ML21314A243

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11-8-21 Docketing Statement (DC Cir.)(Case No. 21-1048)
ML21314A243
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 11/08/2021
From: Kanner A
Fasken Land & Minerals, Ltd, Permian Basin Land and Royalty Owners
To:
NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1921497, 21-1048, 21-1055, 21-1056, 21-1179
Download: ML21314A243 (38)
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Text

USCA Case #21-1048 Document #1921497 UNITED STATES COURT OF Filed: APPEALS11/08/2021 Page 1 of 38 DISTRICT OF COLUMBIA CIRCUIT 333 Constitution Avenue, NW Washington, DC 20001-2866 Phone: 202-216-7000 l Facsimile: 202-219-8530 AGENCY DOCKETING STATEMENT Administrative Agency Review Proceedings (To be completed by appellant/petitioner)

1. CASE NO. 21-1179 (Consolidated 21-1048) 2. DATE DOCKETED: 02-02-2021
3. CASE NAME (lead parties only) Don't Waste Michigan, et al. US Nuclear Regulatory Comm'n v.
4. TYPE OF CASE: Review Appeal Enforcement Complaint Tax Court
5. IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED? Yes No If YES, cite statute
6. CASE INFORMATION:
a. Identify agency whose order is to be reviewed: U.S. Nuclear Regulatory Comm'n
b. Give agency docket or order number(s): Secretary's Order No. 72-1050; CLI-20-14; CLI-21-09
c. Give date(s) of order(s): 10/29/2018; 12/17/2020; 6/22/2021
d. Has a request for rehearing or reconsideration been filed at the agency? Yes No If so, when was it filled? By whom?

Has the agency acted? Yes No If so, when?

e. Identify the basis of appellant's/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2):

Please see attached

f. Are any other cases involving the same underlying agency order pending in this Court or any other?

Yes No If YES, identify case name(s), docket number(s), and court(s)

Please see attached

g. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially the same issues as the instant case presents?

Yes No If YES, give case name(s) and number(s) of these cases and identify court/agency:

Please see attached

h. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other alternative for dispute resolution? Yes No If YES, provide program name and participation dates.

Signature /s/Allan Kanner Date 11-08-2021 Name of Counsel for Appellant/Petitioner Fasken Land & Minerals, Ltd. and Permian Basin Land & Royalty Owners Address 701 Camp Street, New Orleans, Louisiana 70130 E-Mail a.kanner@kanner-law.com Phone ( 504 ) 524-5777 Fax ( 504 ) 524-5763 ATTACH A CERTIFICATE OF SERVICE Note: If counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the challenged statement.

USCA Form 41 August 2009 (REVISED)

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 2 of 38 ATTACHMENT TO PETITIONERS DOCKETING STATEMENT Fasken Land and Minerals, Ltd., et al. v. United States Nuclear Regulatory Commission, et al., Case No. 21-1179 (consolidated with Case Nos. 21-1048,21-055, and 21-056) 6.e. Identify the Basis of Petitioners Claim of Standing Petitioners in Case No. 21-1179, Fasken Land and Minerals, Ltd. (Fasken) and Permian Basin Land and Royalty Owners (PBLRO), seek review of the United States Nuclear Regulatory Commission (NRC) Secretarys October 29, 2018 Order denying Petitioners motion to dismiss Interim Storage Partners, L.L.C (ISPs) licensing proceeding based on lack of jurisdiction and procedural grounds and instead referring Petitioners arguments to the Atomic Safety Licensing Board (ASLB) to review as contentions. Petitioners also seek review of NRC Memorandum and Order CLI-20-14 and NRC Memorandum and Order CLI-21-09 dismissing Petitioners contentions as inadmissible on the grounds that the NRC abused its discretion, acted arbitrarily and capriciously, in excess of statutory jurisdiction, and in violation of the Nuclear Waste Policy Act (NWPA),

U.S.C. §§ 10222(a)(5)(A) and 10143, the Atomic Energy Act of 1954 (AEA), 42 U.S.C. §§ 2011 et seq., the Administrative Procedure Act (APA), 5 U.S.C. § 706, the National Environmental Policy Act of 1969, (NEPA), 42 U.S.C. §§ 4321 et seq., and/or NRCs own regulations and policies when it denied Petitioners a meaningful opportunity to participate in the process.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 3 of 38 The ISP consolidated interim storage facility (CISF) site is situated in the middle of the Permian Basin, one of the most vital and productive petroleum resources for the nations energy, security and independence. As set forth in the Declaration of Tommy Taylor, Vice President of Fasken Land Management, LLC, the general partner of Petitioner Fasken, Fasken owns and/or leases property related to oil and gas activities located approximately 18 miles from the ISP site.

