ML22203A002
| ML22203A002 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 07/20/2022 |
| From: | Lodge T, Taylor W Beyond Nuclear, Don't Waste Michigan, Law Office of Terry J. Lodge, Law Offices of Wallace L. Taylor |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1955818, 21-1048, 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231 | |
| Download: ML22203A002 (33) | |
Text
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 1 of 33 Oral Argument Not Yet Scheduled IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 21-1048 (Consolidated with Nos. 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231)
DONT WASTE MICHIGAN, et al.,
Petitioners, vs.
NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents, and INTERIM STORAGE PARTNERS LLC, Respondent-Intervenor.
On Petition for Review of Action by the Nuclear Regulatory Commission PETITIONERS REPLY BRIEF (PROOF)
WALLACE L. TAYLOR TERRY J. LODGE st 4403 1 Ave. S.E., Suite 402 316 N. Michigan St. Suite 520 Cedar Rapids, Iowa 52402 Toledo, Ohio 43604 319-366-2428;(Fax)319-366-3886 419-205-7084 wtaylorlaw@aol.com tjlodge50@yahoo.com ATTORNEYS FOR PETITIONERS 0
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 2 of 33 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi STATEMENT OF THE ISSUES PRESENTED FOR REVIEW . . . . . . vii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. This Court Has Jurisdiction to Determine Petitioners NEPA Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. The NWPA Prohibits the Licensing of the Proposed Consolidated Interim Storage Facility . . . . . . . . . . . . . . . . . . . . . 8 III. The NRC Did Not Adequately Consider the Risks and Impacts of Transporting Spent Nuclear Fuel to the ISP Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 IV. The NRC Did Not Adequately Consider the Risk of Earthquakes and Other Impacts from Oil and Gas Drilling. . . . . 9 V. The NRC Did Not Adequately Consider the Impacts to Groundwater from the ISP Facility . . . . . . . . . . . . . . . . . . . . . . . 10 VI. The NRC Allowed an Inadequate Examination and Evaluation of Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 VII. The NRC Did Not Adequately Consider the Impacts to Wildlife from the ISP Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 VIII. The NRC Did Not Adequately Consider the Impacts of Long-Term Storage of Spent Fuel at the ISP Facility . . . . . . . 13 IX. The EIS Does Not Contain An Adequate Analysis of Long Term Storage at the Consolidated Interim Storage Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 i
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 3 of 33 Page X. The EIS Does Not Discuss That the Consolidated Interim Storage Facility Is Illegal Under the Nuclear Waste Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 XI. The EIS Does Not Adequately Discuss the Impacts of Transportation of the Nuclear Waste to the Facility. . . . . . . . . . . 17 XII. The EIS Presents an Inadequate Discussion of Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 XIII. The Facility Will Have an Impact on Geology and Groundwater That Is Not Adequately Examined or Analyzed in the EIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 XIV. The EIS Conducts an Inadequate Discussion of the Likelihood and Impacts of Earthquakes on the Facility. . . . . . . . 21 XV. The EIS Does Not Contain an Adequate Discussion of the Ecological Impacts of the Facility. . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 24 SUPPLEMENTAL ADMINISTRATIVE RECORD. . . . . . . . . . . . . . . 24 ii
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 4 of 33 TABLE OF AUTHORITIES Page I. JUDICIAL DECISIONS ACLU v. FCC, 774 F.2d 24 (1st Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Audubon Society of Central Arkansas v. Dailey, 977 F.2d 428 (8th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Birkhead v. FERC, 925 F.3d 510 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 Carolina Entl. Study Grp. v. U.S.,
510 F.2d 796 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Clark & Reid Co. v. United States, 804 F.2d 3 (1st Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 County of Suffolk v. Secy of Interior, 562 F.2d 1368 (2nd Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Food and Water Watch v. FERC, 28 F.4th 277 (D.C. Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 La. Assn. Of Independent Producers & Royalty Owners
- v. FERC, 958 F.2d 110 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . 17 Natl. Comm. For the New River v. FERC, 373 F.3d 1323 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 iii
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 5 of 33 Page New York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,17 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Reyblatt v. NRC, 105 F.3d 715 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Sierra Club v. FERC, No. 20-1427 (D.C. Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Vermont Dept of Pub. Serv. v. U.S.,
