ML22224A125
| ML22224A125 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 08/09/2022 |
| From: | Kanner A, Perales M, Tennis A Fasken Land & Minerals, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners |
| To: | NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1958510, 21-1048, 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21-1230, 21-1231 | |
| Download: ML22224A125 (75) | |
Text
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 1 of 75
ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Case No. 21 -1048 Consolidated with Case Nos. 21-1055, 21-1056, 21-1179, 21-1227, 21-1229, 21 -1230, 21-1231
DONT WASTE MICHIGAN, et al.,
Petitioners, v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA,
Respondents,
INTERIM STORAGE PARTNERS, LLC,
Intervenor.
Petition for Review of Final Order of the United States Nuclea r Regulatory Commission
FINAL OPENING BRIEF OF PETITIONERS FASKEN LAND AND MINERALS, LTD. AND PERMIAN BASIN LAND AND ROYALTY OWNERS
Allan Kanner (a.kanner@kanner-law.com) Monica Renee Perales Annemieke Tennis (a.tennis@kanner-law.com) 6101 Holiday Hill Road KANNER & WHITELEY, LLC Midland, TX 79707 701 Camp Street (432) 687-1777 New Orleans, LA 70130 monicap@forl.com (504) 524-5777 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 2 of 75
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
In accordance with D.C. Cir. Rule 28(a)(1), Petitioners submit the foregoing
certificate of parties, rulings and related cases.
A. Parties and Amici
Petitioners
The Petitioners in th is matter are Fasken Land and Minerals, Ltd. and the
Permian Basin Land and Royalty Owners, collectively referred to herein as
Fasken.
Respondents
The Respondents are the United States Nuclear Regulatory Commission and
the United States of America.
Intervenor
The Intervenor is Interim Storage Partners, LLC.
B. Rulings Under Review
Fasken seeks review of the United States Nuclear Regulatory Commissions
(NRC) Memorandum and Order CLI-21 -09 (June 22, 2021), REC. 230 (JA0653).
C. Related Cases
The undersigned counsel is not aware of any other case pending in this Circuit
related to this one within the meaning of D.C. Cir. Rule 28(a)(1)(C), which is not
currently consolidated herewith.
i USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 3 of 75
Undersigned counsel is aware of currently pending cases in the United States
Courts of Appeals for the Fifth Circuit and the Tenth Circuit involving challenges to
the NRCs issuance of the ISP license and record of decision. State of Texas; Greg
Abbott, Governor of the State of Texas; Texas Commission on Environmental
Quality; Fasken Land and Minerals, Ltd.; and Permian Basin Land and Royalty
Owners v. Nuclear Regulatory Commission and United States of America, Docket
No. 21-60743 (5th Cir.); State of New Mexico, ex rel. Hector H. Balderas, Attorney
General and the New Mexico Environment Department, Docket No. 21-9593 (10th
Cir.). 1
Respectfully submitted,
/s/ Allan Kanner Allan Kanner
1 Opening briefs in these matters were filed on February 7, 2022, and March 10, 2022, respectively.
ii USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 4 of 75
PETITIONERS RULE 26.1 DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 26.1, Fasken makes the
following disclosures:
Petitioner Fasken Land and Minerals, Ltd., is a for -profit nongovernmental
limited partnership organization existing under the laws of the State of Texas
engaged in oil and gas extraction and production activities. Fasken Land and
Minerals, Ltd., has no parent corporation, and no publicly traded corporation owns
10% or more of its stock.
Petitioner Permian Basin Land and Royalty Owners is a nongovernmental
registered 501(c)(4) non-profit, organized and existing under the laws of the State of
Texas, is based in Midland, Texas, and is a public welfare organization dedicated to
protecting the interests of the Permian Basin and informing the public about threats
and risks of spent nuclear fuel in regions ill-suited to the activity. Permian Basin
Land and Royalty Owners has no parent corporation, and no publicly traded
corporation owns 10% or more of its stock.
Respectfully submitted,
/s/ Allan Kanner Allan Kanner
iii USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 5 of 75
TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.............. i
A. Parties and Amici.......................................................................................... i B. Rulings Under Review.................................................................................. i
C. Related Cases................................................................................................ i
PETITIONERS RULE 26.1 DISCLOSURE STATEMENT................................. iii
TABLE OF CONTENTS......................................................................................... iv
TABLE OF AUTHORITIES................................................................................... vi
GLOSSARY........................................................................................................... viii
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW...................................... 2
STATUTES AND REGULATIONS......................................................................... 2
STATEMENT OF THE CASE.................................................................................. 3
A. The NRC Denied All Administrative Challenges Regarding the ISP License Application and Terminated Its Administrative Proceeding Prior to Publishing Its Draft Environmental Impact Statement.................. 3
B. Fasken Moved to Reopen the Record and to File a New Contention Based on New Information in the Draft Environmental Impact Statement..................................................................................................... 5
C. The Board and NRC Denied Faskens Motions.......................................... 6
SUMMARY
OF THE ARGUMENT........................................................................ 6
STANDING............................................................................................................... 7
ARGUMENT............................................................................................................. 9 iv USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 6 of 75
I. STANDARD OF REVIEW................................................................................. 9
II. THE NRC ARBITRARILY AND CAPRICIOUSLY REJECTED FASKENS CONTENTION................................................................................................... 9
A. Faskens Contention is Ba sed on New and Material Information Regarding the Responsibility and Costs for Coordinating Transportation, Infrastructure Improvements, and Emergency Response.................................................................................................... 10
B. Faskens Contention is Based on New and Material Information Regarding Regional Transportation Impacts, and the Draft Environmental Impact Statement s Omission of an Evaluation of Regional and Site -
Specific Impacts Leads to Serious Safety and Environmental Issues....... 14
III. THE NRC ARBITRARILY AND CAPRICIOUSLY DENIED FASKENS MOTION TO REOPEN AND MOTION FOR LEAVE TO FILE NEW CONTENTION................................................................................................. 21
CONCLUSION........................................................................................................23
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS...........25
CERTIFICATE OF SERVICE................................................................................26
ADDENDUM OF STATUTES AND REGULATIONS....... STATUTORY ADD 1
STANDING ADDENDUM....................................................... STANDING ADD 1
v USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 7 of 75
TABLE OF AUTHORITIES Page(s)
Cases Adenariwo v. Fed. Maritime Commn, 808 F.3d 74 (D.C. Cir. 2015).................................................................................. 1 Blue Ridge Envtl. Def. League v. Nuclear Reg. Commn, 668 F.3d 747 (D.C. Cir. 2012)................................................................................ 1 Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm'n, 716 F.3d 183 (D.C. Cir. 2013)................................................................................ 9 Center for Sustainable Econ. v. Jewell, 779 F.3d 588 (D.C. Cir. 2015)................................................................................ 9 Citizens for a Safe Envt v. Atomic Energy Commn, 489 F.2d 1018 (3d Cir. 1973)................................................................................. 1 In the Matter of Calvert Cliffs 3 Nuclear Project, 72 N.R.C. 720, 2010 WL 9007226 (2010)...........................................................10 In the Matter of Georgia Power Co.,
