Waste Confidence Brief on behalf of Mothers for Peace, Natural Resources Defense Council , et al

INITIAL OPENING BRIEF FOR PETITIONERS NATURAL RESOURCES DEFENSE COUNCIL, INC., BEYOND NUCLEAR, BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, MISSOURI COALITION FOR THE ENVIRONMENT, NEW ENGLAND COALTION, NUCLEAR INFORMATION & RESOURCE SERVICE, RIVERKEEPER, INC., SAN LUIS OBISPO MOTHERS FOR PEACE AND SOUTHERN ALLIANCE FOR CLEAN ENERGY, INC.

ORAL ARGUMENT NOT YET SCHEDULED

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

D.C. Cir. No. 14-1210 (consolidated with D.C. Cir. Nos. 14-1212, 14-1216, 14-1217) _________________________________________________________________ STATE OF NEW YORK, et al.,
Petitioners,

UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA,
Respondents

COMMONWEALTH OF MASSACHUSETTS, et al.,
Intervenors. _________________________________________________________________ Petition for Review of Final Administrative Action of the United States Nuclear Regulatory Commission __________________________________________________________________

INITIAL OPENING BRIEF FOR PETITIONERS
NATURAL RESOURCES DEFENSE COUNCIL, INC., BEYOND NUCLEAR, BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, MISSOURI COALITION FOR THE ENVIRONMENT, NEW ENGLAND COALTION, NUCLEAR INFORMATION & RESOURCE SERVICE, RIVERKEEPER, INC., SAN LUIS OBISPO MOTHERS FOR PEACE AND SOUTHERN ALLIANCE FOR CLEAN ENERGY, INC. __________________________________________________________________

GEOFFREY H. FETTUS
Natural Resources Defense Council, Inc. 1152 15th St. NW, Suite 300 Washington, D.C. 20005
Tel: (202) 289-2371
Email: gfettus@nrdc.org
Counsel For NRDC

DIANE CURRAN
Harmon, Curran, Spielberg
& Eisenberg, LLP
1726 M Street NW, Suite 600 Washington, D.C. 20036
Tel: (202) 328-3500
Email: dcurran@harmoncurran.com Counsel For Beyond Nuclear, et al.

MINDY GOLDSTEIN
Turner Environmental Law Clinic 1301 Clifton Road
Atlanta, Ga 30322
Tel: (404) 727-3432
Email: magolds@emory.edu Counsel For Beyond Nuclear, et al.

June 29, 2015

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rules 15(c)(3) and 28(a)(1), counsel for Petitioners Natural Resources Defense Council, Beyond Nuclear, Blue Ridge Environmental Defense League, Missouri Coalition for the Environment, New England Coalition, Nuclear Information and Resource Service, Riverkeeper, San Luis Obispo Mothers for Peace, Southern Alliance for Clean Energy, and Sustainable Energy and Economic Development Coalition certify as follows:

1. Parties, Intervenors and Amici Curiae.

The parties to this case are petitioners Natural Resources Defense Council, Beyond Nuclear, Blue Ridge Environmental Defense League, Missouri Coalition for the Environment, New England Coalition, Nuclear Information and Resource Service, Riverkeeper, San Luis Obispo Mothers for Peace, Southern Alliance for Clean Energy, and Sustainable Energy and Economic Development Coalition on behalf of their members; and respondents United States Nuclear Regulatory Commission (“NRC”) and the United States of America. Additional Petitioners submitting a separate brief are the State of Connecticut, the State of New York, the State of Vermont, and the Prairie Island Indian Community.

The State of Massachusetts has intervened on behalf of the Petitioners. The Nuclear Energy Institute, Entergy Nuclear Operations, Inc., and Northern States Power Co. have intervened on behalf of Respondents. The Sierra Club is participating as an amicus curiae.

2. Rulings Under Review.

Petitioners Beyond Nuclear et al. seek review of the following NRC final Rule and final Generic Environmental Impact Statement, as set forth below.

a. Final Rule for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56238 (September 19, 2014).

b. Final Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56263 (September 19, 2014).

3. Related Cases.

The current proceeding consists of four consolidated cases. The lead case is State of New York, et al. v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 14-1210. The three cases that were consolidated in the aforementioned action are Prairie Island Indian Community v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 14-1212; Beyond Nuclear et al. v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 14-1216; and Natural Resources Defense Council v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 14-1217.

Two other cases are related to the instant case: Missouri Coalition for the Environment v. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 15-1114 (filed Apr. 23, 2015); and Beyond Nuclear vs. United States Nuclear Regulatory Commission and the United States of America, D.C. Cir. No. 15-1173 (filed June 19, 2015). Both of these cases appeal individual reactor licensing decisions on the ground that they rely on the Rule and GEIS appealed in this proceeding. By order dated May 22, 2015, the Court held Missouri Coalition for the Environment in abeyance. It is Petitioners’ understanding that Beyond Nuclear also plans to move the Court to hold a portion of No. 15-1173 in abeyance pending the outcome of this proceeding.
Respectfully submitted,

/s/ Geoffrey H. Fettus

GEOFFREY H. FETTUS
Natural Resources Defense Council 1151 15th St. N.W., Suite 300 Washington, D.C. 20005
Tel: (202) 289-6868
Fax: (202) 289-1060
Email: gfettus@nrdc.org
Counsel for NRDC

/s/ Diane Curran

DIANE CURRAN
Harmon, Curran, Spielberg
& Eisenberg, LLP
1726 M Street NW, Suite 600 Washington, D.C. 20036
Tel: (202) 328-3500
Fax: (202) 328-6918
Email: dcurran@harmoncurran.com Counsel for Beyond Nuclear et al.

/s/ Mindy Goldstein

MINDY GOLDSTEIN
Turner Environmental Law Clinic Emory Law School
1301 Clifton Road
Atlanta, GA 30322
Tel: 404-727-3432
Fax: 404-727-7853
Email: magolds@emory.edu Counsel for Beyond Nuclear et al.

June 29, 2015

PETITIONERS’ RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. Rule 16.1, Petitioners Natural Resources Defense Council, Beyond Nuclear, Blue Ridge Environmental Defense League, Missouri Coalition for the Environment, New England Coalition, Nuclear Information and Resource Service, Riverkeeper, San Luis Obispo Mothers for Peace, Southern Alliance for Clean Energy, and Sustainable Energy and Economic Development Coalition state that they are nonprofit corporations whose general nature and purpose is environmental advocacy. Petitioners have no parent companies, no publicly-traded company has a 10% or greater ownership interest in any of them, and none of them are traded for profit.
Respectfully submitted,

/s/ Geoffrey H. Fettus

GEOFFREY H. FETTUS
Natural Resources Defense Council 1151 15th St. N.W., Suite 300 Washington, D.C. 20005
Tel: (202) 289-6868
Fax: (202) 289-1060
Email: gfetttus@nrdc.org
Counsel for NRDC

/s/ Diane Curran

/s/ Mindy Goldstein

MINDY GOLDSTEIN
Turner Environmental Law Clinic Emory Law School
1301 Clifton Road
Atlanta, GA 30322 404-727-3432
Fax: 404-727-7853
Email: magolds@emory.edu Counsel for Beyond Nuclear et al.