Dec. Taylor at ¶ 3. Fasken owns grazing property and operates significant agricultural operations nearby with considerable acreage. Fasken is a member of Petitioner PBLRO.

PBLRO is an association formed in response and opposition to the proposed CISFs in Andrews County, Texas (ISP/WCS CISF) and Lea County, New Mexico (Holtec International (Holtec) CISF). Members of PBLRO are oil and gas producers, land and royalty owners and agricultural operations owners that have long-term economic, social and environmental interests throughout the Permian Basin. PBLROs purpose is to advocate on behalf of oil and gas producers and land and royalty owners who have substantial business and personal economic interests that are jeopardized by the ISP CISF.

Petitioners have mineral leases and grazing properties surrounding the ISP CISF site and support the development of industry infrastructure and support services throughout the Permian Basin region. Both PBLRO and Fasken regularly 2

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 4 of 38 utilize regional rail transportation and local State and federal highways to support their industries with individuals and personnel frequently visiting the region for work-related purposes, including but not limited to, routine checks and maintenance on oil and gas production equipment and to monitor operations. See Decl. Taylor at ¶¶ 5, 7, 8, 19-25; Decl. Boyd at ¶¶ 6, 9-11; and Decl. Huckabay at

¶¶ 5, 21. Indeed, by virtue of ISPs CISF location in the middle of the Permian Basin oil hub, Petitioners will frequently and regularly travel in the vicinity of the ISP CISF for business-related purposes. Likewise, it is inevitable that Petitioners operations will be forced to share regional transportation infrastructure and will intersect routes with or travel alongside multiple rounds of shipments of high-level radioactive waste and spent nuclear fuel in and out of the Permian Basin.

Petitioners have legitimate concerns regarding adverse health effects and impacts to their employees and business operations, and the communities in the region generally, including the costs associated with medical care and treatment of any radiation-related conditions and the adverse financial impacts on property values and threats to ongoing extraction and mineral development, agricultural and ranching activities posed by the construction, operation and decommissioning of the ISP CISF. See e.g., Decl. Taylor at ¶¶15-19 ([e]ven the most minimal transportation incident involving spent nuclear fuel has the potential to interrupt or foreclose agricultural and ranching activities in the Permian Basin, further 3

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 5 of 38 explaining a transportation incident involving regional rails would likely diminish or has the potential to eliminate the economic value of oil and gas assets belonging to Fasken and other members of PBLRO); Decl. Boyd at ¶¶ 12-14; and Decl.

Huckabay at ¶¶ 9, 12-14. These concerns pose not only imminent and particularized threats but also long-term threats.

Petitioners have demonstrated both associational standing and prudential standing through evidence in the administrative record and the attached declarations of Tommy Taylor, D.K. Boyd and Grant Huckabay. Indeed, Petitioners were found to satisfy the stringent standing requirements in the administrative proceedings below based on their close proximity to the proposed nuclear storage facility and through demonstrating that its members and employees would be adversely impacted by the ISP CISF. See ASLB Memorandum and Order, LBP-19-07, 90 NRC 31, 2019 WL 105631489, at *14-15 (Aug. 23, 2019);

NRC Memorandum and Order, CLI-20-14, 2020 WL 7490093, at *1 (Dec. 17, 2020) (affirming ASLBs initial finding of standing for Fasken and PBLRO).

Petitioners have standing to bring the associated petition for review because they represent significant business interests and the interests of those that live, work, and travel in and around the ISP CISF and where large shipments of highly-radioactive nuclear waste are proposed to be transported and stored. The attached declarations express reasonable and legitimate concerns regarding the risks and 4

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 6 of 38 injuries the ISP CISF poses. Further, these injuries to Petitioners interests are directly tied to the agencys unlawful proceedings and determinations challenged here that violate the NWPA, APA and/or NEPA, which this court can redress in reversing and vacating the challenged NRC Orders.

6.f. Other Cases Involving the Same Underlying Agency Order(s) Pending in This Court or Any Other

  • Dont Waste Michigan, et al. v. N.R.C., et al., Case 21-1048, D.C. Cir.
  • Sierra Club v. N.R.C., et. al., Case 21-1055, D.C. Cir.

These cases are consolidated with Petitioners.

6.g. Other Cases Pending Before the Agency, This Court, Another Circuit Court, or Supreme Court Which Involve Substantially the Same Issues

  • Dont Waste Michigan, et al. v. N.R.C., et al., Case 21-1048, D.C. Cir.
  • Sierra Club v. N.R.C., et. al., Case 21-1055, D.C. Cir.

