ML20045A886
| ML20045A886 | |
| Person / Time | |
|---|---|
| Issue date: | 06/11/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-162, NUDOCS 9306150243 | |
| Download: ML20045A886 (56) | |
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ADJUDICATORY ISSUESECY-93-162 June 11, 1993 E0E:
The commission FROM:
John F.
Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 07 Kellev v. Selin, No. 4:93-CV-67 (W.D. Mich., filed May 4,
- 1993, and transferred May 10, 1993), appeal Dendinct, No. 93-1710 (6th Cir.)
Plaintiffs, the Michigan Attorney General, several private citizens and the Lake Michigan Federation, filed this lawsuit seeking immediate injunctive relief against the NRC.
Plaintiffs sought to stop Consumers Power Company from using an NRC-approved l
f dry storage cask, the "VSC-24," at the Palisades Nuclear Power Plant.
Plaintiffs complain that the NRC has performed no site-specific NEPA analysis of the consequences of using the VSC-24 cask at Palisades.
We opposed plaintiffs' request for an immediate injunction, l
arguing both that the NRC had met all its NEPA duties and that the district court lacked jurisdiction over what, in essence, was a challenge to the NRC rule adding the VSC-24 to the list of casks approved by the agency.
On May 10 the district court (Robert Holmes Bell, J.) agreed with our jurisdictional argument and held that plaintiffs' lawsuit attacking an NRC rule was reviewable exclusively in the court of appeals.
At plaintiffs'
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regoest the district court transferred the case to the United i
l States Court of Appeals for the Sixth Circuit, where it was l
docketed as No. 93-1646.
Plaintiffs also appealed the district court's jurisdictional ruling to the Sixth Circuit (No. 93-1710).
Attachment:
Verified Complaint opinion Order Granting Motion NOTE:
TO BE MADE PUBLICLY AVAILABLE
Contact:
IN 10 WORKING DAYS FROM THE 8
Crane DATE OF THIS PAPER 1
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Kellev v.
Selin, No. 93-1646 (6th Cir., May 17, 1993)
Once in the Sixth Circuit plaintiffs renewed their effort to obtain a court order halting use of the VSC-24 at Palisades.
The court of appeals, though, after considering responses filed by the NRC and by Consumers Power Company, denied the request for relief.
The court (Nelson, Suhrheinrich & Batchelder, JJ.)
issued a short order reciting the usual standards for a stay pending appeal, including likelihood of success on the merits and irreparable injury, and concluded that plaintiffs were not entitled to a stay.
Attachment:
Order contact:
j Peter G.
Crane j
504-1622 Kellev v.
NRC, No. 93-3613 (6th Cir., filed June 4, 1993) i Plaintiffs (now petitioners) then filed a petition for review in l
the Sixth Circuit directly attacking the NRC rule approving the VSC-24.
The petition asks the court of appeals to set aside the rule as violative of the Atomic Energy Act and NEPA.
It also attacks the NRC's denial of petitioners' request for an adjudicatory hearing prior to issuance of the rule.
The court of appeals has consolidated this petition for review with petitioners' two earlier court of appeals cases (Nos. 93-1646 and 93-1710) and established a briefing schedule.
Petitioners' brief is due in early July, and the NRC's is due in early August.
Oral argument will follow later this year or early next year.
Attachment:
Petition for Review
Contact:
j Peter G.
Crane 504-1622
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~ n F. Cordes licitor DISTRIBUTION:
Commissioners OPP OGC REGIONAL OFFICES OCAA EDO OIG ACRS OPA ACNW IP ASLBP OCA SECY
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-ATTACHMENT -
r Kellev v.
Selin, No. 4:93-CV-67 (W.D. Mich., filed i
May 4, 1993, and transferred.May 10, 1993),
appeal nendinct, No. 93-1710 (6th Cir.)
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h IN THE UNITED STATES DISTRICT COURT i
FOR THE WESTERN DISTRICT OF MICHIGAN i
FRANK J.
KELLEY, ATTORNEY
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GENERAL OF THE STATE OF
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l MICHIGAN on behalf of the
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Citizens of the State of
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Michigan, and
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HERBERT P. READ, NORMAN W.
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l PERMAN, SUSAN KIMMELMAN,
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j and
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THE LAKE MICHIGAN
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FEDERATION,
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Plaintiffs,
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CaseNo.j
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v.
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IVAN SELIN, JAMES R.
CURTISS, )
l E. GAIL DE PLANQUE,
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i FORREST J. REMICK, KENNETH C.
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l ROGERS, and the UNITED STATES )
NUCLEAR REGULATORY
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COMMISSION,
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Defendants.
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VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF Frank J.
Kelley, Attorney General of the State of Michigan on behalf of the Citizens of the State of Michigan, Norman W.
Perman, Herbert P. Read and Susan Kimmelman, and The Lake Michigan Federation
(" Plaintiffs"), by their attorneys, for their complaint against Ivan Selin, James R.
- Curtiss, E.
Gail de Planque, Forrest J. Remick, Kenneth C.
Rogers, and the United States Nuclear Regulatory Commission
(" Defendants"), state as follows:
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NATURE OF THE ACTION c
1.
This case concerns the outdoor storage of high level radioactive nuclear wastes on the eastern shore of Lake Michigan at Consumers Power Company's Palisades Nuclear Power Plant
(" Palisades"), located in Covert Township, Van Buren County, Michigan -- the center of one of the major ecosystems in the United States.
2.
Because Defendants have failed to comply with their non-discretionary legal obligations, Palisades, on May 7, 1993, will for the first time be allowed to store high level radioactive nuclear wastes in concrete casks located along the shoreline of Lake Michigan outside Palisades' protected containment structure.
Specifically, Defendants are taking steps to allow Palisades to transfer its radioactive wastes (which are in the form of used radioactive nuclear fuel rods) from pools of water inside Palisades to a set of 16 foot tall concrete cylinders, known as dry casks, to be located on a concrete pad approximately 150 yards from Lake Michigan.
When loaded, each cask will weigh approximately 125 tons.
3.
Although the concrete casks are purportedly designed and constructed solely to provide temporary storage for these radioactive wastes, in fact no permanent disposal site for the wastes from commercial nuclear power generation has ever been constructed anywhere in the United States.
Moreover, Defendants have not made any assessment, or at least have not discussed in any environmental study, how the i
concrete casks storing the radioactive waste will be b
dismantled.
Without a permanent disposal site, and without the demonstrated ability to safely dismantle the casks, Palisades itself will become a permanent repository for this nuclear waste, which can remain radioactive for thousands of years.
4.
Defendants' decision to allow the outdoor storage of this nuclear waste at Palisades violates their non-discretionary legal duties under federal law.
In i
P particular, Defendants have violated their mandatory obligations under the National Environmental Policy Act
("NEPA"), 42 U.S.C.
s 4321 et. Eng. and under their own governing regulations.
5.
As detailed below and supported by the affidavit of Dr. Marvin Resnikoff (Ex. A) and others, Defendants have violated their obligations in the following i
ways:
Defendants have failed to prepare an Environmental Impact Statement ("EIS"), as required under NEPA.
In the EIS, Defendants must consider and address the impact on the environr.ent of the outdoor storage of nuclear waste at Palisades, the alternatives to the proposed storage, and whether the storage should proceed in light of its impact upon the area around Palisades and the affected environment;
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-l Defendants have failed _to prepare an adequate Environmental Assessment ("EA"), as
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specifically required by regulations under j
NEPA.
In the EA, Defendants must provide an adequate basis for deciding whether an EIS is i
required before outdoor storage of this
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nuclear waste can proceed; Defendants have failed to consider any l
reasonable alternatives to-storing this
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nuclear waste outdoors at Palisades, and to provide for each alternative, a description of the affected environment the environmental i
consequences, the mitigation measures if any, and a comparison to all alternatives l
considered; l
6.
Because Defendants have violated their non-l discretionary legal duties, Plaintiffs have brought this action to enjoin Defendants' from taking any.further step _to j
permit the outdoor storage of nuclear wastes at' Palisades,
.f until Defendants file an appropriate EIS and otherwise i
redress their violations of law.
.i JURISDICTION AND VENUE 7.
This Court has jurisdiction over this Complaint, in that the matter arises under the laws of the
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i United States, 28 U.S.C.
55 1331 and 1337; the. complaint l
seeks the resolution of an actual controversy; and it-involves matters within the Court's jurisdiction, pursuant to i
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a
e the Administrative Procedure Act, over improper agency t
action, 5 U.S.C.
