three points that i think i can state very briefly point one the atomic energy act allows the n r c to enter into agreements with states whereby state regulators instead of the commission regulate land disposal of very low level nuclear waste when the n r c discontinuous its regulatory authority in this way and discontinues does the word the act uses the state now called an agreement state becomes the regulator and the commission disavows authority over matters within the scope of such an agreement point to many years ago any ice members obtained approval for their disposal of low level waste from agreement states under the auspices of these agreements entered into between those states and the n r c until two thousand and eighteen these members in places like texas arizona washington state had no reason to doubt their state's regulatory authority over their land disposal of low level waste and rd and finally in fact these members had every reason to believe that their approvals from their agreement states governed the disposal of their waste and here's why once the n r c discontinues regulatory authority through an agreement state agreement it can reclaim or claw back that authority only by a rule regulation that language rule regulation or order also c is now referring to as a kind of bifurcated responsibility the responsibility of the generator of the ways to get approval for sending it and the responsibility of the disposal facility as a disposal facility which is regulated by and their view by the agreement states and it hasn't seemed to speak own way to the former and it has been consistently on the books so two thousand and two is not is not relevant to the regulatory framework that we're discussing your honor and here's why two thousand and two is a sibling regulation a companion of ten c f r one hundred and fifty point one it is that half way ten fifteen well and this is a sort of fundamental difficulty that i have as between you are human and the government's argument which is that you personally describe disposal as one thing and the government ascribing two different actions that the generator has an obligation to you know package and transport and you know there's a getting it to the dump a few well and that you know as they as i read their understanding is that then the dump and whether the dump is like a safe place and whether it supervising whether it's like the other you know off behind somebody you know country ho  it with much of the government's position just the core of its part because we recognize we don't we don't argue that the n r c has jurisdiction over the packaging of low level waste the handling of it the storage of it the transportation of it what it doesn't have is regulatory jurisdiction over putting the waste in the hole that they have given up they have given that up by entering into agreements state agreements there is a there was a robust process for entering into those agreements they are posted you know in the federal register public comment is invited state regulators understand that they have authority so so we are not with respect again packaging transportation handling that is in  jurisdiction always has been always will be but with respect to disposal at the site you get you know turning that shovel over into the hole that is the domain of state of state regulation because so says the way and the agreements the agreement state agreements the government has entered into by your argument is limited to in state disposal yes importantly it's it's it's limited to in state disposal yes so so it's a different ballgame if if we're talking about interstate disposal and that gets a little more complicated and the n r c has provided guidance on various scenarios if i'm taking disposal from one state to another state i'm weird we're talking here and and and it is relevant again arizona and texas and of course it was the enforcement action in trost state disposal in texas that prompted this this case except that the documents that are that are referred to going back to  level plan disposal low level waste right that that's that comes from the face of the act provided that the state regulators enter into an agreement with the n r c and vice versa and again when when that happens you know there is a robust process to ensure that state regulation is up is up to stop what happened in two thousand and twelve as you mentioned this document is because it was not crystal clear what is required in the multistate scenarios the the n r c issued what it called  depending on you know whether i mean an agreement state or not and i'm disposing in an agreement state or not we have no quarrel with the two thousand and twelve document that that the court refers to likewise we have no quarrel with the twenty six thousand document that memorialize s that clarification are our beef is with the long standing authority of states to approve of disposal within their states and you know even into in two thousand and twelve when it when the n r c renewed washington there was no no's income our own making but that that ship has sailed so you know as as you're well aware one of the questions is the time and ask question of any challenge given the clarity of the statement and i understand your position that it was unlawful for various procedural and substantive reasons but given the clarity of the two thousand and sixteen statement and you know why has that ship not sales yes thank you for the question  strongly disagree that this is that this was clear and i want to i want to say why it's important to east important here to focus both on the words on the page and the context in which this this document was issue so i j a sixteen the the the the regulatory the rigatoni issue summary makes clear that there was an incorrect statement in the one thousand nine hundred and eighty six information and that is a true statement there was an incorrect