684 F.3d 149 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3-4,8 Water Transp. Assn. v. ICC, 819 F.2d 1189 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. STATUTES Page 28 U.S.C. § 2342. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 2344. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 42 U.S.C. § 4332(C)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 III. ADMINISTRATIVE RULES 10 C.F.R. § 2.309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,3,5,8 10 C.F.R. § 2.309(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C.F.R. § 2.326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7 10 C.F.R. § 51.23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 iv
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 6 of 33 40 C.F.R. § 1501.4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 40 C.F.R. § 1502.14 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 40 C.F.R. § 1506(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 IV. ADMINISTRATIVE DECISIONS Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facility),
65 NRC 341 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 v
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 7 of 33 GLOSSARY AEA - Atomic Energy Act APA - Administrative Procedure Act Licensing Board - Atomic Safety and Licensing Board CEQ - Council on Environmental Quality Draft EIS - Draft Environmental Impact Statement DOE - Department of Energy EA - Environmental Assessment EIS - Environmental Impact Statement Generic EIS - Generic Environmental Impact Statement ISP - Interim Storage Partners NEPA - National Environmental Policy Act NRC - Nuclear Regulatory Commission NWPA - Nuclear Waste Policy Act ROD - Record of Decision Supplemental EIS - Supplemental Environmental Impact Statement vi
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 8 of 33 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. This Court Has Jurisdiction to Determine Petitioners NEPA Claims.
II. The NWPA Prohibits the Licensing of the Proposed Consolidated Interim Storage Facility.
III. The NRC Did Not Adequately Consider the Risks and Impacts of Transporting Spent Nuclear Fuel to the ISP Facility.
IV. The NRC Did Not Adequately Consider the Risk of Earthquakes and Other Impacts from Oil and Gas Drilling.
V. The NRC Did Not Adequately Consider the Impacts to Groundwater from the ISP Facility.
VI. The NRC Allowed an Inadequate Examination and Evaluation of Alternatives.
VII. The NRC Did Not Adequately Consider the Impacts to Wildlife from the ISP Facility.
VIII. The NRC Did Not Adequately Consider the Impacts of Long-Term Storage of Spent Fuel at the ISP Facility.
IX. The EIS Does Not Contain An Adequate Analysis of Long Term Storage at the Consolidated Interim Storage Facility.
X. The EIS Does Not Discuss That the Consolidated Interim Storage Facility Is Illegal Under the Nuclear Waste Policy Act.
XI. The EIS Does Not Adequately Discuss the Impacts of Transportation of the Nuclear Waste to the Facility.
XII. The EIS Presents an Inadequate Discussion of Alternatives.
XIII. The Facility Will Have an Impact on Geology and Groundwater That Is Not Adequately Examined or Analyzed in the EIS.
vii
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 9 of 33 XIV. The EIS Conducts an Inadequate Discussion of the Likelihood and Impacts of Earthquakes on the Facility.
XV. The EIS Does Not Contain an Adequate Discussion of the Ecological Impacts of the Facility.
viii
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 10 of 33 ARGUMENT I. THIS COURT HAS JURISDICTION TO DETERMINE PETITIONERS NEPA CLAIMS.
Respondents acknowledge Petitioners properly and timely brought their petition for review from the agencys denial of Petitioners contentions in the agencys adjudicatory proceeding. Respondents argue that issues IX-XVI, challenging the agencys environmental impact statement (EIS), are not within the Courts jurisdiction.
All parties agree that the Courts jurisdiction to entertain the Petitioners Petition for Review is based on the Hobbs Act, 28 U.S.C. § 2342, 2344. The Hobbs Act grants judicial review to parties aggrieved. The Nuclear Regulatory Commission (NRC) maintains the Petitioners are not parties aggrieved because they did not seek to intervene and request a hearing from the NRC, pursuant to 10 C.F.R. § 2.309. Respondents argue that the procedure set forth in 10 C.F.R. § 2.309 is required by § 189 of the Atomic Energy Act (AEA), 42 U.S.C. § 2239. Petitioners allege a violation of the National Environmental Policy Act (NEPA). But there is nothing in § 189 that mandates that NEPA requirements be addressed in the hearing referred to in the AEA.