2 N.R.C. 404, 1975 WL 20090 (1975)................................................................. 21 In the Matter of Louisiana Energy Services, 62 N.R.C. 523, 2005 WL 4131570 (2005)...........................................................10 In the Matter of Vermont Yankee Nuclear Power Corp.,
6 A.E.C. 358, 1973 WL 18107 (1973)................................................................. 20 Natural Res. Def. Council v. U.S. Nuclear Reg. Commn, 680 F.2d 810 (D.C. Cir. 1982)................................................................................ 1 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)..............................................................................1 5 Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).............................................................................. 8 Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983)......................................................................... 12, 13
vi USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 8 of 75
Thermal Ecology Must Be Preserved v. Atomic Energy Commn, 433 F.2d 524 (D.C. Cir. 1970)................................................................................ 1 Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016)..............................................................................16
Statutes 5 U.S.C. § 702............................................................................................................ 2 5 U.S.C. § 706............................................................................................................ 9 28 U.S.C. § 2342........................................................................................................ 1 28 U.S.C. § 2342(4)................................................................................................... 2
28 U.S.C. § 2344........................................................................................................ 2 42 U.S.C. § 2011........................................................................................................ 1 42 U.S.C. § 2239(b)................................................................................................... 2 42 U.S.C. § 4332(C).......................................................................................... 13, 20
Regulations 10 C.F.R. § 2.309................................................................................................. 7, 10 10 C.F.R. § 2.309(c)(1).............................................................................................. 9 10 C.F.R. § 2.309(f)(1).............................................................................................. 9 10 C.F.R. §§ 72.90-72.108.......................................................................................13
10 C.F.R. § 72.100(b)..............................................................................................20
vii USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 9 of 75
GLOSSARY
APA The Administrative Procedure Act
DOE Department of Energy
ISP Interim Storage Partners, LLC
NEPA The National Environmental Policy Act
NRC The United States Nuclear Regulatory Commission
viii USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 10 of 75
STATEMENT OF JURISDICTION
The NRC instituted an adjudicatory proceeding regarding ISP s license
application pursuant to the Atomic Energy Act, 42 U.S.C. § 2011, and its procedural
regulations under 10 C.F. R. Part 2. On June 22, 2021, the NRC affirm ed the Atomic
Safety Licensing Board s (Board ) denial of Faskens Motion to Reopen the
Record and Motion for Leave to File New Contention concerning NRCs preparation
and publication of its draft Environmental Impact Statement. CLI-21 -09, REC. 230
(JA0653). This was the final NRC O rder denying Faskens requests for intervention
and constitutes a final order for purposes of Hobbs Act jurisdiction. Adenariwo v.
Fed. Maritime Commn, 808 F.3d 74, 78 (D.C. Cir. 2015) (An agency order is final
for purposes of 28 U.S.C. § 2342 if it imposes an obligation, denies a right, or fixes
some legal relationship, usually at the consummation of an administrati ve
process. ) (quoting Natural Res. Def. Council, Inc. v. U.S. Nuclear Reg. Commn,
680 F.2d 810, 815 (D.C. Cir. 1982) ); Blue Ridge Envtl. Def. League v. Nuclear Reg.
Commn, 668 F.3d 747, 753 (D.C. Cir. 2012) ([I]n the context of administrative
adjudications, a final order is [normally] one that disposes of all issues as to all
parties. ) (quoting Citizens for a Safe Envt v. Atomic Energy Commn, 489 F.2d
1018, 1021 (3d Cir. 1973)); Thermal Ecology Must Be Preserved v. Atomic Energy
Commn, 433 F.2d 524, 526 (D.C. Cir. 1970) ( An order denying intervention would
be reviewable. ).
1 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 11 of 75
The NRCs f inal Order is reviewable by this Court under 42 U.S.C. § 2239(b),
28 U.S.C. § 2342(4), and 5 U.S.C. § 70 2. Pursuant to 28 U.S.C. § 2344, Fasken
timely filed their Petition for Revie w on August 20, 2021, within sixty days of the
NRCs final O rder. No. 21-1179, Doc. #1911677.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
- Whether the NRC erred in denying Fasken s Motions and Contention based
on new and material agency impact determinations and sources relied on in
the draft Environmental Impact Statement that differed significantly from
those contained in ISPs application documents.
- Whether the NRC erred in failing to conduct an evaluation of site -specific
impacts relating to the regional transport of spent nuclear fuel to and from the
ISP facility.
STATUTES AND REGULATIONS
See attached Addendum.
2 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 12 of 75
STATEMENT OF THE CASE 2
A. The NRC Denied All A dministrative Challenges Regarding the ISP License Application and Terminated Its Administrative Proceeding Prior to Publishing Its Draft Environmental Impact Statement
Fasken, like other petitioners, filed a petition for intervention and request for
hearing. Fasken Petition, REC. 51 (JA0044). Fasken submitted a total of six
contentions, drawing on regional expertise and decades of collective knowledge
gained through extensive energy and agriculture operations within the Permian
Basin, identifying concerns with misleading, inaccurate, inconsistent, or incomplete
characterizations in ISPs application documents. Id. In total, forty contentions were
filed in the proceeding. Beyond Nuclear Petition, REC. 39 (JA0038); Fasken
Petition, REC. 51 (JA0044); Sierra Club Petition, REC. 57 (JA0045); Dont Waste
Michigan Petition, REC. 61 (JA0077); SEED Mtn. to File Late Contention, REC.
172 (JA0449); Fasken Contention Mtn., REC. 209 (JA0492).
In truly unprecedented fashion, the Board rejected each and every contention
proffered. LBP-19 -07, 90 NRC 31, REC. 126 (JA0355); LBP-19-09, 90 NRC 181,
REC. 178 (JA0450); LBP-19-11, 90 NRC 358, REC. 185 (JA0465). It officially
terminated the adjudicatory proceeding and closed the administrative record five
months before the NRC published its draft Environmental Impact Statement and
2 Fasken adopts and incorporates herein t he Statutory and Factual Background in Petitioner Beyond Nuclears opening brief.
3 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 13 of 75
issued notice soliciting public comments pursuant to NEPA in May 2020. LBP 11, 90 NRC at 368, REC. 185 (JA0465 ); Notice, 85 Fed. Reg. 27447 (May 8, 2020),
REC. 324 (JA0787). The NRC subsequently affirmed the rejection of all
contentions. CLI-20 -13, 92 NRC 457, REC. 218 (JA0558); CLI-20 -14, 92 NRC 463,
REC. 221 (JA0564); CLI-20 -15, 92 NRC 491, REC. 222 (JA0592).
Throughout this process, the NRC has issued numerous requests for additional
information, allowing ISP to supplement its application documents, even after
publication of the draft Environmental Impact Statement. See, e.g., ISP Resp. (July
21, 2020), REC. 331 (JA1273); ISP Resp. (Jan. 27, 2021), REC. 353 (JA 1275).