statement what was the incorrect statement it was a global statement that states always have approval over land disposal of low level waste and what if this clip this this clarification that is referred to in ga sixteen also j seventeen is to say that was an oversimplification but the commission is saying we want to correct that oversimplification that overbroad statement and we're correcting that by explaining that in a multi state scenario again this is the language it's important at the top of the seventeen matters are different and we acknowledge that we had no no problem with that of course the same the same document is very clear throated that it is does not constitute a departure from the regulatory framework it imagine had we tried to and we didn't have a beef with it so we wouldn't have but imagine just hypothetically the n e i you know sought to challenge this document we would have been able to challenge it why it says it's not it's it is simply memorializing the status quo it is not changing the what you have this document said it should have said we are here by amending one's fifty point one we are here by changing the wording of fifteen thousand and fifty we're changing the wording of two thousand and two but but but our position is yours there's a clear way to read this document consistent with those regulations as they are worded vent and now well so so what about the you know what that even an agreement state that the generator where it's and has been for our plant has to get an r c permission to go with an alternative disposal site and as we explained in the letter in two thousand and twelve we went through the five different scenarios and that included an r c regulated generator agreement state and even then the facility the generator has to get at her c approval so their again you're under twenty two thousand and two doesn't say that it's important to highlight the language here so twenty two thousand in two references otherwise otherwise authorized in the regulations in this chapter ok so in other words is about this is it applied to generators not to the disposal sites and i'm just you know reading the government's pretty fun trying to get your best answer to read that their view is that there's nothing else that authorizes a generator to dispose of in an alternative facility that the fifteen point one five point fifteen  authorize the site and in agreement state it doesn't make that distinction your honor the regulation says any person and again and again for decades there are in fact have been agreements between states and the n r c allowing for generators to dispose that would that that is an i don't think the government disputes that so so there is a pathway for generators there was never any distinction between generators and not and and not generators it's any person nor is there any such distinction made in the act itself right the act itself said look when this is about you know state cooperation and you know enlisting states to do to do their part to have a say in the disposal of material that is very low risk is this is we're saying w level waste it's a sure and for very low level waste so there's no there's no such distinction that has been drawn in if there were the n r c could not have entered into those agreement state agreements in the st place the n r c would not have sent in two thousand and twelve the same the same year as this st you know clarification letter was issued by the way issued only to states not to the regulated industry would not have acknowledged washington state's ongoing supervisory authority regulatory authority over that over the disposal in that  generator it's important that that was in the context of renewing a generator's license so there was a very clear framework there was a very clear regulatory before and now there's a regulatory after right and there if the n r c wants to change its position that's ok but it needs to do so pursuant to rule regulation or order so again so says the atomic energy act there were the commission's own regulations the a p a you know this is this is this is ultimately about you know kind of d presume all of these arguments will be made there it's not too late is not it's not so easy is that your honor and the reason is in this context in forstmann is a serious business what's called a minor violation is quickly escalated to a major violation it's the industry's practice to say oh well you can enforce against this and we'll you know we'll see you in court if the n r c and if that's not preferable but that's where you are one of your members as well but you're not but your honor it's a circular argument we're responding to that the government's making here that they were going to take a sentence out of context out of the larger document it appears and out of the larger regulatory framework understood by all parties and say ok this that this sentence this sentence means something that it wasn't how it's been interpreted and i can only imagine the government's argument if we tried to if we tried to tell and i threw up a if they didn't have a quarrel with how it was written yes would you consider it ambiguous or confusing yes is the best right ambiguous as to what i was doing i guess i guess i want to state that you do choose to think judge for a st of all at the most this this cryptic now very pregnant sentence right that is going to be used outside of the broader regulatory framework and this document taken as a whole it's taken at face value at the most it might be it might be read to say going forward indeed the language is must be submitted on a going forward basis that if there is a new  not been model clarity and you know that there's been a little bit of a feeling of a kind of you know shell game of nothing to see here nothing to see here and i think to see here and while at the end of the day it's a different regime from the one that there was and in