Beyond Nuclear, Inc. v. U.s. Nuclear Regulatory Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 5, 2024 Decided August 27, 2024
No. 20-1187
BEYOND NUCLEAR, INC.,
PETITIONER
v.
U.S. NUCLEAR REGULATORY COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
FASKEN LAND AND MINERALS, LTD., ET AL.,
INTERVENORS
Consolidated with 20-1225, 21-1104, 21-1147
On Petitions for Review of Orders
of the Nuclear Regulatory Commission
Diane Curran argued the cause for petitioner Beyond
Nuclear. With her on the briefs was Mindy Goldstein.

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Wallace L. Taylor argued the cause for petitioners Don’t
Waste Michigan and Sierra Club. With him on the briefs was
Terry J. Lodge.
Allan Kanner argued the cause and filed the briefs for
petitioner Fasken Land and Minerals, Ltd. and Permian Basin
Land and Royalty Owners.
Christopher B. Mosley was on the brief for amicus curiae
the City of Fort Worth in support of petitioners.
Raúl Torrez, Attorney General, Office of the Attorney
General for the State of New Mexico, William Grantham,
Assistant Attorney General, and Lindsay A. Lovejoy, Jr. were
on the brief for amicus curiae the State of New Mexico in
support of petitioners.
Andrew P. Averbach, Solicitor, U.S. Nuclear Regulatory
Commission, argued the cause for federal respondents. With
him on the brief were Todd Kim, Assistant Attorney General,
U.S. Department of Justice, and Justin D. Heminger, Senior
Litigation Counsel, Environment and Natural Resources
Division.
Paul D. Clement argued the cause for amicus curiae
Nuclear Energy Institute, Inc. in support of respondents. With
him on the brief were Ellen C. Ginsberg and Jonathan M.
Rund.
Anne Leidich argued the cause for intervenor Holtec
International in support of respondents. With her on the brief
was Jay E. Silberg. Timothy J.V. Walsh entered an appearance.

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Before: RAO, WALKER, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Holtec International applied to the
Nuclear Regulatory Commission (“NRC” or “Commission”)
for a license to construct and operate a spent nuclear fuel
storage facility. The Commission denied multiple requests for
intervention and a hearing. This case involves several
consolidated petitions challenging the denial of intervention.
Beyond Nuclear, Sierra Club and other environmental
petitioners, and Fasken Land and Minerals and Permian Basin
Land and Royalty Owners (“Fasken”), maintain that the
Commission acted unreasonably and contrary to law. We deny
the petitions because the Commission reasonably declined to
admit petitioners’ factual contentions and otherwise complied
with statutory and regulatory requirements when rejecting the
requests to intervene.
I.
Spent nuclear fuel is a highly radioactive byproduct of
generating nuclear energy. The NRC has authority to license
private facilities to store spent nuclear fuel subject to “a series
of intersecting statutory and regulatory requirements.” Oglala
Sioux Tribe v. NRC, 45 F.4th 291, 296 (D.C. Cir. 2022). The
Atomic Energy Act (“AEA”) mandates that all licensees
“observe … safety standards to protect health and to minimize
danger to life or property.” Pub. L. 83-703, ch. 10, § 103, 68
Stat. 919, 936 (1954) (codified at 42 U.S.C. § 2133(b)(2)). The
NRC must also comply with the requirements of the National
Environmental Policy Act (“NEPA”) by considering the
environmental impacts of a licensed project. Pub. L. 91-190,
§ 102, 83 Stat. 852, 853 (1970) (codified at 42 U.S.C.
§ 4332(2)(C)).

