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. Averbach, 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, lowenriched 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.