Nos. 11-1045,11-1051,11-1056,11-1057

ORAL ARGUMENT HAS NOT BEEN SCHEDULED

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

STATE OF NEW YORK, et. aI,

v. Petitioners,

UNITED STATES NUCLEAR REGULATORY COMMISSION and THE UNITED STATES OF AMERICA,

Respondents, STATE OF NEW JERSEY

Intervenor for Petitioners NUCLEAR ENERGY INSTITUTE, INC. AND ENTERGY NUCLEAR

OPERATIONS INC, Intervenors for Respondents

On Petition for Review of Final Action by the United States Nuclear Regulatory Commission

CONSOLIDATED ANSWERING BRIEF OF INTERVENOR-RESPONDENTS NUCLEAR ENERGY INSTITUTE, AND

ENTERGY NUCLEAR OPERATIONS, INC.

Ellen C. Ginsberg, Esq. Jerry Bonanno, Esq. Nuclear Energy Institute, Inc. 1776 I Street, N.W. Washington, DC 20006 (202) 739-8147 ecg@nei.org jxb@nei.org

David A. Repka, Esq. Rachel Miras-Wilson, Esq. Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006 202-282-5726 drepka@winston.com rwilson@winston.com

Attorneys for Intervenor-Respondent Nuclear Energy Institute

Brad Fagg, Esq. Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 (202) 739-5191 bfagg@morganlewis.com

Attorney for Intervenor-Respondent Entergy Nuclear Operations, Inc.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

In accordance with Circuit Rule 28(a)(1), the Nuclear Energy Institute

and Entergy Nuclear Operations, Inc. submit this certificate as to parties, rulings,

and related cases.

A. Parties, Intervenors and Amici in Case No. 11-1045 and Consolidated Cases

All parties, intervenors, and amici curiae appearing in this court are

listed in the Brief for Respondents United States and United States Nuclear

Regulatory Commission.

B. Rulings Under Review

References to the rulings at issue appear in the Brief for Respondents

United States and United States Nuclear Regulatory Commission.

C. Related Cases

This proceeding consists of four consolidated cases. The lead case is

The State of New York, et al. v. United States Nuclear Regulatory Commission, et

al., Case No. 11-1045. Three cases following the lead case were consolidated: 1)

Natural Resources Defense Council v. United States Nuclear Regulatory

Commission, et al., Case No. 11-1051; 2) Blue Ridge Environmental Defense

League, Inc., et al. v. United States Nuclear Regulatory Commission, et al., Case

No. 11-1056; 3); and Prairie Island Indian Community v. United States Nuclear

Regulatory Commission, et al., Case No. 11-1057.

1

CORPORATE DISCLOSURE STATEMENT FOR THE NUCLEAR ENERGY INSTITUTE

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and

Circuit Rule 26.1 of this Court, he Nuclear Energy Institute, Inc. ("NEI") hereby

represents that it is a non-profit corporation exempt from taxation pursuant to

Section 501 (c)( 6) of the Internal Revenue Code. NEI functions as a trade

association representing the nuclear energy industry. Its objective is to ensure the

development of policies that promote the beneficial uses of nuclear energy and

technologies in the United States and around the world. NEI has no parent

companies, and no publicly held company has a 10% or greater ownership interest

in NEI.

,

Dated: November 21, 2011

1

Respectfully submitted,

~j(4A.~ (-~\l'----. David A. Repka, Esq. (Counsel of Record) Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006 202-282-5726 drepka@winston.com Attorney for Intervenor-Respondent Nuclear Energy Institute, Inc.

CORPORATE DISCLOSURE STATEMENT FOR ENTERGY NUCLEAR OPERATIONS, INC.

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and

Circuit Rule 26.1 of this Court, Entergy Nuclear Operations, Inc. hereby represents

that it is the operator and holder of the NRC operating license for the Indian Point

Energy Center Units 2 and 3 nuclear plants, located in New York, and the Vermont

Yankee Nuclear Power Plant, located in Vermont. Petitioner further represents as

follows: Entergy Nuclear Operations, Inc. is a wholly owned subsidiary of

Entergy Nuclear Holding Company #2, which in tum is a wholly owned subsidiary

of Entergy Corporation. Entergy Corporation is the only publicly held corporation

in this chain of ownership and, through its subsidiary, owns more than 10% of

Entergy Nuclear Operations, Inc.

Dated: November 21,2011

11

Respectfully submitted,

sf Brad Fagg Brad Fagg (Counsel of Record) Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Tel: (202) 739-5191 bfagg@morganlewis.com Attorney for Entergy Nuclear Operations, Inc.

TABLE OF CONTENTS

I. JURISDICTIONAL STATEMENT ............................................................... 1

II. STATEMENT OF ISSUES FOR REVIEW ................................................... 1

III. STATUTES AND REGULATIONS ............................................................... 1

IV. STATEMENT OF CASE ................................................................................ 1

V. STATEMENT OF FACTS .............................................................................. 2

A. Prior Analyses of Spent Fuel Storage .................................................... 2

B. Waste Confidence Decision and Temporary Storage Rule ................... 6

C. Operation of the Waste Confidence Decision and Temporary Storage Rule ....................................................................................... 12

VI. SUMMARY OF ARGUMENT .................................................................... 15

VII. ARGUMENT ................................................................................................ 17

A. Standard of Review ............................................................................ 17

B. Generic Resolution of Environmental Review Issues is Authorized by NEP A and Appropriate in this Case ........................... 18

1. The Authority for Generic Resolution of Environmental Issues is Well-Established ........................................................ 18