S 701 gl. geg.
8.
Venue is proper in this District, pursuant to 28 U.S.C.
5 1391(e), in that the cause of action involves i
officers and employees of the United States acting under color of legal authority and involves challenged action of an administrative agency of the United States.
The cause of action arises in this District, and real property involved in this action is situated in this District.
PARTIES 9.
Plaintiff Frank J.
Kelley is the duly elected attorney general of the State of Michigan.
Michigan Const.
1963, Art. V 5 21.
He has statutory and common law authority to act on behalf of the people of the State of Michigan in any court or tribunal in which the people may be interested.
MCLA 14.28; MSA 3.181; People v.
O'Hara, 278 Mich. 281; 270 N.W.
298 (1936); Attorney General v.
Licuor Control Commission, 65 Mich. App. 88, 237 N.W.2d 196 (1975) ; and Michican State Chiropractic Ass'n.
v.
Kelley, 79 Mich. App.
789, 791, 262 N.W.2d 676 (1977).
It is the Attorney General's judgment that the people of the State of Michigan are interested in the subject matter of this complaint i
because it has a direct impact on their health, safety and welfare as well as upon the conservation of the natural resources of the State including the air, water, and other natural resources.
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10.
Plaintiff Herbert P. Read is a co-owner of two adjoining parcels of land in Covert Township, Van Buren County, Michigan, approximately 1.75 miles south of the southern boundary of the Palisades plant.
Mr. Read purchased these parcels several decades before the Palisades plant was granted a provisional license to begin operating as a nuclear i
reactor, more than fifty years ago.
From Mr. Read's property, he can see warning signs and warning devices posted by officials of Palisades located south of the plant site.
Mr. Read is directly affected by Defendants' actions, in that 4
(a) Mr. Read's property is in proximity of the plant at f
Palisades and its value is and will be directly affected and, on information and belief, diminished by having nuclear 7
wastes stored outdoors nearby, (b) Mr. Read utilizes his i
property and the public property at Covert Township Park for recreational purposes, including camping and hiking l
throughout the year, and during that time frame, will regularly be exposed to the risks posed by the nuclear wastes stored outside at Palisades; and (c) Mr. Read is jeopardized by the dangers to public health, public safety, and the environment, as described herein, that the outdoor storage of nuclear waste at Palisades will have upon Mr. Read and his I
family in the event of an accident or negative incident.
(See Aff. of Herbert P. Read, Ex. B.)
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1 11.
Plaintiff Norman W.
Perman is a co-owner of
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real estate and a home located along the shore of Lake Michigan, approximately 1.75 miles south of Palisades at Fire.
Drive 2, Covert Township, Van Buren County, Michigan.
Mr. Perman has owned an interest in his property since 1969, before the Palisades plant was granted a provisional license to begin operating as a nuclear reactor.
From his beach front property, Mr. Perman can see the plant at Palisades.
Mr. Perman is directly affected by Defendants' actions, in that (a) Mr. Perman's property is in direct proximity of the plant at Palisades and its value is and will be directly affected and, on information and belief, diminished by having nuclear wastes stored outdoors nearby, (b) Mr. Perman resides on weekends from May through October in his house south on the beach from Palisades, and during that time frame, will regularly be exposed to the risks posed by the nuclear wastes stored outside at Palisades; (c) Mr. Perman is jeopardized by the dangers to public health, public safety, and the environment, as described herein, that the outdoor storage of nuclear waste at Palisades will have upon Mr. Perman and his family; and, (d) Mr. Perman utilizes the area, including the beach front immediately south of Palisades for recreational and aesthetic purposes which will be adversely affected by Defendants' actions in permitting the outdoor storage of nuclear waste at Palisades in the event of an accident or negative incident.
(See Aff. of Norman Perman W.
- Perman, i
Ex. C.)
12.
Plaintiff Susan Kimmelman owns two parcels of read estate on Fire Drive #4, Covert Township, Van Buren County, Michigan.
The two parcels of real estate, one of,
which is improved, are approximately two miles south of the Palisades plant.
From the beach front near her property, Ms. Kimmelman can see the plant at Palisades.
Ms. Kimmelman is directly affected by Defendants' actions, in that
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(a) Ms. Kimmelman's property is in direct proximity of the plant at Palisades and its value is and will be directly affected and, on information and belief, diminished by having nuclear wastes stored outdoors nearby, (b) Ms. Kimmelman and i
her family resides on weekends from June through October in I
her house near the Palisades plant, and during that time f
frame, will regularly be exposed to the risks posed by the nuclear wastes stored outside at Palisades; (c) Ms. Kimmelman is jeopardized by the dangers to public health, public safety, and the environment, as described herein, that the outdoor storage of nuclear waste at Palisades will have upon Ms. Kimmelman and her family; and (d) Ms. Kimmelman utilizes t
the area, including the beach front immediately south of the 1
Palisades plant for recreational and aesthetic purposes which will be adversely affected by Defendants' actions in permitting the outdoor storage of nuclear waste at Palisades.
(Ege Aff. of Susan Kimmelman, Ex. D.)
13.
Plaintiff The Lake Michigan Federation ("LMF")
is an Illinois non-profit association dedicated to protecting the environment and, in particular, to protecting the environmental quality of Lake Michigan.
It has a home office in Chicago, Illinois and regional offices throughout the Lake
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Michigan area, including the States of Michigan and Wisconsin.
LMF asserts in'this action both its organizational interests and the rights and interests of its members in the preservation of environmental values in the Lake Michigan region and around Palisades in particular.
i Pursuant to those interests, LMF has monitored the storage of nuclear waste at and around Lake Michigan, with particular concern for the adequacy of safeguards to protect life, property, and the environment against the consequences of j
nuclear accidents.
LMF's members regularly use Lake Michigan and the area around Palisades, for recreational, residential, and aesthetic purposes.
UHF has members who reside or work near Palisades and whose health, safety, or property values are jeopardized by the outside storage of nuclear wastes at Palisades.
LMF as an organization and on behalf of its members will be directly and adversely affected if Defendants permit Palisades to remove high level radioactive nuclear l
waste from inside the protected containment structure at the Palisades plant and store it in concrete casks 150 yards from the shoreline of Lake Michigan before an Environmental Impact Statement is filed and before a public hearing is held.
14.
Defendant Ivan Selin is Chairman of the United States Nuclear Regulatory Commission.
Defendants James R.
- Curtiss, E.
Gail de Planque, Forrest J. Remick and Kenneth C.
Rogers are Commissioners of the United States Nuclear Regulatory Commission.
15.
Defendant United States Nuclear Regulatory Commission ("NRC") is a federal administrative agency e
i
i authorized to act pursuant to the Atomic Energy Act of 1954, l
as amended.
The Commission is responsible for, inter alia,
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licensing and regulating nuclear facilities and materials pursuant to an affirmative obligation to protect the public i
health and safety.
The NRC must execute those affirmative responsibilities in accordance with the Atomic Energy Act, NEPA and their regulations.
REGULATORY BACKGROUND 16.
Nuclear reactors like the Palisades reactor are operated with fuel contained in rods that are placed in the core of the reactor.
As the reactor is operated, radioactive byproducts gradually accumulate in these fuel rods.
17.
Ultimately, the fuel rods must be removed from the reactor and replaced.
The used fuel rods, also known as
" spent" fuel rods, constitute high level nuclear waste.
High level nuclear waste includes spent fuel and fuel assemblies after they have been irradiated and "high level radioactive waste" material resulting from the reprocessing of spent nuclear fuel.
42 U.S.C.
5 10101(12); 10 CFR 5 60.2, 5 19 (defining high level radioactive waste).
18.
These nuclear wastes are radioactive and will remain hazardous for thousands of years.
19.
Prior to 1954, only the United States government was permitted to produce or use atomic energy within the United States.
In 1954, Congress amended the Atomic Energy Act to permit private industry to develop and.
l use atomic energy, subject to federal regulation.
In doing so, however, Congress recognized that the United States government would be responsible for the storage of high level nuclear wastes.
These wastes are the radioactive byproducts of the process of generating electricity in nuclear reactors like Palisades.
20.
In the past four decades, the United States government has not been able to establish any permanent
'I geologic repository for high-level nuclear waste for the safe storage of these high-level nuclear wastes.
21.
