform the public of the reality of risks and costs associated with ISP CISF project.

2. NRCs Imposition of Unfunded Mandates On New Mexico Related to Transportation Is Arbitrary and Capricious As noted above, NRCs analysis of transportation impacts is also silent on the significant regional and cumulative transportation impacts. This includes potential risks from wear and tear and geologic instability, adverse impacts on regional industries use of the transportation infrastructure and inevitable need for infrastructure improvement costs, and substantial funding needed for training, equipment and providing first responder, fire and emergency services in the event of a radiological incident.

A single rail line (Texas-New Mexico) connects the ISP site to national rail lines and provides the sole avenue for rail transport of nuclear materials to the ISP CISF site. REC. 125, EIS at 3-8. Because intermodal transfers are not contemplated or proposed in the EIS, this means that every single shipment to ISP, regardless of its origin in California, Maine, Michigan, etc. will necessarily be routed to ISP CISF through the Texas-New Mexico rail line. This will not only have a significant impact Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 49

41 on competing uses of the rails by regional industries that form the cornerstones of New Mexicos economy, but also contribute to the deterioration of infrastructure and necessitate improvements in order to safely and securely carry nuclear wastes on oversized rail cars.

NRC claims these unfunded mandates are outside the scope of its EIS evaluations or unquantifiable. REC. 125, EIS at 4-75, But the NRC cannot so easily brush aside its NEPA obligations to evaluate such environmental impacts by labelling them as unquantifiable. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1032 (9th Cir. 2006) (citing Limerick, 869 F.2d at 754). These costs and risks are not insignificant, undoubtedly impact the human environment and as such, the NRC is required to take a hard look at the impacts but failed to do so here.

Lastly, NRCs lack of transparency with respect to comprehensive transportation impacts improperly shields its decision-making process and responsible parties. REC. 77, EIS Summary Report at B-17 (NRC alleging in its EIS Scoping Summary Report that [i]ssues relating to title to spent fuel are primarily outside the scope of this EIS because who holds title will likely not influence the environmental impacts of the proposed action.); id. at D-38 (NRC maintaining issues relating to ownership (i.e. title) of spent fuel are outside the scope); Oglala Sioux Tribe, 896 F.3d at 520 (quoting NRC judges dissent opinion emphasizing the importance of adequate environmental reviews before making a decision on Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 50

42 licensing action and warning that if NRC allows supplement[ation] [to] cure an inadequate NEPA document after the agency has already issued a licensing decision, then the fundamental purpose of NEPA is frustrated).

3. NRC Must Analyze Site Specific Transportation Impacts When facilities differ in operational characteristics that influence impact determinations the NRC must conduct and publicly disclose site-specific evaluations. NUREG-2157 (2014) (acknowledging that not all storage facilities will necessarily match the assumed generic facility and therefore when it comes to size, operational characteristics and location of the facility, the NRC will evaluate the site-specific impacts of the construction and operation of any proposed facility as part of that facilitys licensing process). NRC claims that [n]either transportation nor storage and management operations are treated as generic issues in the EIS; both are analyzed for the site-specific license term. REC. 125, EIS at D-

33. However, the evidence in the record is to the contrary - with the NRC noting differences exist but failing to provide any meaningful discussion or evaluation of the resulting impacts. See also id. at D-28; (claiming NRCs site-specific EIS and environmental analysis are limited to a 40-year licensing period and assuming that SNF would be transported away from the CISF and that decommissioning of the proposed CISF would occur prior to license termination); id. at D-33 (noting that NRCs site-specific conclusions regarding impact determinations for public and Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 51

43 occupational health for both generic EIS and ISP CISF would not change because both would continue to be required to meet regulatory safety criteria that are protective of public health and safety and that the size of a facility is immaterial);

id. at D-3 (acknowledging lack of repackaging facility and capability but suggesting a license amendment would cover same); id. at D-57 to D-58 (adopting DOE impact analysis despite lack of contracts and arrangements for storage of SNF... the specific characteristics of the SNF, the origins of shipments, the routes of travel, shippers and carriers, and specific plans and other details have not yet been clarified); id. at D-32 to D-33 (finding similar impact determinations for ISP and facilities in NUREG-2157 despite substantial differences in repackaging and reprocessing capabilities and the presence of dry cask storage transfer facilities).

The NRC cannot reasonably brush aside such distinctions and important site-specific characteristics such as a facilitys ability to repackage and reprocess fuel.