2. There Is No Basis for the Argument That Spent Fuel Storage Impacts Cannot Be Addressed Generically ................ 23

C. The WCD Does Not Allow Licensing of Reactors Without an EIS ...................................................................................................... 28

1. The WCD/TSR is Not a Licensing Decision ........................... 28

2. The NRC WCD Does Not Need to Address the Environmental Impacts of Spent Fuel DisposaL ..................... 31

D. The WCD Adequately Addresses Barriers to Availability of a Repository ........................................................................................... 34

VIII. CONCLUSION ............................................................................................. 37

1

TABLE OF AUTHORITIES

Federal Cases

*Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983) .............................................................. 18, 19,23,32

Carolina Environmental Study Group v. United States, 510 F .2d 796 (D.C. Cir. 1975) ............................................................................................ 26

Citizens Awareness Network v. NRC, 59 F .3d 284 (1 st Cir. 1995) ........................ 29

Citizens to Protect Overton Parkv. Volpe, 401 U.S. 402 (1971) ........................... 22

Dep 't ofTransp. v. Pub. Citizen, 541 U.S. 752 (2004) ..................................... 26,28

Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (4th Cir. 1999) ...................................................................................................... 36

Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995) ..................................................... 7,20

Limerick Ecology Action, Inc. v. Nuclear Regulatory Comm 'n, 869 F.2d 719 (3d Cir. 1989) ................................................................................ 17

Massachusetts v. Interstate Commerce Comm 'n, 893 F.2d 1368 (D.C. Cir. 1990) ................................................................................................ 32,33

Metropolitan Edison Co., et al. v. People Against Nuclear Energy et al., 460 U.S. 766 (1983) ................................................................................ 26

Motor Vehicle Mfrs. Ass'n of us., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................ 36

Natural Resources Defense Council v. Morton, 458 F.2d 827 (1972) ................... 35

Natural Resources Defense Council v. NRC, 666 F.2d 595 (1981) ........................ 32

Riverkeeper v. EPA, 358 F.3d 174 (2d Cir. 2004) .................................................. 24

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm 'n, 751 F.2d 1287 (D.C. Cir. 1984) .................................................................... 26

Asterisks Denote Authorities Principally Relied Upon

11

Scientists' Inst. for Pub. Info., Inc. v. AEC, 481 F .2d 1079 (D.C. Cir. 1973) ............................................................................................................. 36

SEC v. Chenery Corp., 332 U.S. 194 (1947) .......................................................... 21

*State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) ..................... 10,19,32

*State of New York, et al. v. Us. Nuclear Regulatory Comm 'n, 589 F.3d 551 (2d Cir. 2009) ...................................................................... 6, 27, 29

Tongass Conservation Soc'y v. Cheney, 924 F.2d 1137 (D.C. Cir. 1991) ............................................................................................................. 26

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ...................... 22

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) ............................................................................................................ 22

Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) ............................................................................................................. 33

NRC Cases

Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11,49 NRC 328 (1999) ........................................................................... 11

Duke Power Co. (Cherokee Nuclear Station, Units 1 and 2), LBP-76-18,3 NRC 627, (1976) .................................................................................... 7

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43 (2008) .............................................. 13

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (unpublished) (July 6, 2011) (ML111870344) ....................................... 13,31

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) ............................................ 3,8

111

Louisiana Energy Servs. (Nat'l Enrichment Facility), CLI-05-20, 62 NRC 523 (2005) ............................................................................................ 36

Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-00-26, 52 NRC 181 (2000) ............................................................... 8

Pacific Gas and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), CLI-08-26, 68 NRC 509 (2008) ................................................... 5, 27

Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340 (2002) ..................................................................... 5

Rulemaking on the Storage and Disposal of Nuclear Waste (Waste Confidence Rulemaking), CLI-84-15, 20 NRC 288 (1984) ......................... 11

Federal Statutes

28 U.S.C. § 2344 ..................................................................................................... 32

42 U.S.C. § 2011 ....................................................................................................... 2

42 U.S.C. § 4321 .......................................................................................... ; ............ 3

42. U.S.C. § 101 01 .................................................................................................... 2

Federal Regulations

10 C.F.R. § 2.335 .................................................................................................... 21

10 C.F.R. § 2.802 .............................................................................................. 21, 34

10 C.F.R. § 50.57 .................................................................................................... 12

10 C.F.R. § 50.9 ...................................................................................................... 22

10 C.F.R. § 51.100 ...... ; ........................................................................................... 12

10 C.F.R. § 51.104(a) ................................................................................................ 7

IV

10 C.F.R. § 51.23(b) .............................................................................. .................. 11

10 C.F.R. § 51.23(c) .................................................................................................. 7

10 C.F.R. § 51.51(a) .................................................................................................. 9

10 C.F.R. § 51.51(b) .............................................................................................. 2, 9

10 C.F.R. § 51.53(c)(3)(iv) ..................................................................................... 21

10 C.F.R. § 51.72 .................................................................................................... 21

10 C.F.R. § 51.92 .................................................................................................... 21

10 C.F.R. § 51.95 .................................................................................................... 22

10 C.F.R. § 52.6 ...................................................................................................... 22

10 C.F.R. § 52.97 .................................................................................................... 12

10 C.F.R. § 54.13 .................................................................................................... 22

10 C.F.R. § 54.31 ..................................................................................................... 12

10 C.F.R. § 61.59 .................................................................................................... 37

10 C.F.R. § 63.21 .................................................................................................... 12

10 C.F.R. § 63.21(a) .................................................................................................. 9

10 C.F.R. § 63.41 ..................................................................................................... 12

10 C.F.R. § 72.230 .................................................................................................... 8