Much of the information submitted by ISP was kept from the public by claims of
confidentiality. E.g., CLI-20 -14, 92 NRC at 472, REC. 221 (JA0573) (denying
Faskens request for access to confidential documents); ISP Resp., REC. 290.1
(JA0739) (including response to Request 2.2-2 submitted as confidential). However,
the supplemental information was the basis for denying various contentions as moot.
E.g., LBP-19-07, 90 NRC at 113 n.549, REC. 126 (JA 0437) (noting the NRC Staff
originally argued for partial admission of Fasken Contention 2 but changed its
position and consider ed the contention moot in light of ISPs response to Request
2.2-2).
4 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 14 of 75
B. Fasken Moved to Reopen the Record and to File a New Contention Based on New Information in the Draft Environmental Impact Statement
After reviewing the d raft Environmental Impact Statement, Fasken filed a
Motion to Reopen the proceeding and a Motion for Leave to File a N ew Contention.
Reopen Mtn., REC. 208 (JA0481); Contention Mtn., REC. 209 (JA0492). Faskens
Contention was based on new and materially different conclusions and/or sources
relied on in the d raft Environmental Impact Statement, which for the first time
shifted the burden and responsibility for emergency response efforts and
infrastructure improvements to local communities without accounting for the costs.
Contention Mtn. at 14-17, REC. 209 (JA0509-JA0512 ). In addition, Faskens
Contention focused on the use of representative transportation routes, which failed
to properly analyze regional transportation impacts in light of the site -specific
conditions and those of the 50-mile radius surrounding the site. Id. at 17-26 (JA0512 -
JA0521). Fasken asserted that an appropriate site-specific analysis was absent from
the draft Environmental Impact Statement, which: (1) relied on representative route s
to Deaf Smith, Texas, that ignored the regional transportation leg cutting through the
Permian Basin from Monahan s, Texas to the ISP facility that is also used by regional
oil and gas and agricultural industr ies; (2) disregarded the geological characteristics
of the area includ ing seismicity, subsidence, sinkholes, along with ongoing oil and
gas and mining extraction operations effecting transportation infrastructure, safety
5 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 15 of 75
risks and environmental impact ; and (3) failed to analyze the costs and benefits on a
site-specific basis, given that rural, remote communities along the transportation
route would be responsible for training, equipping and financing emergency first
responders. Fasken argued that b y omitting this analysis, the draft Environmental
Impact Statement analysis of environmental impacts f ell short of the requirements
of NEPA and NRC regulations.
C. The Board and NRC Denied Faskens Motions The Board denied Faskens Motions, primarily on the ground that the Motions
and Contention were not based on information that was materially new. LBP-21 -02,
93 NRC 104, 110-111, REC. 224 (JA0618-JA0619). Further, the Board rejected
Faskens Contention finding it did not satisfy the admissibility requirements. Id. at
114-116 (JA0622-JA0623).
The NRC affirmed, under the substantial deference standard of review. CLI-
21- 09, REC. 230 (JA0653).
Faskens petition for review followed.
SUMMARY
OF THE ARGUMENT The NRC abused its discretion, acting arbitrarily and capriciously in denying
Faskens Motions and Contention relating to site-specific impacts and serious and
significant regional transportation issues addressed for the first time in the NRCs
draft Environmental Impact Statement. Applying a heightened standard for ple ading,
6 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 16 of 75
the NRC summarily dismissed Faskens challenges by transforming them into
previously dismissed contentions based on ISPs E nvironmental Report. In doing so,
the NRC overlooked the timeline of production of information at issue and more
importantly, overlooked the site-specific nature of Faskens arguments identifying
concerns with NRCs newly disclosed findings and its reliance on faulty and
inapplicable prior evaluations relating to first responder services, the omission of
consideration of infrastructure funding in the calculus of costs and benefits, as well
as adverse impacts on regional industries and serious safety risks of transporting
spent nuclear fuel in and out of the Permian Basin.
Faskens Contention raises mixed environmental and safety issues with
abundant factual support and requisite affidavits in accordance with NRC standards.
Contention Mtn. at Exhibits 1, REC. 210 (JA0523) and 2, REC. 211 (JA0529) ; 10
C.F.R. § 2.309. The NRC erred in denying the C ontention. It failed to independently
investigate the issues identified and to take a hard look at the impacts. The NRC
is required to offer a contemporaneous rational basis for its impact determinations
and the draft Environmental Impact Statement findings to ensure transparency and
informed decision-making.
STANDING
Faskens standing is addressed in the Docketing Statement and attached
standing declarations of Tommy Taylor, Vice President of Fasken Management,
7 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 17 of 75
LLC, the general partner of Petitioner Fasken; D.K. Boyd, member of the Permian
Basin Land and Royalty Owners; and Grant Huckaba y, Health, Safety and
Environmental Coordinator of Fasken Oil and Ranch, Ltd., which have been
submitted to the Court. No. 21-1048, Doc. #1921497. Fasken and members of the
Permian Basin Land and Royalty Owners own and/or lease property related t o oil
and gas activities, grazing, and agricultural operations near the ISP site. They, along
with their personnel, regularly travel in the vicinity of the site for work-related
purposes, using local, state, and federal highways, and they regularly use the regional
rail transportation to support their industries, which they will be forced to share with
regular shipments of nuclear waste in and out of the Permian Basin. They also have
concerns regarding adverse health effects and impacts to their employees a nd
business operations, as well as the communities in the region generally, including
medical care costs, adverse financial impacts on property, and threats to ongoing
business activities.
In the proceeding below, Petitioner Fasken was found to have standing and
Petitioner Permian Basin Land and Royalty Owners was found to have associational
standing based on the declarations of Tommy Taylor and D.K. Boyd. LBP-19-07,
90 NRC at 51-52, REC. 126 (JA0375-JA0376); CLI-20-14, 92 NRC at 466, REC.
221 (JA0567). The Boards and NRCs conclusions that Fasken has standing are
consistent with this Courts precedents. See Nuclear Energy Inst., Inc. v. EPA, 373
8 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 18 of 75
F.3d 1251 (D.C. Cir. 2004) ; Center for Sustainable Econ. v. Jewell, 779 F.3d 588
(D.C. Cir. 2015).
ARGUMENT
I. STANDARD OF REVIEW
The Court reviews the NRCs decision under the arbitrary and capricious
standard. Blue Ridge Envtl. Def. League v. Nuclear Regulatory Comm 'n, 716 F.3d
183, 195 (D.C. Cir. 2013); 5 U.S.C. § 706.
II. THE NRC ARBITRARILY AND CAPRICIOUSLY REJECTED FASKENS CONTENTION
Faskens Contention satisfie s 10 C.F.R. § 2.309(c)(1)s conditions for good
cause. As discussed herein, the information forming the basis for the Contention was
not available prior to publication of the d raft Environmental Impact Statement in
May 2020 and was materially different than that in ISPs application documents.
