ML14363A522
| ML14363A522 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 12/01/2014 |
| From: | Prairie Island Indian Community |
| To: | NRC/OGC, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit |
| Creedon, meghan | |
| References | |
| 14-1212, 1524828 | |
| Download: ML14363A522 (5) | |
Text
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PRAIRIE ISLAND INDIAN COMMUNITY, Petitioner,
-against-Case No. 14-1212 UNITED STATE NUCLEAR REGULATORY COMMISSION, and UNITED STATES OF AMERICA, Respondents.
ADDENDUM TO AGENCY DOCKETING STATEMENT (U.S.C.A FORM 41):
RESPONSES TO ITEMS 6(e)-(f)
- 1. Response to item 6(e): Identify the basis of appellants/petitioners claim of standing.
The Prairie Island Indian Community (Petitioner) seeks judicial review of the Nuclear Regulatory Commissions (NRC) Generic Environmental Impact Statement of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014)(voted on by the Commission on August 26, 2014, CVR 2014-0072) (GEIS), which concludes that continued storage of spent nuclear fuel at nuclear reactor sites indefinitely beyond the operating life of a reactor will have small environmental impacts.
Petitioner also seeks judicial review of the NRCs Final Rule for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (voted on by the USCA Case #14-1212 Document #1524828 Filed: 12/01/2014 Page 1 of 5
2 Commission on August 26, 2014) which adopts the GEIS as the basis for making decisions regarding nuclear reactors and on-site waste storage facilities in licensing and relicensing proceedings.
To demonstrate Article III standing, a party filing suit in federal court must demonstrate three elements: (1) injury in fact; (2) causation; and (3) redressability. See Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). The alleged injury must be concrete and particularized. Allen v. Wright, 468 U.S. 737, 756 (1984). The injury must also be actual or imminent. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990),
quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). A causal connection means simply that there is a direct cause between an alleged act and an alleged injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). And it must be likely, as opposed to merely speculative, that any injury alleged can and will be redressed by a favorable decision. Defenders of Wildlife, 504 U.S. at 560.
As a result of the NRCs GEIS and Continued Storage Rule, operators of nuclear reactors will be permitted to store spent nuclear fuel at nuclear generating facilities indefinitely beyond the licensed life of the facility without undergoing safety and environmental reviews. The Petitioner challenges these decisions on the grounds that the GEIS fails to account for site specific impacts of indefinite continued storage on the Petitioner and its homeland and it fails to evaluate reasonable alternatives to indefinite continued storage or consider appropriate mitigation measures. For these reasons, among others, the Petitioner contends that the NRC acted arbitrarily, abused its discretion, and violated both the National Environmental Policy Act, the Atomic USCA Case #14-1212 Document #1524828 Filed: 12/01/2014 Page 2 of 5
3 Energy Act, the Administrative Procedures Act, and the federal governments fiduciary obligation to protect tribal trust resources.
The Petitioner has standing to challenge the NRCs decisions. The Petitioner is a federally recognized, sovereign, self-governing Indian tribe, organized under the Indian Reorganization Act of 1934. It is governed by a Constitution and Bylaws adopted by the resident members of the Community on May 23, 1936 and approved by the Secretary of the United States Department of the Interior on June 20, 1936. The Petitioner has a government-to-government relationship with the federal government.
The federal government owes a trust obligation to the Petitioner that is characterized by a fiduciary obligation of the highest solemnity.