In 1982, in the High Level Nuclear Waste Policy Act, 42 U.S.C.
5 10101, et. seo.,
("NWPA"), Congress sought to address the lack of a permanent repository by defining a process by which the United States was to select and license a deep-geologic high level nuclear waste repository.
This repository was to be capable of isolating nuclear waste from the accessible environment for a period of time exceeding current planning scenarios (ordinarily referred to as 10,000 years).
42 U.S.C. S 10101 (18).
r 22.
As originally contemplated, that process was to involve scientific and objective evaluation and elimination of prospective sites through comparative f
analysis.
42 U.S.C.
SS 10131, 10133, 10134.
When that approach proved unworkable, however, the process was changed.
1 It now involves scientific analysis to support the recommendation and development of a repository at a single site, located at Yucca Mountain, Nevada.
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23.
The United States Department of Energy i
originally anticipated that a permanent repository would be available by 1998.
However, that date has since been revised.
The Secretary of Energy now projects that a high level nuclear waste repository will not be available before 2010.
THE OPERATIONS AT PALISADES AND THE VSC-24 CASK 24.
Since March 24, 1971, while the United States government has been engaged in what has, to date, been a futile effort to establish a permanent site for the storage of nuclear wastes, Palisades has been in operation and generating high-level nuclear wastes.
Palisades is a pressurized water reactor currently authorized to operate at specified steady state reactor core power levels, in accordance with the provisions of its license and technical specifications.
25.
Under Palisades' operating license, as issued by Defendants, spent nuclear fuel rods are to be stored on racks secured in water filled pools inside the protected containment structure at the Palisades plant.
It is in these storage pools, also known as fuel pools, that Palisades has stored and maintained the spent fuel from its operations.
26.
Over the years, the fuel pools at Palisades r
have been filling towards capacity.
In an effort to keep i
Palisades operating and generating its nuclear wastes in the absence of any permanent solution for their disposal, Palisades has sought a stop-gap method for dealing with these t
f wastes, namely storing its long-lived nuclear wastes in non-transportable concrete casks located outside the plant itself.
27.
Consumers Power Company, the owner of Palisades, has requested that it be permitted to use concrete casks at Palisades, specifically a ventilated storage cask system known as the VSC-24 cask manufactured by Pacific Sierra Nuclear Corporation.
The request for the increased storage capacity was made in light of the recognition (1) that federal storage facilities for Palisades' spent nuclear fuel rods were not and would not be available for many years, and, on information and belief, (ii) that as the Palisades plant moves toward the end of its economically useful life, the fuel pool storage at Palisades will require the very expensive task of maintaining and monitoring the Palisades plant even after it is closed down.
Emptying the fuel pools and storing the waste outdoors in casks is a more attractive economic alternative than maintaining a plant no longer in operation.
28.
The VSC-24 cask is a ventilated storage cask consisting of a steel seal-welded cylinder which fits within 4
i a concrete storage cask.
Convective air flow between the cylinder -- also referred to as a metal basket -- and the concrete cask cools the inner cylinder that will hold the radioactive spent fuel rods.
When fully loaded, the VSC-24 i
cask will hold up to 24 spent radioactive spent fuel
i l
i assemblies.
Each cask will weigh approximately 125 tons when I
l loaded.
t 29.
The casks are designed to stand approximately 16 feet high on a concrete pad 150 yards from the shore of Lake Michigan in a critical sand dunes area.
This area is referred to as a "high risk erosion area" because the sand i
dunes shift and are not stable.
This geologically highly unstable area of the shoreline of Lake Michigan has come under the special protection of Michigan state law, including l
the Shoreland Protection and Management Act, Mich. Comp. Laws Ann. 5 281.63, and the Sand Dune Protection and Management Act.
Mich. Comp. Laws Ann. S 281-651.
30.
On information and belief, the concrete cask will remain on the shores of Lake Michigan until a final repository for high level nuclear waste is developed by the federal government.
At the present time, it is unclear whether this will ever happen.
31.
On information and belief, the VSC-24 casks requested to be built at Palisades have not been constructed at any other operating nuclear plant and have never been fully tested.
On information and belief, the VSC-24 casks have never been tested with radioactive waste in an environment simulating the Lake Michigan shoreline or the conditions unique to the geography surrounding the Palisades plant, including, but not limited to the shifting sand dunes and the severe temperature fluctuations.
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l 32.
Defendants' testing of the VSC-24 cask is deficient in a number of other aspects as well.
They have, on information and belief ignored temperature data provided by the manufacturer of the cask, they have not adequately I
i tested the VSC-24 cask for potential cladding effects due to l
fluctuations in temperature, and they have never satisfactorily resolved all quality control problems in the construction of the casks.
33.
Defendants also have not fully tested the loading process for the VSC-24 cask.
That process is a very conplicated procedure that is subject to risks which could result in radioactive waste being released into the atmosphere to the detriment of workers and individuals in the Palisades vicinity.
The VSC-24 casks will be loaded at Palisades by first loading the metal basket in the fuel pool inside the plant.
The metal basket will then be loaded into a transfer cask.
Once loaded, both the transfer ~ cask and the loaded metal basket will be raised above the 16 foot concrete cask.
The bottom doors of the transfer cask will be opened and the metal basket will then be lowered into the concrete cask.
After the transfer cask is removed, water will be evacuated from inside the metal basket and the entire assembly of metal basket and concrete cask will be moved to a concrete pad on the shore of Lake Michigan with what is i
called a transporter that is 17 feet wide, 23 feet long and l
13 feet high and which can lift and transport 135 tons o' materials.
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34.
Defendants' authorization of the use of the VSC-24 cask amounts to an on-site experiment of the casks at Palisades.
The poter.tial risk to the public and the environment in using the Palisades site as a laboratory for the testing of this new equipment was illustrated when, on i
information and belief, machinery overheated and did not function properly during a test involving the lifting of the i
concrete cask and metal basket.
l 35.
As many as eight casks have been constructed l
at the Palisades site and are ready to be loaded with the j
high level radioactive waste pending Defendants' issuance of a Certificate of Compliance regarding the VSC-24 cask.
On I
information and belief, five casks were constructed on the i
Palisades site before there was any inspection of the casks by Defendants.
When Defendants inspected the casks, they discovered that (a) there were missing welds, (b) the workers were not using applicable construction codes for handling the concrete, (c) the workers did not know what the codes were,
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and (d) the management oversight was very weak.
Construction had to be shut down until these matters could be corrected.
36.
On information and belief, 25 VSC-24 casks currently are planned to be placed along the Lake Michigan shoreline at Palisades.
It is possible that as many as 80 casks ultimately will be needed to store all of the spent fuel generated at Palisades if the plant continues to operate through the expiration of its operating license in 2007.
DEFENDANTS' FAILURE TO ICSUE AN ENVIRONMENTAL IMPACT STATEMENT OR SITE SPECIFIC ENVIRONMENTAL ASSESSMENT 37.
Because Defendants are bound by their own l
regulations and the requirements of NEPA, before taking any federal action, such as permitting the outside storage of high level radioactive waste on the shores of Lake Michigan, the defendants are obligated to first consider whether their action will significantly affect the quality of_the human environment.
In addition, NEPA also requires that Defendants l
study, develop, and describe appropriate alternatives to any recommended courses of action.
38.
The obligations imposed by Congress through NEPA are an effort to guarantee that the relevant information regarding federal actions will be made available to a larger audience than just Defendants so that the larger group may play a role in both the decisionmaking process and the implementation of that decision.
39.
On April 7, 1993, Defendants published a Final Rule pertaining to approved spent fuel storage casks.
That rule will become effective May 7, 1993.
~(Final Rule, attached hereto as Exhibit F).
On that day, Defendants have stated they intend to issue a Certificate of Compliance relating to the operation and use of VSC-24 casks.
After i
Defendants issue that Certificate of Compliance, Consumers Power Company will be permitted by Defendants to begin loading radioactive waste at Palisades into the VSC-24 casks.
Defendants' issuance of the Certificate of Compliance also
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will allow Palisades to immediately being storing its radioactive nuclear waste outdoors within walking distance of Lake Michigan.
40.
On numerous occasions Defendants have stated that they do not intend to prepare either an EIS relating to l
the adoption of the Final Rule and the issuance of the Certificate of Compliance or a site-specific EIS relating to the outdoor storage of radioactive waste at Palisades in the VSC-24 casks.