Section 189 of the AEA states in pertinent part:
In any proceeding under this chapter, for the granting . . . of any license. . . , the Commission shall grant a hearing upon the request of 1
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 11 of 33 any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
42 U.S.C. § 2239.
Nothing in that language that restricts NEPA issues to the hearing procedure, and nothing abrogates or supersedes the public participation provisions of the NEPA regulations promulgated by the Council on Environmental Quality. See, 40 C.F.R. §§ 1501.4(b), 1506(6).
While under the Hobbs Act only a party aggrieved by a final order may petition for review in the Courts of Appeals, the determination of whether an entity is an aggrieved party is not dependent upon the agencys labeling of an entity as a party. Clark & Reid Co. v. United States, 804 F.2d 3, 6 (1st Cir.
1986). If an agencys labeling of participants were controlling, as the NRC claims, any agency could arbitrarily deny a persons right to judicial review by simply refusing to recognize such person as a party. Obviously, this cannot be the case. Rather, under the Hobbs Act, it is the courts, not the agencies, that construe party to encompass those who directly and actually participated in the administrative proceedings. Id. at 5; ACLU v. FCC, 774 F.2d 24, 26 (1st Cir. 1985); Reyblatt v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997). Moreover, participation can include tendering comments if that avenue is available for participation. Id.; Water Transp. Assn. v. ICC, 819 F.2d 1189, 1192-93 (D.C.
Cir. 1987).
2
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 12 of 33 The Respondents cite NRDC v. NRC, 823 F.3d 641, 643 (D.C. Cir. 2016),
where the court said, To challenge the Commissions grant of a license renewal, then, a party must have successfully intervened in the proceeding by submitting adequate contentions under 10 C.F.R. § 2.309. But that holding does not apply here. The Petitioners in this case are not challenging the issuance of the license. They are challenging the EIS. Challenging the EIS is an entirely separate issue from challenging the issuance of the license.
Furthermore, NRDC v. NRC did not involve a NEPA challenge. The challenge was to safety issues, clearly governed by the AEA, not NEPA.
The case of Vermont Dept of Pub. Serv. v. U.S., 684 F.3d 149 (D.C. Cir.
2012), is instructive. In Vermont the petitioners claimed the NRC in considering the amendment of a nuclear power reactor license did not ensure that the applicant had complied with a requirement of the Clean Water Act for a state water quality certification. The petitioners there had made no effort whatever to raise the water quality certification issue until after the NRC had issued the amended permit.
As this Court observed in Vermont, Id. at 157:
[Petitioners] could have petitioned the Commission for interlocutory review of the Boards denial of their Late Contention/Request to Amend pursuant to 10 C.F.R § 2.341(f)(2). Or they could have filed a new, separate contention limited to their section 401 objection either immediately after the Boards denial . . . or upon discovering that neither the Draft nor the Final SEIS mentioned a section 401 WQC . . .
3
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 13 of 33
. Or they could have submitted a comment for the Commissions review in response to the December 2006 Draft SEIS . . . .
(emphasis added).
Thus, the Vermont court made clear that filing a petition to intervene in an adjudicatory hearing is not the only way to become a party in an NRC proceeding when a NEPA claim is involved. Specifically, and most relevant to this case, the Vermont court said the petitioners could have submitted comments on the draft environmental impact statement. That is exactly what the Petitioners did in this case when they submitted detailed comments on the draft EIS. The Petitioners comments gave the agency the opportunity to correct [its] own errors, affording parties and courts the benefits of [the agencys] expertise, and compiling a record adequate for judicial review. Id.
at 158.
Public comments are the nature of the administrative record in any NEPA case. See, e.g., Natl. Comm. For the New River v. FERC, 373 F.3d 1323 (D.C. Cir. 2004). An agency prepares its NEPA documentation and makes it available for public input. The agency is then supposed to consider the public input and prepare the NEPA document based on its consideration of public comments. Forcing the NEPA process into an adjudicative proceeding designed to limit public participation flaunts the public participation requirement of NEPA.
4
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 14 of 33 To put a finer point on this, it is important for the Court to understand how the NRCs regulation that governs hearings, 10 C.F.R. § 2.309, works in reality. First, the applicant for a license submits its application, accompanied by an environmental report and a safety analysis report. A prospective intervenor then has only 60 days to review the hundreds of pages of documents submitted by the applicant; determine what contentions would be submitted; find, consult with, and obtain extensive written opinions from expert witnesses; and prepare detailed contentions to be submitted with the request to intervene.