These cases are consolidated with Petitioners.

  • Dont Waste Michigan, et al. v. N.R.C., et al., Case 20-1225, D.C. Cir.
  • Fasken Land & Minerals, Ltd., et al. v. N.R.C., et al., Case 21-1147, D.C.

Cir.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 7 of 38

  • State of Texas v. N.R.C., Case 21-60743, 5th Cir.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 8 of 38 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DONT WASTE MICHIGAN, et al.,

Petitioners, Case No. 21-1048 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1055, 21-1056, 21-1179 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF TOMMY TAYLOR

1. My name is Tommy E. Taylor and my business address is 6101 Holiday Hill Road, Midland, Texas 79707. I reside at 4100 Timberglen Circle, Midland, Texas 79707. My position with Fasken Management, LLC (Fasken) is Vice President and Director of Oil and Gas Development. I am authorized by Fasken to execute this declaration on its behalf and on behalf of the Permian Basin Coalition of Land and Royalty Owners and Oil & Gas Operators (PBLRO) of which Fasken is a member and of which I am an officer.
2. This declaration is in support of the Petition for Review of Fasken and PBLRO in the above-captioned docket. I, on behalf of Fasken, previously authorized PBLRO to protect its interests by representing it in the prior Motion to Dismiss and petitions to intervene filed with the NRC alleging ISPs license application is inadequate and 1

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 9 of 38 illegal as written. I, on behalf of Fasken, further authorized PBLRO to appeal those decisions to this Court.

3. Fasken Land and Minerals, of which Fasken Management, LLC is its General Partner, is engaged in ranching as well as oil and gas extraction and production activities in the Permian Basin and in the vicinity of the Interim Storage Partners, LLC (ISP) consolidated interim storage facility (CISF) in Andrews County, Texas and the proposed Holtec International (Holtec) CISF in Eddy County and Lea County, New Mexico. Fasken owns property and currently operates active oil and gas properties within eighteen miles of the ISP CISF site in Andrews County, Texas.
4. PBLRO is an association with long-term economic, social and environmental interests in the Permian Basin that formed in response to ISPs and Holtecs CISF applications to construct and operate CISFs.
5. PBLRO presently has substantial land and mineral interests, and active leases throughout Andrews County, Texas, with a founding PBLRO member owning land used for oil and gas operations, cattle operations, and living quarters within four miles of the ISP CISF site.1
6. I am personally familiar with other members of PBLRO of which there are 65 individual members, with multiple ranchers engaged in agricultural activities and owning land in the area for over a century and at least three members being publicly 1

See e.g., Ex. 2, Declaration of D.K. Boyd, Petition of PBLRO and Fasken for Intervention and Request for Hearing (Sept. 28, 2018) (ADAMS ML18302A412).

2

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 10 of 38 traded corporations (two integrated and one large independent oil and gas operator),

as well as numerous private companies involved in the extraction and production of oil and gas in the Permian Basin and in close proximity to the proposed transport of spent nuclear fuel and storage of spent nuclear fuel at ISP and Holtec CISFs.

7. I am personally familiar with the agricultural use of the land within the vicinity of the ISP CISF site and of the members of the PBLRO that live, work and travel along proposed transportation routes, graze their animals within four miles of the ISP CISF and draw water from wells that are fed by shallow groundwater from formations that are present beneath the ISP CISF.
8. Both my employment duties and personal reasons require me to travel to and spend time in the area of the ISP CISF. I generally use State Highway 176 when I am in the area for travel purposes. At its closest point, State Highway 176 is approximately 1 mile from the ISP CISF site. Additionally, I am personally aware of other Fasken employees who regularly travel for employment and personal reasons to the area and use State Highway 176 as well.
9. As the Director of Oil and Gas Development for Fasken, I am personally familiar with ongoing oil and gas activities in the vicinity of the ISP CISF and throughout the Permian Basin. Fasken has owned the land and minerals within the vicinity of the ISP CISF for over a century and drilled its first well in the Permian Basin approximately 70 years ago.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 11 of 38