Both injury in fact and causation are demonstrated by the proximity of the Prairie Island Nuclear Generating Plant (PINGP) immediately adjacent to the Petitioners homeland, and the potential for irreparable damage to the Petitioner, should anything go wrong under the Continued Storage Rule. The Prairie Island Reservation is located at the confluence of the Vermillion and Mississippi Rivers, which has been the ancestral home of the Petitioner for centuries. Approximately 1,900 acres of the Petitioner's reservation are located in the immediate vicinity of the PINGP, which itself is located adjacent to the Petitioner's core residential area. The PINGP is currently licensed for up to 48 "dry cask" spent fuel storage units at an Independent Spent Fuel Storage Installation (ISFSI), which is located approximately 600 yards from the nearest tribal member residences. To date, 38 dry casks have been loaded and placed on the ISFSI, and the owner of the PINGP anticipates needing to expand the ISFSI to accommodate a total of 98 dry casks over the PINGP's lifetime - 64 dry casks through the proposed 20-USCA Case #14-1212 Document #1524828 Filed: 12/01/2014 Page 3 of 5
4 year license renewal plus an additional 34 dry casks if the PINGP is decommissioned after the current renewal period.
The NRC's decisions directly and adversely affect the Petitioner's members by indefinitely extending the storage of high-level radioactive material directly next to the Petitioner's residents, hundreds of burial sites, ancient village sites, and culturally significant areas until beyond the licensed life of the PINGP. The Petitioner's homeland, moreover, is fixed as a result of the federal reservation policy, so that relocating from the land and the threats posed by storage of high level nuclear waste at the PINGP is impossible.
Furthermore, spent fuel storage is susceptible to radiological release from a wide variety of conditions and the environmental and human impacts of such releases would be catastrophic to the Petitioner and its members, threatening health and natural resources.
Finally, the Petitioner's injury is directly redressable by this Court. This Court can address the Petitioner's injury by requiring the NRC to devise a storage plan that meets the requirements of the AEA, NEPA, and the federal trust responsibility to the Petitioner.
The Nuclear Regulatory Commission Atomic Safety and Licensing Board (ASLB) has found the Community had standing in the PINGP and ISFSI relicensing proceedings. See, e.g., In the Matter of Northern States Power Company (Formerly Nuclear Management Company, LLC), (Prairie Island Nuclear Generating Plant, Units 1 and 2), Docket Nos. 50-282-LR, 50-306-LR (ASLBP No. 08-871-01-LR), 68 N.R.C.
905, 912-13 (Dec. 5, 2008); In the Matter of Northern States Power Company, (Prairie USCA Case #14-1212 Document #1524828 Filed: 12/01/2014 Page 4 of 5
5 Island Nuclear Generating Plant, Independent Spent Fuel Storage Installation), Docket No. 72-10-ISFSI-2 (ASLBP No. 12-922-01-ISFSI-MLR-BD01), LBP-12-24, 76 N.R.C. 503, 507-08 (Dec. 20, 2012).
The ASLB properly acknowledged the Petitioner's right to seek protection of its health and safety and environmental interests under the AEA and NEPA in the relicensing proceedings. Likewise, the Petitioner has standing to challenge the NRCs generic determinations regarding the health and safety and environmental risks of spent fuel storage and disposal in this appeal. The interests raised in the ASLB relicensing proceedings are identical here, where Petitioner seeks to ensure that the NRC's generic determinations regarding the health and environmental risks of spent fuel storage and disposal - on which the NRC relies in its individual licensing proceedings - fully comply with the requirements of the AEA and NEPA. Therefore, the ASLB's standing decision in the PINGP and ISFSI licensing proceedings adequately demonstrates the Petitioner's standing to bring this Petition.
- 2. Response to item 6(f): "Are any other cases involving the same underlying agency order pending in this Court or any other?
The following related cases (now consolidated with this one) are pending in the U.S. Court of Appeals for the District of Columbia Circuit:
Case 14-1210 State of New York et al., v. United States Nuclear Regulatory Commission, et al.
Case 14-1216 Beyond Nuclear, Inc., et al., v. United States Nuclear Regulatory Commission, et al.
Case 14-1217 Natural Resources Defense Council v. United States Nuclear Regulatory Commission, et al.
USCA Case #14-1212 Document #1524828 Filed: 12/01/2014 Page 5 of 5