Faskens Motions associated with its Contention were timely filed, pursuant to the
May 22, 2020, Order of the NRC Secretary. Reopen Mtn., REC. 208 (JA0481);
Contention Mtn., REC. 209 (JA0492); Order, REC. 207 (JA0477). Faskens
Contention also satisfie s 10 C.F.R. § 2.309(f)(1)s standards for admissibility.
Faskens Contention raises serious and grave concerns regarding NRCs failure to
account for costs of necessary emergency response services and infrastructure
improvements, as well as its failure to evaluate heightened adverse consequences
from site-specific transportation impacts within the Permian Basin. Faskens 9
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 19 of 75
concerns fall squarely within the scope of the proceeding and raise genuine disputes
of material issues highlighting the NRCs violations of NEPA and NRC regulations.
As set forth herein, t he NRCs rejection of Faskens Contention was arbitrary and
capricious and should be reversed.
A. Faskens Contention is Based on New and Material Information Regarding the Responsibility and Costs for Coordinating Transportation, Infrastructure Improvements, and Emergency
Response
A new or amended contention may be filed if the draft Environmental Impact
Statement contains data or conclusions that differ significantly from those in the
applicants documents. In the Matter of Calvert Cliffs 3 Nuclear Project, 72 N. R. C.
720, 729-30, 2010 WL 9007226 (2010); In the Matter of Louisiana Energy Services,
62 N.R. C. 523, 533, 2005 WL 4131570 (2005) ( Our rules expressly allow timely
amendment of NEPA contentions if there is significant new information or different
conclusions in the DEIS that could not have been challenged previously. ) (citing
10 C.F.R. § 2.309). Fasken cited specific and material new information that the NRC
erroneously discarded.
New disclosures regarding the responsibility and costs for coordinating
transportation, infrastructure improvements and necessary emergency training
appeared for the first time in the draft Environmental Impact Statement. ISPs
Environmental Report states, DOE or private qualified logistics company will also
be responsible for coordinating with federal agencies... regarding transportation of
10 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 20 of 75
[spent nuclear fuel]... If DOE is the shipper, the federal government, through DOE,
is responsible for providing emergency training to states, tribes, and local emergency
responders along the transportation routes where SNF [spent nuclear fuel] would be
transported to the [ISP site]. ER (Rev. 3) at 4-8, REC. 318.3 (JA0767) (emphasis
added). In contrast, the d raft Environmental Impact Statement for the first time
asserts that if [spent nuclear fuel] is shipped to a [consolidated interim storage
facility], some States, Tribes, or municipalities along transportation routes may incur
costs for emergency-response training and equipment that might otherwise be
eligible for funding under [Nuclear Waste Policy Act] Section 180(c) provisions if
DOE shipped the [spent nuclear fuel] from existing sites to a repository. DEIS at 4-
74 -75, REC. 327 (JA1070-JA1071 ). The document also states that States are
recognized as responsible for protecting health and safety during radiological
transportation accidents. Id. at 8-11 (JA1193).
In addition, ISPs Environmental Report suggests DOE would be responsible
for infrastructure upgrades required to transport the waste to a storage cite. ER (Rev.
- 3) at 3-8 -9, REC. 318.3 (JA0759-JA0760 ). However, the d raft Environmental
Impact Statement states that some decommissioned reactor sites may require local
transportation infrastructure upgrades to remove the [spent nuclear fuel] from the
site for example, installing or upgrading rail track, roads, or barge slips necessary
to transfer [spent nuclear fuel] offsite. DEIS at 4-10, REC. 327 (JA1006).
11 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 21 of 75
However, despite the shift in responsibility and particularly in costs, the d raft
Environmental Impact Statement did not reach any qua ntifiable or qualitative
determination on these regional transportation impacts, risks and costs, and it did not
include them in its cumulative impact analysis, claiming the issues would be
speculative and beyond the scope. DEIS at 4-75, REC. 327 (JA1071). Likewise,
despite infrastructure improvement costs being necessary to transport spent nuclear
fuel to the ISP facility, the NRC did not quantify these costs. Id. at 8-11 (JA1193).
Without factoring in the risks and costs to be borne by state and local governments,
the NRC concluded that the socioeconomic impacts resulted in a small to moderate
beneficial impact for local finance. Id. at 4-75, 5 -46 (JA1071, JA1148). The failure
to factor in these costs is unreasonable, arbitrary, and capricious and does not provide
a complete picture of the actual impacts of the project. Sierra Club v. Sigler, 695
F.2d 957, 979 (5th Cir. 1983) (Simple logic, fairness, and the premises of cost-
benefit analysis, let alone NEPA, demand that a cost-benefit analysis be carried out
objectively. There can be no hard look at costs and benefits unless all costs are
disclosed.).
The Board and NRC summarily found that the evaluation of these risks and
costs was beyond the scope of the proceeding. LBP -21 -02, 93 NRC at 115, REC.
224 (JA0623). The conclusion that the project would have a small to moderate
beneficial impact on local finance is incomplete a t best, and it is arbitrary and
12 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 22 of 75
capricious to conduct such an analysis by including only beneficial impacts and
omitting significant costs. Under this standard, the NRC could conceivabl y show
any project as having a beneficial financial impact. This does not equate to the hard
look required by NEPA. Sigler, 695 F.2d at 979 (noting that if an agency were
permitted to cite possible benefits to promote a project but avoid citation of
accompanying costs, the cost-benefit analysis would be a sham).
Faskens Contention raises serious and significant safety and environmental
issues dealing with site-specific impacts in the Permian Basin and genuine disputes
with the NRC s consideration of same that fall squarely within the scope of the
proceeding. Both NEPA and NRCs own implementing regulations require
consideration of siting evaluation factors in determining impacts on the human
environment of a proposed project. 42 U.S.C. § 4332(C) ; 10 C.F.R. §§ 72.90-72.108.
Indeed, the draft Environmental Impact Statement is a self-declared site-specific
assessment. DEIS at 1-6, 5 -13, REC. 327 (JA0842, JA1115). NRCs Scoping
Summary Report concedes that these issues are material and within the scope.
Scoping Summary Report at A-8-10, B-20, B-35, REC. 307 (JA 0750-JA0752,
JA0753, JA0756). As such, the NRC is wrong to claim that such regional
transportation issues are outside of the scope of the proceedings or that such
impacts affecting cost and benefit analyses are unquantifiable.
13 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 23 of 75
B. Faskens Contention is Based on New and Material Information Regarding Regional Transportation Impacts, and the Draft Environmental Impact Statement s Omission of an Evaluation of Regional and Site -Specific Impacts Leads to Serious Safety and Environmental Issues
ISPs Environmental Report states that [spent nuclear fuel] would be
transported exclusively by rail. ER (Rev. 3) at 4-8, REC. 318.3 (JA0767). However,
the draft Environmental Impact Statement for the first time relies on a 2008 DOE
Yucca Mountain analysis which discloses supplemental modes of transportation,
including segments of barge or heavy-haul trucks to move the waste from generator
sites to rail lines. DEIS at 3-9, 4-6, REC. 327 (JA0897, JA1002). The draft
Environmental Impact Statement did not evaluate the environmental or safety
impacts from transportation of spent nuclear fuel via barges or heavy -haul trucks;
rather it relied on the DOE 2008 analysis and concluded that the supplemental mode
of transportation did not significantly change the minor radiological impacts from a
national mostly rail transportation campaign. Id. at 4-10 (JA1006).