10. I also have personal knowledge of the activities of other oil and gas entities that are members of the PBLRO, one of which began drilling in the Permian Basin approximately 80 years ago and has extensive interests within close proximity to the ISP CISF. Neither Fasken nor any member of PBLRO has relinquished control of their interests for the ISP CISF.
11. There are approximately 4,579 wellbores within a 10-mile radius of the proposed CISF of which 1,066 were drilled and plugged prior to 1967 thus posing a potential risk of contamination. There are thousands of active oil and gas wells within a 50-mile radius of the proposed rail and road routes that will transport radioactive materials to the ISP CISF.
12. It is well-established and acknowledged that the Permian Basin is home to one of the most productive oil and gas hubs in the world. The Basin contains billions of barrels of hydrocarbons and millions of acre-feet of groundwater. It is the largest and most important hydrocarbon producing basin in the United. States. It produces 50% of domestic hydrocarbons and 5% of global oil (EIA, 2020). These hydrocarbon and groundwater resources ensure domestic energy needs and global security.
13. According to the Permian Basin Petroleum Association, the Permian Basin, which includes Andrews County, produced approximately 5 million barrels of oil per day in 2019 and anticipates an increase to as much as 8 million barrels per day by 2023. The region produced 6,668 million cubic feet (MMcf) of natural gas per 4

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 12 of 38 day in 2017; 9,076 MMcf per day in 2018; 11,874 MMcf per day in 2019; 12,934 MMcf per day in 2020; and 12,658 MMcf per day through July in 2021.2

14. According to the Texas Railroad Commission, the Permian Basin accounts for approximately one-third of the nations oil production.
15. I understand that a radiation release from the ISP CISF or during transportation of spent nuclear fuel through or near the Permian Basin or during any intermodal transferring functions may contaminate the areas in which Fasken and other members of the PBLRO have oil and gas property interests and/or extraction and production facilities. Such a release of radiation would cause contamination that would interfere or preclude the continued production of oil and gas in the Permian Basin. A radiological contamination event has the potential to interrupt or foreclose further oil and gas extraction/production activities and thereby diminish or eliminate the economic value of the oil and gas assets of Fasken and other members of PBLRO.
16. Likewise, I understand a radiation release from the ISP CISF or during transportation of spent nuclear fuel through or near the Permian Basin may contaminate the areas in which Fasken and other members of PBLRO have land interests and agricultural or cattle operations. A radiological contamination event 2

Source: Texas Railroad Commission Production Data Query System (PDQ), Texas Permian Basin Average Daily Natural Gas Production 2008 Through July 2021, available at: https://www.rrc.texas.gov/media/t3plr20l/gas-production.pdf.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 13 of 38 also has the potential to interrupt agricultural and ranching operations and thereby diminish or eliminate the economic value of real property values and related assets of Fasken and other members of PBLRO.

17. I am concerned that radiological contamination also has potential human health effects that may cause death, radiation related ailments and/or genetic defects.

This potential, in addition to the adverse impacts on human mortality and morbidity rates, also has substantial economic costs associated with medical care and treatment of radiation related conditions that affect Fasken and other members of PBLRO.

18. I understand that even the most minimal transportation incident, such as a derailment or collision involving spent nuclear fuel, would amount to a dangerous materials emergency that has the potential to interrupt or foreclose further oil and gas extraction/production activities within the area of the incident, as well as adversely affecting the recipients of oil commodities which are regularly transported by rail. A transportation incident involving either of the two rail lines, identified as the proposed transportation routes for shipments of spent nuclear fuel in the ISP final Environmental Impact Statement (EIS), the Union Pacific Railroad or the Texas-New Mexico Railroad, would likely diminish or has the potential to eliminate the economic value of oil and gas assets belonging to Fasken and other members of PBLRO.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 14 of 38

19. Even the most minimal transportation incident involving spent nuclear fuel has the potential to interrupt or foreclose agricultural and ranching activities in the Permian Basin, thereby diminishing or eliminating the economic value of the real property interests and assets of Fasken and other members of PBLRO.
20. Both Fasken and PBLRO regularly utilize rail transportation to support their industries and extensive and ongoing operations. Those named in the ISP EIS, Union Pacific Railroad and the Texas-Mexico Railroad, both serve the oil, gas, agricultural and ranching industries in the region of the ISP CISF. According to Union Pacific, two of its four key operating segments are the agricultural and energy industries.