eighty six on the other hand this a day seventeen where we were judge ginsburg was reading it follows that sentence for n r c issued licenses the requests should be made in accordance with the provisions that talk about communicating with the commission for agreement state licenses the requests should be made directly the granite state so if feels i may be missing something but it seems to be it and south texas responses revealing it said you can't mean you can't mean this two thousand and sixteen risk calls into question our existing longstanding approval from the state of texas it was that that encouraged that surprise this issue generically to provide further clarity so the government is conceding there is not clarity if one could to be fair read that isn't foresman clarity that they realize that with a shift and with whatever the practices provide further clarity you have raised legitimate issues you have raised you have caused us to evaluate the risk that's right said to evaluate the risks ajay forty eight there's a meeting there's a meeting notice what does it say to  which we strongly disagree with that we could have you know stewed on the basis of the twenty six but even if that were to conclude that the agency reopened a policy process ran a policy process to consider revisiting the wrist and then now that that's not how they characterize it they characterize it as information session and try to be transparent and respond to the outcry but not reopening a policy process well i don't want to quibble over words a judge pillared but what they said is we're going to but they're also they're also this is to the government's credit they're also saying to its credit like you've raised them issues we will work through them i mean the alternative the alternative is ok the whole industry is asleep at the switch every every generator in agreement maybe we got ahead of our skis that and yet the decision that the embodiment of the determination the order for the object purposes is the letter response to the industry right that that letter by the way was was foreshadowed in the public meeting they said ok we hear you we will get back to you i'm paraphrasing do not lose sleep and we expect by the end of september to respond to industries concerns so naturally the n r c sends an authoritative letter to the industries group my client the petition just seek a rulemaking just petition for room i think is what you have clear i mean can you still do that you have clear clear avenue for review from a denial of a petition to make the rule that you think you thought was in place agency denies that and then off to go to court it sounds it sounds simple judge hillard but in the meantime in the meantime there are in for smith risks they are expensive they raise reporting requirements that implicate insurance arrangements right it is so the rule making process even a pretty quick one as is the court's well aware that that is not that that is not an attempt healing avenue i think you're right as a formal technical matter that there is a view that has not been precluded but but but the fact remains we have a decision and order a decision and the agency has articulated a viewpoint that's inconsistent with the procedural requirements of the atomic energy act run a process give us a state give the do something transparent not not this regulatory gotcha would draw the court's attention to j forty two dollars which was the letter that any i wrote to the n r c after this sequence of events that mr crawley described and the position that  any ice adopted here this sudden elimination that oh my gosh now licensees who had previously existing arrangements are now going to have to comply with n r c requirements any i acknowledged information summary requires the actually emphasize the word requires licensees that have obtained approval from the green state for alternate disposal of l w to obtain approval from the n r c prior to continuing such in the wrist so they fully understood the consequences of the of the risk though i don't i think i think we just need to stop and be fair here ok let's just be fair all around i understand your arguments about that when do you just  and sixteen the long standing established practice was that the agreement state provided the approval assuming it's in the same state that's all i'm talking about the agreement states provide of the approval for candidly there was a bit of a mess and i don't i don't deny that but we've started to two different federal register notices reflecting licensees in agreement states seeking an r c approval prior to two notice right and and then you had in the late nineteen eighties a proposed regulatory amendment that would do exactly what you now say the rest did and was withdrawn had conflicting stuff all over the place you had tried a regulation and then withdrawn it to make this very change and then you and you have a twenty fold what are the talking really least as i read it most barely about interstate which is why i we're withdrawing that we need to do a regulation and now to have this on the wrist industry is kind of b s you might be right you might be wrong with the merits issue whether the two thousand and sixteen wris got language in there that seems to announce the change but this seems rather it seems rather odd to me that on issues important the n r c buried such a of change and a sentence in an issue statement rather than a regulation and then adds to that very issue statement compliance with current regulations a strictly volunt twenty two thousand and one dollars sets forth a series of different ways in which a n r c licensee can dispose of low level waste one of which is to say deliver to an authorised recipient under twenty two  the prior guidance that it was incorrect that it was superseding the entirety of that data and this attempt to sort of refashion it is only partial repeat a partial superseding