June 29, 2015

TABLE OF CONTENTS

TABLE OF AUTHORITIES ………………………………………………………………. iv GLOSSARY …………………………………………………………………………………… viii STATEMENT OF JURISDICTION …………………………………………………….. 1 STATUTES AND REGULATIONS…………………………………………………….. 1 ISSUES PRESENTED FOR REVIEW …………………………………………………. 1 INTRODUCTION ……………………………………………………………………………… 2 STATUTORY AND REGULATORY FRAMEWORK………………………….. 3

NEPA …………………………………………………………………………….. 3
NUCLEAR WASTE POLICY ACT…………………………………… 4

FACTUAL BACKGROUND………………………………………………………………. 4

THE PROBLEM OF SPENT NUCLEAR FUEL…………………. 4
W ASTE CONFIDENCE DECISIONS AND
10 C.F.R. § 51.23 …………………………………………………………….. 6
NEW YORK I …………………………………………………………………… 7
SUSPENSION OF REACTOR LICENSINGDECISIONS ……………………………………………………………………. 7
THE RULE AND GEIS……………………………………………………. 8 A. The Rule………………………………………………………………… 8 B. The GEIS ………………………………………………………………. 9

SUMMARY OF ARGUMENT ………………………………………………………….. 12 STANDING …………………………………………………………………………………….. 14 STANDARD OF REVIEW ……………………………………………………………….. 16 ARGUMENT …………………………………………………………………………………… 18

NRC VIOLATES NEPA AND NEW YORK I BY PROPOSING TO LICENSE REACTORS WITHOUT CONSIDERING THE ENVIRONMENTAL IMPACTS OF GENERATING SPENT FUEL OR ALTERNATIVESTO AVOID OR MITIGATE THOSE IMPACTS ………………. 18
1. As a Matter of Law, NRC has Failed to
  Identify in the GEIS the Correct Proposed
  Action and Its Purpose and Need in
  Violation of NEPA and New York I…………………………. 18
2. The GEIS Violates NEPA Because it Lacks an
  Analysis of Alternatives that Would Avoid or
  Mitigate the Environmental Impacts of Generating
  Spent Fuel Through Licensing of Reactors ………………. 20
TO THE LIMITED EXTENT NRC EVALUATES THE ENVIRONMENTAL IMPACTS OF CONTINUED
SPENT FUEL STORAGE, ITS ANALYSIS AND DETERMINATION OF NO SIGNIFICANT IMPACTS VIOLATES NEPA AND NEW YORK I AND ARE ARBITRARY AND CAPRICIOUS …………………………………. 18
1. In Violation of New York I and NEPA,
  NRC Continues to Rely on Hope for a
  Repository Without Considering the
  Probability That it Will Not Succeed……………………….. 24
2. NRC Violates New York I and NEPA
  by Failing to Consider the Consequences
  of Spent Fuel Storage…………………………………………….. 261. No law excuses NRC from
  evaluating the environmental
  consequences of a loss of institutional
  controls over spent fuel storage……………………… 27

NRC fails to show it is impossible to
analyze the environmental consequences
of a failure of institutional controls during long-term and indefinite spent fuel storage……… 28
NRC’s assumption that institutional
controls will not fail amounts to
unjustified reliance on the effectiveness
of future regulation ………………………………………. 30

C. NRC Violates NEPA and New York I by
Failing to Evaluate the Cumulative
Impacts of Generating, Storing and
Disposing of Spent Fuel…………………………………………. 30

III. THE RULE SHOULD BE VACATED
BECAUSE THE GEIS DOES NOT PROVIDE
NRC WITH A LAWFUL BASIS TO LICENSE REACTORS………………………………………………………………….. 33

CONCLUSION………………………………………………………………………………… 34 CERTIFICATE OF COMPLIANCE…………………………………………………… 35 CERTIFICATE OF SERVICE …………………………………………………………… 36 ADDENDUM OF RELEVANT

STATUTES AND REGULATIONS……………………………………………. ADD-1 STANDING ADDENDUM………………………………………STANDING ADD-1

TABLE OF AUTHORITIES

Judicial Authorities

Calvert Cliffs Coordinating Comm., Inc. v. U.S. Atomic
Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971)………………. 29

Citizens Against Burlington v. Busey, 938 F.2d 19
(D.C. Cir. 1991)……………………………………………………………… 20,22,27

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)…………………………………………………………………………………….. 17

*City of Alexandria, Va. v. Slater, 198 F.3d 862
(D.C. Cir. 1999)……………………………………………………………….4, 20-21

Delaware Riverkeeper Network v. Fed. Energy Reg. Comm.,

753 F.3d 1304 (D.C. Cir. 2014) ………………………………………………… 16

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) ………………………………………………………………… 14

Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333 (1977) ……………………………………………………………….. 14

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085
(D.C. Cir. 1996) ……………………………………………………………………… 17

*Limerick Ecology Action v. NRC, 869 F.2d 719
(3rd Cir. 1989) ………………………………………………………………………… 28

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………. 15 Marsh v. Oregon Natural Resources Council

490 U.S. 360 (1989) ………………………………………………………………… 30 Minnesota v. NRC, 602 F.2d 412 (D. C. Cir. 1979)……………………… 15

1 Principal authorities relied on are denoted with an asterisk (*) iv

Natural Res. Def. Council, Inc. v. NRC, 582 F.2d 166
(2nd Cir. 1978) …………………………………………………………………………..6

*New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) ……………. 2, 6, 7, 9, …………………………………………………………………………….. 12, 13, 18, 19, …………………………………………………………………………….. 20, 24, 25, 27, ……………………………………………………………………………… 28, 29, 30, 32

New York v. NRC, 589 F.3d 551 (2d Cir. 2009)………………………………3 Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency,

373 F.3d 1251(D.C. Cir. 2004). …………………………………………….. 5, 30

Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562
(D.C. Cir. 2007)………………………………………………………………………. 15

Public Service Co. of New Hampshire v. NRC, 582 F.2d 77
(1st Cir. 1978)…………………………………………………………………………. 28

*Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ………………………………………………. 3, 4, 12, 14, 33

Sierra Club v. Marita, 46 F.3d 606 (7th Cir. 1995) ……………………… 17 *Theodore Roosevelt Conservation P’ship v. Salazar,

616 F.3d 497 (D.C. Cir. 2010) …………………………………………….. 16, 32

Statutes

Administrative Procedure Act
5 U.S.C. § 702 ……………………………………………………………………………1

Atomic Energy Act, 42 U.S.C. § 2011 et seq.
42 U.S.C. § 2133(d) ……………………………………………………………………6 42 U.S.C. § 2239(b)…………………………………………………………………….1

Hobbs Act
28 U.S.C. § 2342(4) ……………………………………………………………………1 28 U.S.C. §2344 …………………………………………………………………………1

National Environmental Policy Act
*42 U.S.C. § 4332 …………………………………………………………………… 18 42 U.S.C. § 4332(c)…………………………………………………………………….3

Nuclear Waste Policy Act
42 U.S.C. § 10101(18)……………………………………………………………….. 4 42 U.S.C. § 10131 ………………………………………………………………………4 42 U.S.C. § 10141(b)…………………………………………………………………. 4