10 C.F .R. Part 51, Subpart A, Appendix B, Table B-1 ..................................... 4, 8, 9

40 C.F.R. § 1508.14 ................................................................................................ 26

40 C.F.R. § 1508.28 ................................................................................................ 21

v

Federal Register Notices

*Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010) ............................................................................... 1,3

Denial of Massachusetts and California Petitions for Rulemaking, 73 Fed. Reg. 46,204 (2008) ........................................................................... 6, 27

Environmental Effects of the Uranium Fuel Cycle, 39 Fed. Reg. 14,188 (Apr. 22, 1974) .................................................................................... 9

Final Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) ............................................................................................. 11

Licensing and Regulatory Policy and Procedures for Environmental Protection; Uranium Fuel Cycle Impacts From Spent Fuel Reprocessing and Radioactive Waste Management, 44 Fed. Reg. 45,362 (Aug. 2, 1979) ............................................................................ 9

Notice of Proposed Rulemaking, Storage and Disposal of Nuclear Waste, 44 Fed. Reg. 61,372 (Oct. 25, 1979) ................................................ 10

Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474 (Sep. 18, 1990) ......................................................................... 12

Status Report on the Review of the Waste Confidence Decision, 64 Fed. Reg. 68,005 (Dec. 6, 1999) ................................................................... 12

*Update and Final revision of Waste Confidence Decision, 75 Fed. Reg. 81,037 (Dec. 23, 2010) ................................. 1, 24, 25, 29, 30,33,34,35

Other Authorities

Indian Po~nt License Renewal Application, Environmental Report, Section 5.1, available at http://www.nrc.gov/reactors/operating/ licensing/renewal/ appli cations/indian -point/2-ipec-lra-appendix-e_3-9.pdf ....................................................................................... 14

VI

NUREG/CR-5281 , "Value/Impact Analysis of Accident Preventive and Mitigative Options for Spent Fuel Pools" (Mar. 1989)(ML071690022) .......................................................................... 3

NUREG-O 116, "Environmental Survey of the Processing and Waste Management Portions of the LWR Fuel Cycle," (Oct. 1976), available at http://www.osti.gov/bridge/product.biblio.jsp? osti id=7333l55 ............................................................................................. 9

NUREG-1353, "Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools" (Apr. 1989)(ML082330232) ........................................................................... 3

NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," (Dec. 1995), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/ sr1437 I ............................................................................................... 4, 8, 9, 33

NUREG-1437, Supp. 38, "Generic Environmental Impacts Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 & 3" (Dec. 2010) (ML103350405) ............................................................................................ 14

NUREG-1949, "Safety Evaluation Report Related to Disposal of High-Level Radioactive Wastes in a Geological Repository at Yucca Mountain, Nevada, Volume I" (Aug. 20l0)(ML102440298) ........................................................................ 35

NUREG-2l07, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Postclosure Volume: Repository Safety After Permanent Closure" (Aug. 20ll)(ML11223A273) ............................ 35

NUREG-2l08, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Preclosure Volume: Repository Safety Before Permanent Closure" (Sept. 201 l)(MLl 1250A093) .......................... 35

NUREG-2l09, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Administrative and Programmatic Volume (Sept. 201 l)(MLl l255A002) ....................................................................... 35

VB

SECY-09-0090. "Final Update of the Commission's Waste Confidence Decision" (Sept. 15, 2010)(ML0916660274) ........................... 36

WASH-1400 (NUREG-75/014), "Reactor Safety Study: An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants" (Oct. 1975)(ML070610293) ................................................... 3

Vlll

ABA

DOE

EA

EIS

ER

FSEIS

GElS

IPEC

lA.

NEI

NEPA

NWPA

NRC

TSR

WCD

GLOSSARY

Atomic Energy Act

Department of Energy

Environmental Assessment

Environmental Impact Statement

Environmental Report

Final Supplemental Environmental Impact Statement

Generic Environmental Impact Statement

Indian Point Energy Center

J oint Appendix

Nuclear Energy Institute

National Environmental Policy Act

National Waste Policy Act

U.S. Nuclear Regulatory Commission

Temporary Storage Rule

Waste Confidence Decision

1

I. JURISDICTIONAL STATEMENT

Intervenor-Respondents Nuclear Energy Institute ("NEI") and Entergy

Nuclear Operations, Inc. ("Entergy") agree with the Statement of Jurisdiction in

the Brief for Respondents United States and the Nuclear Regulatory Commission

("NRC" or "Commission").

II. STATEMENT OF ISSUES FOR REVIEW

NEI and Entergy agree with the Statement of Issues for Review set

forth in the Brief for Respondents.

III. STATUTES AND REGULATIONS

Except for the documents in the attached addendum, all applicable

statutes, etc., are contained in the Brief for Respondents.

IV. STATEMENT OF CASE

The States of New York, Vermont, Connecticut, New Jersey and the

Prairie Island Indian Community (collectively, "Petitioner States") challenge the

NRC's updated Waste Confidence Decision ("WCD")1 and revised Temporary

Storage Rule ("TSR")? The WCD and TSR reflect the NRC's generic

determination of reasonable assurance that used (or "spent") nuclear fuel can be

safely stored, with no significant environmental impact, after cessation of a

2

75 Fed. Reg. 81,037 (Dec. 23, 2010)(J.A.~.

75 Fed. Reg. 81,032 (Dec. 23, 2010)(J.A.~. The TSR is based upon the WCD record and is codified at 10 C.F .R. § 51.23.

1

reactor's operation until removal of the spent fuel from the site for disposal at a

Federal repository? Natural Resources Defense Council, Inc., Blue Ridge

Environmental Defense League, Riverkeeper, Inc., and Southern Alliance for

Clean Energy (collectively, "Petitioner Organizations") also challenge the WCD

and TSR, by challenging the continued efficacy of a different NRC rule that was

not revised in the Commission proceeding below: 10 C.F.R. § 51.51(b) ("Table S-

3 "). Table S-3 was issued by the NRC in 1979, and codifies generic

determinations of the environmental impacts of the uranium fuel cycle associated

with power reactors, including spent fuel disposal (as opposed to post-operation,

on-site spent fuel storage, which is the subject of the TSR at issue here).