If the intervenor successfully crosses those hurdles, it must then meet the strict by design standard for admissibility of contentions, memorialized in Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facility), 65 NRC 341, 352 (2007). What this legally means is that a petitioner must show facts and issues to minimally form a basis for supporting the contention. What it means in reality is that a petitioner must posit an extensive claim, supported by detailed facts and expert opinion, embodying all possible information known to the petitioner on the date the petition is filed. It further means that a petitioner is charged with knowing every word in the hundreds of pages of documentation submitted by the license applicant to ensure that the contention takes proper issue with the documentation. Furthermore, the petitioner is presumed to have 5
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 15 of 33 intimate knowledge of every document referenced in the license applicants documentation. Finally, the petitioner is required to have intimate knowledge of information that does not even appear in the license applicants documentation nor is referenced in that documentation, but which nonetheless exists in the public domain.
The upshot is that it is extremely difficult, if not virtually impossible, for a petitioner to surmount the barriers to intervention. The Atomic Energy Acts supposed right to a hearing is illusory, especially with respect to NEPA issues. From the outset of, and throughout much of the contention pleading process, it is typical for the NRC to have not yet prepared an EA or EIS for a project. So a petitioners contentions must be directed at the applicants environmental report, which is not the agencys NEPA document. Sometimes, as in this case, the adjudicatory proceeding is terminated before the EIS or EA is even published. Although NRC regulations, 10 C.F.R. §§ 2.309(c) and 2.326, provide for filing new contentions once the EA or EIS is published, and for reopening the adjudicatory proceeding, that is also illusory. In order to file a new contention based on the NRC NEPA document, § 2.309(c) requires that the petitioner show that:
(i) The information upon which the filing is based was not previously available; 6
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 16 of 33 (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.
Then, to reopen a closed adjudicatory proceeding, § 2.326 requires that:
(a)
(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movants claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.
7
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 17 of 33 A review of the foregoing regulations shows that there is an almost insurmountable challenge to reopen a proceeding for a new contention based on an EA or EIS. The real issue, though, is whether participating in the NRC NEPA process by submitting comments is available to members of the public, making them participants and thus parties under the Hobbs Act, or whether doing so when the § 2.309 adjudicatory record has been closed renders the NEPA proceeding a merely performative gesture. Clearly, they are parties. As this Court said in Vermont Dept of Pub. Serv., supra, commenting on NEPA documents comprises participation in that administrative process and serves to exhaust administrative remedies.
By procedurally restricting participation in the NRCs version of the NEPA process, the NRC has violated the public participation requirement of NEPA. Even if members of the public can submit comments, depriving the public of judicial review, as the Respondents propose, renders public comment meaningless.
II. THE NWPA PROHIBITS THE LICENSING OF THE PROPOSED CONSOLIDATED INTERIM STORAGE FACILITY.
Petitioners adopt the argument on this issue in the Reply Brief of Beyond Nuclear and the Amicus Brief of the Natural Resources Defense Council in this case.
8
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 18 of 33 III. THE NRC DID NOT ADEQUATELY CONSIDER THE RISKS AND IMPACTS OF TRANSPORTING SPENT NUCLEAR FUEL TO THE ISP FACILITY.
The NRC claims Sierra Clubs Contention 4 did not identify any deficiencies in ISPs environmental report. On the contrary, Contention 4 explained why Table 4.2-9 in the environmental report underestimated the radiation exposure in a transportation accident. Radiation doses claimed in Table 4.2-9 were far smaller than the doses explained in detail and documented in Contention 4 by Sierra Club expert Dr. Marvin Resnikoff.
In addition to Dr. Resnikoffs analysis, Sierra Club also relied on the opinion of Dr. Gordon Thompson as described in Petitioners initial Brief. The NRC has not challenged Dr. Thompsons opinions.
It is important to recognize the standard for admissibility of contentions as explained in Petitioners initial Brief at p. 6-8. The burden on Petitioners at the contention stage is not great. The NRC is now attempting to impose a higher burden. Petitioners have presented a genuine issue of material fact.
IV. THE NRC DID NOT ADEQUATELY CONSIDER THE RISK OF EARTHQUAKES AND OTHER IMPACTS FROM OIL AND GAS DRILLING.
Respondents claim ISPs environmental report and safety analysis report did evaluate the possibility and impact of earthquakes on the project.
But that discussion in the environmental report was superficial and irrelevant.