Regulations

NRC Regulations
10 C.F.R. § 51.14(b)………………………………………………………………… 31 10 C.F.R. pt. 51, subpart A, app. A, para. (5) …………………………………4 10 C.F.R. § 51.45 ……………………………………………………………………. 18 10 C.F.R. § 51.71 ……………………………………………………………… 18, 30 10 C.F.R. § 51.71(d)…………………………………………………………… 21, 23 10 C.F.R. § 51.90…………………………………………………………………….. 18

Council on Environmental Quality Regulations
40 C.F.R. §1500.2……………………………………………………………………. 21 40 C.F.R. § 1502.4…………………………………………………………………… 18 40 C.F.R. §1502.9 …………………………………………………………………… 18 40 C.F.R. § 1502.14……………………………………………………………… 4, 21 40 C.F.R. § 1502.14(d)…………………………………………………………….. 23 40 C.F.R. § 1502.14(f)……………………………………………………………… 23 40 C.F.R. § 1508.7 …………………………………………………………….. 31, 32

Administrative Decisions

Calvert Cliffs 3 Nuclear Power Project, LLC, vi

76 N.R.C. 63 (2012) ……………………………………………………………… 7, 8

Calvert Cliffs 3 Nuclear Power Project, LLC,
80 N.R.C. 71 (2014) ……………………………………………………………………8

Detroit Edison Co., CLI-15-04 (Feb. 26, 2015)…………………………. 6, 7 Federal Register Notices

42 Fed. Reg. 34,391(July 5, 1977) ………………………………………………..6

Miscellaneous

National Academy of Sciences, Long-Term Institutional
Management of the U.S. Department of Energy Legacy
Waste Sites 97 (August 2000) …………………………………………………… 27

NRC Spotlight Archive,

http://www.nrc.gov/reactors/new-reactors/col.html ……………………….9

NRC Spotlight Archive,

http://www.nrc.gov/reactors/operating/licensing/renewal/applications .html. ………………………………………………………………………………………..9

GLOSSARY

Pursuant to Circuit Rule 28(a)(3), the following is a glossary of acronyms and abbreviations used in this brief:

APA
BREDL
C.I.R.
EIS
EPA
GEIS
MCE
NEC
NEPA
NIRS
NRC
NRDC
Rule
SACE
SEED Coalition

SLOMPF

Administrative Procedure Act

Blue Ridge Environmental Defense League

Certified Index [used for record citations]

Environmental impact statement

Environmental Protection Agency

Generic Environmental Impact Statement

Missouri Coalition for the Environment

New England Coalition

National Environmental Policy Act

Nuclear Information & Resource Service

Nuclear Regulatory Commission

Natural Resources Defense Council

Continued Storage of Spent Fuel Rule

Southern Alliance for Clean Energy

Sustainable Energy & Economic Development Coalition

San Luis Obispo Mothers for Peace viii

STATEMENT OF JURISDICTION

NRC’s GEIS and Rule (defined below) are final orders that are reviewable by this Court under 42 U.S.C. § 2239(b), 28 U.S.C. § 2342(4), and 5 U.S.C. § 702. Pursuant to 28 U.S.C. §2344, Petitioners timely filed their appeal within sixty days of September 19, 2014, when final orders were published in the Federal Register.1

STATUTES AND REGULATIONS

Relevant statutes and regulations are included in an addendum.

ISSUES PRESENTED FOR REVIEW

1. Has the U.S. Nuclear Regulatory Commission (“NRC”) violated the National Environmental Policy Act (“NEPA”) and this Court’s directions by proposing to license reactors without considering the environmental impacts of generating spent fuel or alternatives to avoid or mitigate those impacts?

2. Has NRC violated NEPA and this Court’s directions by defining its major federal action as a purely administrative decision rather than a predetermined stage of reactor licensing?

3. Has NRC violated NEPA and this Court’s directions by basing its conclusions that the environmental impacts of continued spent fuel storage

1 NRDC filed a Petition for Review on October 29, 2014, in Docket No. 14- 1217. Beyond Nuclear, et al. filed a Petition for Review on October 29, 2014, in Docket No. 14-1216. Both cases were consolidated with Docket Nos. 14-1210 and 14-1212 in an order dated October 31, 2014.

are insignificant on impermissible assumptions that adverse impacts will not occur rather than analyzing their probability and consequences?

4. Has NRC violated NEPA by failing to evaluate the cumulative impacts of generating, storing, and disposing of spent fuel?

INTRODUCTION

This consolidated case involves appeals of a generic environmental impact statement and a related regulation issued by the NRC on September 19, 2014: Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel (C.I.R.#1052) (the “GEIS”); Continued Storage of Spent Nuclear Fuel Rule (C.I.R.#1) (the “Rule”).2 The GEIS evaluates the environmental impacts of continued storage of spent fuel after reactor license termination; the Rule codifies the GEIS’ findings for application in individual reactor licensing and re-licensing decisions. The GEIS and Rule were issued by NRC in response to this Court’s decision in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (“New York I”).

The separate briefs filed by the different Petitioner groups in this case address different aspects of the GEIS and Rule. The States and Tribe argue that the GEIS violates NEPA because it improperly analyzes, among other things, the impacts of fires and leaks in spent-fuel pools. In this brief, Petitioners NRDC, Beyond Nuclear, BREDL, MCE, NEC, NIRS, Riverkeeper, SLOMFP, SEED Coalition, and SACE, challenge the GEIS for its failure to comply with NEPA in conducting analyses of the environmental impacts of storing spent nuclear fuel for an extended period, and its failure to discuss a reasonable range of alternatives to the proposed action. All parties challenge the Rule for codifying the conclusions of the inadequate GEIS.

STATUTORY AND REGULATORY FRAMEWORK I. NEPA

NEPA, 42 U.S.C. §§ 4321-4370h, requires a federal agency to take a “hard look” at potential environmental consequences of its decisions by preparing an environmental impact statement (“EIS”) prior to any “major Federal action[] significantly affecting the quality of the human environment.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989); 42 U.S.C. §4332(c). “Major federal actions” requiring an EIS include NRC’s issuance or re-issuance of reactor licenses. New York v. NRC, 589 F.3d 551, 553 (2d Cir. 2009). Preparing an EIS ensures that the agency “will have available, and will carefully consider, detailed information concerning significant environmental impacts” and that “the relevant information will be made available to the larger audience that may also playa role in the decision-making process and implementation of that decision.” Robertson, 490 U.S. at 349. The “heart” of an EIS is the requirement that an agency must “‘rigorously explore and objectively evaluate’ the projected environmental impacts of all ‘reasonable alternatives’ for completing a proposed action.” City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting 40 C.F.R. § 1502.14); see also 10 C.F.R. pt. 51, subpart A, app. A, para. (5).

II. NUCLEAR WASTE POLICY ACT

The Nuclear Waste Policy Act, 42 U.S.C. 10101 et seq., establishes a national policy of disposing of spent nuclear fuel in a deep geologic repository. 42 U.S.C. §§ 10101(18), 10131. The Act does not reach any conclusions about the safety, technical feasibility, or capacity of repositories. Instead, it requires the U.S. Environmental Protection Agency (“EPA”) and NRC to establish standards and licensing criteria (42 U.S.C. § 10141), and it gives NRC responsibility for licensing repositories. 42 U.S.C. § 10141(b).