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Upon receiving a license application, the NRC must
publish a notice in the Federal Register. 10 C.F.R. § 2.105. A
party whose interest may be affected by the proceeding and
who seeks to intervene must establish administrative standing
and submit an admissible contention. Id. § 2.309(a), (d), (f)(1).
The prospective intervenor must demonstrate, inter alia, that
the issue raised is material to the license and that a genuine
dispute exists on a material issue of law or fact. Id.
§ 2.309(f)(1)(iv), (vi). There must be at least one admissible
contention for the NRC to grant a hearing. Id. § 2.309(a).
Holtec applied for a license to construct and operate an
interim away-from-reactor spent nuclear fuel storage facility in
Lea County, New Mexico. The petitioners here—Beyond
Nuclear, Sierra Club and Joint Petitioners (collectively,
“Environmental Petitioners”),1 and Fasken—petitioned to
intervene. They submitted numerous contentions and requested
a hearing. The NRC established an Atomic Safety and
Licensing Board (“Board”), which found the contentions
inadmissible and denied the petitions to intervene. The NRC
affirmed the Board’s decisions.2
Beyond Nuclear, Environmental Petitioners, and Fasken
each petitioned for review of the orders denying intervention,
which we consolidated for review. Holtec intervened in support
1 Sierra Club and Joint Petitioners filed separately before the
Commission but submit a joint brief here. The Joint Petitioners are
Don’t Waste Michigan, Citizens’ Environmental Coalition, Citizens
for Alternatives to Chemical Contamination, Nuclear Energy
Information Service, San Luis Obispo Mothers for Peace, and
Nuclear Issues Study Group.
2 See In re Holtec Int’l, 91 NRC 167 (Apr. 23, 2020); In re Holtec
Int’l, 93 NRC 119 (Feb. 18, 2021); In re Holtec Int’l, 93 NRC 215
(Apr. 28, 2021).

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of the NRC. In a motion, the Commission recognized that
orders denying intervention are final orders, but requested the
court hold the case in abeyance until the conclusion of the
licensing proceedings, for if the license were denied the
motions to intervene would be unnecessary. We held the case
in abeyance without comment. See Order, Beyond Nuclear, Inc.
v. NRC, No. 20-1187 (Oct. 8, 2020) (per curiam). After the
Commission issued Holtec a license to construct and operate
the facility, we removed the case from abeyance.
II.
Under the Hobbs Act, we have jurisdiction to review all
final orders of the NRC “made reviewable by” 42 U.S.C.
§ 2239.3 28 U.S.C. § 2342(4). The denial of intervention in a
licensing proceeding is a final reviewable order. 42 U.S.C.
§ 2239(a)(1)(A), (b)(1); Thermal Ecology Must Be Preserved
v. Atomic Energy Comm’n, 433 F.2d 524, 526 (D.C. Cir. 1970)
(per curiam). “Any party aggrieved by the final order may”
timely “file a petition to review the order.” 28 U.S.C. § 2344.
To establish jurisdiction under the Hobbs Act, petitioners must
have been a “party” to the underlying proceeding and must
establish that they are “aggrieved” by the Commission’s
orders. Matson Nav. Co. v. Dep’t of Transp., 77 F.4th 1151,
1157 (D.C. Cir. 2023).
Petitioners satisfy this standard. First, petitioners Beyond
Nuclear, Sierra Club, and Fasken were parties to the agency
proceeding denying their requests to intervene. Id. at 1159; see
3 The Hobbs Act references the Atomic Energy Commission, but the
licensing and regulatory functions of that agency have since been
transferred to the NRC. 42 U.S.C. §§ 5814(a), 5841(f). “[A]gency
action that ‘derives’ from transferred authority is also reviewable
under the Hobbs Act.” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d
1251, 1265 (D.C. Cir. 2004) (per curiam).