Defendants most recently stated their i
intention to not prepare such an EIS on April 7, 1993.
l 41.
Plaintiff, Attorney General Kelley, has specifically requested Defendants to conduct additional investigation of the environmental impact and safety concerns i
related to the use of the VSC-24 cask at Palisades.
Defendants have denied that request.
42.
Rather than issue an EIS as required by their regulations and those of NEPA, Defendants have prepared an l
inadequate five page EA that contains a finding of no I
significant impact ("FONSI") solely with respect to their Final Rule.
A copy of this EA and FONSI is attached hereto i
as Exhibit G.
43.
It is Defendants' position, in substance, that l
"[t]he EA covering the proposed rule, as well as the finding of no significant impact (?ONSI) prepared and published for
[
this rulemaking, fully comply with the NRC environmental regulations in 10 CFR Part 51 and that further analyses j
1 I.
are therefore not legally required."
(Final Rule, Exhibit 1, at p. 63.)
DEFENDANTS' FAILURE TO EVALUATE OR CONSIDER CRITICAL HEALTH, SAFETY, AND ENVIRONMENTAL RISKS AND ALTERNATIVES 44.
Despite their obligations under NEPA, Defendants have stated that in addition to refusing to issue any type of EIS, they have no intention of preparing a site specific EA relating to the outdoor storage of radioactive waste at Palisades in VSC-24 casks.
Instead, they intend to allow the outdoor storage of nuclear waste to proceed at Palisades on the basis of an EA that does not address the storage of highly toxic radioactive waste at Palisades in a high risk erosion area.
They also intend to rely upon an EA that omits any assessment of the unique engineering requirements for the construction of a storage pad that may have to hold nearly 80 loaded concrete casks, each weighing 125 tons, in a sand dunes area that regularly shifts.
45.
The EA prepared by Defendants also is defective in other respects.
The EA, for example, fails to adequately consider the issue of potential sabotage to the VSC-24 casks.
On information and belief, Defendants have relied upon test results of metal casks instead of a concrete cask in reaching their conclusions about the risk of sabotage to the VSC-24 casks.
46.
Moreover, in preparing their EA for the VSC-24 casks, Defendants apparently relied in part upon NuREG-0575, Final Generic Environmental Impact Statement on Handling and l
Storage of Spent Lightwater Reactor Fuel, 1979.
That report, however, did not assess the potential impact of the national dry casks storage program or the VSC-24.
The 1979 study relied upon by Defendants focuses primarily upon the impact of spent fuel pools and not upon dry cask storage.
47.
Defendants also did not consider in their EA the actual results of tests relating to temperature fluctuations conducted by the manufacturer of the VSC-24.
On information and belief, Defendants have announced that the problem with the temperature test results will be corrected on site at Palisades.
48.
Defendants' EA also fails to consider the 1
cumulative impact that their actions will have on the human environment.
Specifically, there is no consideration given to the possibility that the VSC-24 casks will become i
permanent repository.
l 49.
An adequate EA should have considered the impact of using the VSC-24 casks in the unique environment at Palisades, which Defendants' EA does not discuss.
Among other items, an adequate EA should have contained (a) discussion about the existing environment at Palisades, including the specific site location for the casks, and the security issues that might be at issue at Palisades; (b) discussion about demography, meteorology and geology unique to Palisades, including a discussion about the fragile and unstable sand dunes of this region which have been characterized by the Michigan Department of Natural Resources _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ _ _ _ _
as a "high risk erosion area"; (c) discussion about the
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impact at Palisades of wide fluctuations in temperature and the possibility of degraded components of the VSC-24 cask, including the potential effects of corrosion of the metal basket from irradiation in the damp climate of Palisades, and (d) discussion about the possibility and impact of human error in dealing with the cask system.
i 50.
Defendants' failure to prepare an EIS of any kind, or an adequate EA relating to either the VSC-24 or the
)
l specific site at Palisades implicates serious health, safety l
and environmental risks to Plaintiffs.
51.
Moreover, under NEPA, an adequate EA must J
consider a reasonable range of alternatives to any proposed action by the NRC.
The EA prepared by Defendants with respect to the Final Rule does not consider or discuss any meaningful alternatives.
There is no discussion in the EA about either the possibility of reracking a portion of the spent fuel currently in the fuel pool at Palisades or the use of temporary racks in unused portions of the fuel pool.
52.
This risk has been compounded because Defendants have passed off their obligations under NEPA to the manufacturer of the VSC-24.
Defendants intend to rely upon the vendor to conduct certain of the testing requirements.
1. _ _ _ _ _ _ _ - _ _-___-__ -
COUNT I i
FAILURE TO PREPARE AN ENVIRONMENTAL IMPACT STATEMENT 53.
Plaintiffs reallege and incorporate paragraphs 1 through 52 above.
)
54.
Section 102(2) (c) of NEPA requires Defendants to file a full EIS if they engage in a major federal action that has a significant impact on the human environment.
42 U.S.C. 4332 (2) (c).
Permitting the outdoor storage of high level radioactive nuclear waste in VSC-24 casks on the shores of Lake Michigan at Palisades constitutes such a federal action.
55.
Defendants' decision to permit the storage of radioactive waste in the VSC-24 casks at Palisades will result in a significant adverse effect upon the human environment for at least the following reasons:
a.
in the event that the casks are broken open by sabotage, degradation of components, human error or some other reason, high levels of radiation could be leaked out from the casks into Lake Michigan contaminating the drinking water of nearly fourteen million people b.
in the event the casks are broken open through sabotage, degradation of components, human error or some other reason, real property and a fragile sand dunes area around Palisades could be contaminated with high levels of radiation c.
in the event the casks are broken open through sabotage, degradation of components, human i
error or some other reason, high levels of radiation could contaminate the respirable air causing serious injury to the human and animal populations surrounding the Palisades area.
I i i i
i
56.
Defendants' determination that they are not required to prepare an EIS is arbP.rary and capricious and constitutes a violation of Section 102(c) of NEPA.
57.
Plaintiffs have exhausted their administrative remedies under NEPA.
58.
Because Defendants have not prepared an EIS, they have inadequately examined the environmental impact of the outdoor storage of high level radioactive nuclear waste in VSC-24 casks in Palisades.
Such storage poses a risk of irreparable harm to the human environment along the shore of Lake Michigan near Palisades and to Plaintiffs.
WHEREFORE, Plaintiffs request this court to enter a temporary restraining order, a preliminary injunction and a permanent injunction, enjoining Defendants from taking any further steps that would permit Palisades to store radioactive wastes in VSC-24 casks unless and until it prepares an EIS relating to the storage of radioactive nuclear waste in VSC-24 casks along the shore of Lake Michigan at Palisades, and ordering such other relief as this Court deems proper.
COUNT II FAILURE TO PREPARE AN ENVIRONMENTAL ASSESSMENT FOR THE OUTDOOR STORAGE OF HIGH LEVEL RADIOACTIVE WASTE IN VSC-24 CASKS AT PALISADES 59.
Plaintiffs reallege and incorporate paragraphs 1 through 58 above.
60.
Regulations promulgated under NEPA require Defendants to prepare an adequate EA before they take any '
major federal action, regardless of whether the action has a significant impact on the human environment.
61.
Defendants' decision to permit Palisades to begin outdoor storage of high-level radioactive nuclear waste in VSC-24 casks constitutes a major federal action.
62.
Defendants have not prepared an EA that assesses the impact of the outdoor storage of radioactive wastes in VSC-24 casks at Palisades.
As a consequence, Defendants also have not reached any conclusion as to whether the outdoor storage of nuclear waste at Palisades will have a significant impact on the human environment.
63.
Defendants' determination that they are not required to prepare an EA site specific to Palisades is arbitrary and capricious and constitutes a violation of NEPA and its governing regulations.
64.
Plaintiffs have exhausted their administrative remedies under NEPA.
P 65.
Because Defendants have not prepared an EA, they have inadequately examined the environmental impact of the outdoor storage of high level radioactive nuclear waste l
in VSC-24 casks in Palisades.
Such storage poses a risk of irreparable harm to the human environment along the shore of Lake Michigan near Palisades and to Plaintiffs.
WHEREFORE, Plaintiffs request this Court to enter a temporary restraining order, a preliminary injunction and a permanent injunction, enjoining Defendants from taking any further steps to permit the loading of high level radioactive '
waste into VSC-24 casks at Palisades unless and until Defendants prepare an adequate EA that fully explores all of the environmental impacts that the outdoor storage of high level radioactive waste in VSC-24 casks at Palisades can be expected to have on the human environment, and ordering such other relief as this Court deems proper.