See NUREG-2157 at xxxi. The ability to repackage and reprocess materially differs from the ISP CISF, which does not propose a dry cask storage transfer facility and has no repackaging or reprocessing capabilities. See REC. 125, EIS at D-33. The NRCs omission of any consideration for this key operational difference and the relevant impacts on transportation is arbitrary and capricious when ISP proposes multiple rounds of transport for faulty casks with correspondingly greater risks and higher health exposures. Id.at D-32 to D-33 (NRC acknowledging the operational Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 52

44 differences and referencing ISPs return to sender policy for either [] SNF or packaging that is damaged on arrival at the ISP CISF). Its faulty reliance on NUREG-2157 is not justified because of the site-specific differences NRC ignored.

The EIS does not meaningfully address dry cask transfer or fuel retrievability or ability of repackaging. Under NEPA, the NRC is required to consider such site-specific impacts and plant-specific operational distinctions and failed to do so here.

C. NRC Must Take a Hard Look at Any Potential Risks from Terrorist Attacks, Acts of Malice or Sabotage in a Site-Specific EIS NEPA requires the agency to take a hard look at the environmental consequences of terrorist risks in this case, considering the creation of multiple rounds of transport of nuclear materials, ISP CISFs above-ground interim storage, and the sites location in the middle of the nations most productive oil field in the Permian Basin. NRC unjustifiably maintains it has no legal duty under NEPA, and categorically refuses, to conduct any assessment of terrorist or sabotage attacks in its allegedly site-specific ISP EIS. See ASLB Order at p. 37 (Commission has taken the position that the NRC is not required to consider terrorism in its NEPA analysis of licensing actions outside of those states encompassed by the United States Court of Appeals in the Ninth Circuit.).

NRCs failure to conduct any terrorist risk assessment is inconsistent with DOEs policy requiring evaluation of such risks, and it ignores NRCs requirement Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 53

45 for such evaluation for NRC licenses operating in the Ninth Circuit,17 where many shipments to CISF will originate. Instead, NRC has arbitrarily decided to assess such serious risks differently in different regions of the country, maintaining that evaluation of potential acts of sabotage and terrorism is only required under NEPA in the Ninth Circuit, relying on New Jersey Dept Envtl. Prot. v. Nuclear Reg.

Commn, 561 F.3d 132, at 142-143 (3d Cir. 2009).

In San Luis Obispo Mothers for Peace, the Ninth Circuit held that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on [ISFSI licensed under Part 72]... as too remote and highly speculative to warrant consideration under NEPA. 449 F.3d at 1032; see also, 40 C.F.R. § 1502.21(d)

(requiring an agency assess reasonably foreseeable significant adverse effects including impacts that have catastrophic consequences, even if their probability of occurrence is low). Specifically, the Ninth Circuit found that NRCs historical actions to combat terrorist threats could not be reconciled with its position that terrorist attacks are too remote and speculative. Id. at 1030-31 & n.8 (finding inconsistencies with NRCs position that terrorist attacks are too remote and speculative and the agencys post 9/11 security procedures requiring security plans 17 Memorandum from Carol S. Borgstrom, Director, DOE Office of NEPA Policy and Compliance, to DOE NEPA Community, Need to Consider Intentional Destructive Acts in NEPA Documents (Dec. 1, 2006), available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-DOE-intentdestructacts.pdf.

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46 to protect against a design basis threat for radiological) (citing NRC: Oversight of Security at Commercial Nuclear Power Plants Needs to Be Strengthened, GAO-030752 (2003) at 6).

The reasoning in San Luis Obispo Mothers for Peace applies here, perhaps more poignantly, given the site-specific operational characteristics and the ISP CISFs site within 50-miles of a second proposed CISF, which significantly increases the risk and probability of a terrorist attack not only on the ISP CISF but within the Permian Basin.

D. The NRCs Acceptance of ISPs Site Selection Process Disregards NEPA and Requirements to Consult with Impacted States The NRCs acceptance of ISPs site selection process disregards NRC NEPA implementing regulations and requirements to consult and collaborate with New Mexico and local agencies.

The primary criteria for ISP CISF site selection is support from political and host communities. See REC. 88, ER Rev. 3 at 2-10 (ISP [] believes that a CISF should only be located in a state that has voiced its support for hosting such a facility); id. at 2-24 (eliminating states from screening process based on a lack of exressed political and community support of hosting a CISF). Yet, New Mexicos comments and regional expertise have been ignored in the decision-making process.

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47 Throughout the process, NMED has raised numerous issues and concerns regarding the geologic unsuitability and NRCs lack of independent investigation into impacts on the environment. REC. 132, 1386, 1432. NRCs dismissiveness of NMEDs comments is striking, given that, in the context of preparing an EIS for the nearby proposed Holtec CISF, NRC entered an agreement designating NMED as cooperating agency, stating that NMED is recognized as having special expertise regarding impacts due to its knowledge of the region and the state environmental permitting requirements. NMED staff's areas of expertise include surface water and groundwater. 18 However, despite being designated the cooperative agency on a nearby nuclear waste facility, NMEDs comments were ignored.