FACTUAL BACKGROUND
I. THE PROBLEM OF SPENT NUCLEAR FUEL

Nuclear waste, “[h]aving the capacity to outlast human civilization as we know it and the potential to devastate public health and the environment,” has “vexed scientists, Congress, and regulatory agencies for the last half-century.” Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1257 (D.C. Cir. 2004). In response to this danger, there is virtually universal agreement among government, industry, and environmental stakeholders that the waste from the nation’s nuclear weapons program and its commercial nuclear power plants must be buried in technically sound, deep geologic repositories, permanently isolated from the human and natural environments. C.I.R.#700 22-24. Yet, despite decades of effort, no repository has been licensed.

Meanwhile, spent reactor fuel continues to accumulate at reactor sites, and NRC continues to license and re-license reactors to produce additional quantities of this toxic, everlasting waste. The inventory of spent fuel is now over 67,500 metric tons and increasing by 2,000 metric tons per year. GEIS 2-11. The President’s Blue Ribbon Commission on America’s Nuclear Future has predicted that under a high-growth scenario that assumes substantial numbers of new reactors coming on line in the next few decades, the nation’s accumulated spent fuel inventory could exceed 200,000 metric tons by mid-century. C.I.R.#992 14. Under the no-growth scenario, which assumes continued operation of existing reactors to the end of their current licenses only, and no further expansion of the industry, the total inventory of spent fuel could approach 150,000 metric tons. Id.

II. WASTE CONFIDENCE DECISIONS AND 10 C.F.R. § 51.23

Consistent with its legal obligation under the Atomic Energy Act to ensure protection of public health and safety in its licensing decisions, see, e.g., 42 U.S.C. § 2133(d), NRC has stated for decades that it “would not continue to license reactors if [it] ‘did not have reasonable confidence that . . . [spent fuel] can and will in due course be disposed of safely.’” Detroit Edison Co., CLI-15-04, slip op. 8 (Feb. 26, 2015) (quoting 42 Fed. Reg. 34,391, 34,393 (July 5, 1977)). See also id. at 26; Natural Res. Def. Council v. NRC, 582 F.2d 166, 169 (2nd Cir. 1978). Therefore, between 1984 and 2010, NRC issued periodic “Waste Confidence Decisions” containing safety findings regarding the technical feasibility, availability, and timeliness of safe spent fuel disposal in a repository and the safety of spent fuel storage in the meantime; it codified these findings in 10 C.F.R. § 51.23(a). See 681 F.3d at 475.

The most recent Waste Confidence Decision was issued in 2010 and vacated by the Court in New York I. In 2014, NRC dropped its formal waste confidence findings from the Rule under review, but they are incorporated into the GEIS in Appendix B. In separate NRC licensing proceedings, NRC recently re-affirmed the conclusion of the waste confidence findings that “it is safe to proceed with reactor licensing because it is ultimately possible to dispose of spent nuclear fuel safely.” Detroit Edison, slip op. at 26.

III. NEW YORK I
In New York I, the Court held that the 2010 Waste Confidence Decision was a part of individual reactor licensing decisions because its findings “have a preclusive effect in all future licensing decisions.” 681 F.3d at 476. Therefore the Court concluded the Waste Confidence Decision constituted a “major federal action” that was subject to NEPA. Id. The Court further held that NRC’s waste confidence findings regarding the feasibility and availability of a repository were a “far cry from finding the likelihood of nonavailability to be ‘remote and speculative.’” Id. at 479. Therefore, the Court vacated the Waste Confidence Decision and ordered NRC to evaluate the environmental effects of failure to site a repository, including “the probabilities of potentially harmful events and the consequences if those events come to pass.” Id. at 478-79.

IV. SUSPENSION OF REACTOR LICENSING DECISIONS

Following New York I, NRC suspended all pending licensing and re- licensing decisions. Calvert Cliffs 3 Nuclear Power Project, LLC, 76 N.R.C. 63 (2012). In reaching its decision, the Commission observed that “[w]aste confidence undergirds certain agency licensing decisions, in particular new reactor licensing and reactor license renewal.” Id. (citing 10 C.F.R. § 51.23(b)). In “recognition of [its] duties under the law,” NRC asserted that it would not issue or renew reactor licenses until the issues remanded by the Court of Appeals were resolved. Id. at 66-67. Following issuance of the GEIS and Rule, the Commission lifted the suspension. Calvert Cliffs 3 Nuclear Power Project, LLC, 80 N.R.C. 71 (2014).

V. THE RULE AND GEIS

In 2013, NRC issued a proposed Rule, C.I.R.#2, and draft GEIS, C.I.R.#1028. Petitioners challenged the Rule and GEIS in detailed legal and technical comments. C.I.R.#700 (NRDC), C.I.R.#1113 (Environmental Organizations). In 2014, NRC issued final versions of the Rule and GEIS that were substantially similar to the drafts. C.I.R.#1, C.I.R.#1052.

A. The Rule

The Rule has three provisions relevant to this appeal. First, § 51.23(a) codifies the environmental impact determinations of the GEIS. Second, § 51.23(b) states that the GEIS’ environmental impact determinations are incorporated into EISs for all prospective reactor licensing decisions. Finally, the Rule’s preamble clarifies that the Rule’s findings “will affect any nuclear power reactor applicant and licensee seeking issuance or renewal of an operating license or construction permit for a nuclear power reactor under 10 CFR parts 50 or 54.” C.I.R.#1 56,242.3

B. The GEIS

Acknowledging the Court’s decision that “the 2010 Waste Confidence rulemaking did not satisfy NRC’s NEPA obligations,” NRC asserts it prepared the GEIS “to satisfy its NEPA obligations regarding the environmental impacts of continued storage of spent fuel in an efficient manner.” GEIS xxiv.

While the Court held in New York I that 10 C.F.R. § 51.23 constitutes a major federal action because it enables licensing of reactors, 681 F.3d at 476-77, the GEIS characterizes the proposed action not as licensing, but as the administrative act of codifying the GEIS’ analysis. GEIS 1-6 to 1-8. It therefore compares the environmental impacts (including costs and benefits) of writing a single GEIS, writing many reactor-specific EISs, or writing a policy statement. Id., Ch.7. The GEIS concludes that all of the alternatives would have essentially no impacts, but that preparation of the GEIS is the most “efficient” alternative and therefore the “preferred alternative.” GEIS xxiv. The GEIS does not identify any alternatives that would avoid or mitigate the environmental impacts of the spent fuel that would be generated through reactor licensing decisions.