Moreover, the NRC relied on representative transportation routes from the
2008 DOE Yucca Mountain analysis and prior impact analysis from NUREG -2125
(NRC 2014) for purposes of its evaluation of transportation impacts. Id. at 3-9
(JA0897). When facilities differ in operational characteristics that influence impact
determinations, the NRC must conduct and publicly disclose site -specific
evaluations. NUREG-2157 at 5-2 (JA2370) (acknowledging that not all storage
14 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 24 of 75
facilities will necessarily match the assumed generic facility and therefore when
it comes to size, operational characteristics and location of the facility, the NRC
will evaluate the site-specific impacts of the construction and operation of any
proposed facility as part of that facilitys licensing process). 3 Faskens Contention
asserts that in relying on these prior analyses, the NRC failed to consider regional
transportation issues and site -specific impacts in its analysis. It is well-established
that whether the NRCs analysis is generic or site -by -site, it must be thorough and
comprehensive. New York v. NRC, 681 F.3d 471, 481 (D.C. Cir. 2012).
The representative routes in NUREG-2125 involve shipment of spent nuclear
fuel to Deaf Smith, Texas, which is outside the Permian Basin. DEIS at 4-13, REC.
327 (JA1009); see also NUREG-2125 at 23, 28 (JA2344, JA2345). This
representative route is not representative of the regional transportation risks involved
with transporting and storing spent nuclear fuel in the Permian Basin. The
representative routes in the 2008 DOE Yucca Mountain document only reach
Monahans, Texas, and the NRC did not meaningfully consider impacts associated
with regional transportation from Monahans, Texas, to the ISP facility, as discussed
further below. DEIS at 2-11, REC. 327 (JA0865). By relying on the representative
3 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (NUREG-2157), (JA2346).
15 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 25 of 75
routes, the NRC fail ed to analyze impacts associated with the regional transportation
leg of transport of nuclear materials to the ISP facility.
NRCs reliance on NUREG -2125 also does not account for key differences
between the facilities. ISP does not propose a dry cask stora ge transfer facility and
has no repackaging or reprocessing capabilities, adopting a return to sender policy
instead, unlike that in NUREG-2125. EIS at D-33, 57-58, REC. 355 (JA1801,
JA1825-JA1826). The NRC did not do the site-specific analysis required. Instead,
the NRC adopt ed DOEs impact analysis despite the lack of contracts and
arrangements for storage of [spent nuclear fuel]... the specific characteristics of the
[spent nuclear fuel], the origins of shipments, the routes of travel, shi ppers and
carriers, and specific plans and other details have not yet been clarified, and it found
similar impact determinations for ISP and the facilities in NUREG -2125 despite
substantial differences in repackaging and reprocessing capabilities and the presence
of dry cask storage transfer facilities. EIS at D-33, 57-58, REC. 355 (JA1801,
JA1825-JA1826). NRCs omission of any consideration for these key operational
differences and the relevant impacts on transportation is arbitrary and capricious.
Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (an
agency acts arbitrarily or capriciously if it has relied on factors which Congress has
not intended it to consider or entirely failed to consider an important aspect of the
problem) (internal quotation omitted).
16 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 26 of 75
Next, as set forth in Faskens Contention and supporting affidavit, the regional
rail lines for transport to the ISP site are also regularly used by the oil and gas and
agricultural industries in the region. Contention Mtn. at 21, REC. 209 (JA0516).
Every single transport of spent nuclear fuel will travel along the Texas-New Mexico
Railroad to ISP. Contention Mtn. Ex. 1 at ¶ 11, REC. 210 (JA0525); DEIS at 2-11,
REC. 327 (JA0865). As demonstrated in Faskens supporting affidavit, even the
most minimal transportation incident has the potential to interrupt or foreclose
regional oil and gas, agricultural, and ranching activities with substantial adverse
economic impacts to property interests and assets of Fasken and industries within
the Permian Basin. Contention Mtn. Ex. 1 at ¶¶ 9-10, REC. 2 10 (JA0525). The
affidavit further highlights the vital importance of local rail transportation to energy
freight: local rails are necessary to ship components to drill and complete an oil
well and bring it to production and [a]ny hazardous materials emergency upon th e
rails that interferes with energy freight poses a loss of millions of dollars per day
affecting multiple operators in the Permian Basin. Id. at ¶ 12 (JA0525-JA0526).
The affidavit further notes that the single-track railway proposed for use in the draft
Environmental Impact Statement traverses remote and rural areas lacking
emergency responder resources and is served mostly by volunteer fire
departments. Id. at ¶ 13 (JA0526).
17 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 27 of 75
In addition, the NRCs analysis fail s to consider regional geographic
characteristics such as sinkholes, subsidence and seismicity, which present a threat
to both the regional transportation and storage at the ISP site. Contention Mtn. at 20-
21, REC. 209 (JA0515 -JA0516) and Ex. 1 at ¶ 14, REC. 210 (JA0526) (referencing
the increased rate of rail accidents in the region and areas prone to subsidence,
sinkholes and seismicity through which spent nuclear fuel will be transported). 4
Further, the ongoing and extensive oil and gas and mining op erations in the region,
combined with the real potential for terrorist attack or sabotage, are legitimate issues
that should be included in the impacts analysis. With respect to terrorism, the Board
relied on NRCs prior conclusion that it need not conside r terrorism in its NEPA
analysis outside the Ninth Circuit, which itself is arbitrary and capricious. LBP 02, 93 NRC at 116, REC. 224 (JA0624 ).
In denying Faskens Contention, the Board and NRC ignored the specific
regional issues raised in the Contention and broadly construed it as a challenge to
the use of three representative national transportation routes, similar to contentions
previously brought and denied. Id. at 112-114 (JA0620-JA0622) (improperly
characterizing Faskens Contention as the DEIS should identify specific
4 Fasken has extensive experience and expertise operating in the Permian Basin. On the other hand, the NRC is not an expert in this area and should not be afforded limitless deference.
18 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 28 of 75
transportation routes). 5 As discussed above, Faskens argument is based on the
NRCs lack of consideration of regional transport routes, geographic considerations
and adverse impacts to regional industries use of same rails and roads within 50-
mile radius. Contention Mtn., REC. 209 (JA0508). The NRC oversimplified and
misrepresented the underlying basis, factual support and evidence presented by
Fasken, which focused on the differences between the draft Environmental Impact
Statement and ISPs Environmental Report and the material omission of site -specific
and regional impacts of nuclear transport into and out of the Permian Basin.
