accordingly this case stands for me noted states inexcusable failure to find a permanent disposal solution for the country's ever growing stockpile of spent nuclear fuel almost spent nuclear fuel or makes hazardous for hundreds of years sioning players that are based on the fiction that all spent nuclear fuel will be removed from these nuclear power plants and transferred to a nonexistent permanent were positive already by a date certain in the relatively near future that really was the n r c concluding that it would be technically feasible to steward spent nuclear fuel indefinitely at nuclear power points they there all they determined that it would be technically feasible but importantly the intercity also determined that certain conditions would have to be followed in order for spent nuclear fuel to be stored safely at these nuclear power plants some of those conditions would include the ability to repackage the spent nuclear fuel when the canisters need to be replaced the that which would require either a dry transfer station or a spent fuel pool also to provide for safe storage indefinitely the nuclear power plant you have to plan to that that assumes and falsely assyrians that all spent nuclear fuel will be removed from on stud storage facilities and transferred to a nonexistent permanent repository in the relatively near future and that's one of the reasons why we  fuel is taken to a permanent republican now the reality is there is no permanent proposals were d it and there is no plan to create one in the forseeable future and so what the interceding has done what nuclear power plant licensees permanent storage facility and this stuff will likely be stored on site for much longer than the artificial date that interview commission planned so you need to explain to us how you're going to plan for and pay for storage beyond that arbitrary date with the intercity if it's done said no that's fine we will just adopt this arbitrary date by which we're you know hoping that a permanent repository becomes available and will only require you to plan for storage and management d of spent their own site facilities to a permanent repository necessarily it impacts every aspect of the decommissioning plan from the selection of the storage location which it songs would note is one hundred and eight ringback not a location that suitable for indefinite storage but by pretending that this spent nuclear fuel will be moved away from this location to a not existing permanent revolver to worry about a date certain in the relatively near future the arbitrary date set for when the commission will these arbitrary date also impacts the decisions that are made regarding the type of storage insulation in the type of canisters that are used the cancers that are in use that songs are only why on site for a finite relatively short period of time in our cities allowing weismann's east use canisters that are not suitable for indefinite storage without requiring them to show any ability to repackage the canisters or nuclear fuel safely at a nuclear power plant and it lays out these necessary conditions for it including the ability to repackage the spent nuclear fuel and  conditions to be able to do that and so in order to comply with its own regulations and policies the n r c should be planning and should be required to play and for ringback the indefinite storage of these on site facilities cannot simply plug in arbitrary date at which they say that in a presumed the spent nuclear fuel will be removed from these facilities and say we'll plan our holby commission plan around that day you know  of spent nuclear fuel because there's this presumption that all the spent nuclear fuel will be gone from the dry storage facility by a date certain in the relatively near future part of the decommissioning plan is to destroy the spent fuel pools in the next few months and at that point there will be no infrastructure left that songs by which that edison even if it had the technological capability to do so which it admits that it doesn't even if edison did have the capability d to repackage and because they assume that this this spent nuclear fuel will only be there temporarily they're going to destroy the spent fuel pool and there's no plan to construct a dry transfer station now granted the n r c does does argue commissioning to bury this hazardous waste in this very perilous location in canisters that are built for indefinite storage and it's just saying hey let's you know would bigger this out later if something comes up sent to remove the canvassers at this point nor are we saying is a general matter that that moving canisters to dry storage on site facilities is necessarily a bad thing but and frankly the reality and all we're asking is for the n r c to plan for the reality that this spent nuclear fuel will likely be stored songs indefinitely we're not asking this court to dictate how they plan for that reality we're not asking this court  show when spent nuclear fuel would be removed from songs and taking that permanent positive and the n r c plan the decommissioning and spent fuel storage around that established schedule sure i don't think we would we would have a gripe at this point you know the  fuel is already in this perilous location i don't think it was a smart wise decision to put it in that location but at this point it's already there and if it's transferred to a permanent republican through it then great but our concern sight in construct one which again that's six years beyond the date on which they falsely assume that the spent nuclear fuel be removed from song so what we're asking the court to do really is just require the n r c to make lee we would respectfully submit that it is an abdication of what abdication is fit in with you know there's no there's no clear test for what constitutes agency application for purposes of determining whether an exception of wise generally agreed that application would be failure to take action to address indisputable proof of a known risk and we would respectfully submit that that's exactly what in our city has done here in r c knows that there is a significant nuclear power plants going to do and how do we ensure that they're able to store store spent nuclear fuel safely on site the n r c has adopted this false presumption or this figment then we will just assum as waste confidence decision and essentially prevented them from granting what isin zas for nuclear power plants they had to come up with this generic analysis this generic environmental analysis and what they determined in that analysis was think that they're they're ignoring the requirements that big big nuclear power plant licensee