Separately, without explaining how it relates to the agency’s purely administrative construct of the “proposed action,” the GEIS contains a discussion of the environmental impacts of continued spent fuel storage during three time-frames: (1) short-term (sixty years beyond the life of reactor operations), (2) long-term (160 years beyond reactor operation), and (3) indefinite (assuming no repository is available). Id. xxx. In both short and long-term timeframes, the GEIS assumes a repository will become available. Id. In the indefinite timeframe, the GEIS assumes institutional controls will exist in perpetuity, including replacement every 100 years of canisters, casks, storage facilities, and dry transfer systems. Id. xxxi. The GEIS also assumes some necessary safety equipment not now in existence, such as “dry transfer systems,” will be successfully developed. Id.; see also id. 2-2

The GEIS acknowledges that if spent fuel storage facilities are not cared for, they could release radioactivity to the environment in a period as short as “decades” and that the consequences of such releases could be “catastrophic.” Id. D-177. Yet, the GEIS provides no data or analysis regarding how or when these impacts could occur or their effects on the human environment. Instead, in response to public comments, the GEIS briefly cites the Yucca Mountain EIS and states that the impacts could be “similar.” Id. D-176 – D-177. In spite of the potentially catastrophic consequences of spent fuel storage, the GEIS characterizes the radiological environmental impacts of spent fuel storage as “SMALL” (i.e., insignificant) for all three time-frames. Id. xlvii-xlviiii, lix.

The GEIS also contains a cumulative impacts analysis of a range of past and future “activit[ies] or stressor[s]” that may contribute to the environmental impacts of spent fuel storage. Id. 6-6. The list of activities and stressors does not include storage of the existing inventory of 67,500 metric tons of spent fuel generated by already-licensed reactors, nor does it include spent fuel disposal.

SUMMARY OF ARGUMENT

In 2012, this Court held that the promulgation of 10 C.F.R. § 51.23 constituted a “major federal action” because it codified “waste confidence” findings about storing and disposing of spent fuel that “enabl[ed]” reactor licensing. 681 F.3d at 476-77. Because § 51.23 was not supported by an environmental analysis, the Court vacated the rule and ordered NRC to evaluate the environmental effects of failure to site a repository, including “the probabilities of potentially harmful events and the consequences if those events come to pass.” Id. at 478-79. The version of 10 C.F.R. § 51.23 issued on remand must be vacated for the same reason that § 51.23 was vacated in New York I: it would continue to allow the licensing and re- licensing of nuclear reactors without informing those decisions of the impacts or alternatives to continued spent fuel storage after license termination. Robertson, 490 U.S. at 349.

In violation of NEPA and New York I, the GEIS fails to identify the correct proposed action as the enabling of reactor licensing through adoption of the Rule and codification of the GEIS. Instead, the GEIS characterizes the major federal action as the administrative activity of writing the GEIS, whose impacts (already-incurred) amount to the consumption of paper. GEIS 7-17. The only alternatives to the proposed action of preparing the GEIS are a set of “different administrative approaches for addressing the environmental impacts of continued storage.” GEIS 1-6 to1-9. As a result, the GEIS contains no discussion of alternatives for avoiding or mitigating the significant environmental impacts of generating tons of highly radioactive spent fuel, including denial of reactor licenses or setting limits on the radiological characteristics of the fuel used in reactors.

And while the GEIS does contain an unrelated analysis of spent fuel impacts, that analysis is wholly untethered from the action the GEIS purports to address and the alternatives it purports to consider. The only decision informed by the GEIS is the decision of how to write an EIS.

Even if NRC had correctly defined the proposed action as enabling the licensing of reactors to produce spent fuel, the GEIS fails to satisfy the Court’s directive to analyze the environmental impacts of failure to site a repository. 681 F.3d at 478-79. The GEIS lacks any analysis of the probability of such a failure, nor does it analyze the consequences of spent fuel storage if institutional controls are lost and radiation escapes. Finally, the GEIS fails to consider the significant cumulative impacts of storing the existing inventory of spent fuel, the impacts of storing the inventory of spent fuel yet to be generated under existing licenses, and the future impacts of disposing of all spent fuel in a repository.

Because NRC has structured the Rule and GEIS to avoid considering spent fuel storage impacts and alternative actions in reactor licensing decisions, and because the analysis in the GEIS fails to satisfy the Court’s instructions to consider the probability and consequences of spent fuel storage, the Rule and GEIS fail to fulfill NEPA’s function of ensuring agencies consider the environmental impacts of their proposed actions before undertaking them. Robertson, 490 U.S. at 349. Therefore the Rule and GEIS must be vacated.

STANDING

Petitioners satisfy the Article III standing requirements for membership organizations established in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977) (an organization has standing where its members would have standing to sue in their own right, the interests in the case are germane to the organization’s institutional interests, and the case does not require the participation of individual members).

First, as demonstrated by Petitioners’ standing declarations, each Petitioner represents individual members who satisfy the three elements of standing—injury-in-fact, causation, and redressability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). These individuals live or work in close proximity to nuclear reactors and are concerned about NRC’s failure to consider the environmental impacts of continued storage of spent nuclear fuel. See, e.g., Declaration of Blake Rowe: ¶9 (Addendum Exhibit 4) and other standing declarations attached as Addendum Exhibits 1 through 34. NRC’s failure to adequately consider the environmental impacts of spent fuel storage, or to discuss a reasonable range of alternatives to generating spent fuel, constitutes an injury to these individuals’ interests. Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 567 (D.C. Cir. 2007). See also Minnesota v. NRC, 602 F.2d 412, 418-19 (D. C. Cir. 1979) (storage and disposal of nuclear waste are relevant considerations during reactor licensing). If NRC were required to fully consider the intergenerational human health and environmental impacts posed by the storage of nuclear waste, these individuals’ concerns would be adequately remedied. See, e.g., Rowe: ¶11. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7 (1992) (redressability requirement relaxed for procedural injuries). Accordingly, these members have standing to sue in their own right.

Second, this case involves interests germane to Petitioners’ institutional interests. See, e.g., Declaration of Gina Trujillo: ¶¶5-6 (Addendum Exhibit 7).4 Petitioners also made statements of interest when commenting on the Draft GEIS. C.I.R. #700 2; C.I.R. #1113 5.

Finally, none of the claims asserted here, nor the relief requested, requires their individual participation in the suit. Accordingly, Petitioners have standing.

STANDARD OF REVIEW

As provided by the Administrative Procedure Act (“APA”), reviewing courts will overturn NEPA decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 507 (D.C. Cir. 2010). While the courts will defer to an agency on technical matters within its expertise, the agency nevertheless “must comply with ‘principles of reasoned decisionmaking, NEPA’s policy of public scrutiny, and the Council on Environmental Quality’s regulations.’” Delaware Riverkeeper Network v.

4 See also statements of organizational purposes at: http://www.nrdc.org/about/mission.asp (NRDC); http://www.beyondnuclear.org/about/ (Beyond Nuclear); http://www.bredl.org/about.htm (BREDL); http://www.moenviron.org/index.php/about-us/who-are-we (MCE); http://necnp.org/about-us/ (NEC); http://www.nirs.org/about/nirs.htm (NIRS); http://www.riverkeeper.org/about-us/ (Riverkeeper); http://mothersforpeace.org/data/AboutUs (SLOMP); http://www.cleanenergy.org/about/ (SACE); and http://www.seedcoalition.org/ (SEED Coalition).

Fed. Energy Reg. Comm., 753 F.3d 1304, 1313 (D.C. Cir. 2014). Judicial deference “does not mean obeisance,” Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995), and will not “shield [an agency] action from a thorough, probing, in-depth review.” Id. (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971)); see also, James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1098 (D.C. Cir. 1996) (APA review involves a “‘thorough, probing, in-depth review’ to determine if the agency has considered the relevant factors or committed a clear error of judgment.”)