9
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 19 of 33 Referring to the portions of the environmental report cited by NRC, section 2.3.2 discussed general geologic features of the area, but does not mention earthquakes, especially earthquakes induced by fracking for oil and gas.
Section 3.3.3 claims there is minimum risk due to faulting and seismicity. That statement relies on a 2016 study, reference to a 1992 earthquake, and geologic maps from 2014. The environmental report also cites a study by the University of Texas. No date is given but there is a reference to modeling from 2013.
Section 3.3.4 of the environmental report discusses faulting and relies on data from 1961-1989, and refers to natural faults, not faults induced more recently by mineral extraction.
The environmental reports analysis is no match for Sierra Clubs more recent studies from the University of Texas and Stanford University. Sierra Club has certainly raised a genuine issue of material fact that satisfies the standard for contention admissibility.
Petitioners have also pointed out that the environmental report did not discuss the status of mineral rights beneath the ISP site.
V. THE NRC DID NOT ADEQUATELY CONSIDER THE IMPACTS TO GROUNDWATER FROM THE ISP FACILITY.
The crux of Respondents argument on this point is that there will be no impact on groundwater because there is allegedly no way that the radioactive waste can escape from the storage containers. This assertion was rebutted by 10
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 20 of 33 Sierra Club, which cited the NRCs own documents (see Petitioners initial brief at p. 15-16).
As we said in Petitioners initial brief, Sierra Club is not challenging the certificate of compliance for the container, but is challenging the adequacy of the discussion in the environmental report regarding impacts to groundwater, certainly within the scope of this licensing proceeding. See id. at 15 (NRC said there is limited data to show that the cladding of spent fuel with burnups greater than 45,000 Mwd per metric tons of uranium will remain undamaged during the licensing period.).
VI. THE NRC ALLOWED AN INADEQUATE EXAMINATION AND EVALUATION OF ALTERNATIVES.
Respondents claim hardened on-site storage is not an alternative, but rather an aspect of the no action alternative. That argument fails for two reasons. First, if it is an aspect of the no action alternative, it should have been discussed at part of the no action alternative, which must be discussed. 40 C.F.R. § 1502.14 (d). Second, it can be considered a slight modification, like an alternative alignment of a portion of a highway project. See, Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999). Either way, Respondents cannot ignore a discussion of hardened on-site storage.
11
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 21 of 33 Nor have Respondents justified their argument that hardened on-site storage would not satisfy the purpose and need for the project. The NRC has determined that spent fuel can be stored on site indefinitely.
Respondents are incorrect in asserting that Petitioners presupposed the reasonableness of their alternatives and failed to explain why they are reasonable. Resp. Br. p. 63. But Petitioners argued that an alternative meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed is logically a reasonable alternative.
Carolina Entl. Study Grp. v. U.S., 510 F.2d 796, 801 (D.C. Cir. 1975). Pet. Br.
- p. 18. Each of the alternatives proposed by the Petitioners deals with circumstances as they exist and are likely to exist. Id. By fixating on the Commissions word game of renaming Petitioners alternatives as improvements, Respondents ignored Petitioners assertion that their proposed alternatives, which were mostly versions of the proposed project with additional, environmentally protective features, fall well within the rule of reason. Each of Petitioners proposals are meaningfully compatible with the time-frame of the projects needs and are thus reasonable.
VII. THE NRC DID NOT ADEQUATELY CONSIDER THE IMPACTS TO WILDLIFE FROM THE ISP FACILITY.
Petitioners initial brief explained exactly how, why and where ISPs environmental report was inadequate in discussing the impact of the project 12
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 22 of 33 on wildlife in the project area. Respondents simply rely on the licensing board decision and the Commission decision upholding the board. That is a self-serving argument.
Beyond that, Respondents offer nothing to rebut the arguments made in Petitioners initial brief.
VIII. THE NRC DID NOT ADEQUATELY CONSIDER THE IMPACTS OF LONG-TERM STORAGE OF SPENT FUEL AT THE ISP FACILITY.
Respondents argument on this issue is based on a hope and a prayer.