will have to be able to repackage spent nuclear fuel have it stored indefinitely and there is no no technology available right now to allow nuclear power plant licensees to do that and and it any technology that might be developed would require either a dry transfer station or a spent fuel or and so you know a necessary condition of long that the nuclear power plant wasn't committed and they have to set forth how they're going to store spent nuclear fuel there in till it's transferred to a permanent republican or d d in one of those things would require out how much money you have how are you describe why the abdication standard has not been satisfied both because the n r c has comprehensively evaluated spent fuel storage on a generic and on a site specific basis and why even if the decision of issue here were revealed all public of claimed still fail because the agency is his actions were not arbitrary capricious as public watchdogs concedes this case is a challenge to the n r c its decision not to take and force an action and to put a stop to license activity of the license so this isn't something that the n r c specifically has to approve it has to grant a hearing on or anything like that it simply has to be informed of it and that's to take a look at the plan and then to make sure that everything that's been propose specific generic but there wasn't a specific environmental analysis performed at the time that that southern california edison here submitted its decommissioning plan that was already been covered by prior licensing  be clear to that ten c f r two to a six also speaks about or other action that may be appropriate so it's not necessarily confined to the terms of the license but it's  ruled that in some in substance this was primarily a challenge to a license to set up shop or two thousand and fifteen license amendment but that under the hobbs act which is the way that an r c licensing decisions are to be reviewed that  understand that edges want to make clear for the most part they're independent in the sense that this is a two to a six and or a review of a two to a six petition and the other case is a challenge to a license agreement but there were allegations made before the district court that the n r c had abdicated its authority and those arguments were presented to to the th circuit back in june when the case was argued bare so there's there's some degree of over and i should further note that the large amount of material that's contained within the  six petition that was submitted to the agency and that appears in the st twenty or so pages of public watched of the brief are the same safety related allegations that public washtubs it raised before the district court to return shit to the abdication questions of the agent their record here demonstrates that there's there's no basis for anything close to a finding at the agency has defaulted on its fundamental mission to protect the public health and safety and that's the standard reply here the agency has evaluated the safety of spent fuel storage as determined that safe that spent fuel can be safely stored over the long term and it has taken and continues to take steps to make sure that fuel is stored safely in songs this is not an application it's active in gauging it with a serious question and i'll begin while i'd actually like to move forward a little bit and focus on the generic environmental impact statement itself because that's that's the primary way in which the agency has in fact not done nothing as we heard from public washrooms but in fact thoroughly and comprehensibly assessed the potential impacts of storing spent fuel on site and as the court noted this particular rule was the subject of notice and comment rule making it was up held by the d c circuit and in fact it was up held by the d c circuit as part of a challenge ballpark for different states a number of environmental organizations and also was a case in which become a foreign energy commission actually submitted a brief suggesting that the analysis was not sufficiently site specific to capture the threats faced by plants in california and the court rejected those arguments and as it rejected those arguments if found that in fact the agency had properly evaluated the impacts of spent fuel storage and it found it up tell the agencies the germination that dried transfer system could easily and could easily be constructed i have approximately one hundred year intervals and while it's true that that particular type of facility hasn't been constructed yet the reason for that is that it hasn't been acquired and it is correct to say that if and when such a facility needs to be constructed the agency has as a matter of its expert expertise in the area to which of this court  deference has determined that such a facility can be constructed and can be scum constructed and license in a safe in a safe manner and the agency concluded this not only in the generic environmental impact statement self but also in the d t e electric decision which we included in separate issue your honor and what the n r c has concluded is two things number one that there is not a violation of the underlying requirement to be able to remove not just the canister from the facility anticipate can and will be constructed in a safe manner that enables the fuel to be revoked d and to put into a new license facility that will be there for the storage of spent fuel so there will be an i don't know knowledge and not just the nine approximately there's no reason why this particular facility shouldn't be able to last far longer than that and while it's also true that the current license only used through two thousand and thirty five there are provisions for the billion nine hundred million dollars surplus at the end of the day we would certainly submit the nine hundred million dollars as more than ample funding to be able to plan for a plan b type of environment where some subsequent facility and speak instructed also working in the background is the fact that there is litigation on which southern california edison has succeeded in the past and on which i and his fate it would succeed in the future whereby it is obtained damages from the kind of states to pay for precisely these expenditures to store spent fuel so between the nine hundred million dollars already that have been banked plus the growth of that fund as well as potential litigation recoveries there's more than  admission is absolutely necessary to the development of any technology that would allow edison to repackage spent nuclear fuel in a canister if it needs to be replaced or if something goes wrong without that spent fuel pool there there's