ARGUMENT

I. NRC VIOLATES NEPA AND NEW YORK I BY PROPOSING TO LICENSE REACTORS WITHOUT CONSIDERING THE ENVIRONMENTAL IMPACTS OF GENERATING SPENT FUEL OR ALTERNATIVES TO AVOID OR MITIGATE THOSE IMPACTS.

A. NRC has Failed to Identify in the GEIS the Correct Proposed Action and Its Purpose and Need in Violation of NEPA and New York I.

NEPA requires agencies to evaluate the environmental impacts of a “proposed action” and alternatives to the proposed actions that would avoid or mitigate those impacts. 42 U.S.C. § 4332; 40 C.F.R. §1502.9; 10 C.F.R. §§ 51.45, 51.71, and 51.90. In order to ensure that the scope of a NEPA analysis is sufficient, an agency must “make sure the proposal which is the subject of an environmental impact statement is properly defined.” 40 C.F.R. § 1502.4.

In New York I, this Court held that the promulgation of 10 C.F.R. § 51.23 was a “major federal action” because it codified “waste confidence” findings about the safety and environmental impacts of spent fuel storage and the feasibility of repository siting that “enabl[ed]” reactor licensing. 681 F.3d at 476-77. The new § 51.23(b) also codifies findings about spent fuel storage impacts that have a binding effect in all reactor licensing proceedings. Remarkably, however, NRC states that the act of adopting a revised 10 C.F.R. § 51.23 is purely administrative, involving no licensing action and no environmental impacts. GEIS 1-10 (explaining that proposed action and no-action alternative are “simply different administrative approaches for addressing the environmental impacts of continued storage.”).5 In this view of the NRC, its proposed action has nothing to do with operation of nuclear reactors or generation of spent fuel, but instead concerns only its decision about what form its environmental analysis should take.

NRC lacks a lawful basis for its novel characterization of the proposed action as purely administrative. The Rule, 10 C.F.R. § 51.23(b), provides that the GEIS, which includes the waste confidence findings in its appendix (GEIS B-1), will be incorporated into the EIS of every individual reactor licensing proceeding. C.I.R.#1 56,260. Thus, as in New York I, the environmental impacts of spent fuel storage contained in the GEIS will have a “preclusive effect in all future licensing decisions,” 681 F.3d at 476, and “NEPA analyses for relevant future reactor and spent fuel storage facility licensing actions will not need to separately consider the environmental impacts of continued storage.” GEIS 1-5 (emphasis added).6 Accordingly, just as it was “eminently clear” that the previous version of 10 C.F.R. § 51.23 “would be used to enable licensing decisions based on its findings,” 681 F.3d at 477, so it is also eminently clear that the revised 10 C.F.R. § 51.23 will be used to enable reactor licensing based on the findings of the GEIS and will foreclose any further consideration of the environmental impacts of spent fuel storage or alternatives.

NRC’s failure to identify the proposed action as licensing not only violates its NEPA obligation to ensure the subject of its GEIS is properly defined, but, as further discussed below, it also fatally taints the entire GEIS because “the goals of an action delimit the universe of the action’s reasonable alternatives.” Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991).

B. The GEIS Violates NEPA Because it Lacks an Analysis of Alternatives that Would Avoid or Mitigate the Environmental Impacts of Generating Spent Fuel Through Licensing of Reactors.

NRC has failed to engage in the rigorous exploration and objective evaluation of reasonable alternatives to the proposed action that is at the very “heart” of an EIS and a fundamental requirement of NEPA. City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting 40 C.F.R. § 1502.14). Because the proposed major federal action here, as in New York I, is licensing nuclear reactors that produce spent fuel, NRC was required to evaluate a reasonable array of alternatives that avoid or mitigate the environmental impacts of spent fuel production. 10 C.F.R. § 51.71(d); 40 C.F.R. §1500.2. Instead, NRC has engaged in a meaningless alternatives analysis of the different administrative mechanisms for writing a GEIS.

Although NRC claims the proposed action is consistent with a “categorical exclusion” from NEPA compliance, GEIS 1-11, the GEIS undertakes the gratuitous exercise of comparing the relative costs and benefits of preparing and publishing an environmental analysis in different ways, i.e., comparing writing a single GEIS, writing multiple site-specific EISs, or preparing a policy statement. GEIS 1-6 to 1-8. Compounding this absurdity, NRC devotes an entire chapter of the GEIS to weighing the comparative costs and benefits of each alternative in terms of drafting hours and the relative number of pages of paper generated. GEIS Ch.7. And it inevitably concludes that:

Only the proposed action – the adoption of a revision to 10 CFR 51.23 to codify the analysis in the GEIS of the environmental impacts of continued storage of spent fuel – satisfies the purpose for the proposed action, which is to preserve the efficiency of the NRC’s licensing processes with regard to the environmental impacts of continued storage.

GEIS 7-1. With this “pre-ordained conclusion,” NRC “fulfills [its] own prophecies” and renders the GEIS a mere “formality.” Citizens Against Burlington, 938 F.2d at 196. As a result of defining its objectives “so unreasonably narrowly that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action,” id., none of the alternatives considered has any discernable environmental impact. GEIS 7-1.7 The GEIS omits consideration of any alternatives that would avoid or mitigate the environmental impacts of generating spent fuel through reactor licensing. Id. Instead, such alternatives, including ceasing production of spent fuel, are “[e]liminated” because they “would not meet the NRC’s stated objectives in proposing to adopt the revision to 10 CFR 51.23.” GEIS 1-9. Nor does the GEIS analyze the relative impacts of licensing more reactors and thereby allowing for the production of more spent fuel.

To comply with NEPA, the GEIS should have considered alternatives that are relevant to the proposed action of licensing. Such alternatives include the no-action alternative, 40 C.F.R. § 1502.14(d), i.e., denying reactor license applications and thereby avoiding generation of more spent fuel. The GEIS should also consider mitigation alternatives, 40 C.F.R. § 1502.14(f), such as limiting the use of high-burnup fuel, which has potentially greater environmental impacts than low-burnup fuel. C.I.R.#700 52-54. And the GEIS must compare the relative costs and benefits of each alternative. 10 C.F.R. § 51.71(d). Because the GEIS contains none of these analyses, it must be vacated.

II. TO THE LIMITED EXTENT NRC EVALUATES THE ENVIRONMENTAL IMPACTS OF CONTINUED SPENT FUEL STORAGE, ITS ANALYSIS AND DETERMINATION OF NO SIGNIFICANT IMPACTS VIOLATE NEPA AND NEW YORK I AND ARE ARBITRARY AND CAPRICIOUS.

Despite mischaracterizing the proposed action as the administrative preparation of the Rule and GEIS rather than licensing reactors that produce spent fuel, the GEIS purports to present an evaluation of spent fuel storage impacts for each of three “time-frames” or scenarios: short-term (sixty years), long-term (160 years), and indefinite. GEIS xxx. While the GEIS acknowledges the consequences of long-term and indefinite spent fuel storage could be “catastrophic,” GEIS B-26, it nevertheless concludes the radiological environmental impacts are “SMALL” (i.e., insignificant) for both time-frames. Id. lix.8 In reaching this conclusion, NRC relies on the assertedly low probability of repository failure: NRC deems the siting of a repository within sixty years “most likely,” and storage beyond 160 years “highly unlikely.” Id. xxx.