Respondents acknowledge, as they must, that the storage containers are certified for a much shorter period of time than the expected life of the storage facility. They attempt to ignore this problem by blithely asserting that the container certification will need to be renewed, without any assurance that recertification will be granted. But what happens if recertification is not granted? Will there be thousands of tons or radioactive waste stranded at the ISP site without proper authorization? Will the NRC be intimidated into recertifying the containers? Neither the environmental report, the safety analysis report, nor the agency decisions below answer those questions. Rather than presuming recertification or relicensing, the license application documents must consider the possibility that there will be no recertification or relicensing and the consequences of such a possibility.
13
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 23 of 33 The Respondents also rely on the Continued Storage Rule, 10 C.F.R. § 51.23, and the Generic Environmental Impact Statement incorporated in the rule. Respondents argument is that the rule establishes that waste can be safely stored indefinitely, so it doesnt matter if the waste is stored at the ISP site beyond the permitted life of the containers. If that is so, why does the NRC even bother with certification and licensing?
Finally, the NRC in desperation asserts that a dry transfer system might be the answer if the containers are not recertified or the facility is not relicensed, or the waste could be transferred to another storage facility, even though there is no indication either alternative is or would be available.
IX. THE EIS DOES NOT CONTAIN AN ADEQUATE ANALYSIS OF LONG TERM STORAGE AT THE CONSOLIDATED INTERIM STORAGE FACILITY.
The NRC relies on its Continued Storage Rule, 10 C.F.R. § 51.23, to justify not discussing the likelihood that the interim storage facility will become a de facto permanent repository if no permanent repository is established. But if the facility is continuously relicensed, as the NRC speculates, the Continued Storage Rule would not apply. Also, as explained in Sierra Clubs comments on the draft EIS (Index 1788)(App. p. __), the Continued Storage Rule was based on several assumptions that do not apply here.
14
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 24 of 33 The NRC also imagines that if the facility at issue in this case is not relicensed, ISP will magically construct and somehow obtain a license for another different facility. This argument defies NEPAs rule of reason. Food and Water Watch v. FERC, 28 F.4th 277 (D.C. Cir. 2022). Nor does the decision in New York v. NRC, 824 F.3d 1012, 1023 (D.C. Cir. 2016), answer this question, as alleged in NRCs brief. The observation by the court in New York was simply that the anticipated period of 100 years before replacement of the dry storage system was reasonable. That does not contemplate the reactor owner constructing an entirely new facility if the ISP facility is not relicensed.
The NRC also brushes aside Petitioners argument about the impact of high burnup fuel. As noted in Petitioners initial brief, a report by Robert Alvarez was presented in comments on the draft EIS (Index 68)(App. p. __).
Mr. Alvarez stated that once it is used, high burnup significantly boosts the radioactivity in spent fuel and its commensurate decay heat. The concern is the damage that high burnup fuel may have on the cladding of the fuel. Mr.
Alvarez observed that even the NRC admits there is limited data to show that the cladding of high burnup fuel will remain undamaged during the licensing period. ISP recognizes the concerns and uncertainties regarding high burnup fuel because ISP claims that the fuel will be canned inside the canister. But, as 15
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 25 of 33 Mr. Alvarez states, the ISP license application claims the ISP facility will not accept high burnup fuel unless it is considered damaged and placed in a more expensive double-shell canister. In other words, the fuel will be stranded for decades, since there is no imminent determination of how to assess long-term integrity. Therefore, the Nuclear Waste Technical Review Board recommends that a validation inspection program of both low and high-burnup fuels be instituted after 15 and 30 years of storage.
Finally, Respondents assure the Court that the Continued Storage EIS excuses the presence of a dry transfer system to move spent fuel around during the facilitys early decades. They elide both the risks that might befall the site and the ultimate obligation to move 40,000 tons of spent fuel into standardized canisters for delivery to a final repository. Pet. Br. p. 26, 27. The Continued Storage EIS says a dry transfer system would help reduce risks associated with unplanned events or unforeseen conditions and facilitate storage reconfiguration. (Continued Storage EIS at p. 2-21, App. p. __). But Respondents perish those thoughts, denying any prospective release of radioactive material during normal operations. Resp. Br. p. 76.
The site-specific needs of the ISP facility converted dry transfer capability into a site-specific issue, yet Respondents cling to a false generic bypass to sidestep their NEPA responsibilities. However, the NRC always 16
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 26 of 33 retains the burden of persuasion under NEPA to consider fully the environmental impacts and alternatives for its proposed action. New York, 824 F.3d at 1022. Apparently that isnt so when it comes to dry transfer capability.