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also Pub. Serv. Comm’n of N.Y. v. Fed. Power Comm’n, 284
F.2d 200, 204 (D.C. Cir. 1960) (“A would-be intervenor is a
party to a proceeding in a limited sense, restricted to the
proceedings upon the application for intervention; he is
aggrieved by the denial of his application.”). Second, these
petitioners are “aggrieved” because they satisfy the injury,
causation, and redressability requirements of Article III
standing. Each petitioner is an organization that provided
affidavits from members and employees who live or work only
a few miles from the proposed facility. These members allege
risks associated with the facility’s operations, including
radiation exposure from stored spent nuclear fuel, as well as
economic harm due to a potential reduction in their properties’
values. In addition, the denial of intervention and a hearing is a
procedural injury that may be redressed by an order of this
court. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7
(1992). Under our caselaw, this suffices to demonstrate
standing.4 Cf. Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562,
567 (D.C. Cir. 2007) (holding petitioners living near a
proposed uranium enrichment facility alleging a risk of injury
from radiation had standing to challenge a license issuance).
Because petitioners are parties aggrieved by the denial of
intervention, we have jurisdiction.5
4 Because Joint Petitioners filed a brief with Sierra Club, we need not
determine if the Joint Petitioners also have standing. See Bullcreek v.
NRC, 359 F.3d 536, 540 (D.C. Cir. 2004).
5 While petitioners’ challenges were pending before our court, the
Fifth Circuit vacated Holtec’s license. Fasken Land & Mins., Ltd. v.
NRC, No. 23-60377, 2024 WL 3175460, at *1 (5th Cir. Mar. 27,
2024) (per curiam). That decision does not moot this case because,
at a minimum, the NRC has filed a petition for a writ of certiorari, so
“[t]he controversy … remains live.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291 n.7 (2005); see also 13B

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III.
To establish an admissible contention, a would-be
intervenor must, as relevant here, (1) “[d]emonstrate that the
issue raised in the contention is material” to the licensing
determination; (2) “[p]rovide a concise statement of the alleged
facts or expert opinions which support [its] position”; and (3)
“provide sufficient information to show that a genuine dispute
exists with the applicant/licensee on a material issue of law or
fact.” 10 C.F.R. § 2.309(f)(1)(iv)–(vi).
We review the denial of a contention under the
Administrative Procedure Act and will set aside the
Commission’s order if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); see also 42 U.S.C. § 2239(b)(1). When the NRC
denies a contention for failing to demonstrate a genuine dispute
of material fact, we consider whether the decision reflects
“reasoned decisionmaking.” Beyond Nuclear v. NRC, 704 F.3d
12, 21 (1st Cir. 2013). Whether a petitioner has shown that a
genuine dispute exists on a material issue of law is a legal
question we review de novo.
A.
Beyond Nuclear alleges the Commission violated the
Nuclear Waste Policy Act (“NWPA”), Pub. L. 97-425, 96 Stat.
2201 (1983) (codified at 42 U.S.C § 10101 et seq.), by even
considering Holtec’s license application because the license is
premised on accepting spent nuclear fuel from the Department
of Energy (“DOE”). According to Beyond Nuclear, the NWPA
prohibits DOE from taking title to private spent nuclear fuel
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE
§ 3533.2.1 & n.22, Westlaw (database updated June 2024).

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until a permanent repository for the disposal of spent nuclear
fuel is built,6 so it is unlawful for the Commission to consider
the application.7
The Commission properly rejected this contention. Holtec
initially stated in its license application that it would store only
DOE-titled spent nuclear fuel, but then amended its application
to state that the facility would accept fuel from both DOE and
private parties. In Board proceedings, Holtec acknowledged
that DOE taking title to private spent nuclear fuel would violate
the Act, clarified that it would contract with private parties, and
explained that storage of DOE-titled spent nuclear fuel was
only a potential alternative to storing private spent nuclear fuel.
The Commission therefore treated Holtec’s application as
requesting “a license that would allow it to enter into lawful
customer contracts today, but also permit it to enter into
additional customer contracts if and when they become lawful
in the future.” In re Holtec Int’l, 91 NRC 167, 176 (Apr. 23,
2020). Because the amended application sought a license for
the lawful storage of privately owned spent fuel, and only the
conditional storage of DOE-titled fuel if such storage became
lawful, the Commission concluded that Beyond Nuclear had
failed to raise a genuine dispute of law or fact.
6 DOE has previously indicated “that it had no authority under the
NWPA to provide interim storage in the absence of a facility that has
been authorized, constructed and licensed in accordance with the
NWPA.” Indiana Michigan Power Co. v. Dep’t of Energy, 88 F.3d
1272, 1274 (D.C. Cir. 1996).
7 Beyond Nuclear has no standing to challenge the license issuance.
Because Beyond Nuclear was not admitted as an intervenor, it was
not a “party” to Holtec’s license proceeding, and it cannot seek direct
review of that order. See Ohio Nuclear-Free Network v. NRC, 53
F.4th 236, 239 (D.C. Cir. 2022).