Further, ISP misleadingly touts support from the host community as a primary criteria for its CISF site-selection process based on a Go/No Go rating.

REC. 125, EIS at 2-24 There is no discussion in the EIS as to the underlying rationale or any objective criteria used in assessing ISPs Go/No Go ratings for host community support but this is clearly contradicted by the extensive oppositions and 18 Memorandum Of Understanding Between the U.S. Nuclear Regulatory Commission, Office Of Nuclear Material Safety And Safeguards, and the New Mexico Environment Department On The Environmental Review Related To the Issuance Of Authorizations To Build And Operate The Proposed Holtec International Consolidated Interim Storage Facility at 3. Available at:

https://www.nrc.gov/docs/ML1920/ML19206A094.pdf Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 56

48 objections by New Mexico presented to the NRC documented herein, see e.g., REC.

645, 1295, 1386, 1432, 1484, 131, 132.

Geologic suitability and seismology for the ISP site location were given a Go rating in site selection. REC. 125, EIS at 2-24. Yet throughout the process, NMED raised numerous issues and concerns regarding geologic issues in the region that NRCs lack of independent investigation failed to discover and NRC chose to ignore. REC. 1386; NMED Comments (identifying issues with seismic stability, deficiencies with subsurface characterization, sinkholes and subsidence, among other technical deficiencies that preclude a thorough evaluation of the radiological and non-radiological environmental impacts at the ISP site and in the region).

In addition, the construction and operation of the proposed Holtec CISF is a reasonably foreseeable action that will add to potential cumulative impacts of the ISP CISF. REC. 125; EIS at D-8 (NRC staff agrees that because the proposed ISP and Holtec CISFs are within close geographic proximity, overlapping impacts could occur); id. at 5-18 (noting the cumulative transportation impacts for the ISP CISF given WIPP and the proposed Holtec CISF where other nuclear materials facilities engage in or have plans for the transportation of radioactive materials); id. at 5-51 (noting the cumulative public and occupational health impacts and higher public-dose impacts for the nearby Holtec CISF). The sheer amount of high-level nuclear waste to be stored in the middle of the Permian Basin, between the ISP CISF and Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 57

49 proposed Holtec CISF located less than 50 miles away, with both CISFs likely utilizing similar if not identical regional infrastructure and routes for multiple legs of transporting nuclear materials is an unprecedented risk for potential terrorist attacks that is left entirely unanalyzed by the NRC.

NRCs actions in ignoring the substantial evidence before it, failing to consult with state and local agencies, and failing to conduct any independent investigation into the reliability of the evidence violates NEPA and NRC regulations. This cannot possibly form a valid basis for finding the ISP site selection process reasonable.

CONCLUSION The Court should hold unlawful and set aside the NRCs ROD and vacate the ISP License. In the alternative, New Mexico respectfully requests that this Court stay any future activity relating to the ISP License and remand the ROD and EIS to the NRC until it complies with the mandates of NEPA and APA. New Mexico further prays for any and other equitable relief this Court deems appropriate.

STATEMENT REGARDING ORAL ARGUMENT Given the complexity of legal issues and subject matter in this case, New Mexico believes that oral argument would be helpful to the Court. Accordingly, New Mexico requests oral arguments.

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50 Dated: March 10, 2022 Respectfully submitted by:

HECTOR H. BALDERAS NEW MEXICO ATTORNEY GENERAL

/s/

Zachary E. Ogaz P. Cholla Khoury William G. Grantham Zachary E. Ogaz Assistant Attorneys General ckhoury@nmag.gov wgrantham@nmag.gov zogaz@nmag.gov P.O. Drawer 1508 Santa Fe, NM 87504 T. (505) 717-5300 BRUCE C. BAIZEL NEW MEXICO ENVIRONMENT DEPARTMENT

/s/ Bruce C. Baizel Bruce C. Baizel New Mexico Environment Department General Counsel Bruce.Baizel@state.nm.us 1190 Saint Francis Drive Santa Fe, NM 87502 Phone: (505) 490-5427 Fax: (505) 383-2064 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 59

51 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 60

52 CERTIFCATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQURIEMENTS AND TYPE STYLE REQUIREMENTS This document complies with the type-volume limit of Fed. R. App. P. 32(g) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and 10th Cir. R. 32, this document contains 11,710 words, as computed by Microsoft Word.

This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point, Times New Roman font.

Dated:

/s/ Zachary E. Ogaz Zachary E. Ogaz Attorney for the State of New Mexico Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 61

53 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Petitioners Opening Brief was filed through the CM/ECF system on March 10, 2022, causing all other parties or counsel in this matter for whom electronic service has been authorized to be served by electronic means.