Union Pacific reported revenue from energy freight in 2019 as $3.8 billion. It reports that railroads are the most efficient and cost-effective means of transportation of crude, frac sand, and petroleum by-products and transported 1.4 million carloads of energy freight shipments in 2019. In fiscal year 2019, agricultural commodities accounted for 18% of Union Pacifics shipments and energy freight accounted for 22%. The Texas-New Mexico Railroad extends from a Union Pacific connection at Monahans, Texas. It is one of two lines owned by Watco that primarily serve the Permian Basin. Watco reports oilfield commodities as its primary shipments on the Texas-New Mexico Railroad and agricultural commodities as primary on its Lubbock and Western Railways shipments.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 15 of 38

21. With regard to energy freight, Fasken relies upon the rail lines of the Permian Basin primarily for transporting sand, acid, casing and tubing, cement, gel, and various liquid and dry chemical components that are used for blending associated products that are all necessary to drill and complete an oil well and bring it to production. PBLRO members utilize the Permian Basin rail lines primarily for materials similar to that of Fasken but also for water, additional frac chemicals, and acid. According to the ISP EIS, the ISP CISF would utilize the same rail lines which the oil and gas industry of the Permian Basin heavily relies upon. Any hazardous materials emergency upon the rails that interferes with energy freight poses a loss of millions of dollars per day affecting multiple operators in the Permian Basin, including Fasken and other members of PBLRO. Likewise, any deterioration of the existing rail lines as a result of transport of oversized railcars transporting spent nuclear fuel, dedicated single-use shipments of spent nuclear fuel or other infrastructure improvements necessary to accommodate shipments of spent nuclear fuel will cause substantial delays for industries throughout the Permian Basin. As an example, a typical Fasken horizontal multi-well drilling project cannot be completed until the staging of materials is achieved. Rail delays amount to potential lost production totals of approximately 5,800 barrels of oil per day and 3,500 million cubic feet of gas daily, per multi-well horizontal drilling pad. This equates to a loss of $350,000 daily and $10.6 million monthly in lost production from a single multi-8

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 16 of 38 well pad. A delay on the rails that results in standby costs on a frac job amount to

$115,000 per day, per well and drilling rig operation standby costs amount to

$50,000 per day, per drilling rig. Additionally, leases are susceptible to termination under Texas rules on nonproducing wells. In the event such a loss occurs, an operator such as Fasken, or one of the members of PBLRO, stands to lose a capital investment of $10 to $14 million per well. Possible remedies, including lease extensions, are onerous and expensive. As a representative of the industry, one must look to the risks posed by sharing the same rail lines that have primarily and historically been transporting oil commodities with spent nuclear fuel and high-level radioactive waste over the course of at least the next forty years (and likely longer).

22. The single-track railway proposed in the ISP EIS for the transport of spent nuclear fuel traverses through rural, remote areas. Although the rail lines in the Permian Basin are a major means of transportation, they are situated in desert-like areas served mostly by volunteer fire departments or areas lacking emergency responder resources. In consulting crane operators regarding the ISP EIS, there are real logistical problems in situating a crane capable of resetting a spent nuclear fuel transport cask and rail car in some of the more remote areas of the Permian Basin.

Also, a single hazardous materials emergency would not only have a detrimental effect upon the oil and agricultural industries of the Permian Basin but would also 9

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 17 of 38 overwhelm our first responders and healthcare facilities which are not equipped to cope with the challenges of a release, exposure or disaster nor are the small, rural communities adjacent to the rail track equipped to respond to an incident on any scale.

23. Not including derailments, the Permian Basin region has experienced a highly significant increase in rail related crashes in recent years. In fact, the Midland-Odessa Transportation Alliance (MOTRAN) reports that from 2016-2018, there were 158 rail related crashes in the Texas Department of Transportation Odessa District with just over half of those accidents occurring in Midland and Ector Counties. This is the very area through which the spent nuclear fuel would be transported via rail. MOTRAN reports that during that same period, other Permian Basin counties also experienced drastic increases: Ector County saw a 55% increase, Reeves saw a 266% increase, and Ward County saw a 700% increase in rail related crashes.
24. I am personally familiar with oil and gas activity in the vicinity of the ISP CISF and of the approximately 120 individual persons required to facilitate the completion of each individual oil and gas well in the vicinity of the ISP CISF. The potential harm to those individuals in the oil and gas industry, the potential harm to the ranchers and livestock, the potential impacts upon agriculture and, especially, upon human mortality and morbidity rates, and the economic costs associated with 10

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 18 of 38 medical care and treatment of radiation related conditions would also adversely impact Fasken and other members of PBLRO, as well as their employees and families.

25. As a resident of Texas and given Faskens work throughout the Permian Basin and familiarity with those in governance of the States of Texas and New Mexico, I have firsthand knowledge of the overwhelming opposition of the majority of the communities and elected representatives throughout Texas, as well as New Mexico, and of their shared health, safety, economic and environmental concerns in response to the egregious siting of the ISP and Holtec CISFs within the Permian Basin at locations that clearly do not qualify nor do they consent to hosting either of the CISFs.