COUNT III FAILURE TO FILE AN ADEOUATE EA AS TO THE VSC-24 CASKS 66.
Plaintiffs reallege and incorporate paragraphs 1 through 65 above.
67.
Regulations promulgated under NEPA require Defendants to prepare an adequate EA before they take any major federal action, regardless of whether the action has a significant impact on the human environment.
68.
Defendants' decision to issue a Certificate of Compliance with respect to the VSC-24 cask constitutes a major federal action as defined in NEPA.
69.
The EA prepared by Defendants with respect to the VSC-24 casks fails to adequately assess the potential adverse impact of the use of VSC-24 casks as an independent spent fuel storage device for at least the following reasons:
f a.
it fails to consider the impact that temperature fluctuations unique to Palisades will have on fuel rod cladding and the outer concrete to the cask and the resulting difficulties that will be associated with decommissioning the casks if cladding snd i
degradation occurs; b.
it fails to consider the full range of potential accidents and consequences that might result from drops in the casks while the cask is being transported from the fuel bay at Paliondas to the concrete pad along Lako Michigan; c.
it fails to consider fully the problems-associated with sabotage, including the fact i
that commercially available explosives could shatter the concrete on the cask resulting in very high levels of radiation exposure to Lake Michigan environment surrounding Palisades; d.
it fails to consider the impact of human error in the operation or construction of the cask; and e.
it fails to assess any impact, including any cumulative impact, specific to the Palisades environment from the storage and installation of casks on the Lake Michigan shoreline.
70.
Because of its incomplete nature, Defendants' Environmental Assessment regarding the VSC-24 casks violates regulations under NEPA.
As such, the EA provides an inadequate basis for Defendants to conclude that the VSC-24 casks will not significantly effect the human environment in an adverse manner.
l 71.
Defendants' failure to prepare an adequate EA also poses a risk of irreparable harm to Plaintiffs and the human environment along Lake Michigan near Palisades.
72.
Plaintiffs have exhausted their administrative remedies under NEPA.
WHEREFORE, Plaintiffs' request this Court to enter a temporary restraining order, a preliminary injunction and a permanent injunction, enjoining Defendants from taking any f
further steps to permit Palisades from loading or storing i
high level nuclear radioactive waste in VSC-24 casks unless and until Defendants fully explore all of the environmental impacts the VSC-24 casks can be expected to have on human environment, and which, in this Court's opinion, conclusively demonstrates that VSC-24 casks will not significantly offect the human environment surrounding Palisades.
COUNT IV FAILURE TO ADEOUATELY CONSIDER ALTERNATIVES 73.
Plaintiffs' reallege and incorporate t
paragraphs 1 through 72.
74.
NEPA and the regulations promulgated under authority of NEPA, obligate Defendants to consider the environmental impact of a full spectrum of possible alternatives to the outdoor storage of high level radioactive waste on the shores of Lake Michigan near Palisades in VSC-24 l
casks.
The purpose of this requirement is to make federal agencies and their commissioners, such as Defendants, l
consider the environment as a primary factor in their decisionmaking processes.
Environmental analysis of alternatives must precede the decision by Defendants to take any federal action.
In addition, Defendants, even if they were to reasonably conclude that a particular decision was preferable, they still have a non-discretionary obligation to evaluate the environmental impact of alternative possibilities.
75.
Because Defendants did not prepare any EA with respect to the outdoor storage of nuclear waste in VSC-24 casks at Palisades, it also did not consider any possible alternatives to the outdoor storage of radioactive waste at Palisades.
In addition, in the EA Defendants prepared concerning the VSC-24 casks, they failed to consider the environmental impact of any other reasonable alternative to storing radioactive waste in the VSC-24 casks. _.
1 76.
An adequate EA by Dafendants should have evaluated at least the following alternatives:
a.
using temporary rack in the unused portion of the fuel pool at Palisades; b.
reracking a portion of the radioactive waste in the fuel pool at Palisades; c.
building a larger fuel pool at Palisades; t
d.
shutting down the reactor at Palisades; and e.
using a different cask design for storage 77.
The Defendant's failure to consider the environmental impact of alternatives to storing radioactive waste in VSC-24 casks on the shores of Lake Michigan is a fatal flaw in Defendants' decisionmaking process.
It is arbitrary and capricious and violates NEPA and its governing regulations.
78.
Because Defendants have failed to consider the environmental impact of alternatives to storing radioactive waste outdoors at Palisades in VSC-24 casks, Defendants have posed a risk of irreparable harm to the human environment along Lake Michigan near Palisades.
79.
Plaintiffs have exhausted their administrative remedies under NEPA.
WHEREFORE, Plaintiffs request this Court to enter a temporary restraining order, a preliminary injunction, and a permanent injunction, enjoining Defendants from taking any further steps to permit Palisades from loading or storing high level radioactive waste in VSC-24 casks at Palisades unless and until Defendants have prepared an adequate EA that considers a reasonable range of alternatives to the outdoor r
storage of high level radioactivo nuclear wasto in VSC-24 casks at Palisades.
Respectfully submitted, l
I FRANK J. KELLEY NORMAN W.
- PERMAN, l
Attorney General of the HERBERT P. READ, State of Michigan SUSAN KIMMELMAN, and THE LAKE MICHIGAN FEDERATION A. Michael Lef fler Assistant Attorney General in Charge By Environnental Protection One of Their Attorneys Division Peter W.
Steketee, Esq.
660 Cascade West Parkway, S.E.
John C. Scherbarth (P28865)
Suite 65 Assistant Attorney General Grand Rapids, Michigan 49456 Environmental Protection (616) 949-6551 Division Eleanor K. Roemer, Esq.
Lake Michigan Federation 59 E. Van Buren Street Kelly G. Keenan (P36129)
Suite 2215 Assistant Attorney General Chicago, Illinois 60605 l
Executive Division (312) 939-0838 P.O.
Box 30212 Lansing, Michigan 48909 Of Counsel:
(517) 373-7780 Robert L. Graham, Esq.
Joel T.
Pelz, Esq.
Terrence J. Truax, Esq.
JENNER & BLOCK One IBM Plaza Chicago,. Illinois 60611 (312) 222-9350 Dated:
May 4, 1993
, i
Ta; E f# COGAES, 60 (- So
- 3 'LO O c.; a To TOna e n ies 6ShP!
1
~
-- ; q
.... a UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN 93 C 10 3 9 35 1
SOUTHERN DIVISION g..,..g..
g d U$ k fCH Y
FRANK J.
KELLEY, ATTORNEY g,.
Q l
GENERAL OF THE STATE OF MICHIGAN
~~
on behalf of the Citizens of the State of Michigan, and File No. 4:93-CV-67
~
HERBERT P. READ, NORMAN W.
PERMAN, SUSAN KIMMELMAN, and HON. ROBERT HOIMES BELL THE IAKE MICHIGAN FEDERATION, Plaintiffs, v.
IVAN SELIN, JAMES R.
- CURTISS, E. GAIL DE PLANQUE, FORREST J.
REMICK, KENNETH C. ROGERS, and the UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendants, and CONSUMERS POWER CCMPANY, Intervenor-Defendant.
/
OPINION Michigan Attorney General Frank J.
Kelley, three lakeshore private landowners, and The Lake Michigan Federa*.; ion brought this action seeking to enjoin the United States Nuclear Regulatory Commission (NRC) and its officials from approving a new concrete cask, the "VSC-24," for outdoor storage of spent nuclear fuel at Consumers Power Company's Palisades Nuclear Power Plant in Covert Township (Mar South Haven), Michigan.
Because of lack of subject matter jurisdiction, this action is DISMISSED.
s i
i Backcround Prior to May 7, 1993, the Palisades Nuclear Power Plant had exclusively used water-filled pools inside the containment structure in the plant to store its spent nuclear fuel.
With its pools full, and in preparation for the plant re-
~
fueling and maintenance Work in early June 1993, Palisades is now turning to another method of storage: dry spent fuel storage casks.
In particular, Palisades has begun to use the recently NRC-approved ventilated storage casks--the "VSC-24" casks--to store its spent nuclear fuel in the outdoors (in the sand dunes) near the shores of Lake Michigan.
Plaintiffs object to the use of the VSC-24 casks.