Zachary E. Ogaz Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 62

Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 63

RECORD OF DECISION U.S. NUCLEAR REGULATORY COMMISSION RECORD OF DECISION INTERIM STORAGE PARTNERS LLC LICENSE APPLICATION FOR A CONSOLIDATED INTERIM STORAGE FACILITY, ANDREWS COUNTY, TEXAS Introduction The U.S. Nuclear Regulatory Commission (NRC) staff prepared this record of decision (ROD) for the proposed Interim Storage Partners LLC (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas. This ROD satisfies Section 51.102(a) of Title 10 of the Code of Federal Regulations (10 CFR), which states that [a] Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision.

In July 2021, the NRC staff issued a final Environmental Impact Statement (FEIS) (NRC, 2021b) for ISPs license application to construct and operate a proposed Waste Control Specialists (WCS) CISF (ISP, 2018a, 2018b, 2020a, 2020b, and 2021). In the FEIS, the NRC staff, in accordance with 10 CFR 51.91(d), sets forth its recommendation, pursuant to the National Environmental Policy Act of 1969, as amended (NEPA), regarding the proposed action.

The NRC staff recommended that, subject to the determinations in the staffs safety review of the application, the proposed license be issued to ISP to construct and operate a CISF at the proposed location to temporarily store up to 5,000 metric tons of uranium (MTUs) [5,500 short tons] of spent nuclear fuel (SNF) for a licensing period of 40 years (NRC, 2021b). The NRC staff has prepared this ROD in accordance with NRC regulations at 10 CFR Sections 51.102(b) and 51.103(a)(1)-(4). In addition, in accordance with 10 CFR Section 51.103(c), this ROD incorporates by reference the materials contained in the FEIS (NRC, 2021b).

The Decision This ROD documents the NRC staffs decision to issue a license to ISP for the proposed WCS CISF in Andrews County, Texas (NRC, 2021a). The license authorizes ISP to construct and operate its facility as proposed in its license application and under the conditions in its NRC license.

After weighing the impacts of the proposed action and comparing them to the No-Action alternative, the NRC staff, in accordance with 10 CFR 51.91(d), set forth its NEPA recommendation regarding the proposed action. The NRC staff recommended that, subject to the determinations in the staffs safety review of the application, the proposed license be issued to ISP to construct and operate a CISF at the proposed location to temporarily store up to 5,000 MTUs [5,500 short tons] of SNF for a licensing period of 40 years. The staff based its conclusion on (i) review of the ISP license application, which includes the Environmental Report (ER) and supplemental documents (ISP, 2018a, 2018b, 2020a, 2020b, and 2021), and ISPs responses to the NRC staffs requests for additional information (RAIs) (ISP, 2019a and 2019b);

(ii) consultation with Federal, State, tribal, and local agencies and input from other stakeholders, including public comment on the draft EIS; (iii) independent NRC staff review; and (iv) the assessments provided in the FEIS.

In its safety and security review, the NRC staff determined that the application met the applicable NRC regulations in 10 CFR Part 72, Licensing Requirements for the Independent Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 64

2 Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than Class C Waste. In issuing a materials license to ISP for the WCS CISF, the NRC determined that there is reasonable assurance that: (i) the activities authorized by the license can be conducted without endangering the health and safety of the public; and (ii) these activities will be conducted in compliance with the applicable regulations of 10 CFR Part 72.

The NRC further determined that issuance of the license will not be inimical to the common defense and security.

Background

In accordance with the NRCs NEPA-implementing regulations in 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions, the NRC staff prepares a site-specific EIS for the issuance of a license pursuant to 10 CFR Part 72 for the storage of spent fuel in an independent spent fuel storage installation (ISFSI) at a site not occupied by a nuclear power reactor (10 CFR 51.20(b)(9)). In this instance, the NRCs major Federal action is to decide whether to issue a license authorizing ISP to construct and operate the WCS CISF for a 40-year license term.

The WCS CISF would store up to 5,000 MTUs [5,500 short tons] of SNF and Greater-Than-Class-C (GTCC) waste, along with a small quantity of mixed oxide (MOX) fuel (collectively referred to as SNF in the FEIS and in this ROD), which would originate from commercial nuclear reactor facilities in the United States, for a 40-year period at the site in Andrews County, Texas.

During operation, the WCS CISF would receive SNF from decommissioned and decommissioning reactor sites, as well as from operating reactors prior to decommissioning (NRC, 2021b).

