Ohio Nuclear-Free Network and Beyond Nuclear v. U.s. Nuclear Regulatory Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2022 Decided November 15, 2022
No. 21-1162
OHIO NUCLEAR-FREE NETWORK AND BEYOND NUCLEAR,
PETITIONERS
v.
U.S. NUCLEAR REGULATORY COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
AMERICAN CENTRIFUGE OPERATING, LLC,
INTERVENOR
On Petition for Review of an Order
of the Nuclear Regulatory Commission
Terry J. Lodge argued the cause for petitioners. With him
on the briefs was Wallace L. Taylor.
Eric V. Michel, Senior Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With him on
the brief were Todd Kim, Assistant Attorney General, U.S.
Department of Justice, Justin D. Heminger, Attorney, and
Andrew P. Averback, Solicitor, U.S. Nuclear Regulatory
Commission.

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Brad Fagg argued the cause for intervenor American
Centrifuge Operating, LLC in support of respondent.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Ohio
Nuclear-Free Network (Ohio Nuclear) and Beyond Nuclear
petition for review of a decision of the Nuclear Regulatory
Commission (NRC, Commission), issuing an amended
materials license to American Centrifuge Operating, LLC
(American Centrifuge). The amended license authorizes
American Centrifuge to produce high-assay, low-enriched
uranium (HALEU) at a facility near Piketon, Ohio pursuant to
a demonstration program with the U.S. Department of Energy
(DOE). The petitioners contend, inter alia, that the NRC issued
the amended license without first preparing an Environmental
Impact Statement (EIS), which they assert was required by the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4332(C). Under the Hobbs Act, 28 U.S.C. § 2344, however,
we lack jurisdiction to consider their petition because they
failed to become parties to the NRC proceedings below.
Accordingly, we dismiss their petition for review.
I.
The Atomic Energy Act (AEA), 42 U.S.C § 2011 et seq.,
authorizes the NRC to issue materials licenses for the handling
of special nuclear material like enriched uranium—a substance
enhanced in the uranium-235 isotope and used to fuel
America’s nuclear power plants, see id. §§ 2073(a), 2077(a),
2014(aa); Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 565
(D.C. Cir. 2007). Pursuant to this authority, the NRC issued a

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30-year materials license to U.S. Enrichment Corp. in 2007.
The license authorized U.S. Enrichment Corp. to construct,
operate and decommission the American Centrifuge Plant, a
uranium-enrichment facility located on a DOE reservation near
Piketon, Ohio. It further authorized uranium enrichment of up
to ten per cent uranium-235 at the American Centrifuge Plant.
NEPA requires all federal agencies to document the
environmental impacts of certain proposed federal actions,
including the issuance of a license to construct or operate a
uranium-enrichment facility. See 42 U.S.C. § 4332(C). To
meet its NEPA obligations, the NRC promulgated 10 C.F.R.
Part 51, which specifies two forms of the environmental
documentation that NEPA ordinarily requires: an EIS or an
environmental assessment (EA). See Nat. Res. Def. Council v.
NRC, 823 F.3d 641, 643 (D.C. Cir. 2016). An EIS is required
for any proposed “major Federal action[] significantly
affecting the quality of the human environment,” 42 U.S.C.
§ 4332(C); 10 C.F.R. § 51.20(a)(1), or for any proposed action
for which the Congress or the Commission has categorically
required an EIS, see 42 U.S.C. § 2243(a)(1); 10 C.F.R.
§ 51.20(a)(2), (b). An EA, by contrast, is required for any
proposed federal action that does not require an EIS and is not
otherwise categorically excluded from environmental review.
10 C.F.R. § 51.21; see Myersville Citizens for a Rural Cmty.,
Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir. 2015). Because
an EIS is categorically required for the initial licensing of a
uranium-enrichment facility, see 42 U.S.C. § 2243(a)(1);
10 C.F.R. § 51.20(b)(7), the NRC prepared one that addressed
the environmental consequences of U.S. Enrichment Corp.’s
proposed licensing of the American Centrifuge Plant before
issuing the license in 2007.
Despite receiving the license, U.S. Enrichment Corp.
never constructed the American Centrifuge Plant or put it into