or partial repeal of the prior guidance i think it don't think there's any way to say that you endeavored to be open clear and transparent and twenty six things you were you know coming and going in the same documents i'd respectfully disagree with that you are but i certainly i think that as i made clear when i started to pave share forty two any i understood the consequences of what had been done in two thousand and sixteen when it said this new regulatory information summary require its language that are licensees who preexisting arrangements and also says it's informational and pertains to us now that does not represent a departure from current regulatory requirements and practice current state would have been ambiguity and would have included i think countless maybe not all maybe there were two exceptions but there would have been countless plants that were relying on their agreement states to approve low level ways would you agree with me that that was the state of practice up to twenty six being the bat was going on a certainly the three  it may well have been i don't know so much for your letter and i'm going to ask a slightly different question which is you know i think in your brief at an abstract level you do a helpful job of distinguishing between what's involved in regulatory approval on sending generator side and the regulatory approval of the receiving disposal facility side of it it seems to me that that's fundamental to your position that they're there  two separate functions or at least can be and in the view of the commission it's important to when an r c license generators are involved it's important to keep them separate and that the the sending side just for short hand is not delegated to agreements states so i understand that and in a in a sort of abstract sense and you know on the for its part the institute refers to the  short as the dump you know putting the stuff in the ground can you just in somewhat more concrete terms explain what the distinct inquiries are you know where where the under the tw sixteen regime where the n r c is looking at the generators permission to use an alternate site and the agreement state is looking at the alternate sites eligibility what are they what's going on what are they regulating what are they looking at how they differ in just an in a really functional practical side ok i'll start with the proposition that the n r c is taking away jurisdiction from agreements states to regulate the place of that that dumped the the actual display positing of the material into the ground those are all decisions that states remains three to make consistent or not not that putting it in not the lining not the supervision now but not the freedom or not from water like so those twenty which is applicable to all n r c licensees including those who d are licensed under par fifty or fifty being the one where all the nuclear power plants have received licenses and are say part twenty requires  requires n r c licensees including nuclear power plants to submit a plan for procedures to be employed for the sort of post handoff disposal of low level waste and the reason for that is that the n r c doesn't want material transported off site without understanding that there is a plan that is has been previously evaluated and approved by the n r c either d through notice and comment will make and or through at least understanding what the plan is yes he wants to make sure that your st of the to procedures you refer to packaging and transportation and you refer to the method by which they seek to this you refer to the handling of waste before it becomes subject to agreement state authority and you distinguish between the disposal and the disposal itself so what is in the former category in all of those diodes what is the procedure that the n r c needs to supervise before the low level radioactive waste is at the dump well the n r c has to understand what the radioactive dose of the underlying material is it has to understand the time it's going to take for for this material to to actually be disposed of as to which will decay to turn how much exposure  so tell me exactly what a candidate is here regulating under are you asking them to and really confuse that area asking them to document that they that is low level waste to document that they're using the right agreement state approved well we want to understand what they're going to do with it once it gets to that dump for example are they going to open it but this is where i was very confused so i thought you said once it gets the dot the state takes i'm sorry just go and i'm going to jump in your question  essentially yes but least as part two thousand and licensees and this is part of the legislative rules that are in place that all interstate licensees must comply with they still need to comply with twenty two thousand and two so that the n r c before it just simply authorizes waste specially i don't think that that's what's going on here the agency is simply saying look before we can authorize anything to leave a site whether it goes in state or out of state we want to understand what you plan to do with it and we want to understand how their  have i can't speak out there's been an individual problem or not but i'd like to attribute the lack of problems to the fact that we have regulatory requirements in place saying hey we're up with a digital lion's manual didn't require and you know it hadn't been done before especially i still don't i don't i don't understand my barrel what it is that you're approving under twenty two thousand and two what is it that there's the you are approving and you haven't already appro charge of just well is this are you i guess at the usual judgment of the you were not regulating the disposal site that was for the state we are not but we want to understand what is going to be done what is proposed to be done i don't  facilities in our