X. THE EIS DOES NOT DISCUSS THAT THE CONSOLIDATED INTERIM STORAGE FACILITY IS ILLEGAL UNDER THE NUCLEAR WASTE POLICY ACT.
The NRC acknowledges that the Nuclear Waste Policy Act prohibits the Department of Energy from taking title to the nuclear waste. The other alternative of reactor owners retaining title is pure speculation. The EIS does not discuss why it is assumed that reactor owners will retain title. An EIS may rely only on reasonable assumptions, La. Assn. Of Independent Producers &
Royalty Owners v. FERC, 958 F.2d 110 (D.C. Cir. 1992), or educated assumptions, Birkhead v. FERC, 925 F.3d 510 (D.C. Cir. 2019). Assuming that reactor owners will want to retain title to the waste disposed of at the ISP facility is neither.
XI. The EIS Does Not Adequately Discuss the Impacts of Transportation of the Nuclear Waste to the Facility.
Intervenor ISP answered Petitioners complaint that the EIS failed to detail all rail transport routes likely to be used, stating that Petitioners identified no specific obligation to do so and that precise transportation routes 17
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 27 of 33 are unknowable at this point . . . (ISP Br. p. 43). ISP cites County of Suffolk
- v. Secy of Interior, 562 F.2d 1368, 1379 (2nd Cir. 1977) to make its point that the use of representative routes is fully consistent with NEPA. But ISPs distortion of Suffolk fails in its mission. The Second Circuit allowed use of representative oil pipeline routes from a 50X50 mile offshore area where oil was suspected but not verified as being present. The panel noted that where information only becomes available in the future and the Government reserves the power to make such a . . . change after the information is . . .
incorporated in a further EIS, it cannot be said that deferment violates the rule of reason. (emphasis added). But there is no further EIS planned for this facility. Moreover, the locations of all rail lines the spent fuel will travel are known and finite, and the originating nuclear plants and ultimate destination are also all known. This particular NEPA process is the only one that will be undertaken for the ISP facility and its transportation component and all of the most likely routes must be disclosed.
Also, Respondents failed to respond to Petitioners discussion of the 2019 report of the Nuclear Waste Technical Review Board in Petitioners initial brief. The Board determined that nuclear waste, if repackaged into smaller containers, could be transported to a storage facility by 2060, but if not repackaged, could not be moved until 2100, significant evidence that the 18
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 28 of 33 waste could not be transported during the licensing period for this facility. The EIS makes no reference to this fact, even though it was addressed in comments on the draft EIS (Index 1788)(App. p. __). The NRC proposes to make an irreversible and irretrievable commitment of the availability of resources to a project at a particular site in Texas. 42 U.S.C. § 4332(C)(v). The missing information is missing only because the agency is unwilling to disclose the transportation routes in detail within the EIS, not because it is unknowable.
XII. THE EIS PRESENTS AN INADEQUATE DISCUSSION OF ALTERNATIVES.
Respondents claim that Petitioners did not address the fact that Hardened On-Site Storage would not satisfy the purpose and need for the project. That is incorrect. Petitioners Brief, p. 35-36, clearly discusses why Hardened On-Site Storage would satisfy the stated purpose and need for the project. Sierra Clubs comments on the draft EIS noted that the stated purpose of the project was to provide an option for storing nuclear waste until a permanent repository is available. Petitioners have explained why Hardened On-Site Storage would satisfy this purpose.
XIII. THE FACILITY WILL HAVE AN IMPACT ON GEOLOGY AND GROUNDWATER THAT IS NOT ADEQUATELY EXAMINED OR ANALYZED IN THE EIS.
As noted in Petitioners initial Brief, the EIS relies almost exclusively on the statements and conclusions in ISPs environmental report. Therefore, it 19
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 29 of 33 is appropriate for Petitioners to rely on the challenges to the environmental report by Sierra Clubs expert, Dr. Patricia Bobeck. Respondents claim that Petitioners cannot ask the Court to refer to Dr. Bobecks report. But Dr.
Bobecks report is part of the administrative record. Sierra Clubs comments on this issue (Index 1788)(App. p. __) summarized in detail Dr. Bobecks findings and conclusions.