The WCS CISF would be built and operated on an approximately 130-hectare (ha) [320-acre (ac)] project area within a 5,666-ha [14,000-ac] parcel of land that is controlled by ISP joint venture member WCS in Andrews County, Texas. In addition, construction of the rail sidetrack, site access road, and construction laydown area would contribute an additional area of disturbed soil such that the total disturbed area for construction of the WCS CISF would be approximately 133 ha [330 ac]. The project area would be located north of WCSs existing waste management facilities and controlled by ISP through a long-term lease from WCS (NRC, 2021b).

ISP would store SNF in six existing dual-purpose canister-based dry cask storage systems (DCSS) designed by TN Americas or NAC International. The 6 DCSS (3 from TN Americas and 3 from NAC International) consist of 11 different SNF canisters and 5 different GTCC waste canisters stored in 5 overpacks. SNF is stored horizontally in the TN Americas systems and vertically in the NAC International systems. The TN Americas and NAC International DCSS listed in the FEIS have been previously approved by the NRC for independent storage of SNF, GTCC, and a small amount of MOX fuel, pursuant to requirements in 10 CFR Part 72.

In addition, the NRC approved both the TN Americas and NAC International systems for storage of SNF transported in canisters pursuant to the requirements in 10 CFR Part 71, Packaging and Transportation of Radioactive Material.

Public Comments On November 14, 2016 (81 FR 79531), the NRC staff published in the Federal Register a notice of intent to prepare an EIS and to conduct an environmental scoping process. The NRC staff invited potentially affected Federal, State, tribal, and local governments; organizations; and Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 65

3 members of the public to provide comments in the environmental scoping process and review.

The initial scoping period closed on April 28, 2017. During this time, the NRC staff hosted four public scoping meetings, one in Hobbs, New Mexico, on February 13, 2017; a second in Andrews, Texas, on February 15, 2017; and two in Rockville, Maryland, on February 23, 2017 and April 6, 2017. Following a suspension of NRCs review at the applicants request, ISP submitted a revised license application in June and July 2018 (ISP, 2018a). On September 4, 2018 (83 FR 44922), the NRC staff reopened the scoping period for the ISP license application.

The reopened scoping period closed on November 19, 2018. The NRC staff issued a scoping summary report in October 2019 (NRC, 2019).

On May 4, 2020, the NRC staff issued the draft Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas (NRC, 2020).

A 120-day comment period began on May 8, 2020, when the U.S. Environmental Protection Agency (EPA) published a Notice of Availability in the Federal Register (85 FR 27412) of the draft EIS to allow members of the public and agencies time to comment on the results of the draft EIS. On July 22, 2020. the NRC staff extended the comment period an additional 60 days to close on November 3, 2020 (85 FR 44330). Additionally, the NRC staff held public meetings on October 1, 6, 8, and 15, 2020, to discuss the preliminary findings in the draft EIS, with transcripts of these meetings available at the NRC public project webpage:

https://www.nrc.gov/waste/spent-fuel-storage/cis/waste-control-specialist.html.

Responses to all public comments received during the draft EIS comment period are included in Appendix D to the FEIS.

Alternatives Considered In its environmental review, the NRC staff evaluated the environmental consequences of the proposed action (i.e., authorizing the construction and operation of the WCS CISF), and the environmental consequences of the No-Action alternative (i.e., not licensing the WCS CISF).

FEIS Chapter 2, Proposed Action and Alternatives, and Chapter 4, Environmental Impacts, present the NRC staffs evaluation and analysis of the environmental impacts of the proposed action and the No-Action alternative that were considered, as well as those alternatives that were eliminated from detailed study (NRC, 2021b). The NRC staff discusses the reasons for eliminating these alternatives in Section 2.3 of the FEIS. These alternatives included (1) storage of SNF at a government-owned CISF operated by the U.S. Department of Energy (Section 2.3.1); (2) alternative design or storage technologies (Section 2.3.2); and (3) alternative CISF locations (Section 2.3.3).

After weighing the impacts of the Proposed Action, comparing them to the No-Action alternative, and conducting a safety and security review of the Proposed Action, the NRC staff determined that the NRC should issue a license for the proposed WCS CISF project. The NRC staff based its decision on: (i) review of ISPs license application (ISP, 2018a, 2018b, 2020a, 2020b, and 2021), which includes the ER and supplemental documents, and ISPs responses to the NRC staff RAIs (ISP, 2019a and 2019b); (ii) consultation with Federal, State, tribal, and local agencies and input from other stakeholders, including public comment on the draft EIS (see Appendix D in the FEIS); (iii) independent NRC staff review; (iv) the assessments in the FEIS (NRC, 2021b); and (v) the NRC staffs assessments in the Final Safety Evaluation Report (NRC, 2021c) for the WCS CISF.

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4 Mitigation Measures The NRC has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the proposed action (license issuance). The applicant has committed to a number of mitigation measures as described in Table 6.3-1 of the FEIS (NRC, 2021b).