NEI and Entergy agree with the nature of the Case and the Course of

Proceedings below more fully described in the Brief for Respondents.

V. STATEMENT OF FACTS

A. Prior Analyses of Spent Fuel Storage

The NRC has long recognized its obligation under the Atomic Energy

Act ("AEA,,)4 to evaluate technical issues and risks of spent nuclear fuel storage at

power reactor sites in wet storage pools and dry cask storage facilities. The NRC

has conducted numerous studies and consistently determined that the risks and

3

4

Disposal at a Federal repository is provided for in the Nuclear Waste Policy Act ("NWPA"), 42. U.S.C. §§ 10101, et seq.

42 U.S.C. §§ 2011, et seq.

2

environmental impacts are small.5 These conclusions are based on the robust

designs of the spent fuel pools and dry cask storage facilities, the lack of reactive

or driving forces to disperse radiological material, ample operational experience,

and accident mitigation measures required to be in place. See, e.g., 75 Fed. Reg. at

81,069-81,073 (J.A.~.

Additionally, pursuant to its obligation under the National

Environmental Policy Act ("NEPA"),6 the NRC has reviewed the risks and

potential environmental impacts of spent fuel storage. For example, in its License

Renewal Generic Environmental Impact Statement ("GEIS"),7 the NRC has

5

6

7

See, e.g., NUREG-1353, "Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools" (Apr. 1989)(ML082330232) (citing NUREG/CR-4982, "Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82" (July 1987) and NUREG/CR-5176, "Seismic Failure and Cask Drop Analysis of the Spent Fuel Pools at Two Representative Nuclear Power Plants" (Jan. 1989)); NUREG/CR-5281, "Value/Impact Analysis of Accident Preventive and Mitigative Options for Spent Fuel Pools" (Mar. 1989)(ML071690022); and WASH-1400 (NUREG-75/014), "Reactor Safety Study: An Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants" (Oct. 1975)(ML070610293). The NRC identifies documents in its Agency Wide Documents and Access Management System ("ADAMS"), by "ML" numbers. ADAMS documents are available at www.nrc.gov/reading-rm/adams/web-based.html. See also Florida Power & Light Co. (Turkey Point Nuclear Generating Station, Units 3 & 4), CLI-OI-17, 54 NRC 3, 22 n. 11 (2001).

42 U.S.C. §§ 4321, et seq.

NUREG-143 7, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," (Dec. 1995), available at

3

evaluated the impacts of spent fuel storage during the extended term of a renewed

operating license, and concluded that for all nuclear plants the risks and impacts of

extended onsite storage are small:

Within the context of a license renewal review and determination, the Commission finds that there is ample basis to conclude that continued storage of existing spent fuel and storage of spent fuel generated during the license renewal period can be accomplished safely and without significant environmental impacts. Radiological impacts will be well within regulatory limits; thus radiological impacts of on-site storage meet the standard for a conclusion of small [environmental] impact. The non-radiological environmental impacts have been shown to be not significant; thus they are classified as small. The overall conclusion for on-site storage of spent fuel during the term of a renewed license is that the environmental impacts will be small for each plant.

License Renewal GElS, at 6-85 - 6-86. Accordingly, the issue of environmental

impacts of spent fuel storage for the extended term of a renewed operating license,

including the consequences of reasonably foreseeable accidents, was resolved

generically by the Commission for power reactor license renewal. 10 C.F .R. Part

51, Subpart A, Appendix B, Table B-1, "Summary of Findings on NEPA Issues for

License Renewal of Nuclear Power Plants" ("Table B-1 "). The issue is not

addressed in case-by-case license renewal environmental reviews.

http://www.nrc.gov/reading-rm/ doc-collections/nuregs/staff/sr 143 7/, ("License Renewal GElS").

4

Following the terrorist attacks of September 11, 2011, the NRC again

evaluated the risks of attacks on spent fuel storage facilities. It issued threat

adversaries and orders to licensees with spent fuel storage facilities, requiring them

to upgrade security and establish measures to mitigate the consequences of

hypothetical attacks. See generally Private Fuel Storage (Independent Spent Fuel

Storage Installation), CLI-02-25, 56 NRC 340, 343-345 (2002). The NRC also

considered arguments that spent fuel storage facilities are vulnerable to terrorist

attacks that could create spent fuel fires (zirconium cladding fires) with widespread

environmental consequences. The NRC concluded in an Environmental

Assessment ('lEA") that the potential radiological impacts from credible threats

were actually small. Pacific Gas and Electric Co. (Diablo Canyon Power Plant,

Units 1 and 2), CLI-08-26, 68 NRC 509, 516-520 (2008), pet. for review denied,

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm 'n, 635 F.3d 1109

(9th Cir. 2011).