Contention Mtn., REC. 209 (JA0492) ; Reply, REC. 215 (JA0545); NRC Petition for
Review, REC. 225 (JA 0626).
The draft Environmental Impact Statement insufficiently consider ed regional
transportation issues in light of the above issues and erroneously deemed the
transportation impacts, as well as the land use impacts, to be small. DEIS at 4-4, 4-
9, 4-21, 5 -20, REC. 327 (JA1000, JA1005, JA1017, JA1122 ). However, NEPA
requires the NRC to take a hard look at the consequences of a proposed federal
action and to investigate and evaluate cumulative impacts of the proposed action
before undertaking any action that could affect the quality of human environment.
5 Although the Board characterized Faskens regional transportation contention as virtually identical to previously dismissed contentions, the opinion dismissing the prior contentions was issued in 2019 and involved contentions filed in 2018 based on ISPs early application documents that have since been revised multiple times.
19 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 29 of 75
42 U.S.C. § 4332( C). The issues raised by Fasken s Contention implicate important
legal, safety, and environmental impacts that must be investigated and evaluated
under NEPA and NRC regulations. See, e.g., 10 C.F.R. § 72.100(b) ( Each site must
be evaluated with respect to the effects on the regional environment resulting from
construction, operation, and decommissioning for the [Independent Spent Fuel
Storage Installation] or [Monitored Retrievable Storage] ; in this evaluation both
usual and unusual regional and site characteristics must be taken into account. ).
Further, transportation is undeniably a key factor in considering impacts on
the human environment, including land uses, geology and soils, and the costs and
benefits of the ISP facility. Given ISPs location in the middle of the Permian Basin,
surrounded by extensive ongoing oil and gas extraction and agricultural operations,
the NRC must consider site -specific and regional characteristics in not only its
evaluation of cumulative impacts, but also heightened safety and socioeconomic
risks and graver consequences of locating the facility in the heart of the nations
most productive oil hub. The NRC cannot deny that transportation issues here are
hotly contested and transportation of nuclear waste, by its very nature, implicates
important safety and environmental issues warranting a reopening of the ISP
proceeding for a proper evidentiary hearing on the underlying facts and evidence
missing from the record and decision-making process here.
20
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 30 of 75
III. THE NRC ARBITRARILY AND CAPRICIOUSLY DENIED FASKENS MOTION TO REOPEN AND MOTION FOR LEAVE TO FILE NEW CONTENTION
Faskens Motions should have been granted and the re cord should have been
reopened to address the significant safety and environmental issues raised by Fasken,
discussed above. Hearings may be reopened, in appropriate situations, either upon
motion of any party or sua sponte. In the Matter of Vermont Yankee Nuclear Power
Corp., 6 A.E.C. 358, 362, 1973 WL 18107 (1973); In the Matter of Georgia Power
Co., 2 N.R.C. 404, 1975 WL 20090, at *4 (1975) (hearing may be reopened when a
significant safety or environmental issue is involved).
Faskens Motion to Reopen was filed with not one, but two, relevant
supporting affidavits addressing the adverse regional socioeconomic impacts
transportation poses on oil and gas and agricultural industries as well as other site -
specific cumulative impacts overlooked and discounted in NRCs d raft
Environmental Impact Statement. The new and ma terial information and
conclusions identified by Fasken were disclosed for the first time in the draft
Environmental Impact Statement and substantially differ ed from ISPs application
documents. As such, Faskens Motions were timely filed, they had good ca use for
filing same, and they warranted remand and appropriate agency consideration as
discussed herein.
21 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 31 of 75
By closing the record prior to publication of the d raft Environmental Impact
Statement, the NRC has effectively insulated its failure to take a hard l ook at the
effects of the ISP facility on the human environment and to independently
investigate cumulative impacts, among others, by foreclosing new issues from being
raised unless a heightened pleading standard is met. In this way, the NRC has
obscured its decision-making process and shielded its findings on environmental
impacts from public scrutiny, contrary to the core objectives of NEPA.
The heightened pleading standard applied here required Fasken to file any
potential NEPA-based challenges at the outset based on ISP s Environmental
Report, before ISP submitted all of its supplemental documentation. T his heightened
standard cannot be reconciled with the rationale of the Boards decision, which
repeatedly references information and conclusions in ISPs third round of substantial
revisions to its Environmental Report a document that was only made publicly
available in February 2020, long after the initial 2018 hearing deadline, and after the
NRC officially terminated and closed the IS P proceeding in December 2019. LBP-
21- 02, 93 NRC at 111-112, REC. 224 (JA0619-JA0620) ; ER (Rev. 3), REC. 318
(JA0758).
The Boards opinion summarily states that Fasken may not seize on the
publication of the NRC staffs draft Environmental Impact Statement as an excuse
not to raise challenges to ISPs license application that Fasken could have timely
22 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 32 of 75
raised in 2018 but did not. LBP-21 -02, 93 NRC at 109-110, REC. 224 (JA0617-
JA0618). Yet, Faskens claims relate to the NRCs lack of independent investigation
in its preparation of the draft Environmental Impact Statement that differ
substantially from ISPs third (and even earlier rounds) of Environmental Report
revisions and could not have been reasonably brought in 2018. The application of
such a heightened standard here, requiring petitioners to anticipate conclusions and
information in yet-to -be-published documents, creates an impenetrable fortress and
merely illusory avenue to scrutinizing agency decision-making, contrary to the core
objectives of NEPA and NRC transparency requirements.
CONCLUSION
For the foregoing reasons, Fasken respectfully requests that the Court reverse
NRC Order CLI-21- 09 regarding Faskens Motion to Reopen and Motion for L eave
to File a N ew Contention and remand this matter to the NRC for a full evidentiary
hearing on the merits of Faskens Contention.
Dated: August 9, 2022 Respectfully submitted,
/s/ Allan Kanner Allan Kanner a.kanner@kanner -law.com Annemieke Tennis a.tennis@kanner-law.com KANNER & WHITELEY, LLC 701 Camp Street New Orleans, LA 70130 (504) 524-5777
23 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 33 of 75
Monica Renee Perales 6101 Holiday Hill Road Midland, TX 79707 (432) 687-1777 monicap@forl.com
Counsel for Petitioners Fasken Land & Minerals, Ltd. and Permian Basin Land and Royalty Owners
24 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 34 of 75
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS
- 1. This brief complies with the type -volume limitation of the Courts
February 15, 2022, Order because it contains 4,963 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32( f), and when combined with the other
consolidated Petitioners briefs, Petitioners briefs do not exceed 20,000 words.
- 2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(b) because it has
been prepared using Microsoft Word in Times New Roman, 14 pt. font.
Respectfully submitted,
/s/ Allan Kanner Allan Kanner
25 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 35 of 75
CERTIFICATE OF SERVICE I hereby certify that the electronic original of the foregoing Revised Opening
Brief of Petitioners was filed with the United States Court of Appeals for the D.C.
Circuit on this 9 th day of August 2022, through the Courts CM/ECF electronic
filing system, and thus also served on counsel of record.