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USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 19 of 38 Under penalty of perjury, the above is true and correct to the best of my knowledge and understanding.

Declarant: F'asken LanddMinerals Ltd.

By Fasken Management, LLC, its General Partner Tommy Taylor, Sr. Vice President (Cases; 00030551.DOCX} 6

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 20 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 21 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 22 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 23 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 24 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 25 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 26 of 38 USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 27 of 38 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DONT WASTE MICHIGAN, et al.,

Petitioners, Case No. 21-1048 v.

Consolidated with Case Nos.

UNITED STATES NUCLEAR 21-1055, 21-1056, 21-1179 REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF GRANT HUCKABAY

1. My name is Grant Huckabay and I have a degree in natural resource management, legal studies, and urban development. Since May 3, 2021, I have been employed by Fasken Oil and Ranch, Ltd. (Fasken), located at 6101 Holiday Hill Road, Midland, Texas 79707, as Health, Safety, & Environmental Coordinator. I am duly authorized to execute this affidavit on behalf of Fasken.
2. I have personal knowledge of the information as stated herein.
3. Fasken presently has lands and mineral interests within eighteen miles of the Interim Storage Partners, LLC (ISP) consolidated interim storage facility (CISF) located in Andrews County, Texas. Fasken is a member of Permian Basin Land and Royalty Owners (PBLRO). PBLRO presently has lands and mineral interests 1

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 28 of 38 throughout Andrews County, Texas as well with the nearest member holding land and minerals within four miles of the proposed ISP CISF.

4. In my capacity as Faskens Health, Safety, & Environmental Coordinator, my duties include primary management of all environmental policies, procedures, and programs for air, soil, and water concerns. My specific duties include coordination and oversight of all spill incidents, air permitting and air compliance, management of radiation issues, all regulatory interaction and notification, as well as management and oversight of environmental vendors. I have knowledge of, interpret, and prepare comments on and ensure compliance with all new and current federal, state, and local regulations under the U.S. Environmental Protection Act (EPA), the U.S.

Bureau of Land Management (BLM), the Texas Railroad Commission (RRC), the Texas Commission on Environmental Quality (TCEQ), the New Mexico Environment Department (NMED), and the State of New Mexico Oil Conservation Division (NMOCD), among others. Additionally, I monitor legislation, regulations and ensure compliance with any protected, threatened and endangered species and habitat program requirements. I also ensure compliance with all Occupational Safety and Health Administration (OSHA) regulations

5. As part of my responsibilities at Fasken, I frequently travel in the vicinity of the ISP CISF along regional transportation infrastructure. I am generally familiar with the natural resources of the area, including the air, geology, and soils throughout 2

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 29 of 38 the Permian Basin Region and have personal knowledge of the geology and soils encompassing Faskens land and mineral interests in the vicinity of the ISP CISF.

6. The ISP CISF site is situated in the approximate geographic center of the Permian Basin Region. The Permian Basin produces the largest volume of oil and gas in North America and recently surpassed Saudi Arabia in petroleum production.

The Permian Basin region encompasses a relatively large region in Texas and southeastern New Mexico and has a population of more than half-a-million people.

7. The ISP CISF represents a threat to Fasken: personnel, private property, real property, mineral and water interests, oil and gas leases and agricultural interests. It also represents a threat to numerous communities throughout Texas and New Mexico.
8. The Permian Basin Region is comprised of fifty-five counties in west Texas, and south-eastern New Mexico. The counties in the Permian Basin considered to be most imminently threatened by the ISP CISF site include some of the most prolific oil producing counties, including Andrews, Crane, Dawson, Ector, Gaines, Glasscock, Howard, Loving, Martin, Midland, Reeves, Upton, Ward, and Winkler Counties in Texas and Eddy and Lea Counties in New Mexico. These imminently threatened counties have a population of nearly 500,000 and collective area of over 20,000 square miles in the Permian Basin. A radiological event within any of these counties could be devastating to the nations oil and gas industry and would decimate 3

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 30 of 38 the economies of Texas and New Mexico. By way of comparison, the 1,835 square mile Chernobyl Exclusion Zone would compromise 13.2% of the highest oil producing region in the Americas, the Permian Basin.