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The Commission’s consideration of Holtec’s license is
consistent with relevant legal requirements. The AEA
“authorized the NRC to regulate the possession, use, and
transfer of the constituent materials of spent nuclear fuel” and
to license the storage of spent nuclear fuel at onsite and away-
from-reactor storage facilities. Bullcreek v. NRC, 359 F.3d 536,
538 (D.C. Cir. 2004). Even if the NWPA prohibits DOE from
taking title to private spent nuclear fuel until a permanent
repository for the disposal of such fuel is built, a point we
assume without deciding, the statute does not affect “the
NRC’s authority under the AEA to license and regulate private
use of private away-from-reactor spent fuel storage facilities.”
Id. at 542; see also id. at 543 (holding “there is no basis to
conclude that in enacting the NWPA Congress implicitly
repealed or superseded the NRC’s authority”).
Moreover, the NRC’s regulations explicitly permit
licenses to include forward-looking terms, such as approval of
an action upon the satisfaction of some condition. 10 C.F.R.
§ 72.44(a); see also Oglala Sioux Tribe, 45 F.4th at 304
(holding a conditional license was lawful). Such conditions are
often essential in light of the protracted timelines for securing
a license and the need to anticipate changing conditions and
regulatory shifts.
The Commission correctly determined that Beyond
Nuclear did not raise a genuine dispute of law or fact, so we
deny its petition for review.
B.
Next, Environmental Petitioners challenge the
Commission’s refusal to admit eleven contentions. We
consider the contentions in three categories: (1) the
Commission lacked statutory authority to grant Holtec a
license; (2) Holtec made a material misrepresentation in its

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application; and (3) Holtec failed to comply with NEPA and
the NRC’s regulations. None of Environmental Petitioners’
contentions raise a material dispute of law or fact, and the
Commission’s rejection of the contentions was reasonable and
consistent with legal requirements.
1.
First, Environmental Petitioners allege the NRC had no
statutory authority under the AEA or the NWPA to license any
interim away-from-reactor storage facility for spent nuclear
fuel. Although this argument is similar to Beyond Nuclear’s
contention, it reaches further. Environmental Petitioners claim
the Commission had no statutory authority at all to license an
away-from-reactor spent nuclear fuel storage facility, even if
the facility contracted only with private parties. The Board
easily rejected this contention, relying on this circuit’s decision
in Bullcreek. In Bullcreek, we explicitly held that the AEA
provided “the NRC authority to license and regulate the storage
and disposal of [spent nuclear] fuel,” and “[p]ursuant to its
AEA authority, the NRC promulgated regulations … for
licensing onsite and away-from-reactor spent nuclear fuel
storage facilities for private nuclear generators.” 359 F.3d at
538. Moreover, we held that the NWPA did not repeal or
supersede this authority. Id. at 543.
Petitioners now press this statutory claim; however, they
failed to exhaust this issue before the Commission. See 10
C.F.R. § 2.1212 (“Unless otherwise authorized by law, a party
to an NRC proceeding must file a petition for Commission
review before seeking judicial review of an agency action.”).
At oral argument, Petitioners’ counsel conceded that they
failed to exhaust this issue. See Tr. of Oral Arg. 17–18. In their
briefing, Petitioners do not argue this court should exercise its
discretion to excuse the failure to exhaust. Cf. Vermont Dep’t