The NRCs reference to the statement in Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983), that courts are not self-directed boards of legal inquiry and research is taken out of context. In Carducci the issue was not briefed or argued. The full quote from that case is:
The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Thus, Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that the appellant's brief contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes--a deficiency that we can perhaps supply by other means, but not without altering the character of our institution. Of course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research. But where counsel has made no attempt to address the issue, we will not remedy the defect, especially where, as here, "important questions of far-reaching significance" 20
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 30 of 33 are involved. Alabama Power Co. v. Gorsuch, 672 F.2d 1, 7 (D.C.Cir.1982). We therefore decline to entertain appellant's asserted but unanalyzed constitutional claim. (emphasis added).
In this case, Petitioners specifically referred to Dr. Bobecks report and presented argument on it. Counsel certainly attempt[ed] to address the issue.
XIV. THE EIS CONDUCTS AN INADEQUATE DISCUSSION OF THE LIKELIHOOD AND IMPACTS OF EARTHQUAKES ON THE FACILITY.
Petitioners noted in their opening brief that the EIS relies on historic earthquake data and not on the more recent studies showing the effect of recent fracking activity in the area. Respondents reply that there is mention in the EIS of those recent studies. But those references are merely passing comments upon which the EIS does not rely for minimizing the impact of earthquakes.
An agency cannot take a hard look and then ignore what it saw. Audubon Society of Central Arkansas v. Dailey, 977 F.2d 428 (8th Cir. 1992).
Beyond that, it is not even clear that the EIS took a hard look at the earthquake potential highlighted by the studies relied on by Petitioners.
Respondents claim that the study by Stanford researchers shows an earthquake potential of less than 10 percent. But that conclusion is not at all clear from the study, which shows only the increase in faulting activity in the area of the ISP facility. The impact of that increase is not adequately discussed and analyzed in the EIS.
21
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 31 of 33 XV. THE EIS DOES NOT CONTAIN AN ADEQUATE DISCUSSION OF THE ECOLOGICAL IMPACTS OF THE FACILITY.
With respect to the Texas horned lizard, the NRC points to studies conducted at or near the ISP site. The surveys were conducted in October of 2018 and April of 2019 (Index 355)(App. p. __). As explained in Petitioners initial brief, those studies are flawed. Even so, they do establish that the prime habitat for the horned lizard is present at the ISP site. Likewise, habitat exists at the site for the dunes sagebrush lizard.
In the end, the EIS relies on purported mitigation measures in order to brush aside the impacts to the species. Although an EIS need not mandate the adoption of any specific mitigation measures, it must consider and show why the measures proposed are adequate. Sierra Club v. FERC, No. 20-1427 (D.C.
Cir. 2022). This EIS fails to do that.
22
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 32 of 33 CONCLUSION Based on the foregoing, the Court should reverse the actions of the Respondents and declare that the Environmental Impact Statement is defective, and grant all other relief requested in this action.
/s/ Wallace L. Taylor /s/ Terry J. Lodge WALLACE L. TAYLOR TERRY J. LODGE, ESQ.
4403 1 Ave. S.E., Suite 402 316 N. Michigan St., Suite 520 Cedar Rapids, Iowa 52402 Toledo, Ohio 43604-5627 319-366-2428;(Fax)319-366-3886 419-205-7084 wtaylorlaw@aol.com tjlodge50@yahoo.com ATTORNEYS FOR PETITIONERS 23
USCA Case #21-1048 Document #1955818 Filed: 07/20/2022 Page 33 of 33 CERTIFICATE OF SERVICE I hereby certify that on this 20th day of July, 2022, I filed the foregoing Petitioners Proof Reply Brief in the Courts electronic case filing system, which according to its protocols would automatically be served upon all counsel of record.
/s/ Wallace L. Taylor Wallace L. Taylor Co-Counsel for Petitioners CERTIFICATE OF COMPLIANCE The foregoing Petitioners Proof Reply Brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5); the type-style requirements of Fed. R. App. P. 32(a)(6); the length limitation set forth in Fed.R.App.P. 27(d)(2)(a); and the applicable rules for the U.S. Court of Appeals for the District of Columbia Circuit. The Reply Brief was prepared in 14-point, double spaced Times New Roman font using Word. The Reply Brief contains 4,990 words.
/s/ Wallace L. Taylor Wallace L. Taylor Co-Counsel for Petitioners SUPPLEMENTAL ADMINISTRATIVE RECORD CITATIONS Continued Storage EIS p. 2-21 Index 1788 public comments Index 355 surveys 24