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operation and later transferred the license to its wholly owned
subsidiary, American Centrifuge. In 2019, American
Centrifuge entered a three-year contract with the DOE to
demonstrate its ability to produce uranium enriched between
five and twenty per cent, commonly known as high-assay, low-
enriched uranium (HALEU). See 42 U.S.C. § 16281(d)(4).
Under the demonstration program, American Centrifuge would
produce and provide to the DOE up to 600 kilograms of
HALEU enriched at 19.75 per cent. The DOE wanted both to
determine whether HALEU could be produced using existing
technology and to assess HALEU’s potential for research and
development activities.
American Centrifuge then sought an amendment to its
materials license to authorize the production of HALEU for the
DOE demonstration program. It requested NRC authorization
to produce and possess 19.75 per cent enriched uranium, with
an upper limit of twenty-five per cent enrichment to account
for minor variations in the enrichment process. With the
amendment request, American Centrifuge also submitted an
environmental report to assist the NRC in its independent
review of the proposed amendment under NEPA, see 10 C.F.R.
§§ 51.14, 51.45, as well as several other documents related to
the NRC’s safety and security review of the proposed
amendment, see 10 C.F.R. Parts 73–74. The NRC posted a
notice of the amendment request on its website in accordance
with its regulations, apprising any interested persons of the
proposed amendment. See 10 C.F.R. § 2.105(a).
The AEA and its regulations set forth the procedures by
which an interested “person” may intervene in a licensing
proceeding like the one at issue here. “In any proceeding . . .
for the granting, suspending, revoking, or amending of any
license or construction permit,” a “person whose interest may
be affected by the proceeding” may request a hearing and

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thereby be admitted “as a party” to the proceeding. 42 U.S.C.
§ 2239(a)(1)(A). The hearing request must specify the
“contentions” such person “seeks to have litigated in the
hearing” and must be submitted within sixty days after the
NRC publishes notice of the proposed action on its website or
sixty days after the hearing requestor receives actual notice of
the proposed action, whichever is later. See 10 C.F.R.
§ 2.309(a), (b)(4). The Commission will grant a timely hearing
request or petition for leave to intervene if the requestor has
standing to intervene and proposes at least one “admissible”
contention for adjudication. Id. § 2.309(a); see also id.
§ 2.105(e)(2).
Petitioners Ohio Nuclear and Beyond Nuclear could have
submitted a hearing request pursuant to 10 C.F.R. § 2.309 but
they did not. Rather, on March 30, 2021, they emailed a letter
to the NRC staff arguing that the proposed license amendment
violated federal law and asking the NRC, in reviewing the
proposal, to prepare an EIS and consider certain potential
environmental consequences. The petitioners’ letter did not
request a hearing or seek permission to intervene in the
licensing proceedings, nor did the petitioners submit anything
further to the NRC.
In June 2021, the NRC completed an EA of the proposed
license amendment and awarded American Centrifuge the
amended license. The EA found that the proposal would have
“no significant environmental impact,” see EA/FONSI Public
Notice, 86 Fed. Reg. 31,539 (June 14, 2021) (App. 338),
thereby rendering an EIS unnecessary, see 42 U.S.C.
§ 4332(C); 10 C.F.R. § 51.20(a)(1); Myersville Citizens,
783 F.3d at 1322. In granting the license, the NRC authorized
American Centrifuge to possess twenty-five per cent enriched
uranium but forbade it from extracting uranium enriched above
twenty per cent. American Centrifuge has yet to produce

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HALEU for the DOE demonstration program and in fact
extended its contract with the DOE for an additional six
months, through the end of November 2022.
Ohio Nuclear and Beyond Nuclear now challenge before
us the NRC’s authorization of the demonstration program.
They filed a timely petition for review of the NRC’s final order
awarding American Centrifuge the amended license, arguing
that the NRC violated NEPA by failing to prepare an EIS and
by failing to address the environmental concerns raised in their
letter to the NRC staff. The NRC moved to dismiss the petition
for lack of jurisdiction and American Centrifuge intervened on
behalf of the NRC.
II.
Ohio Nuclear and Beyond Nuclear cite the Hobbs Act,
28 U.S.C. § 2344, as the basis for our jurisdiction. The Hobbs
Act confers on this Court jurisdiction to review “all final
orders” of the NRC that are “made reviewable by section 2239
of title 42.” 28 U.S.C. § 2342(4). Section 2239, in turn, makes
“subject to judicial review . . . [a]ny final order entered in any
proceeding” under the AEA, 42 U.S.C. ch. 23, “for the
granting, suspending, revoking, or amending of any license.”
42 U.S.C. § 2239(b)(1), (a). But under the Hobbs Act, our
jurisdiction “is invoked” only if a “party aggrieved by the final
order” files a timely petition for review. 28 U.S.C. § 2344. The
“party aggrieved” requirement, we have explained, demands
“that petitioners have been parties to the underlying agency
proceedings” in order to invoke our jurisdiction to review their
petition. ACA Int’l v. FCC, 885 F.3d 687, 711 (D.C. Cir. 2018);
see also Alaska v. FERC, 980 F.2d 761, 763 (D.C. Cir. 1992)
(“We have routinely interpreted this phrase to allow petitions
by parties who were intervenors before the Commission and
who would suffer injury-in-fact from its final disposition.”).