NRC’s finding that radiological impacts of spent fuel storage are “SMALL” violates New York I, NEPA, and APA requirements for reasoned decision-making in three ways. First, while the GEIS uses the language of probability called for by the Court in New York I, 681 F.3d at 478-79, it lacks any analysis of the probability of a failure to site a repository. Second, the GEIS also lacks an analysis of the consequences of spent fuel storage if institutional controls are lost and radiation escapes from storage facilities. Because NRC has not ruled out such an event as “remote and speculative,” its consequences must be evaluated. Id. at 479. Third, NRC’s finding is arbitrary and capricious because the GEIS fails to consider the significant cumulative impacts of past and future actions in combination with the incremental impacts of spent fuel to be generated through future licensing decisions.

A. In Violation of New York I and NEPA, NRC Continues to Rely on Hope for a Repository Without Considering the Probability That it Will Not Succeed.

In New York I, this Court held that merely “hoping for a geologic repository” was insufficient to satisfy NEPA and that failure to site a repository may not be ruled out as “remote and speculative.” 681 F.3d at 479. The Court also ruled that NRC could not blindly rely on future regulatory actions. Id. at 481. Accordingly, the Court required NRC to evaluate “the probability of a given harm occurring,” id. at 482, that is, the probability that a repository will not be sited and built.

The GEIS asserts that repository disposal of spent fuel within sixty years is the “most likely scenario” and that continued storage beyond 160 years is “highly unlikely.” GEIS B-2. As in New York I, these assertions are underlain by hope rather than an environmental risk analysis. While the GEIS claims that spent fuel disposal is “technically feasible,” id. B-1, a finding of technical feasibility does not equate with an analysis of the probability of failure to successfully site and build a repository.

The GEIS contains no discussion of the factors that affect the probability of failure to site and build a repository. For instance, the GEIS fails to evaluate the probability that NRC will be unable to locate suitable geologic media for a repository that meets EPA standards for protection of public health and the environment.9 Nor does NRC evaluate the likelihood of failing to establish sufficient repository capacity to accommodate the spent fuel that will be generated if reactors are licensed or re-licensed under 10 C.F.R. § 51.23(b).10 The probability that these events will occur contributes to the risk that spent fuel disposal will be prevented or delayed for a significant period. If considered, it could alter decisionmakers’ conclusion about the significance of the environmental impacts of storing spent fuel. Therefore it must be evaluated in the GEIS.

B. NRC Violates New York I and NEPA by Failing to Consider the Consequences of Spent Fuel Storage.

Because NRC has not concluded that the probability of failure to site a repository is “remote and speculative,” it also must evaluate the reasonably foreseeable consequences of such a failure. NRC concedes that the consequences of long-term or indefinite spent fuel storage could be “catastrophic” if institutional controls are lost. GEIS B-26.11 Yet, contrary to New York I, 681 F.3d at 478-79, it fails to evaluate the consequences of spent fuel storage in the event of a loss of institutional controls. Instead, NRC claims to be excused by future legislation; and in any event, it claims the analysis is too difficult. GEIS B-27. Therefore, the GEIS simply assumes that institutional controls will remain effective indefinitely and successfully mitigate the environmental impacts of radiological releases to the environment. GEIS B-28. But NRC’s rationales for refusing to consider the environmental impacts of a failure of institutional controls ignore the directives of this Court in New York I and are neither consistent with governing law nor compliant with NEPA’s “rule of reason.” Citizens Against Burlington, 938 F.2d at 195.

1. No law excuses NRC from evaluating the environmental consequences of a loss of institutional controls over spent fuel storage.

In defense of its failure to evaluate the reasonably foreseeable impacts of extended spent fuel storage caused by loss of institutional control during long-term and indefinite spent fuel storage, NRC claims to be excused by unidentified future changes to the Nuclear Waste Policy Act:

NRC believes that, if geologic disposal were not possible, national spent fuel policy would change but would not default to relying on the storage facilities as they currently exist – the design of facilities and the regulations governing those facilities would change to accommodate the new policy.

GEIS B-26 to B-27 (emphasis added).
Under NEPA, NRC may not rely on unknown future legislation to avoid assessing environmental impacts of its proposed licensing decisions. Compliance with NEPA is required “unless specifically excluded by statute or existing law makes compliance impossible.” Limerick Ecology Action v. NRC, 869 F.2d 719, 729 (3rd Cir. 1989) (citing Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 81 (1st Cir. 1978)). Neither the Nuclear Waste Policy Act nor any other existing statute excuses NRC from evaluating the reasonably foreseeable adverse impacts of extended storage of spent fuel, including failure of institutional controls during long-term and indefinite spent fuel storage. Ultimately, the NRC’s reliance on future legislation amounts to the act of “hoping” for a future regulatory solution that was rejected by the Court. 681 F.3d at 479. See Section 3, infra.

2. NRC fails to show it is impossible to analyze the environmental consequences of a failure of institutional controls during long-term and indefinite spent fuel storage.

NRC further justifies its refusal to consider the consequences of the loss of institutional controls by claiming it is impossible to predict how or when they might be lost. GEIS B-28. In making this claim, NRC disregards the Court’s clear directive to consider “the effects of a failure to secure permanent storage.” 681 F.3d at 479 (emphasis in original). NRC also violates the fundamental requirement that NEPA must be complied with to the “fullest extent possible.” Calvert Cliffs Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

Regardless of any difficulty NRC may have in predicting why and when government institutions may fail, it is well within NRC’s expertise to evaluate the environmental consequences that will occur when they do fail. NRC has the means to estimate how much spent fuel will be generated under reactor licenses, and therefore it can estimate the quantity of radioactive material released to the environment when storage equipment fails. It can also evaluate the effects of radiological releases on public health and the environment.

3. NRC’s assumption that institutional controls will not fail amounts to unjustified reliance on the effectiveness of future regulation.

As discussed above in Section A, the Court ruled in New York I that NRC may not blindly rely on future regulatory actions in order to avoid its NEPA responsibilities. 681 F.3d at 481. By assuming that institutional controls will never fail, NRC runs afoul of the Court’s prohibition. There is no doubt that the spent fuel generated as a result of reactor licensing has, by any measure, significant environmental impacts. See Nuclear Energy Inst., 373 F.3d at 1258 (“[r]adioactive waste and its harmful consequences persist for time spans seemingly beyond human comprehension.”). NRC may not assume away the serious consequences that may occur if a breakdown of institutional controls leads to release of radioactivity from spent fuel storage containers. Given the fundamentally dangerous nature of spent fuel, the NRC Violates NEPA and New York I by Failing to Evaluate the Cumulative Impacts of Generating, Storing, and Disposing of Spent Fuel.

Under NRC regulations implementing NEPA, the GEIS must address the “incremental impacts” of the spent fuel to be generated by prospective licensing decisions “when added to other past, present, and reasonably foreseeable future actions . . .” 40 C.F.R. § 1508.7 (adopted in 10 C.F.R. § 51.14(b)). Storage of the existing inventory of spent fuel, storage of the inventory of spent fuel still to be generated under existing reactor licenses, and the ultimate disposal of spent fuel undoubtedly constitute “past, present, and reasonably foreseeable future actions” whose impacts must be added to the incremental impacts of generating more spent fuel through reactor licensing.