primary regulatory ambit before we sign off on them passing this off to state supervised dump we want some communication about why the state is satisfied that this is going to be secure and i think that's so there's some of the information that they're in charge of but we just want that information and also but that's not the only thing there's also as you say questions about packaging the amount of time to which the amount of time that the material might be exposed to the air things like that after that the case the amount of time exposed there you mean in the transportation process or do you mean in the dump i mean in the dump but i also the facility the disposal facility is licensed by the state but they don't necessarily know what their customers are like or better word it how they necessarily intend to  about how the how the disposal site that's been licensed by this state in agreements states is absolutely doing or well i'd wouldn't characterize it as the agency addressing a problem i think it's so what's your response to mr crawley's point i had taken you to be relying really quite significantly on twenty point two zero zero two and mr crawley's as well but that's only  half the story that really doesn't apply here at all what we're really i think of i'm remembering correctly he's a we're really looking at here is one hundred and fifty fifteen and i had read that as actually not exempting this activity that's an issue i would like to address i don't think it's correct to say that n r c licensees are exempt pursuant to d that to be in particular nuclear power plant licenses which is what we're talking about here actually don't fall within the scope of the one hundred and fifty one and exemption because they will necessarily imported here one  special nuclear material in quantities it says here not sufficient people and get them sooner not to fit the ones who have it not sufficient to form a predicate mass nuclear power plant have special nuclear material and quantities sufficient to ormoc a critical mass and what that means is that they are not somehow exempt from n r c requirements and what that further means is that they are therefore subject to all of the requirements set forth in ten c f r part twenty including they need to comply should they choose voluntarily to pursue an alternate means of disposal the requirements of twenty thousand two hundred chip and so there's no need for the agency to somehow that the disposal of waste is part and parcel of plant operations it's the need to comply with part twenty exists irrespective of someone is or is not  licensee shall dispose of waste only says in accordance with any of the integrated methods one of which happens to be twenty two thousand and two but an r c licensee is bound by that provision and that provision was one of only thing as to which the n r c will in the n r c as were discontinue its regulatory regulatory authority is specified low level risk aspects of  that is correct and that's why we're just postal allowing agreement state consistent with your two thousand and nine guidance which has been in existence at least till two thousand and twenty allowing the agreement states to approve the disposal of land low level radioactive waste in state with that yes your honor and that's why i don't i don't think i'm disagreeing with you when i say that the agency has not undermined or prevented states from maintaining full authority no i was responding to your argument that you hadn't given up any regulatory final agency action but one other thing too when i know of texas and there is a statement there that you would because of all the confusion would exercise  was we won't seek any kind of enforcement for past conduct and i'm still we put forward this guidance we will likewise will d allow you to permit to continue to dispose of waste in accordance with the existing arrangement with the state of texas the implication i think from that letter is after the actions of gardens now you've got to comply ok so then there wasn't actually a regime to change until you had the new guy and after meeting and everything we expected it but licensees to comply and really the guidance and the specific thing that they're not well despite the one of the specific things we wanted to address with respect to licensees like south texas was what to do with licensees like south texas that had in fact previously obtained an offer and appreciation from from the state we've been notified about three and i have to confess that one of them we were worried about through this litigation meeting arizona but the remaining licensees have been aware of this obligations two thousand and sixteen at least  communications has created a new legal obligations for n r c licensees and is that because no enforcement action has yet been taken or what i mean it seems like if the interpretation has shifted there is a new legal obligation and when and how did that crystallize i voluntarily choose to say that's their own decision the obligation stems from the regulation but the agency had an authoritative interpretation of the regulation in eighty six that it didn't apply to in the way that you've now said it does now meaning between sometime between yeah twenty wealth and now yes i agree with that and so the question is given that i mean maybe the position is well that the i gather the position is that the one hundred eighty six dollars interpretation was wrong and valid but nonetheless it was something that had some operative force and so if there's a change what's what's really confounding is that the agency has both said yes we've changed our interpretation but at the same time it said nothing to see here and twelve have to go to the n r c in accordance with twenty two thousand wanted twenty two thousand and two in order to get approval for alternate disposal methods and i understand that we communicated the interstate i think had