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When “intervention in agency adjudication or rulemaking is
prerequisite to participation therein, standing to seek judicial
review of the outcome will be denied to those who did not
seek—or who sought but were denied—leave to intervene.”
Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1192 (D.C. Cir.
1987). Because neither petitioner properly intervened in the
underlying NRC proceeding, they are not “part[ies] aggrieved”
by the agency order and, accordingly, we lack jurisdiction to
review their petition.
Although the “degree of participation necessary to achieve
party status varies according to the formality with which the
proceeding was conducted,” Water Transp. Ass’n, 819 F.2d at
1192, the AEA and its regulations address the manner in which
interested persons may become parties to the precise sort of
proceeding at issue. “In any proceeding under” the AEA for the
“amending of any license,” “the Commission shall grant a
hearing upon the request of any person whose interest may be
affected by the proceeding[] and shall admit [the] person as a
party to such proceeding.” 42 U.S.C. § 2239(a)(1)(A). To
request a hearing, a person “who desires to participate as a
party” must file a written request specifying the contentions it
intends to raise at the hearing. 10 C.F.R. § 2.309(a); see also
id. § 2.309(f) (describing the admissibility standards applicable
to contentions). The Commission “will grant the request” if the
interested person raises “at least one admissible contention that
meets the requirements of paragraph (f)” and “has standing
under the provisions of paragraph (d).” Id. § 2.309(a); see also
id. § 2.309(d). If the request is denied, the Commission’s
regulations permit the interested person to immediately appeal
that denial. Id. § 2.311(c); see Nat. Res. Def. Council, 823 F.3d
at 643–44.
Invocation of the “the appropriate and available
administrative procedure” described above, we have held, “is

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the statutorily prescribed prerequisite for this court’s
jurisdiction to entertain [a] petition [to] review” a final NRC
order described in 42 U.S.C. § 2239. Gage v. U.S. Atomic
Energy Comm’n, 479 F.2d 1214, 1217 (D.C. Cir. 1973); see
also Nat. Res. Def. Council, 823 F.3d at 643 (“To challenge the
[NRC’s] grant of a license renewal . . . a party must have
successfully intervened in the proceeding by submitting
adequate contentions under 10 C.F.R. § 2.309.”). But the
petitioners failed to request a hearing or submit contentions
related to the amended license. Instead, they emailed a letter—
which made no mention of a hearing—to the NRC staff. The
“informal[] present[ation of] views” to the NRC by the
petitioners, who “were neither unaware of the proposed
[amendment] nor strangers to the [NRC] staff,” is insufficient
to satisfy the Hobbs Act’s “party aggrieved” requirement.
Gage, 479 F.2d at 1217 n.11.
That the petitioners raise NEPA objections to the NRC’s
issuance of the amended license does not change our thinking.
NEPA does not give the petitioners an independent cause of
action, Theodore Roosevelt Conservation P’ship v. Salazar,
616 F.3d 497, 507 (D.C. Cir. 2010), so they rely on the Hobbs
Act and the AEA to challenge the license amendment. They are
thus obliged to comply with the hearing procedures set out
therein. NEPA “does not, by its own terms or its intent, alter
the Commission’s hearing procedures.” Nat. Res. Def. Council,
823 F.3d at 652 (quoting Beyond Nuclear v. NRC, 704 F.3d 12,
18–19 (1st Cir. 2013)). Any person seeking to intervene in “any
proceeding” under the AEA “for the . . . amending of any
license”—including those who object to the agency’s discharge
of its NEPA duties—must request a hearing or otherwise
intervene in the proceeding as required by the AEA and its
regulations. 42 U.S.C. § 2239(a)(1)(A); see 10 C.F.R. § 2.309.
Indeed, the NRC’s regulations expressly permit interested
persons to raise NEPA contentions in their request for a

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hearing. 10 C.F.R. § 2.309(f)(2) (“On issues arising under
[NEPA], participants shall file contentions based on the
applicant’s environmental report.”); see also Union of
Concerned Scientists v. NRC, 920 F.2d 50, 56–57 (D.C. Cir.
1990).
Because the petitioners failed to properly intervene in the
manner required by 42 U.S.C. § 2339 and the NRC’s AEA
regulations, they were not parties to the licensing amendment
proceeding they now ask us to review. Accordingly, under the
Hobbs Act, 28 U.S.C. § 2344, we dismiss their petition for
review for lack of jurisdiction.
It is so ordered.

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