9. Any pressurized release, dry cask rupture, explosion, or fire involving spent nuclear fuel will release radioactive particles and fragments into the air. This is a direct threat to both PBLRO and Fasken personnel, private property, real property, oil and gas reserves and leases as well as agricultural interests. Currently, the closest Fasken oil and gas wells are approximately 18 miles due east of the ISP CISF (Fasken Monterrey University and Lowe University leases). Dozens of other Fasken oil and gas wells are present in all directions from the site. Faskens private property, the C-Ranch, begins 38 miles nearly due east (northwestern property line) of the site and continues south to the Midland city limits. This broad expanse of land has a high probability of receiving airborne radioactive contaminants from the ISP CISF as a result of typical wind patterns in the area.
10. Public data from the National Weather Service and the Texas Commission on Environmental Quality (TCEQ) indicates that regional winds around the ISP CISF blow to the southeast approximately 25% of the time on an annual basis. On average, the Permian Basin Region has higher winds than much of the rest of Texas and the United States. According to the ISP application seeking a CISF license, the average windspeed is 11.0 miles per hour. It fails to account for the frequency of 4

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 31 of 38 high-wind gusts in the area of the proposed CISF. In comparison Houston, Texas winds vary from 8.3 mph to 6.7 mph, depending on the season. Any release of radioactive material might arrive in the Midland-Odessa metropolitan area (with a population of more than 260,000) in a matter of hours with no warning. The most dominant direction of wind is from south to north, placing the town of Hobbs, New Mexico (population 38,000), which is less than 20 miles away from the proposed ISP CISF, in direct danger in the event of a release. Also, imminently threatened is the town of Eunice, New Mexico (population 2,900), which is approximately 5 miles from the proposed site.

11. The broader perspective is that the Permian Basin Regions winds are highly variable and change direction frequently throughout a given day. With the ISP CISF sites geographically central location in the Permian Basin, any release carried by winds in any direction risks contaminating large areas of the most productive oil and gas region in North America. Depending on wind direction and speed, hundreds of thousands of people could be affected, including personnel of Fasken and other members of PBLRO.
12. And any radiological incident in the Permian Basin poses a serious threat to regional industries and economies. A Department of Energy Report found that an accident involving only one dry cask where only a small amount of waste was released in a rural setting would contaminate a 42-square mile area with clean-up 5

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 32 of 38 costs exceeding $620 million dollars. A similar release in an urban setting might cost

$9.5 billion per square mile.

13. The ISP CISF is also a direct threat to regional groundwater usage. Several aquifers or geologic formations containing groundwater exist in Andrews County, including the Ogallala aquifer with potable water, shown to be present and at a great thickness beneath the ISP site itself.
14. Water usage from wells near the ISP site are from the Ogalla / Antler /

Gatuna and are crucial for domestic, stock, irrigation, and commercial purposes, including the operations of Fasken and other members of PBLRO.

15. Any threat of radiological contamination of these important water resources poses a threat to regional land uses, a threat to the assets and property value of Fasken and PBLRO, a threat to ongoing regional industry operations generally, as well as threats to the environment and health and safety of nearby residents and those working or traveling through the area. Knowing that any radiological contamination would be virtually impossible to recover and would continue to emit radiation for decades until the half-lives are expended, those threats and adverse health, safety and environmental impacts could last for decades.
16. Without proper groundwater monitoring, the ISP CISF poses unacceptable and imminent threats to the environment, the health and safety of water supplies to nearby communities and extensive industry operations.

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17. In addition to the presence of groundwater in the subsurface directly below and in the vicinity of the ISP CISF site, the location is also situated over Permian aged halite formations (rock salt) and other easily dissolved evaporite mineral formations leading to the potential for substantial ground movement issues, sinkhole formation and subsurface instability. For example, there is historical evidence of extensive sinkhole formation in the Permian Basin Region, including the very well known "Wink Sinks" outside of Wink, Texas, a large area of subsidence beneath the city in Carlsbad, New Mexico, and sinkholes and karst features north and east of Carlsbad, New Mexico. There are also numerous documented ground movement issues in Pecos, Crane, Monahans, Imperial, and Kermit, Texas where shipments of spent nuclear fuel will travel on over-sized railcars to the ISP CISF alongside and share rail lines with the transport of oil and gas industry materials.
18. The WCS/ISP facility is located within 26,000 square miles of the Salado Salt Formation that is replete with surface salt lakes and salt formation outcrops that critically contain magnesium chloride salts (MgCI2) that are the most reactive salt species for the induction and propagation of Chloride induced stress corrosion cracking (CI-SCC). The proposed CISF location is increasingly experiencing the haboob sandstorm phenomena that translocate tons of surface sediments for tens of miles. The historical paths of haboobs have included sweeping storms across the Salado surface salt flats in eastern New Mexico and West Texas.