a sense had an opportunity to say ok you should back fitter you should undergo some comment or whatever but that's time barred in your view yes i would agree with that now there are the certainly other opportunities  did in this particular context yes certainly and adjudicatory decision that the agency makes which we see all the time and license exceeding our subject time sector people as well but the judicial review provisions under section one quite be more specific there's a run from each of each of the communications to the regulator community and to the states that they agency sort of hopefully says oh we're going to issue something we're going to clear this up you know forthcoming as is more guidance and then years go by for example at j and fourteen  in order to inform licensees and interested stakeholders this is the th you know specific guidance is under development this will be shared once it's been finalised and four years go actually endeavored here to be to improve this process is to listen to interested parties and you know one of the things we point out in our brief is that when any i wrote this letter  the agency said hey you know what we like to get the views of interested parties and yes i think i mean i think that's a desirable means of governing but the flipside of it is that it can take time to arrange this to hear what what licensees have to say and not just licensees but other stakeholders many say and regrettably that the process may take months years and find we find ourselves in a situation we're in but i do think that the agency has endeavored to fix a problem it began that in two thousand and twelve going to realize that there was a mismatch between what licenses was and is were doing under twenty two thousand and two and what some of is page nine the language is the term disposal means the permanent isolation of low level waste pursuant to the requirements established by the n r c under likable laws or by an agreement state if such isolation occurs in such agreements state so there's no question view it's no surprise that you know california an agreement state disposing in ohio not in agreement state there's there were questions about that so are are because our beef here is the narrow one intrastate disposal and there's no question that in trust a disposal is governed by agreement state agreements i want to correct something that we do respect i think the government misstated or overstated twenty two thousand and two dollars is not the regulatory framework here yes there are many parts apart twenty of course that are that govern reactors of course but stuff hot stuff this is not this is not left to the states but look this is the n r c doesn't have doesn't have to give the states permission to regulate disposal sites the states already have that it's did what they're disavowing is regulatory authority over low level waste disposal by definition that's not critical mass that we're talking about protective clothing and you know soil and sediment algae it's not this is you know as in the scheme of things this is not this is not at the core of of of good relationship with it but they're they're there they're proceeding not in accordance to the way it's not just the two thousand and nine guidelines on the agency's website today it says we disavow regulatory jurisdiction pursuant to agreements state agreements that's what it says today so there's just there's just a lack of coordination going on you know within the agency and industries confused the eighty eight dollars is the relevant standard here it says if you're going to claw back if you're going to reclaim you do so through process and you know something that is titled a summary summarizing something that's kind of a clarification all of which on the substance speaks to interstate arrangements and we have no dispute that is not that is not good enough talking about putting in the ground do you disagree that the commission can retain regulatory jurisdiction to look at and sign off on how the  licensees plan to package to transport and choose which authorize facility they're sending step to in the case of an alternate site that the state will sign off on they just want to know about because alternate site is is by its nature more ad hoc they want to know what of the state sign off on they're not go guess that they just want to now so i want to make sure i'm tracking the court's question so transportation acting yes there's no there's no disagreement the alternate site it's not it i mean in the real world what we're talking about is recites right sort of right so so it's i don't believe the government is arguing in this case they just want to know they they are saying we have reclaimed authority over the disposal over the over disposal because they have already ceded to the states this continues it's not only the word of the regs it's the word of the statute they have already seated regulatory authority over dumping in the whole to the states so i don't i would my client is unfamiliar with this distinction between disposal and disposal procedure with it and the government's brief with due respect it doesn't provide cites citations for that for that statement so i don't know what i you know i can't speak to what that what that might mean but we don't agree to your question that the n r c just wants to know or has a up authority over you know what i'm going to call turning the shovel over and they have given that authority up again only in agreement state you know situations reports because they have decided that state law state regulations often promulgated in connection with the agreement state agreement are good enough and there's no reason to think there's no reason to think they're not and the energy is not arguing responsive yeah i'm a little bit confused about i have to say what what the commission is claiming and what it's not claiming with respect to what goes on