The NRC has also recently considered rulemaking petitions from the

States of Massachusetts and California seeking agency reconsideration of the

License Renewal GElS and Table B-1. These petitions were primarily based on

studies of the risks of spent fuel fires (including the postulated zirconium cladding

fire), and argued that "new and significant information" showed the NRC

incorrectly characterized the environmental impacts of spent fuel storage. The

5

NRC determined that it has analyzed the risks of spent fuel storage over many

decades, and continued to conclude that the risks are low. Denial of Petitions for

Rulemaking, 73 Fed. Reg. 46,204, 46,207 (2008). The NRC further concluded that

the probability of a successful terrorist attack on a spent fuel pool is "remote," and

that - given the mitigation measures implemented after September 11, 2001 -

the likelihood of a zirconium fire resulting from an attack is "very low." Id. at

46,211. The Commission's decision was upheld by the Second Circuit. State of

New York, et al. v. Us. Nuclear Regulatory Comm 'n, 589 F.3d 551 (2d Cir.

2009).8

B. Waste Confidence Decision and Temporary Storage Rule

The NRC has long recognized that, in addition to its "reasonable

assurance" safety findings under the ABA, to satisfy NEP A in connection with the

licensing of a nuclear power plant (either an initial licensee or a renewed license) it

must consider the environmental impacts of storage and disposal of the spent

nuclear fuel generated by the plant. The NRC's NEPA evaluation of these issues

includes three components: (1) impacts of onsite storage of the fuel during the

operating lifetime of the plant, including both the original license term and any

extended term of operation under a renewed operating license; (2) impacts of

8 The NRC is actively reviewing the License Renewal GElS, and issued a draft revision in July 2009.

6

temporary onsite storage beyond the license term until the used fuel is removed

from the site for disposal at a Federal repository; and (3) the impacts of disposal at

a repository. The NRC addresses all of these issues, by a combination of generic

and site-specific analyses.

The impacts of onsite spent fuel storage ("waste management")

during the original license term are not addressed through the WCD and TSR, but

are evaluated on a plant-specific basis during site-specific environmental reviews.

10 C.F .R. § 51.23 (c). This includes a review of impacts of both normal operation

of the storage facility and impacts of postulated accidents.9 These issues are

subject to adjudication during the NRC's licensing hearing process. 10 C.F.R.

§ 51.1 04( a). Additionally, impacts of expanded onsite storage capacity are

considered, either on a plant-specific basis (e.g., review of a license amendment to

expand the capacity of a spent fuel pool, a site-specific license for an Independent

9 See, e.g., Duke Power Co. (Cherokee Nuclear Station, Units 1 and 2), LBP-76-18, 3 NRC 627, 636-640 (1976)(considering environmental impacts of normal operations and postulated accidents related to approval of a reactor construction permit).

7

Spent Fuel Storage Facility),Io or in a generic review of a used fuel storage system

certificate of compliance. 1 1

Additionally, as discussed above, the NRC has evaluated the

environmental impacts of onsite spent fuel storage during a period of extended

plant operation under a renewed operating license. See License Renewal GElS.

The results of the generic review are codified in Table B-1. The NRC concluded

that the environmental impacts are small, and therefore this issue does not need to

be reevaluated on a case-by-case basis for purpose of extending a license term.

Table B-1; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant,

Units 3 and 4), CLl-01-17, 54 NRC 3, 21 (2001) ("on the issue of onsite fuel

storage . . . additional site-specific mitigation alternatives are unlikely to be

beneficial and need not be considered for license renewal") (citations omitted).

With respect to impacts of ultimate disposal, the NRC in a generic

rulemaking developed Table S-3 - which presents the incremental contributions

of each element of the uranium fuel cycle to the total environmental impact of the

10

11

See, e.g., Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), LBP-00-26, 52 NRC 181 (2000).

See 10 C.F.R. §§ 72.230, et. seq., upheld by Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995), cert denied, 515 U.S. 1159 (1995).

8

operation of a nuclear plant. See 10 C.F .R. § 51.51 (b ).12 This includes impacts of

disposal of the spent fuel at a Federal repository. Under the regulation, the generic

impact values are to be used in the Environmental Impact Statement ("EIS") for

every license authorizing nuclear plant construction. 10 C.F.R. § 51.51(a).

Disposal impacts were more recently evaluated in the License Renewal GElS and

are addressed in Table B_l. 13 And, disposal impacts must be addressed in an

application to the NRC for a license for a Federal repository. 10 C.F.R. § 63.21(a).

The NEP A analyses in the WCD and TSR at issue in this case relate

only to the interim period between the end of an operating license term (i.e., either

12

13

Table S-3 was first adopted as an interim rule in 1974. 39 Fed. Reg. 14,188 (Apr. 22, 1974). The Commission promulgated a final rule in 1979. 44 Fed. Reg. 45,362 (Aug. 2, 1979). In connection with the final rule, the NRC stated an expectation that "a suitable bedded-salt repository or its equivalent will be found." Id. at 43,368 (emphasis added). The background and bases for Table S-3 were documented by the NRC in NUREG-O 116, "Environmental Survey of the Processing and Waste Management Portions of the LWR Fuel Cycle," (Oct. 1976), available at http://www. osti.gov/bridge/product.biblio.jsp?osti_id=7333155.

In the License Renewal GElS (see Section 6.2.2.2) the agency was able to refer to new NRC regulations for waste disposal, performance objectives for a repository established by the Environmental Protection Agency, standards developed by the National Academy of Sciences, and environmental reviews of the proposed Yucca Mountain repository completed by the Department of Energy ("DOE"). While assessing the impacts of disposal over a very long period of time is necessarily subject to large uncertainties, the NRC addressed various radiological release scenarios and provided a sound technical discussion of the potential impacts of spent fuel disposal on populations in the area of a repository. License Renewal GElS, at 6-20.