They believe that the NRC had not adequately studied the environmental
~
impact of the outdoor use of the VSC-24 casks, particularly for use in the Lake Michigan surroundings.
They claim that the NRC violated the National Environmental Policy Act ("NEPA"), 42 U.S.C.
S 4321 g1 g_ epa, by failing to conduct a more thorough and site-e specific environmental study of the outdoor use of the VSC-24 casks.
They brought this NEPA-based complaint--with an accompanying motion for a temporary restraining order ("TR0")--on May 4,
- 1993, three days before the effective date of the NRC's final rule allowing the use of the VSC-24 casks for temporary on-site storage of spent nuclear fuel.
Sgt 58 Fud. Reg. 17948.
The complaint seeks to enjoin the NRC and its efficials fr )m taking any further action regarding the approval of the VSC-24 casks.
2
Af ter Consumers Power was allowed to intervene to this lawsuit under Fed. R. Civ. P.
24(a), a bearing on the plaintiffs' request for a TRO was held on May 6,
1993.
The focus of the hearing, however, centered on a threshold issue of jurisdiction raised in the initial opposition submissions by the NRC and Consumers Power.
At the hearing, the Court inquired whether, in light of the allegations in the complaint, it has subject matter jurisdiction over the case to consider the TRO motion.
In particular, the Court asked whether the Administrative Orders Review Act, commonly referred to as the Hobbs Act, required the case to be heard in the court of appeals.
After some arguments, the parties were then requested by this Court to submit supplementary briefs on the jurisdictional issue on May 7, 1993.
After carefully reviewing the submissions, this Court is now prepared to render its decision on the jurisdictional issue.
Discussion It is, of course, axiomatic that before a district court may address the merits of a case, including whether a temporary restraining order should issue, it must be assured that it has subject matter jurisdiction over the case.
A.E.
Finlef d Associates. Inc.
- v. United States, 898 F.2d 1165, 1167 (6th Cir.
1990); Rocers v. Stratton Industries. Inc., 798 F.2d 913, 917 (6th Cir. 1986) (per curiam).
After careful review, this Court cannot be so assured.
3
A.
(1).
The Hobbs Act states that?
The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ---
All final orders of the Atomic Energy Co==ission
[now the Nuclear Regulatory Connission] nade reviewable by section 2239 of title 42.
28 U.S.C. E 2342(4).
Subsection (b) of 42 U.S.C.
5 2239 then provides that the Hobbs Act covers review of "[a]ny final order entered in any proceeding of the kind specified in subsection (a)
(of section 2239)."
And subsection (a) proceedings include those "for the issuance or nodification of rules and regulations dealing with the activities of licensees." 4 2 U.S. C. 5 2239 ja) (1) (A). Accordingly, reading the Hobbs Act in conjunction with 42 U.S.C. I 2239 leads to an easy conclusion that a " *inal order" entered in "any proceeding" for the " issuance or modification of rules and regulations dealing with the activities of licensees" is only reviewable by the court of appeals, not the district court.
That construction does not, however, clearly explain what the term " final order" neans under the Hobbs Act.
And because that term is undefined by the Act, some further review is needed.
(2).
contrary to the plain--and what appears to be a narrow--
l statutory language of the Hobbs Act, both words in the tern " final order" have been broadly construed.
First, courts have taken a 4
1 l
~
flexible view that an order is
" final" if it
"' imposes an obligation, denies a right, or fixes some legal relationship, usually at the consurzation of an administrative process.'"
E.g.,
Dickinson v.
Zech, 846 F.2d 369, 371 (6th Cir. 1988)
(quoting Natural Resources Defense Council v. NRC, 680 F.2d 810, 815 (D.C.
Cir. 1982)); Sierra Club v.
U.S. NRC, 862 F.2d 222, 225 (9th Cir.
1988).
Second, courts have recognized a " growing understanding that regulations and rules were reviewable ' orders' under the Hobbs Act."
Commonwealth Edison Co. v. U.S. NRC, 830 F.2d 610, 615 (7th Cir. 1987)
(citing 4 Davis, Administrative Law $ 23.5 (2d ed.
1982)}; see also _ City of Rochester v. Bond, 603 F.2d 927, 933 n.
26 (D.C. Cir. 1979) (noting that courts have construed " order" for purposes of special review statutes more expansively... to permit direct review of regulations promulgated through informal notice-and-comment rulcoaking").
Accordingly, it seems obvious that the NRC's promulgation of a " final rule or regulation," which fixes a legal relationship and which occurs at the consurmation of an administrative process, constitutes a " final order" under the Hobbs Act to be reviewed by the courts of appeals.
S_tt cf.,, N.L.R.B.
Union v. FLRA, 834 F.2d 191, 195 (D.C. Cir. 1987) (noting the same in the context of the Federal Labor Relations Authority's final rules and regulations).
(3).
The preceding discussion is further supported by the practice of various courts.
Courts--particularly the District of Columbia Court of Appeals--have routinely examined various NRC rules and 5
I
9 regulations under the Hobbs Act jurisdiction.
Ets, g g, Nuclear Infomation Resources Service v.
NRC, 969 F.2d 1169 (D.C.
Cir.
1992) (en banc); Professional Reactor Operator Societv v. U.S. NRC, 939 F.2d 1047 (D.C. Cir. 1991); Union of concerned Scientists v.
lie.C, 920 F.2d 50 (D.C. Cir. 1990).
And this practice appears consistent with the Supreme Court's teaching that a review of an
~
administrative decision should initially vast in the courts of appeals unless there is a " firm indication" that Congress intended to do otherwise.
See Florida Power 1 Light Co. v.
Lorion, 470 U.S.
729, 745 (1985) (a Hobbs Act case).
(B).
Turning to this case, the question is whether this case falls under the described ambit of the Hobbs Act.
That is, whether the plaintiffs in this case are seeking to challenge the April 7,1993 issuance of the NRC's final rule on VSC-24, which is, as the foregoing discussion indicates, a " final order" of a " proceeding for the issuance of rules and regulations" within the meaning of the Atomic Energy Act, 42 U.S.C.
5 2239.
This Court believes so.
(1).
plaintiffs' four-count " Verified complaint for Injunctive and other Relief" is revealing.
In the Complaint, the plaintiffs seek a review of the clairs that the NRC and its officials acted in contravention to the National Environmental Policy Act ("NEPA"), 42 U.S.C.
5 4321 et sea,,
by failing to conduct a more thorough environmental impact study of the use of the newly approved VSC-24 6
casks for outdoor storage of opent nuclear fuel at the Palisades plant.
But in their words, the plaintiffs challenge, with respect to the Palisades plant, the Defendants'
- position, in substance, that
"(t)he
[ Environmental Assessment) covering the proposed rule (as set forth at 58 Fed. Reg. 17948 and issued on April 7, 1993), as well as the finding of no significant impact (FONSI) prepared and published for this rulemaking, fully
~
comply with the NRC environmental regulations in 10 CFR Part 51 and that further analyses are therefore not legally required."
(Final Rule, Exhibit 1, at p. 63.).
Complaint 1 43.
In other words, what the plaintiffs are really challenging is the NRC's alleged NEPA-violating inactivity ste= ming from the promulgation of the final rule approving the use of the VSC-24 casks for any location.
However. in order to examine the propriety of the NRC's inaction, this Court must necessarily examine what occurred at the NRC's rulemaking process for the issuance of a final rule for the VSC-24 cask.
The NRC's alleged NEPA violations cannot be divorced from the rulemaking process and its determinations therein.
The four counts contained in the plaintiffs' Complaint do not contradict this view.
Plaintiffs allege the following:
Count 1:
that the defendants failed to prepara an
" Environmental Impact Statement"
("EIS")
on the question of allowing storage of the nuclear spent fuel in the VSC-24 casks at Palisades, in violation of NEPA, 331 Complaint 11 54-58 count 2:
that the defendants failed to prepara an "Environcental Assessment" ("EA") before permitting the outdoor storage of the radioactive vastes in the VSC-24 casks at Palisades, in violation of NEPA, 331 Complaint 11 60-65; Count 3:
that the defendants failed to file an adequate, general EA as to the VSC-24 casks, in violation of NEPA, gg.g Co= plaint 11 67-71 and count 4:
that the defendants f ailed to adequately consider 7
alternatives to outdoor storaga of nuclear spent fuel in the VSC-24 casks, in violation of NIpA.