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of Pub. Serv. v. United States, 684 F.3d 149, 156–57, 159 (D.C.
Cir. 2012) (holding the Hobbs Act does not include a
jurisdictional exhaustion requirement but recognizing that 10
C.F.R. § 2.1212 imposes a mandatory issue exhaustion
requirement that may be excused by the court). In these
circumstances, we decline to review Petitioners’ unexhausted
claim.
2.
Second, Environmental Petitioners argue that Holtec made
a materially false statement in its application and that this
misrepresentation prevents the approval of Holtec’s license.
The AEA states that a license “may be revoked for any material
false statement in the application.” 42 U.S.C. § 2236(a). As
already discussed, Holtec’s initial application indicated that it
would contract with DOE for the storage of spent nuclear fuel.
The application was later revised to include contracting with
private parties and DOE, and Holtec represented it would
contract with DOE only if such contracting became lawful.
Petitioners argue this was a misrepresentation because a Holtec
newsletter stated that “deployment [of the facility] will
ultimately depend on the DOE and the U.S. Congress.”
Petitioners point to this statement to contend that Holtec would
merely use the license “as leverage to persuade Congress to
change the law to allow the [DOE] to hold title to the [fuel].”
And because Holtec had no intention of contracting with
private parties for spent nuclear fuel, the application was based
on false information, which Petitioners maintain can provide a
ground for denying the license.
The Commission assumed without deciding that it may
deny a license based on a misrepresentation in the application,
even though 42 U.S.C. § 2236(a) states only that a license may
be “revoke[d]” based on a misrepresentation. Nonetheless, the

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Commission rejected Petitioners’ contention because Holtec’s
statements were neither false nor material to the licensing
proceeding. Holtec accurately represented that it would
contract with DOE, if such contracting became lawful, and
Holtec acknowledged that the facility’s success might depend
on government action. Moreover, the Commission also
rejected the contention because “the material issue in this
license proceeding is whether Holtec has shown that it can
safely operate the facility, not its future political activity or
business intentions.” In re Holtec Int’l, 91 NRC at 193.
The Commission reasonably determined that there was no
genuine dispute of material fact and that the issue was not
material to these proceedings. Holtec did not make a false
statement in its application when it represented that it would
contract with private parties for the storage of spent nuclear
fuel and would contract with DOE only if such contracting
became lawful in the future. Nor did the company newsletter
contradict the application. The newsletter merely recognized
that Holtec’s ability to contract with DOE would depend on
congressional action. Furthermore, Holtec’s intentions to
contract with private parties were not material to the licensing
proceeding. The Commission issues licenses based on
compliance with safety, environmental, and other regulatory
standards, not commercial viability. It was entirely reasonable
for the Commission to conclude that Holtec’s business plans
were not material to the licensing decision.
Because there was no genuine dispute of material fact and
Environmental Petitioners’ claim was immaterial to the
licensing proceeding, the Commission reasonably denied this
contention.

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3.
Environmental Petitioners also maintain the Commission
unreasonably failed to admit their contentions challenging the
adequacy of Holtec’s environmental report. The NRC must
report the environmental impacts of licensing a spent nuclear
fuel facility, which is treated as a major federal action under
NEPA. See 42 U.S.C. § 4332(2)(C). License applicants are
required to report any environmental impacts caused by the
facility and to consider “alternatives available for reducing or
avoiding adverse environmental effects.” 10 C.F.R. § 51.45(b),
(c). A would-be intervenor raising NEPA-related issues “shall
file contentions based on the applicant’s environmental report.”
Id. § 2.309(f)(2).
When reviewing NEPA challenges under the APA’s
arbitrary or capricious standard, we will not “flyspeck” an
agency’s environmental analysis for minor deficiencies.
Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006).
“[W]e do not supplant an agency’s technical judgments and
predictions so long as the agency’s decision is reasoned and
rational.” Oglala Sioux Tribe, 45 F.4th at 299 (cleaned up).
When petitioners fail to provide evidentiary support for their
contention, the Commission may reject it. See 10 C.F.R.
§ 2.309(f)(1)(v), (vi).
None of Environmental Petitioners’ NEPA-related
contentions raise a genuine dispute of material fact or law, so
the Commission reasonably denied them.
a.
First, Environmental Petitioners maintain that Holtec’s
application inadequately disclosed earthquake risks by failing
to account for the complete seismic history of the area or the
effects of potential fracking near the facility. They support this