As documented in the FEIS, the NRC determined that impacts to most resource areas would be SMALL (i.e., not detectable or minor), with SMALL to MODERATE beneficial impacts for local finance and MODERATE impacts (i.e., sufficient to alter noticeably, but not to destabilize, important attributes of the resource) for vegetation, population growth, and employment (NRC, 2021b). The NRC is not imposing any license conditions in connection with mitigation measures for the licensing of the WCS CISF. ISP is subject to requirements including permits, authorizations, and regulatory orders imposed by other Federal, State, and local agencies governing facility construction and operation. ISPs monitoring programs for the proposed project are described in Chapter 7 of the FEIS (NRC, 2021b).

References 10 CFR Part 51. Code of Federal Regulations, Title 10, Energy, Part 51, Environmental Protection Regulation for Domestic Licensing and Related Regulatory Functions. Washington, DC: U.S. Government Publishing Office.

10 CFR Part 71. Code of Federal Regulations, Title 10, Energy, Part 71, Packaging and Transportation of Radioactive Material. Washington, DC: U.S. Government Publishing Office.

10 CFR Part 72. Code of Federal Regulations, Title 10, Energy, Part 72. Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste. Washington, DC: U.S. Government Publishing Office.

85 FR 44330. Federal Register. Vol. 85, No. 141, pp. 44,330-44,332. Interim Storage Partners Consolidated Interim Storage Facility Project. July 22, 2020.

85 FR 27412. Federal Register. Vol. 85, No. 90, pp. 27,412-27,413. Environmental Impact Statements: Notice of Availability. May 8, 2020.

83 FR 44922. Federal Register. Vol. 83, No. 171, pp. 44,922-44,923, Interim Storage Partners LLCs Consolidated Interim Spent Fuel Storage Facility. September 4, 2018.

82 FR 8771. Federal Register. Vol. 82, No. 18, pp. 8,771-8,773, Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project. January 30, 2017.

81 FR 79531. Federal Register. Vol. 81, No. 219, pp. 79,531-79,534, Waste Control Specialists LLCs Consolidated Interim Spent Fuel Storage Facility Project. November 14, 2016.

ISP. Interim Storage Partners, LLC, Submittal of Revision 5 of the Safety Analysis Report and Revision 4 of the License Application for the WCS CISF. ADAMS Accession No. ML21105A766. Andrews, Texas: Interim Storage Partners LLC. 2021.

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5 ISP. WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report, Docket No.

72-1050, Revision 3. ADAMS Accession No. ML20052E144. Andrews, Texas: Interim Storage Partners LLC. 2020a.

ISP. Supplemental Information in Support of NRCs Environmental Review, Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002. ADAMS Accession No. ML20071F153. Andrews, Texas: Interim Storage Partners LLC. 2020b.

ISP. Interim Storage Partners, LLC., Submission of Draft Responses for Several RAls and Associated Document Markups from First Request for Additional Information, Part 2. ADAMS Accession No. ML19252A132 Package. 2019a.

ISP. Submission of RAIs and Associated Document Markups from First Request for Additional Information, Part 3, Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002, Part 3. ADAMS Accession No. ML19337B502. Andrews, Texas: Interim Storage Partners LLC. 2019b.

ISP.

Subject:

Submittal of License Application Revision 2 and Request to Restart Review of Application for Approval of the WCS CISF, Docket 72-1050. ADAMS Accession No. ML18206A482. Letter from J.D. Isakson, Interim Storage Partners LLC to Director, Division of Spent Fuel Management, U.S. Nuclear Regulatory Commission. Andrews, Texas: Interim Storage Partners LLC. 2018a.

ISP. Interim Storage Partners LLC License Application, Docket No. 72-1050, Revision 2.

ADAMS Accession No. ML18206A483. Andrews, Texas: Interim Storage Partners LLC. 2018b.

NRC. Materials License SNM-2515, Interim Storage Partners, WCS Consolidated Interim Storage Facility ISFSI. ADAMS Accession No. ML21188A099. September 13, 2021; Washington, DC: U.S. Nuclear Regulatory Commission. 2021a.

NRC. NUREG-2239, Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas - Final Report. ML21209A955. July 2021; Washington, DC:

U.S. Nuclear Regulatory Commission. 2021b.

NRC. Final Safety Evaluation Report for the WCS Consolidated Interim Storage Facility Independent Spent Fuel Storage Installation Specific Materials License No. SNM-2515.

ML21188A101. September 2021; Washington, DC: U.S. Nuclear Regulatory Commission.

2021c.

NRC. NUREG-2239, Environmental Impact Statement for Interim Storage Partners LLCs License Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas - Draft Report for Comment. ML20122A220. May 2020.

Washington, DC: U.S. Nuclear Regulatory Commission. 2020.

Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 68

6 NRC. Environmental Impact Statement Scoping Process Summary Report, the ISP CISF Environmental Impact Statement Public Scoping Period. ADAMS Accession No. ML19161A150. Washington, DC: U.S. Nuclear Regulatory Commission. 2019.

Dated at Rockville, MD, this 13th day of September 2021, APPROVED BY:

John R. Tappert, Director Division of Rulemaking, Environmental, and Financial Support Office of Nuclear Material Safety and Safeguards Signed by Tappert, John on 09/13/21 Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 69

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NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION (10-2000) 10 CFR 72 PAGE 1

of 3

PAGES LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 (Public Law 93-438), and Title 10, Code of Federal Regulations, Chapter 1, Part 72, and in reliance on statements and representations heretofore made by the licensee, a license is hereby issued authorizing the licensee to receive, acquire, and possess the power reactor spent fuel and other radioactive materials associated with spent fuel storage designated below; to use such material for the purpose(s) and at the place(s) designated below; and to deliver or transfer such material to persons authorized to receive it in accordance with the regulations of the applicable Part(s). This license shall be deemed to contain the conditions specified in Section 183 of the Atomic Energy Act of 1954, as amended, and is subject to all applicable rules, regulations, and orders of the Nuclear Regulatory Commission now or hereafter in effect and to any conditions specified herein.

This license is conditioned upon fulfilling the requirements of 10 CFR Part 72, as applicable, the attached Appendix A (Technical Specifications), and the conditions specified below.

Licensee

1.

Interim Storage Partners LLC (ISP)

3. License No.

SNM-2515 Amendment No.

0

2.

WCS CISF 9998 Highway 176 West Andrews, Texas, 79714

4. Expiration Date September 13, 2061

5. Docket or Reference No.

72-1050

6.

Byproduct, Source, and/or Special Nuclear Material

7.

Chemical and/or Physical Form

8.

Maximum Amount That Licensee May Possess at Any One Time Under This License A. Spent nuclear fuel elements from commercial nuclear utilities licensed pursuant to 10 CFR Part 50, including those stored under either a Part 50 general license or Part 72 specific license, and associated fuel assembly control components and associated radioactive materials related to the receipt, transfer, and storage of that spent nuclear fuel.

A. Intact fuel assemblies, damaged fuel assemblies, failed fuel and fuel debris, as allowed by Materials License SNM-2510, Amendment 4; Table 1-1c or Table 1-1j of Certificate of Compliance No. 1004, Amendments 3 through 13; Table 1-1t of Certificate of Compliance No. 1004, Amendments 10 through 13; Section 2.1 of Certificate of Compliance No. 1029, Amendments 0, 1, and 3; Section B 2.1 of Certificate of Compliance No. 1025, Amendments 0 through 6; Section B 2.1.2 of Certificate of Compliance No. 1015, Amendments 0 through 5; Table B 2-1 of Certificate of Compliance No. 1031, Amendments 0 through 3 Revision 1, and 4 through 5, modified as described in Condition 9 below.

A. 5,000 Metric Tons (MT) total of Uranium and Mixed-Oxide (MOX) in the form of intact spent fuel assemblies, damaged fuel assemblies, failed fuel assemblies, and fuel debris.

In addition, the cumulative amount of material received and accepted during the licensed term of the facility may not exceed 5,000 MT of Uranium plus MOX.

B. Greater than Class C Waste, reactor related material generated as a result of plant operations and decommissioning where radionuclide concentration limits of Class C waste in 10 CFR 61.55 are exceeded.

B. Greater than Class C Waste, as activated and potentially surface contaminated metals comprised of miscellaneous solid waste resulting from segmentation and decommissioning processes.

B. 231.3 MT (510,000 pounds) of Greater than Class C Waste.

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NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION PAGE 2

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PAGES (10-2000) 10 CFR 72 License No.

Amendment No.

LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE SNM-2515 0

Docket or Reference No.

SUPPLEMENTARY SHEET 72-1050

9.

Authorized Use: The material identified in 6.A, 6.B, 7.A and 7.B above is authorized for receipt, possession, storage, and transfer at the WCS Consolidated Interim Storage Facility (WCS CISF),

as described in the WCS CISF Final Safety Analysis Report (FSAR) as updated. Storage of fuel is authorized only in canisters referenced in Section 2.1 of the Attachment, Appendix A Technical Specifications and all fuel with assembly average burnup greater than 45 GWd/MTHM shall be canned inside the canister.

10.

Authorized Place of Use: The licensed material is to be received, possessed, transferred, and stored at the WCS CISF, geographically located within Andrews County, Texas.

11.