EEE Complaint il 74-79.
Upon careful examination, it is clear that each of the four counts in the complaint, though separately setting forth what the NRC and its officials should have done regarding the approval of the vsc-24 casks for outdoor storage use, has a common threads all of them implicates, directly or indirectly, the NRC's April 7,1993 issuance of final rule adding a VSC-24 cask to its list of casks approved for teoporary on-site storage of spent nuclear fuel.
Egg 58 Fed. Reg. 17948.
To put its somewhat differently, in order for this Court to evaluate the merits of any of the four counts, this Court must perforce examine the NRC's final rule and its rulemaking process approving the use of VSC-24 casks.
This Court must then determine whether, in light of the plaintiffs' allegations in the Complaint, the final rule and the ruleoaking process approving the use of the vsc-24 casks at any location were consistent with NEPA.
The Hobbs
- Act, however, prohibits this court from undertaking such examination and determination of a final rule of the NRC.'
To be sure, one of the plaintiffs appears to recognize this 1
Plaintiffs in their supplemental submission assert that Counts 1, 2, and 4 of the complaint do not involve NRC's final rule adding a VSC-24 cask to its list of approved storage casks.
As explained in the text above, a fair reading of the complaint belies that assertion.
Further, it appears that even if Counts 1, 2, and 4 do not directly implicate the VSC-24 final rule, that final rule and the rulemaking process must be examined, at the very least, as a starting point.
Certainly, it is difficult to fathom--and the plaintiffs have not explained, except through an inapposite hypothetical--how Counts 1, 2,
or 4 could be examined in a vacuum without a reference to the VSC-24 final rule.
B
fatal flaw.
At the hearing held on May 6,
1993, this Court inquired of the Assistant Michigan Attorney General about the nature and scope of the action. After learning that the action was "an original action," not an " administrative appeals action," this Court engaged in the following exchange:
THE COURT:
So I can forget about what happened in front
~
of the Nuclear Regulatory con =ission?
[ ASSISTANT ATTORNEY GENERALJ :
Your honor, I wouldn't pretend to stand here and try to suggest to this Court that there is not going to be something that will relate to this process.
It definitely relates to the casks that they have chosen to construct on the shores of Lake Michigan.
Transcript of the Hearing Re: Motion for Temporary Restraining Order at 13.
However, the Assistant Attorney General was quick to explain that the relationship with the NRC proceedings was not sufficient to bring this action within the ambit of the Hobbs Act because the gravamen of the Complaint was the challenge to the NRC's imminent issuance of a
" Certificate of Compliance" to Consumers Power, which authorizes Consumers Power to load and use the VSC-24 casks at the Palisades plant.
See & at 14.2 Subse.guently, when it was explained that a Certificate of Compliance had already been issued on May 3,1993 by the NRC to the vendor of the VSC-24 casks, Pacific Sierra Nuclear Associates (not Consumers Power),
the Assistant Attorney General appeared to equivocate further.
In an answer to the Court's continued inquiry a
curiously, the other plaintiffs have subsequently distanced themselves from this position staked by the Assistant Attorney General.
5,g.g Plaintif fs' Memorandum in Support of Court's Jurisdiction Over Plaintiffs' NEPA Clains at 7 n. 5.
9
regarding the nature and scope of the action, the Assistant Attorney General seemed to suggest that the focus of the action, at that juncture, was an examination of the allegedly inadequate rulemaking process of the NRC--the precise review that the district court cannot conduct under the Hobbs Act.
Egg it,at 29.
Of course, even if the challenge to the NRC's issuance of a Certificate of Compliance were the crux of the complaint, that does not change the natter.
A Certificate of Compliance is issued by the NRC to a vendor of the storage cask, and certifies the vendor's compliance with the NRC's requirements for the cask.
10 C.F.R.
E
[
72.238.
As the NRC and consumers Puwer both point out, it appears that NRC's issuance of a Certifica :e of Compliance is "part and parcel" of the rulemaking process of the NRC.
331 10 C.F.R.
Part l
72, Subparts K and L.
As such, challenging an issuance of a 1
Certificate of Compliance is no different than challenging a final rule itself, which is prohibited from the district court's review I
i by the Hobbs Act.
t In sun, this Court agrees with the NRC that the plaintiffs' real challenge here is that the NRC cannot make
" generic determinations" on the use of dry spent fuel storage casks, such as the VSC-24 casks, but "nust make a site-by-site evaluation of the f
propriety of using the casks."
Opposition of U.S.
Nuclear Regulatory Commission to Plaintiffs' Motion for a Temporary Restraining Order at 7 n.
6; 131 A112 U.S. Nuclear Rehlatory l
3 Commission's supplemental Memorandum on Jurisdiction at 6-7
(" plaintiffs' main grievance appears to be a dissatisfaction with 10
the general license system authorized by the Nuclear Waste Policy Act and inplemented in 1990 by the NRC in 10 C.F.R. Part 72, Subpart K.").
But that challenge, of course, of the NRC's rules and rulemaking process must be brought in the court of appeals, not this district court.
(2).
~
Plaintiffs nonetheless advance two additional arguments to consider.
Both, however, are unpersuasive.
First, the plaintiffs suggest that this Court should exercise what amounts to " concurrent jurisdiction" with the court of appeals to review NRC's final rule.
Plaintiffs cite Susnuehanna Valley l
Alliance v.
Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir. 19 8 0), cert. denied _sub not General Public Utilities Corp. v.
Susauehanna Vallev Alliance, 449 U.S.
1096 (1981).
Plaintiffs further contend that the circumstances there are "renarkably similar" to this case.
This court cannot agree.
In Susauehanna, the Third Circuit allowed concurrent jurisdiction for a NEPA claim against the NRC in the district court, even though the Hobbs Act required exclusive appellate jurisdiction.
In so doing, the Third Circuit explained that not only was the administrative record inconplete, but a final order of the NRC had not been nade.
122 619 F.2d at 241.
In other words, the statutory requirenant of " final order" of the Hobbs Act had not even been satisfied.
That is not the case here.
Egg Rest Chicaco v.
U.S.
NRC, 701 F.2d 632, 652 n. 21 (7th Cir. 1983).
Second, perhaps in their attempt to bring this case closer to 11
i Su s trueh a nna, the plaintiffs argue that there has been no " final order" within the meaning of the Hobbs Act. Plaintiffs mainly rely on the fact that there had been no formal adjudicative-type
" hearing" as provided under 42 U.S.C.
$ 2239(a) (1).
Plaintiffs believe that such a hearing is required for a " final order."
I Plaintiffs' argument is not well-taken.
Because section 2239(a) requires the NRC to hold a " hearing" without specifying that the " hearing" be held "on the record," no formal adjudicative i
type of hearing is required.
S.gg 5 U.S.C. I 553(c); United States v.
Florida East Coast RV. co., 410 U.S. 224, 234-38 (1973).
Only
" notice and comment" type of informal proceedings is required under section 2239(a).
122 Slecel v.
AEC, 400 F.2d 778, 785-86 (D.C.
Cir. 1968).
And such a proceeding was used here to satisfy the hearing requirenent of a " final order."
(C).
Finally, this Court does not desire to be misunderstood.
In dismissing this suit for lack of subject matter jurisdiction, the Court is obviously not addressing the merits of the claims in the Complaint.
In other words, this court is not passing any judgment on the soundness of the alleged actions of the NRC or Consumers Power.
l Conclusion For the reasons stated, the defendants' and the intervenor-defendant's requests for disnissal on the grounds of subject matter i
jurisdiction are hereby GRANTED.
Plaintiffs may file a petition i
for review of the NRC's final rule with the appropriate United 12
,,n.
l i
-e States' Court of Appeals.
An ordar consistent with this op
- on shall issue forthwith.
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- 10. M 3 c
Dated:
~
ROBERT HOIRES BELL UNITED STATES-DISTRICT JUDGE l
3
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FRANK J.
KELLEY, ATTORNEY GENERAL OF THE STATE OF MICHIGAN on behalf of the Citizens of D
the State of Michigan, and i
File No. 4:93-CV-67" HERBERT P. READ, NORMAN W.
PERMAN, SUSAN KIMMEI2'.AN, and HON. ROBERT HOLMES BELL THE LAKE MICHIGAN FEDERATION, Plaintiffs, v.
IVAN SELIN, JAMES R.
- CURTISS, E. GAIL DE PIANQUE, FORREST J.
REMICK, KENNETH C.