In violation of this requirement, the GEIS fails to identify the incremental impacts of the spent fuel to be generated through future NRC licensing decisions, nor does it add those incremental impacts to the impacts of the inventory of spent fuel that has already been generated or is expected to be generated under existing licenses. Instead, NRC accepts these existing impacts as a given, stating that “continued storage is an activity that may occur regardless of the process that the NRC selects to consider the environmental impacts of continued storage.” GEIS D-124. And NRC refuses to address the cumulative impacts of spent fuel disposal, stating only that they are beyond the GEIS’ scope. GEIS D-59.

By refusing to evaluate the incremental impacts of future spent fuel generation in light of other past and reasonably foreseeable future spent fuel impacts, NRC frustrates NEPA’s purpose of “‘prevent[ing] agencies from dividing one project into multiple individual actions ‘each of which has an insignificant environmental impact, but which collectively have a substantial impact.’” Theodore Roosevelt Conservation P’ship, 616 F.3d at 514 (internal quotations omitted). NRC also violates New York I by failing to evaluate all of the reasonably foreseeable impacts of its licensing decisions. 681 F.3d at 477.

As recognized in the GEIS, “[i]t is possible that an impact that may be SMALL by itself could result in a MODERATE or LARGE cumulative impact when considered in combination with the impacts of other actions on the affected resource.” GEIS 6-1 (citing 40 C.F.R. § 1508.7). Here, licensing of new reactors and re-licensing of existing reactors would add tons of highly radioactive spent fuel to a very large and growing inventory of spent fuel that may need to be stored above-ground for many decades, if not centuries. And under federal policy, all of the spent fuel must be disposed of in a deep geologic repository that will also have significant impacts. Thus, the cumulative impacts of spent fuel storage are, on their face, significant. In order to ensure consideration of these significant cumulative impacts in NRC licensing decisions, the GEIS must address them.

III. THE RULE SHOULD BE VACATED BECAUSE THE GEIS DOES NOT PROVIDE NRC WITH A LAWFUL BASIS TO LICENSE REACTORS.

The Rule codifies NRC’s determination that reactors may be licensed because the environmental impacts of spent fuel storage following termination of operating licenses have been evaluated in the GEIS. But the NRC’s determination is devoid of meaning. As discussed above in Sections I and II, the GEIS is not designed to affect licensing decisions at all; and even if it were, the NRC has not complied with this Court’s direction to evaluate the probability and consequences of failure to site a repository. Thus, to apply the Rule for the purpose of licensing reactors would violate NEPA’s requirement that agency decisions must be fully informed. Robertson, 490 U.S. at 349 (“NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”). NRC lacks a lawful basis under NEPA and New York I for relying on the Rule to make reactor licensing decisions, and therefore it should be vacated.

CONCLUSION

For the reasons noted above, the Rule and the GEIS should be vacated and remanded to NRC for further proceedings to comply with NEPA. Dated: June 29, 2015
Respectfully submitted,

/s/Diane Curran

Diane Curran
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
1726 M Street N.W. Suite 600 Washington, D.C. 20036
Tel: (202) 328-3500 dcurran@harmoncurran.com Counsel for Beyond Nuclear, BREDL, MCE, NEC, NIRS, Riverkeeper, SLOMFP, SEED Coalition, and SACE

/s/Mindy Goldstein

Mindy Goldstein
Turner Environmental Law Clinic 1301 Clifton Road
Atlanta, GA 30322
Tel: (404) 727-3432 magolds@emory.edu
Counsel for Beyond Nuclear, BREDL, MCE, NEC, NIRS, Riverkeeper, SLOMFP, SEED Coalition, and SACE

/s/Geoffrey H. Fettus

Geoffrey H. Fettus
Natural Resources Defense Council 1152 15th St. N.W., Suite 300 Washington, D.C. 20005
Tel: (202) 289-2371 gfettus@nrdc.org
Counsel for NRDC

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure Rule 32(a)(7)(C) and Circuit Rule 32(a)(2)(C), I certify that the attached Final Opening Brief is proportionately spaced, has a typeface of Times New Roman, 14 points, and contains less than 7,000 words. This figure includes footnotes and citations, but excludes the signature block, the Cover Page, Table of Contents, Table of Authorities, Certificate of Compliance, Certificate of Service, Addendum of Statutes, Rules and Regulations, and Standing Addendum. I have relied on Microsoft Word‘s calculation feature for this calculation.

/s/ Diane Curran
Diane Curran
Harmon, Curran, Spielberg
& Eisenberg, LLP
1726 M Street NW, Suite 600 Washington, D.C. 20036
Tel: (202) 328-3500
Fax: (202) 328-6918
Email: dcurran@harmoncurran.com Counsel for Petitioners

June 29, 2015

CERTIFICATE OF SERVICE

I certify that on June 29, 2015, I filed the foregoing “Initial Opening Brief for Petitioners Natural Resources Defense Council, Beyond Nuclear, Blue Ridge Environmental Defense League, Missouri Coalition for the Environment, New England Coalition, Nuclear Information and Resource Service, Riverkeeper, San Luis Obispo Mothers for Peace, Southern Alliance for Clean Energy, and Sustainable Energy and Economic Development Coalition” with the U.S. Court of Appeals for the D.C. Circuit by uploading it to the Court’s CM/ECF system. That method is calculated to serve:

Andrew P. Averbach (andrew.averbach@nrc.gov, michelle.albert@nrc.gov, Robert.rader@nr.gov) (counsel of record for the U.S. Nuclear Regulatory Commission)

John E. Arbab (john.arbab@usdoj.gov) (counsel of record for the United States)

David A. Repka (depka@winston.com; dreddick@winston.com) (counsel of record for Nuclear Energy Institute, Inc.)

Brad Fagg (bfagg@morganlewis.com) (counsel of record for Entergy Nuclear Operations, Inc.)

Jay E. Silberg (jay.silberg@pillsburylaw.com); Kimberly Harshaw (kimberly.harshaw@pillsburylaw.com) (counsel of record for Northern States Power Company)

Seth G. Schofield (seth.schofield@state.ma.us; sethgschofield@aol.com; jillian.riley@state.ma.us) (counsel of record for Commonwealth of Massachusetts)

Wallace A. Taylor (wtaylorlaw@aol.com; pammackeytaylor@aol.com) (counsel of record for Sierra Club)

Joseph F. Halloran (jhalloran@thejacobsonlawgroup.com; sphemister@thejacobsonlawgroup.com; pmahowald@piic.org; johnson@piic.org) (counsel of record for Prairie Island Indian Community)

John J. Sipos (john.sipos@ag.ny.gov; teresa.manzi@ag.ny.gov; Kathryn.DeLuca@ag.ny.gov) Robert D. Snook (robert.snook@ct.gov) Kyle Landis-Marinello (kyle.landis-marinello@state.vt.us; Rebecca.Ronga@state.vt.us) (counsel of record for State Petitioners)

Geoffrey H. Fettus (gfettus@nrdc.org) Mindy Goldstein (magolds@emory.edu) (counsel of record for NRDC and Beyond Nuclear, Inc. et al.)

Respectfully submitted,