Respectfully submitted,
/s/ Allan Kanner Allan Kanner
26 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 36 of 75
ADDENDUM OF STATUTES AND REGULATIONS
TABLE OF CONTENTS National Environmental Policy Act, 42 U.S.C. §4332(C )...... STATUTORY ADD 2 10 C.F.R. § 2.309(c)(1)........................................................... STATUTORY ADD 3 10 C.F.R. § 2.309(f)(1), (2)..................................................... STATUTORY ADD 4 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 37 of 75
National Environmental Policy Act, 42 U.S.C. § 4332(C)
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall --
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 38 of 75
10 C.F.R. § 2.309 (c)( 1) - Hearing requests, petitions to intervene, requirements for standing, and contentions.
(c) Filings after the deadline; submission of hearing request, intervention petition, or motion for leave to file new or amended contentions
(1) Determination by presiding officer. Hearing requests, intervention petitions, and motions for leave to file new or amended contentions filed after the deadline in paragraph (b) of this section will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:
(i) The information upon which the filing is based was not previously available;
(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.
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 39 of 75
10 C.F.R. § 2.309(f)(1), (2) - Hearing requests, petitions to intervene, requirements for standing, and contentions.
(f) Contentions.
(1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in th e combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and o n which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue;
(vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the applicati on (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 40 of 75
on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief; and
(vii) In a proceeding under 10 CFR 52.103(b), the information must be sufficient, and include supporting information showing, prima facie, that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operationa l consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health a nd safety. This information must include the specific portion of the report required by 10 CFR 52.99(c) which the requestor believes is inaccurate, incorrect, and/or incomplete (i.e., fails to contain the necessary information required by § 52.99(c)). If the requestor identifies a specific portion of the § 52.99(c) report as incomplete and the requestor contends that the incomplete portion prevents the requestor from making the necessary prima facie showing, then the requestor must explain why this deficiency prevents the requestor from making the prima facie showing.
(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environm ental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, participants shall file contentions based on the applicants environmental r eport.
Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 41 of 75
STANDING ADDENDUM
TABLE OF CONTENTS
Exhibit 1: Declaration of Tommy Taylor.................................. STANDING ADD 2
Exhibit 2: Declaration of D.K. Boyd....................................... STANDING ADD 15
Exhibit 3: Declaration of Grant Huckabay.............................. STANDING ADD 23 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 42 of 75
ADDENDUM EXHIBIT #1
Declaration of Tommy Taylor (11/8/2021)
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 43 of 75
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 Holi day Hill
Road, Midland, Texas 79707. I reside at 4100 Timberglen Circle, Midland, Texas
79707. My position with Fasken Ma nagement, 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 Co alition 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 Fa sken 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 #1958510 Filed: 08/09/2022 Page 44 of 75
illegal as written. I, on behalf of Fasken, further authorized PBLRO to appeal those
decisions to this Court.
- 3. Fasken Land and Minerals, of whi ch Fasken Management, LLC is it s 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 Inte rim Storage Partners,
LLC (ISP) consolidated interim storage facility (CISF) in Andre ws 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 env ironmental
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
- 6. I am personally familiar with other members of PBLRO of which t here 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 m embers 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 #1958510 Filed: 08/09/2022 Page 45 of 75
traded corporations (two integrated and one large independent o il and gas operator),
as well as numerous private companies involved in the extractio n 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 t hat live, work and
travel along proposed transportation routes, graze their animal s 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 tr avel to and
spend time in the area of the I SP 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 a nd 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 min erals within the
vicinity of the ISP CISF for over a century and drilled its first well in the Permian
Basin approximately 70 years ago.
3 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 46 of 75
- 10. I also have personal knowledge of the activities of other oil a nd gas entities
that are members of the PBLRO, one of which began drilling in t he Permian Basin
approximately 80 years ago and has extensive interests within close proximity to the
ISP CISF. Neither Fasken nor any me mber of PBLRO has relinquish ed control of
their interests for the ISP CISF.
- 11. There are approximately 4,579 wellbores within a 10-mile radiu s 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 groundwate r. It is the largest
and most important hydrocarbon pr oducing basin in the United. S tates. 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 Per mian Basin,
which includes Andrews County, produced approximately 5 million barrels of oil
per day in 2019 and anticipates a n increase to as much as 8 mil lion barrels per day
by 2023. The region produced 6,668 million cubic feet (MMcf) of natural gas per
4 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 47 of 75
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 2 021.2
- 14. According to the Texas Railroad Commission, the Permian Basin accounts
for approximately one-third of the nations oil production.
transportation of spent nuclear fuel through or near the Permia n 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 extracti on/production activities and thereby diminish or eliminate
the economic value of the oil and gas assets of Fasken and othe r members of
PBLRO.
transportation of spent nuclear fuel through or near the Permia n 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.
5 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 48 of 75
also has the potential to interr upt agricultural and ranching o perations and thereby
diminish or eliminate the economic value of real property value s and related assets
of Fasken and other members of PBLRO.
- 17. I am concerned that radiological contamination also has poten tial human
health effects that may cause death, radiation related ailments and/or genetic defects.
This potential, in addition to the adverse impacts on human mor tality and morbidity
rates, also has substantial economic costs associated with medi cal care and treatment
of radiation related conditions that affect Fasken and other members of PBLRO.
- 18. I understand that even the most minimal transportation inciden t, such as a
derailment or collision involvi ng spent nuclear fuel, would amount to a dangerous
materials emergency that has the potential to interrupt or fore close further oil and
gas extraction/production activities within the area of the inc ident, 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 nucle ar fuel in the ISP final
Environmental Impact Statement (EIS), the Union Pacific Railroa d or the Texas-
New Mexico Railroad, would likely diminish or has the potential to eliminate the
economic value of oil and gas a ssets belonging to Fasken and ot her members of
PBLRO.
6 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 49 of 75
- 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 t o 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. Accordi ng to Union Pacific,
two of its four key operating segm ents 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, agricult ural commodities
accounted for 18% of Union Pacifics shipments and energy freig ht accounted for
22%. The Texas-New Mexico Railroad extends from a Union Pacifi c connection at
Monahans, Texas. It is one of tw o lines owned by Watco that primarily serve the
Permian Basin. Watco reports oilfield commodities as its prima ry shipments on the
Texas-New Mexico Railroad and agricultural commodities as prima ry on its
Lubbock and Western Railways shipments.
7 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 50 of 75
- 21. With regard to energy freight, Fasken relies upon the rail lin es 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 bl ending 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, additio nal 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 up on. 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 det erioration of the
existing rail lines as a result of transport of oversized railc ars 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 th e Permian Basin. As an
example, a typical Fasken horizontal multi-well drilling projec t 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 milli on monthly in lost production from a single multi-
8 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 51 of 75
well pad. A delay on the rails t hat results in standby costs o n 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 expe nsive. 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 nucle ar fuel and high-level
radioactive waste over the course of at least the next forty years (and likely longer).