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contention with a 2018 Stanford University report that
“document[s] the existence of prior earthquakes in southeast
New Mexico” and “the existence of numerous faults … around
the proposed Holtec site.”
The NRC rejected this contention because Holtec’s
environmental report, which relied on the 2016 U.S.
Geological Survey, was not contradicted by the Stanford
report. The Stanford report did not identify any earthquakes
near the facility that occurred after the publication of the 2016
Survey. Both the Stanford report and the Survey also confirmed
Holtec’s representations that there were no faults near the
proposed facility that have been active in the last 1.6 million
years. The Commission also noted that Environmental
Petitioners’ claims of increased seismic risk due to fracking
operations were not raised before the Board, and in any event,
were unsupported by the Stanford report.
Petitioners argue the 2016 Survey is outdated, but they do
not substantively refute the Commission’s analysis or explain
how its evaluation of the Stanford report was unreasonable.
Based on the insufficiency of Petitioners’ evidence, the
Commission reasonably concluded there was no genuine
dispute of material fact regarding Holtec’s seismic analysis and
correctly denied this contention.
b.
Environmental Petitioners also challenge the denial of four
contentions that Holtec inadequately assessed the
hydrogeological characteristics of the site. Each contention
relied on the expert report of George Rice.
Petitioners first claimed that Holtec did not properly assess
shallow groundwater at the site because Rice’s report indicated
that Holtec relied on only one effective monitoring well to

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evaluate the presence of groundwater. The Commission found,
however, that Holtec’s environmental report adequately
addressed this issue. Holtec explained that it drilled five wells
and monitored them for groundwater throughout the drilling
process. Holtec also submitted boring logs and other data
detailing its use of the wells to monitor the presence of
groundwater. Because Rice’s report failed to address the
information in Holtec’s environmental report, the Commission
concluded there was no genuine dispute of material fact.
Petitioners also raised two contentions alleging that Holtec
failed to address whether brine or fractured rock was beneath
the facility. In rejecting the brine contention, the Commission
explained that Holtec disclosed the existence of brine and
provided evidence that there was no risk of brine coming into
contact with spent nuclear fuel storage canisters. Without any
supporting data, Rice speculated the brine could still run into
the canisters, which Petitioners claim could cause corrosion or
damage. The Commission determined this speculation did not
provide a factual basis for the contention and raised no genuine
factual dispute. The Commission rejected the fractured rock
contention because Holtec’s application acknowledged the
presence of fractured rock in the area. The Rice report did not
provide any evidence demonstrating that the presence of
fractured rock would affect the facility. Therefore, Petitioners
failed to raise a genuine dispute of material fact.
Petitioners also contended that Holtec improperly
performed tests to assess the permeability of an aquifer near the
facility. The Commission concluded that Rice’s report was
based on “mere speculation,” and Holtec provided evidence the
tests were performed according to a quality assurance program.
In re Holtec Int’l, 93 NRC 119, 125 (Feb. 18, 2021).