- ROGERS, and the UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendants, and CONSUMERS POWER COMPANY, Intervenor.
/
f ORDER GRANTING MOTION TO AMEND ORDER OF MAY 10. 1993 Plaintiffs seek to amend this Court's order of May 10, 1993 dismissing this action for lack of subject natter jurisdiction.
Plaintiffs argue that the order should be amended to include the following language:
In accordance with the opinion entered this date, this Court is without subject matter jurisdiction over the action and the action is hereby transferred to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. 1631 (sic).
Motion to Amend Order at 3.
Under 28 U.S.C.
5 1631, a district court may transfer a case G7
l to another court upon finding that there is a want of jurisdiction.
)
SAR Corrodities Export Co.
v.
U.S.
Customs Service, 888 F.2d 431, 439 (6th Cir. 1989), cert. denied, 113 S.
Ct. 96 (1992).
Such a i
on the "in the interest of transfer, however, must be premised justice" grounds.
In this case, the Court finds that it is "in the interest of l
~
justice" to transfer the action to the requested Sixth Circuit i
Court of Appeals. Though this Court believes that it lacks subject matter jurisdiction over the case by virtue of 28 U.S.C. 5 2342(4),
l the nature of the case is such that an expeditious review of the merits by a proper court appears necessary.
Accordingly, this Court's order of May 10, 1993 dismissing the action for lack of subject natter jurisdiction is AMENDED insofar as to allow a transfer of the action to the United States Court of Appeals for the Sixth Circuit under 28 U.S.C. 5 1631.
I Dated: N 10.19 9 3 Ve d s
~
Q ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE i
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ATTACHMENT -
Kellev v.
Selin, No, 93-1646 (6th Cir.,
May 17, 1993) 4 b
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ray-1t-33 NUN 14:40 Oln Ulh ull f '8^ "V' D ' # D"" ' '
- No. 93-1646 UNITED STATES COURT OF APPEAIJ5 FOR THE SDCTH CIRCUIT FIL E D
)
14 Ara 7 t FRANK J. KFT IRY; HERBERT P. READ;
)
NORMAN W. PERMAN; SUSAN KIMMEL-
)
4 0 % O E EEN, Clerg MAN; THE LAKE MICHIGAN FEDERATION, )
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Plaintiffs - Petitioners,
)
)
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v.
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ORDER
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IVAN SELIN; JAMES R. CURTISS;
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E. GAIL DE PLANQUE: FORREST J.
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REMICK; KENNETH ROGERS; UhTTED
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STATES NUCLEAR REGULATORY
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COMMISSION;
)
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Defendants - Respondents,
)
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CONSUMERS POWER COMPANY,
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Intervenor - Respondent.
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BEFORE:
NELSON, SUHRHEINRICH and BATCHELDER, Circuit Judges.
This matter has been transferred to this court from the United States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. I 1631. The plaintiffs, as they were designated in that court, challenge a final rule (or
- order") in which, by amendment of 10 C.F.R. 672.214, the Nuclear Regulatory Commission added the VSC-24 ~ cask to the list of approved spent fuel storage casks that power reactor licensees may use under the provisions of a general license.
i
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Pa.s M 646 7
The plaintiffs have filed an emergency motion in which they ask this court to stay enforcement of the rule. The motion includes a request that the defendants and the intervenor be enjoined from taking any funher action to implement the storage of waste in such containers at the nuclear facility operated by the intervenor. Responses in opposition have been filed by the intervenor and the defendants.
Several factors are balanced in determining whether a stay of this sort should issue: (1) the likelihood that the party seeking the stay will prevail on the merits; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the coun grants the stay; and (4) the public interest in granting the stay. State of Ohio ex rel. Celebrezze v. Nuclear Reguintory Commission, 812 F.2d 288, 290 (6th Cir.1987).
Application for a stay of an agency order pending review of the order in the coun of appeals must ordmarily be made in the first instance to the agency. Rule 18, Fed. R. App. P.
Having carefully considered the materials presented to this court, having noted the apparent failure of the plaintiff to apply to the Nuclear Regulatory Commission for a stay pending review, and having balanced the foregoing factors in the context of the materials presented, the coun has concluded that the emergency relief sought should be denied.
It is therefore ORDERED that the plaintiffs' motion for a stay is denied.
t n
ENTERED BY ORDER OF THE COURT OAAk I
a@
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ATTACHMENT -
Kellev v. NRC, No. 93-3613 (6th Cir.,
filed June 4, 1993) l l
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UNITED STATES COURT OF APPEALS
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FOR THE SIXTH CIRCUIT
-FRANK J.;KELLEY, Attorney General
)
for the' State of Michigan on
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behalf of the Citizens of the
)
g State of Michigan, and
)
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THE LnFE MICHIGAN FEDERATION and
)
JUN 4 1923
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DON'T WASTE MICHIGAN l
LE0:DJ?D GEC:, hk Petitioners
)
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Petition for Review v.
)
)
No.
U> r'EID STATES NUCLEAR REGULATORY
)
Q,, Q J M.sISSION ar.G THE UNITED STATES
)
U Q l OF AMERICA
)
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Respondents.
)
Frank J.
Kelley, Attorney General for the State of Michigan on behalf the Citizens of the State of Michigan, The Lake Michigan Feceration, an Illinois nut-for-profit association, and Don't Waste Michigan, a Michigan not-for-profit association
(" Petitioners") petition this Court for review of a final rule, and the accompanying denial of a request for an adjudicatory hearing, of the United States Nuclear Regulatory Commission published in the Federal Register on April 7, 1993 at 17948 amending 10 C.F.R. 5 72.214, a copy of which is attached hereto as Exhibit A.
Pursuant to 28 U.S.C.
5 2344, Petitioners state as follows:
1.
The proceedings sought to be reviewed are those which resulted in the amendment to 10 C.F.R. 5 72.214 entered on April 7, 1993, a0 ding the VSC-24 cask to an approved list of outdoor storage containers for high-level radioactive nuclear wa'ste.
Petitioners also seeh~ review of
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the denial of their request during the relevant proceedings for an adjudicatory hearing.
In connection with the proceedings, Respondents violated the Atomic Energy Act, their own regulations, and the National Environmental Policy i
Act ("NEPA").
2.
Venue in this Court is proper based upon 28 U.S.C.
5 2343.
3.
Relief is sought on the grounds that the amendment to 10 C.F.R.
$ 214 adopted by Respondents is without authority, unlawful, and in violation of, inter alia, l
the Atomic Energy Act, Respondent's own regulations, and o
NEPA.
4.
The relief Petitioners are seeking from this Court is a review and set aside of the recently adopted amendment to 10 C.F.R. 5 72.214, and the accompanying decision to allow VSC-24 casks to be used at the Palisades Nuclear Reactor Complex in Van Buren County, Michigan, unless and until Respondent has fully complied with its obligations under the Atomic Energy Act, its own regulations and NEPA, which include but are not limited to, holding an adjudicatory hearing on the issue of adding the VSC-24 to an approved list of casks, conducting an environmental impact statement or adequate environmental assessment, and considering a
reasonable rango of alternatives to the addition of the VSC-24 cask to an approved list of casks.
Respectfully submitted, FRANK J.
KELLEY THE LAKE MICHIGAN FEDERATION i
Attorney General of the e
State of Michigan
[
A. Michael Leffler
/ One of Its A @ rneys Assistant Attorney General V
in Charge Robert L. Graham, Esq.
Environmental Protection Jgel T.
Pelz, Esq.
Division errence J. Truax, Esq.
n JENNER & BLOCK
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}RNOne IBM Plaza
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Chicago, Illinois 60611 o
John C.
Scherbarth (P28865)
J' (312) 222-9350 Asdistant Attorney General Environmental Protection Eleanor K. Roemer, Esq.
Division Lake Michigan Federation 59 E. Van Buren Street I
Suite 2215 b )I 3. m at ~ b b Chicago, Illinois 60605 l
I Kelly G. Keenan (P36129)/
)
(312) 939-0838 Assistant Attorney General J Executive Division DON'T WASTE MICHIGAN P.O.
Box 30212
5ng Lansing, Michigan 48909
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(517) 373-7780 By V ur.
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IL' 4 One of Its Atto',eneys Eric Glitzenstein Meyer & Glitzenstein 1601 Connecticut Avenue, N.W.
Suite 450 Washington, D.C.
20009 (202) 588-5206
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