9

the original license term or term 'of extended operation under a renewed license)

and removal of the spent fuel for storage/disposal at an offsite repository. This

element of the NRC's environmental analysis derives from State of Minnesota v.

NRC, 602 F.2d 412 (D.C. Cir. 1979). In that matter this Court was asked to review

two NRC license amendments permitting expansion of the capacity for onsite

storage of spent fuel. The Court remanded the matter for further NRC

consideration of a "specific problem isolated by petitioners" with respect to the

agency review: whether there was reasonable assurance that offsite storage would

be available after expiration of the licenses and whether there was reasonable

assurance that the spent fuel could be safely stored onsite beyond the license

expiration date, until disposal. ld. at 418.

In response, the NRC initiated the first "Waste Confidence"

rulemaking in 1979. The NRC issued a Notice of Proposed Rulemaking and

adopted "hybrid" rulemaking procedures that allowed for public comments and an

opportunity to participate in a generic hearing process. 44 Fed. Reg. 61,372

(Oct. 25, 1979). The purpose of the proceeding was "solely to assess generically

the degree of assurance now available that radioactive waste can be safely disposed

of, to determine when such disposal or off-site storage will be available, and to

determine whether radioactive wastes can be safely stored on-site past the

10

expiration of existing facility licenses until off-site disposal or storage IS

available." Id. at 61,373.14

A final Waste Confidence Decision was issued in 1984. 49 Fed. Reg.

34,658 (Aug. 31, 1984). Based on the record of the rulemaking proceeding, the

Commission made five generic "Waste Confidence" findings to resolve the issues

remanded in State of Minnesota related to temporary storage of spent fuel after

cessation of operations. The NRC codified the generic findings in the first

Temporary Storage Rule, 10 C.F.R. § 51.23(a). Id. at 34,658, 34,659-34,660.

Under 10 C.F .R. § 51.23(b), plant-specific environmental reports, environmental

impact statements, and environmental assessments need not address these issues.

See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-

11, 49 NRC 328, 345 (1999) ("The Commission sensibly has chosen to address

high-level waste disposal generically rather than unnecessarily revisit the same

waste disposal questions, license-by-license, when reviewing individual

applications.").

14 In the "generic proceeding" interested parties were allowed 30-days to file a notice of intent to participate as a "full participant." Parties were allowed to file statements of position, followed by cross-statements. Thirty-one participants filed statements of position. The Commission allowed oral arguments in January 1982. The complete record became the basis for the Commission's generic decision. See Rulemaking on the Storage and Disposal of Nuclear Waste (Waste Confidence Rulemaking), CLI-84-15, 20 NRC 288 (1984).

11

As discussed in the Brief for Respondents, the NRC has periodically

reviewed and revised the WCD findings, first in 1989-1990. 55 Fed. Reg. 38,474

(Sep. 18, 1990). Conforming amendments were made to 10 C.F.R. § 51.23(a) at

that time. The Commission conducted its next review of the WCD in 1999. 64

Fed. Reg. 68,005 (Dec. 6, 1999). The current petitions are based on the most

recent review, concluded in 2010.

C. Operation of the Waste Confidence Decision and Temporary Storage Rule

The WCD and TSR do not constitute a licensing action. The TSR

codifies a generic evaluation of the issues framed by the Court in State of

Minnesota. Before a license or a renewed license may be issued, the full scope of

the NEP A environmental review must be completed. See generally 10 C.F .R.

§§ 51.100, et seq. And, the NRC's safety evaluation must be completed and

appropriate findings must be made. See generally 10 C.F.R. § 50.57 (issuance of

operating license); 10 C.F .R. § 52.97 (issuance of combined license); 10 C.F .R.

§ 54.31 (issuance of renewed license ).15 Consistent with the specific scope of

the WCD/TSR, the NRC provides petitioners and intervenors in individual cases

with full and fair opportunities to raise site-specific safety and environmental

Issues.

15

A license, or renewed license, will not issue until those reviews are

The WCD and TSR also do not authorize construction or operation of a high level waste repository. See generally 10 C.F.R. §§ 63.21,63.41.

12

complete. For example, in the ongoing Indian Point license renewal proceeding,

the WCD and TSR have not foreclosed consideration of the alleged site-specific

environmental issues that the Petitioner States raise here as they relate to the

license term. This is the case both in the NRC's adjudicatory process and in the

public consultation process supporting preparation of the NRC's Final

Supplemental Environmental Impact Statement ("FSEIS").

Petitioner States allege unique site-specific impacts of spent fuel

storage, citing groundwater impacts from spent fuel pool leakage and offsite

property values impacts at Indian Point. See Pet. St. Br. at 10-11, 17-18. These

are substantially the same factual issues they have raised and are litigating on a

site-specific basis in the Indian Point license renewal adjudication before the NRC.

Riverkeeper is actively litigating the former issue. See Entergy Nuclear

Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68

NRC 43, 190 (2008). New York State is litigating its contention on the latter issue.

See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 &

3), Memorandum and Order (Ruling on Pending Motions for Leave to File New

and Amended Contentions) at 11 (unpublished) (July 6, 2011) (ML111870344)

("July 6 Board Order").

In addition to contesting issues in the hearing process, Riverkeeper

submitted comments to the NRC on the alleged environmental impacts of spent

13

fuel pool leaks on groundwater during the public comment period leading to the

NRC's Indian Point license renewal FSEIS. After extensive analysis, the NRC

concluded that the environmental impact of spent fuel pool leakage on

groundwater was "new information" but was not environmentally significant. See

NUREG-1437, Supp. 38, Generic Environmental Impacts Statement for License

Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos.