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The Commission reasonably denied all four contentions
because Petitioners failed to raise a genuine dispute of material
fact. To establish an admissible contention, a petitioner must
“com[e] forward with factual issues, not merely conclusory
statements and vague allegations.” In re Ne. Nuclear Energy
Co., 53 NRC 22, 27 (Jan. 17, 2001); see also Beyond Nuclear,
704 F.3d at 21 (“Materials cited as the basis for a contention
are subject to scrutiny … to determine whether they actually
support the facts alleged.”) (cleaned up). Petitioners offered
only speculation that Holtec’s application was deficient in its
analysis of hydrogeological issues. But speculation alone is
insufficient to raise a genuine dispute of material fact. When,
as here, a license applicant thoroughly addressed issues in its
environmental report and a would-be intervenor offers nothing
substantial to contest the analysis, the Commission’s denial of
the contention is wholly reasonable.
c.
Environmental Petitioners next challenge the
Commission’s denial of four contentions related to Holtec’s
disclosure of certain operational and transportation risks at the
facility.
First, Environmental Petitioners claimed Holtec failed to
conduct a site-specific analysis of the environmental impacts
of the facility’s operation or to provide for a dry transfer
system. Petitioners maintain that Holtec’s use of general
estimates, based on the Generic Environmental Impact
Statement for Continued Storage of Spent Nuclear Fuel
(“Continued Storage Rule”) was improper, particularly
because the facility did not have plans for a dry transfer system.
See 10 C.F.R. § 51.23. The Commission rejected these claims
because Holtec did “evaluate[] the site-specific environmental
effects associated with the construction and operation” of the

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facility and no NRC regulation required Holtec to have a dry
transfer system, so there was no genuine dispute on a material
issue of fact or law. In re Holtec Int’l, 91 NRC at 206–07.
Environmental Petitioners now merely reassert that Holtec
did not perform a site-specific analysis, but they ignore the
factual and legal grounds supporting the Commission’s
decision. The denial of this contention was reasonable and
supported by the record, which clearly shows that Holtec
conducted a site-specific environmental analysis, so there is no
genuine factual dispute. Moreover, because Petitioners identify
no legal requirement for a dry transfer system at Holtec’s
facility, under the Continued Storage Rule or otherwise, the
Commission properly concluded there was no genuine legal
dispute either.
Second, Environmental Petitioners contended that Holtec
grossly underestimated the amount of low-level radioactive
waste the facility would generate. Petitioners asserted that
“millions of tons of concrete” and the facility’s subsoil will be
irradiated. In addition, they posited that the canisters used to
store the spent nuclear fuel will need to be periodically replaced
during the facility’s lifetime. The Commission found that
Petitioners failed to provide “any evidentiary support” for this
contention. Id. at 205. Before this court, Petitioners claim only
that it is “common sense” that materials surrounding spent
nuclear fuel would be irradiated and assert that Holtec’s
environmental report underestimates the amount of waste that
would be generated by the facility. Petitioners’ argument is
wholly speculative and does not undermine the Commission’s
reasoned determination that Petitioners failed to provide
evidence to raise a genuine dispute of material fact.
Third, Environmental Petitioners contended that Holtec
downplayed the dangers of transporting spent nuclear fuel, and

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they questioned Holtec’s methods for preventing contaminated
or leaking shipments from being accepted at the facility and for
safely returning compromised shipments. The Commission
rejected this contention because, among other deficiencies,
Petitioners failed to offer any evidence that Holtec’s radiation
protection measures were ineffective or that there was a
“credible scenario where a canister is breached in transport.”
Id. at 208. In the absence of any evidence raising a factual
dispute, the Commission’s decision to deny the contention was
entirely reasonable.
Finally, Environmental Petitioners contended the
Commission violated agency regulations and NEPA by
allowing Holtec to submit representative, rather than probable,
routes of potential spent nuclear fuel shipments for
environmental review. The Commission found this contention
failed to raise a genuine dispute of law or fact with the
application. Although Petitioners cited two NRC regulations,
10 C.F.R. § 51.45 and 10 C.F.R. § 72.108, and NEPA, the
Commission concluded that none of these required the
disclosure of probable transportation routes in the
environmental report. The Commission also found that
Holtec’s three representative routes were sufficient to
determine the environmental impacts of transporting spent
nuclear fuel. This approach comported with the Commission’s
practice of accepting representative routes at this stage of the
licensing process. Moreover, the Commission observed the
actual transportation routes for spent nuclear fuel must be
approved in a separate review process involving local
stakeholders and the Department of Transportation.
We find that Environmental Petitioners have failed to
demonstrate any genuine dispute of law or fact regarding this
contention. The sources relied upon by Petitioners simply do
not require the disclosure of probable transportation routes of