The Technical Specifications contained in the Appendix attached hereto are incorporated into the license. The Licensee shall operate the installation in accordance with the Technical Specifications in the Appendix.

12.

The licensee shall follow WCS ERP-100, Consolidated Emergency Response Plan, Revision 02 2019, and as it may be further revised in accordance with 10 CFR 72.44(f).

13.

The Licensee shall:

(1) follow the Physical Protection Plan entitled, "WCS Consolidated Interim Storage Facility (CISF) Physical Security Plan, Revision 5, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72.186(b);

(2) follow the Training and Qualification Plan entitled, "WCS Consolidated Interim Storage Facility (CISF) Training and Qualification Plan Appendix B to the CISF Physical Security Plan, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72.186(b);

(3) follow the Safeguards Contingency Plan entitled "WCS Consolidated Interim Storage Facility (CISF) Safeguards Contingency Plan Appendix C to the CISF Physical Security Plan, dated September 18, 2019, as well as changes made in accordance with 10 CFR 72.44(e) and 72.186(b);

(4) follow the Additional Security Measures for the Physical Protection of Dry Independent Spent Fuel Storage Installations, dated September 28, 2007; and (5) follow the Additional Security Measures for Access Authorization and Fingerprinting at Independent Spent Fuel Storage Installations, dated December 19, 2007.

14.

Construction of the WCS CISF shall not commence before funding (equity, revenue, and debt) is fully committed that is adequate to construct a facility with the initial capacity as specified by the Licensee to the NRC. Construction of any additional capacity beyond the initial capacity amount shall commence only after funding is fully committed that is adequate to construct such additional capacity.

15.

The Licensee shall, in its contracts with clients:

(1) include provisions requiring clients to retain title to the material identified in 6.A, 6.B, 7.A or 7.B, and include provisions allocating legal and financial liability among the Licensee and the client(s);

(2) include provisions requiring clients to periodically provide credit information, and, when necessary, additional financial assurances such as guarantees, prepayment, or payment bond(s);

(3) include a provision requiring the Licensee not to terminate the license prior to furnishing storage services covered by the contract.

16.

The Licensee shall obtain onsite and offsite insurance coverage in the amounts committed to by ISP in the ISP license application.

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NRC FORM 558 U.S. NUCLEAR REGULATORY COMMISSION PAGE 3

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PAGES (10-2000) 10 CFR 72 License No.

Amendment No.

LICENSE FOR INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE SNM-2515 0

Docket or Reference No.

SUPPLEMENTARY SHEET 72-1050

17.

To conform with the requirements of 10 CFR 72.42, the Licensee shall submit a request for license amendment(s) to incorporate any technically applicable provisions of the Aging Management Programs (AMPs) and Time-Limited Aging Analyses (TLAAs) approved in future renewals of NAC Systems CoCs 1015 and 1025 and 1031, for all applicable NAC spent fuel canisters and storage overpacks.

The Licensee shall submit the amendment request(s) within 120 days of the effective date of the applicable CoC approval. In the event that the current CoC holder for CoC 1015 and/or 1025 and/or 1031 does not submit a timely renewal as defined in 10 CFR Part 72.240, the Licensee shall submit a license amendment request, incorporating AMP and TLAA information compliant with 10 CFR 72.42, within one (1) year following the timely renewal deadline defined in 10 CFR 72.240(b) for the applicable CoC.

18.

The Licensee shall submit a startup plan as described in Chapter 13 of the WCS CISF FSAR, as updated, to the NRC at least 90 days prior to receipt and storage of the material identified in 6.A, 6.B, 7.A or 7.B at the facility.

19.

Prior to commencement of operations, the Licensee shall have an executed contract with the U.S. Department of Energy (DOE) or other SNF Title Holder(s) stipulating that the DOE or the other SNF Title Holder(s) is/are responsible for funding operations required for storing the material identified in 6.A, 6.B, 7.A or 7.B at the CISF as licensed by the U.S. Nuclear Regulatory Commission.

20.

Prior to receipt of the material identified in 6.A, 6.B, 7.A or 7.B, the Licensee shall have a financial assurance instrument required pursuant to 10 CFR 72.30 acceptable to the U.S.

Nuclear Regulatory Commission.

21.

This license is effective as of the date of issuance shown below.

FOR THE NUCLEAR REGULATORY COMMISSION Shana R. Helton, Director Division of Spent Fuel Management Office of Nuclear Material Safety and Safeguards Date of Issuance September 13, 2021 Attachments: Appendix A -WCS Consolidated Interim Storage Facility Technical Specifications Shana R.

Helton Digitally signed by Shana R. Helton Date: 2021.09.13 08:52:35 -04'00' Appellate Case: 21-9593 Document: 010110655611 Date Filed: 03/10/2022 Page: 73