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 lack ing emergency
responder resources. In consulting crane operators regarding th e ISP EIS, there are
real logistical problems in situ ating 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 hav e a detrimental
effect upon the oil and agricultural industries of the Permian Basin but would also
9 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 52 of 75
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 a n 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 t he 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 s a w a 5 5 % i n c r e a s e,
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 vici nity of the ISP
CISF and of the approximately 120 individual persons required t o 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 agricult ure and, especially,
upon human mortality and morbidity rates, and the economic cost s associated with
10 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 53 of 75
medical care and treatment of radiation related conditions would also adversely
impact Fasken and other members of PBLRO, as well as their empl oyees and
families.
- 25. As a resident of Texas and given Faskens work throughout the P ermian 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, sa fety, 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
11 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; 0003055 1.DOCX} 6 STANDING ADD 14 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 54 of 75 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 55 of 75
ADDENDUM EXHIBIT #2
Declaration of D.K. Boyd (11/8/2021)
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ADDENDUM EXHIBIT #3
Declaration of Grant Huckabay (11/8/2021)
USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 64 of 75
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 resour ce
management, legal studies, and urban development. Since May 3, 2021, I have been
employed by Fasken Oil and Ranch, Ltd. (Fasken), located at 610 1 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 eightee n miles of the
Interim Storage Partners, LLC (ISP) consolidated interim storag e 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 i nterests
1 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 65 of 75
throughout Andrews County, Texas as well with the nearest membe r holding land
and minerals within four miles of the proposed ISP CISF.
- 4. In my capacity as Faskens Health, Safety, & Environmental Coor dinator, 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 co mpliance, management
of radiation issues, all regulatory interaction and notificatio n, as well as management
and oversight of environmenta l vendors. I have knowledge of, interpret, and prepare
comments on and ensure compliance with all new and current fede ral, 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 Mexic o
Environment Department (NMED), and the State of New Mexico Oil Conservation
Division (NMOCD), among others. Additionally, I monitor legisla tion, regulations
and ensure compliance with any protected, threatened and endang ered 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 o f
the ISP CISF along regional transportation infrastructure. I am generally familiar
w i t h t h e n a t u r a l r e s o u r c e s o f t he area, including the air, geology, and soils throughout
2 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 66 of 75
the Permian Basin Region and have personal knowledge of the geo logy and soils
encompassing Faskens land and mineral interests in the vicinity of the ISP CISF.
Permian Basin Region. The Permian Basin produces the largest volume of oil and
gas in North America and recen tly surpassed Saudi Arabia in pet roleum production.
The Permian Basin region encompa sses a relatively large region in Texas and
southeastern New Mexico and has a population of more than half-a-million people.
property, mineral and water int erests, oil and gas leases and agricultural interests. It
also represents a threat to numerous communities throughout Tex as 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 Basi n 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. Thes e imminently
threatened counties have a population of nearly 500,000 and col lective 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 #1958510 Filed: 08/09/2022 Page 67 of 75
the economies of Texas and New Mexico. By way of comparison, th e 1,835 square
mile Chernobyl Exclusion Zone would compromise 13.2% of the hig hest 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 prope rty, real property,
oil and gas reserves and leases a s 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 prop erty 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 f or the frequency of
4 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 68 of 75
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. An y release of
radioactive material might arrive in the Midland-Odessa metropo litan area (with a
population of more than 260,000) in a matter of hours with no w arning. 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 app roximately 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 m ost productive oil and
gas region in North America. Depending on wind direction and sp eed, hundreds of
thousands of people could be affected, including personnel of F asken and other
members of PBLRO.
- 12. And any radiological incident in the Permian Basin poses a se rious threat to
regional industries and economies. A Department of Energy Repor t 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 #1958510 Filed: 08/09/2022 Page 69 of 75
costs exceeding $620 million dollars. A similar release in an u rban setting might cost
$9.5 billion per square mile.
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 com mercial 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 gen erally, as well as
threats to the environment and health and safety of nearby resi dents and those
working or traveling through the area. Knowing that any radiolo gical contamination
would be virtually impossible to recover and would continue to emit radiation for
decades until the half-lives are expended, those threats and ad verse health, safety
and environmental impacts could last for decades.
and imminent threats to the environment, the health and safety of water supplies to
nearby communities and extensive industry operations.
6 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 70 of 75
- 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 e vaporite mineral
formations leading to the poten tial for substantial ground move ment issues, sinkhole
formation and subsurface instab ility. For example, there is his torical evidence of
extensive sinkhole formation in the Permian Basin Region, inclu ding 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 th e 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 sweepi ng storms across the
Salado surface salt flats in eastern New Mexico and West Texas.
7 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 71 of 75
- 19. Additionally, persistent fog and mist conditions are preva lent 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 radia tion in the region. In
the U.S. NRC draft report, Id entification and Prioritization of the Technical
Information Needs Affecting Pote ntial Regulation of Extended St orage and
Transportation of Spent Nuclear Fuel, the federal government recognizes the
potential risk for monitoring dry casks and the pitting and cr evice 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).
at Fasken. The area around the ISP CISF site is still under act ive 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 #1958510 Filed: 08/09/2022 Page 72 of 75
permanently plugged and abandoned. Regardless of the current volume of oil
produced within the vicinity of the proposed ISP site, there ar e 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 proxi mity 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 respons ibilities at Fasken,
which include monitoring the seve ral dozen wells that Fasken operates in the area,
and for personal reasons. At pre sent, 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 Fa sken is contributing land
to accommodate an overpass at the intersection of State Highways 176 and 1788 in
Andrews County, Texas.
9 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 73 of 75
- 23. I have personal knowledge of the use of regional rail lines an d 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 co mmodities. It is a risk
to share these same regional rail lines with nuclear waste dest ined for the ISP CISF
as any delay or disruption in rail transport caused by said was te would devastate the
oil and agricultural industry as I have personal knowledge of s tudies 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.
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 ex tensive conservation
efforts in both Texas and New Me xico by the oil and gas and ranching industries,
including Fasken and other members of the PBLRO, with respect t o the Dune Sage
Brush Lizard and the Lesser Prairie Chicken. Specifically, participation in
conservation programs has prevented both species from being cur rently listed as
endangered. Fasken is an active participant conservation progra ms for these and
other species that will be threatened by the ISP CISF. The Less er Prairie Chicken in
particular is highly sensitive to surface disturbances such as construction activities,
fences, power lines, and permanent structures that will be plac ed in and around the
10 USCA Case #21-1048 Document #1958510 Filed: 08/09/2022 Page 74 of 75
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.
according to Texas Parks and Wildlife, serve as the most import ant wetland habitat
for waterfowl. Playas are a direct connection to groundwater an d nexus for
contamination from the surface to groundwater beneath the ISP C ISF site which
could decimate known and histor ic migrating bird populations. I SP CISF lacks
proper identification of playas and recharge to aquifers and wi thout proper
conservation practices in place, will further harm important bu tterflies and
pollinators vital to regional ecosystems.
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