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19. Additionally, persistent fog and mist conditions are prevalent during the fall and winter in this region of the country. When combined, a single salt deposition event from a haboob, along with a sufficient amount of fog/mist event, could easily create the conditions that would initiate CI-SCC.
20. CI-SCC pose a critical and imminent threat to the integrity of canisters and increase the potential for radiological contamination and radiation in the region. In the U.S. NRC draft report, Identification and Prioritization of the Technical Information Needs Affecting Potential Regulation of Extended Storage and Transportation of Spent Nuclear Fuel, the federal government recognizes the potential risk for monitoring dry casks and the pitting and crevice corrosion of the stainless steel canisters, which affect the safety functions of confinement, criticality, retrievability (of fuel from the dry storage canister), shielding (of radiation from people and the environment), and thermal (degradation of the fuel, potentially leading to fuel fires).
21. I personally travel in the region of the ISP CISF as part of my responsibilities at Fasken. The area around the ISP CISF site is still under active exploration and active production. Within a 10-mile radius of the site, there have been a total of 4,947 well bores drilled in Texas and New Mexico. Presently 3,656 of these well bores are still in production. 905 wells are shown as a dry hole. Of the total of nearly five thousand wells within ten miles of the facility, only 386 have been recorded as 8

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 35 of 38 permanently plugged and abandoned. Regardless of the current volume of oil produced within the vicinity of the proposed ISP site, there are hundreds of active oil and gas wells, tank batteries, gas plants, and other petroleum production facilities within reasonable vicinity of the site, each requiring frequent and regular visits from personnel for maintenance and monitoring. Some facilities, such as gas plants, are staffed 24-hours a day, seven days a week. I have concerns for personnel of Fasken and personnel of other members of PBLRO, who by the very nature of their profession will be in close proximity to the ISP CISF and be exposed to doses of radiation.

22. State Highway 176 serves as a main motor vehicle access to the ISP site. It is also a major artery for the travel of both private citizens and oil and gas industry traffic, including Fasken and PBLRO personnel in the region. I personally utilize State Highway 176 routinely for projects relating to my responsibilities at Fasken, which include monitoring the several dozen wells that Fasken operates in the area, and for personal reasons. At present, State Highway 176 between Andrews and Eunice is completing a widening project to accommodate the large volume of heavy oil industry traffic that utilizes this regional highway and Fasken is contributing land to accommodate an overpass at the intersection of State Highways 176 and 1788 in Andrews County, Texas.

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23. I have personal knowledge of the use of regional rail lines and can attest that the rail transport of oil commodities is the most prevalent in this region with the second highest use of regional rail lines being agricultural commodities. It is a risk to share these same regional rail lines with nuclear waste destined for the ISP CISF as any delay or disruption in rail transport caused by said waste would devastate the oil and agricultural industry as I have personal knowledge of studies that show that even one 24-hour period of interruption of rail transport would cost millions of dollars in losses to the oil and agricultural industries.
24. I also have concerns about the ISP CISF adverse impacts and threats to surrounding environment. The ISP CISF site is entirely within the known range of the Dune Sage Brush Lizard and a portion of the site lies within the known range of the Lesser Prairie Chicken. I have personal knowledge of the extensive conservation efforts in both Texas and New Mexico by the oil and gas and ranching industries, including Fasken and other members of the PBLRO, with respect to the Dune Sage Brush Lizard and the Lesser Prairie Chicken. Specifically, participation in conservation programs has prevented both species from being currently listed as endangered. Fasken is an active participant conservation programs for these and other species that will be threatened by the ISP CISF. The Lesser Prairie Chicken in particular is highly sensitive to surface disturbances such as construction activities, fences, power lines, and permanent structures that will be placed in and around the 10

USCA Case #21-1048 Document #1921497 Filed: 11/08/2021 Page 37 of 38 ISP CISF site and the failure of the Nuclear Regulatory Commission to participate in conservation programs and engage the United States Fish and Wildlife Service on this matter is an offence to state and federal regulations.

25. Any release of radioactive material or any amount of radiation or contamination to the environment will become a direct threat to the survivability of both species, as well as the Texas Horned Lizard, which is protected under Texas law and is the State reptile.
26. The ISP CISF also poses an imminent threat to surrounding playas, which according to Texas Parks and Wildlife, serve as the most important wetland habitat for waterfowl. Playas are a direct connection to groundwater and nexus for contamination from the surface to groundwater beneath the ISP CISF site which could decimate known and historic migrating bird populations. ISP CISF lacks proper identification of playas and recharge to aquifers and without proper conservation practices in place, will further harm important butterflies and pollinators vital to regional ecosystems.

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