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spent nuclear fuel in a licensing proceeding. Petitioners point
to 10 C.F.R. § 51.45(b), but this is a general regulation
requiring a report to disclose the environmental impact of a
proposed action. And 10 C.F.R. § 72.108 similarly imposes a
general requirement to evaluate “the potential impact on the
environment of the transportation of spent fuel.” Neither
regulation mandates the disclosure of probable transportation
routes. Moreover, NEPA requires only that the NRC “take a
‘hard look’ at the environmental consequences” of a “major
action.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983) (cleaned up). The Commission
reasonably explained it took this hard look by reviewing the
environmental impacts of transportation along Holtec’s
representative routes and observed that the actual routes would
be assessed in a separate regulatory process.
Although Petitioners continue to insist that Holtec could
have provided probable transportation routes, that possibility
does not demonstrate the Commission acted unreasonably by
considering representative routes. We conclude the
Commission’s denial of this contention was reasonable and
consistent with law.8
* * *
In sum, Environmental Petitioners fail to demonstrate the
Commission acted arbitrarily, capriciously, or contrary to law
8 Environmental Petitioners also allege Holtec improperly
“segment[ed]” its NEPA analysis by “[s]eparating consideration of
the transportation component from the storage component.”
Petitioners did not raise this argument before the Board, so the
Commission refused to review it. Petitioners offer no reason why we
should overlook their forfeiture.

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in denying their contentions. Accordingly, we deny their
petitions for review.
C.
Finally, Fasken claims the NRC arbitrarily declined to
admit its late-filed contentions. After the Board rejected the
petitions to intervene from Beyond Nuclear and Environmental
Petitioners, the Board terminated the proceeding. Fasken then
sought to raise several new contentions, primarily claiming that
Holtec’s application did not adequately disclose the control of
subsurface mineral rights at the facility nor the extent of
extraction operations in the vicinity of the facility.
A petitioner seeking to admit late-filed contentions must
demonstrate “good cause” by showing that its contentions are
based on previously unavailable and materially different
information and are submitted “in a timely fashion based on the
availability of the subsequent information.”9 10 C.F.R.
§ 2.309(c)(1)(i)–(iii). The Commission reasonably determined
that Fasken did not meet these regulatory criteria because the
contentions were procedurally defective, untimely, and
immaterial. The Commission explained that any challenge to
Holtec’s assertions about the ownership of subsurface mineral
rights should have been made when Holtec’s initial
environmental report was published. Fasken’s late-filed
contention sought to introduce information on mineral rights
9 Fasken also moved to reopen the record, which requires a petitioner
to meet even more stringent standards than filing a late contention.
See 10 C.F.R. § 2.326(a). “Because we find that [the] NRC properly
denied Petitioners’ contentions, and because the standards for
reopening a closed proceeding are higher than those for admitting a
new contention … we need not reach the application of NRC’s
reopening regulations.” Blue Ridge Env’t Def. League v. NRC, 716
F.3d 183, 188 (D.C. Cir. 2013).

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and extraction operations, but Fasken fails to demonstrate that
this information was previously unavailable or materially
different from information available during the licensing
proceeding.10 The Commission’s rejection of Fasken’s
untimely contentions was reasonable and consistent with its
regulations.
* * *
For the foregoing reasons, the Commission did not act
unreasonably or contrary to law when it denied the requests for
intervention by Beyond Nuclear, Environmental Petitioners,
and Fasken in Holtec’s licensing proceeding. We therefore
deny the petitions for review.
So ordered.
10 Fasken also raised a challenge to the Board’s denial of a related
contention, but Fasken failed to appeal that denial to the
Commission. We decline to review this unexhausted claim.

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