2 & 3 (Dec. 2010), Sections 2.2.7 and 4.7 (MLI03350405) ("IPEC FSEIS,,).16 The

NRC therefore disagreed with Riverkeeper's comments. See IPEC FSEIS at A-

94. 17 Nevertheless, Riverkeeper's challenge to this conclusion remains in litigation

in connection with the groundwater contention. Similarly, New York State

submitted comments to the NRC regarding property value impacts, and the NRC

considered those comments in the FSEIS. See IPEC FSEIS at A-157-158.

16

17

Petitioner States claim that they are "unaware of any instance when NRC has addressed on-site storage in its plant-license-renewal site-specific EIS as a result of staff investigation." Pet. St. Br. at 33. This is only half the story for Indian Point. Entergy's license renewal application also identified the groundwater impacts of spent fuel pool leakage as new, but not significant information, and provided considerable technical analysis in support of that conclusion. See Indian Point License Renewal Application, Environmental Report, Section 5.1, available at http://www.nrc.govireactors/operating/ licensing/renewal/ applications/indian -point/2-ipec-Ira -appendix -e _ 3 -9 . pdf. Petitioner States' assertion that they are not aware that any "operator" has ever designated an environmental issue as "new and significant," is therefore somewhat disingenuous. See Pet. St. Br. at 32.

Thus, the Petitioner States' claim that the NRC's evaluation of such issues is "not disclosed to the public" is incorrect. Pet. St. Br. at 33.

14

VI. SUMMARY OF ARGUMENT

The challenges to the WCD and TSR are grounded in NEP A and

directed to NRC's generic findings that there is reasonable assurance that a waste

disposal solution will be available when needed, and that spent fuel can be stored

. safely, with no environmental impact, in an interim period. But the NRC has

discretion under NEPA to resolve environmental issues generically. This

authority, repeatedly upheld on judicial review, extends to the NRC's evaluation of

the environmental effects of temporary onsite storage of spent fuel, after an

operating license term and until removal from the site for disposal. As the

environmental effects of storage are essentially the same for all licensees, the

NRC's generic determination promotes efficiency and consistency in decision

making and avoids repetitive litigation. The NRC's regulations provide ample

opportunity for petitioners to raise any new and significant environmental

information not addressed by the WCD/TSR in specific licensing reviews or

petitions for rulemaking.

The NRC has presented substantial technical bases for its conclusions

on the environmental impacts of interim spent fuel storage. The NRC's

conclusions are based on technical analyses over many years and specifically

address the risks identified by the Petitioner States, including leaks and fires. As

the NRC's environmental assessment concludes that there are no significant

15

environmental impacts, a full scope E1S is not required. The NRC's highly

technical conclusions are informed by its expertise, and are entitled to substantial

deference.

The WCD/TSR is not a licensing decision. It includes a genenc

environmental assessment of one issue germane to a licensing decision (the

environmental impacts of temporary storage after permanent cessation of

operations, until removal from the site for disposal by DOE). The WCD/TSR do

not authorize any action and therefore do not constitute a major federal action

requiring an E1S. Nor do the WCD/TSR negate the need for further NRC review

to support proposed licensing actions - no specific license will be issued without

completion of safety and environmental reviews. The WCD does not need to

address the environmental impacts of spent fuel disposal. Disposal is addressed in

a separate NRC regulation, Table S-3, which is not subject to collateral attack

through the WCD/TSR.

Finally, the WCD adequately addresses barriers to the availability of a

repository. The WCD rulemaking explicitly considered the status of the Yucca

Mountain project, noted the appointment of the Blue Ribbon Commission, and

recognized international experience with respect to spent fuel disposal. Weighing

all of these considerations, the NRC - as required by NEP A - engaged in a

rational analysis to reach reasonable conclusions.

16

VII. ARGUMENT

A. Standard of Review

NEI and Entergy agree with the Standard of Review as set forth in the

Brief for Respondents. The standard is a deferential one. Under NEP A, the role of

the courts in evaluating an agency action "is simply to ensure that the agency has

adequately considered and disclosed the environmental impact of its actions and

that its decision is not arbitrary and capricious." Limerick Ecology Action, Inc. v.

Nuclear Regulatory Comm'n, 869 F.2d 719, 723 (3d Cir. 1989)(intemal citations

omitted).

The Petitioner Organizations argue that the courts exercise de novo

review "[w]hen an agency makes a legal conclusion that NEPA does not apply to a

given action," citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267

F.3d 1144, 1151 (D.C. Cir. 2001). Pet. Org. Br. at 18-19. In the cited case the

petitioners challenged an agency determination that NEP A does not apply to

actions under the National Trails System Act. In contrast, the instant case does not

involve an agency's decision that NEPA does not apply to its licensing actions.

Rather, the NRC issued the WCD and TSR in order to fulfill its NEP A duties. It

chose to do so by a generic review and rulemaking process rather than site-specific

adjudication - a decision subject only to the deferential "arbitrary and capricious"

standard of review.

17

B. Generic Resolution of Environmental Review Issues is Authorized by NEPA and Appropriate in this Case

1. The Authority for Generic Resolution of Environmental Issues is Well-Established

It is the longstanding practice of the NRC, repeatedly upheld on

judicial review, to consider and address through rulemaking environmental issues

that would otherwise be addressed repetitively in individual licensing proceedings.

In Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462

U.S. 87 (1983), the Supreme Court specifically addressed the Commission's final

Table S-3, adopting a generic NEPA finding on the environmental effects of the

nuclear fuel cycle. Citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519,558 (1978)/8 the Court stressed the NRC's broad discretion to structure

its NEP A inquiries:

18

NEP A does not require agencies to adopt any particular internal decisionmaking structure. Here, the agency has chosen to evaluate generically the environmental impact of the fuel cycle and inform individual licensing boards, through the Table S-3 rule, of its evaluation. The generic method chosen by the agency is clearly an appropriate method of conducting the hard look required by NEP A .... The environmental effects of much of the fuel cycle are not plant specific, for any plant, regardless

The Vermont Yankee decision involved an earlier challenge to an "interim" fuel cycle rule. Among other things, the Court there found that NEP A did not compel procedures beyond those imposed by the Administrative Procedure Act. Id. at 548. Moreover, the Court emphasized a judicial role by which courts do not intrude unjustifiably into the administrative process. Id. at 556.

18

of its particular attributes, will create additional wastes that must be stored in a common long-term repository.

Id. at 100-01 (citations omitted). The Court held that the NRC had made the

"careful consideration and disclosure required by NEP A." Id. at 98. When

environmental effects would be essentially similar for the licensees involved,

"[a]dministrative efficiency and consistency of decision are both furthered by a

generic determination of these effects without needless repetition of the litigation

in individual proceedings, which are subj ect to review by the Commission in any

event." Id. at 101 (citations omitted). Therefore," [T]he Commission has

discretion to evaluate generically the environmental effects of the fuel cycle and

require that these values be plugged into individual licensing decisions." Id.

In State of Minnesota, this Court specifically acknowledged the

NRC's ongoing generic approach to evaluation of environmental impacts of waste

disposal in the pending Table 8-3 proceeding:

We agree with the Commission's position that it could properly consider the complex issue of nuclear waste disposal in a "generic" proceeding such as a rulemaking, and then apply its determinations in subsequent adjudicatory proceedings. Where factual issues do not involve particularized situations, an agency may proceed by a comprehensive resolution of the questions rather than relitigating the question in each proceeding in which it is raised.

State of Minnesota, 602 F .2d at 416-17 (internal citations omitted).

19

Similarly, in Kelley v. Selin, 42 F.3d 1501, the Sixth Circuit endorsed

the NRC's generic resolution ofNEPA questions surrounding the impacts of spent

fuel storage. In that case petitioners challenged NRC rules calling for

environmental issues to be addressed in connection with the approval of cask

designs for spent fuel nuclear storage. "Although NEP A requires the NRC to

undertake 'careful consideration' of environmental consequences," the court said,

"the NRC may issue a rulemaking to address and evaluate environmental impacts

that are 'generic;' namely, neither plant-specific nor site-specific." Id. at 1512

(citations and brackets omitted). "'[E]ven where 'an agency's enabling statute

expressly requires it to hold a hearing, the agency may rely on its rulemaking

authority to determine issues that do not require case-by-case consideration' ....

'A contrary holding would require the agency continually to relitigate issues that

may be established fairly and efficiently in a single rulemaking proceeding. '" Id.

at 1511 (quoting Mobil Oil Exploration & Producing Southeast, Inc. v. United

Distribution Cos., 498 U.S. at 228 (quoting Heckler v. Campbell, 461 U.S. 458,

467 (1983)).

While generic issues resolved by rulemaking are normally beyond the

scope of a specific licensing review and hearing, NRC regulations provide that any

unique site circumstances (or "new and significant" information) identified

subsequent to the generic finding can be addressed by waiver or by supplemental

20

evaluation. In the site-specific hearing process, for example, petitioners with new

information showing that a generic rule would not serve its purpose at a particular

plant may seek a waiver of the rule. See, e.g., 10 C.F.R. § 2.335. Alternatively,

petitioners with evidence that a generic finding is incorrect for all plants may

petition to initiate a fresh rulemaking. See 10 C.F.R. § 2.802. In a license renewal

application, applicants have a duty to identify any new and significant

environmental information identified since the issuance of the License Renewal

GElS. 10 C.F.R. § 51.53(c)(3)(iv). These mechanisms provide ample means by

which petitioners may raise new and significant environmental information,

whether applicable to all plants, or specific to some plants or one plant. 19

The Council on Environmental Quality encourages the use of generic

findings to address impacts common to some or all nuclear power plants,

supplemented by a narrower review of plant-specific issues. See, e.g., 40 C.F .R.

§ 1508.28 (addressing the coverage of general matters in broad environmental

impact statements such as policy statements, or by "tiering" of NEPA

documents). The decision to conduct a generic assessment rather than repetitive

site-specific environmental assessments is within agency expertise and entitled to

deference by a reviewing court. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)

19 The NRC has a separate obligation to supplement its environmental evaluations. See 10 C.F.R. §§ 51.72, 51.92.

21

(Generally, the choice between proceeding by rule or by individual ad hoc

litigation lies primarily in the "informed discretion of the agency."); see also

Vermont Yankee, 435 U.S. at 535, n. 13 (noting the NRC's authority to deal with

fuel cycle issues by informal rulemaking as opposed to adjudication).20

Petitioner States dismiss the NRC's rules of procedure as "a practical

matter," suggesting that waivers are seldom granted and operators are somehow

disinclined to report new information. Pet. St. Br. at 31-32. However, the fact that

waivers may be rare only confirms the validity of NRC determinations that the

issues it has considered in its rules are appropriately generic and have been duly

considered. The Court also should not assume that the NRC has been or will be

arbitrary and capricious in implementing its own waiver rules. Agencies are

obligated to follow their rules. United States ex rel. Accardi v. Shaughnessy, 347

U.S. 260, 266-67 (1954).21 Likewise, the Court should not assume that licensees

will not meet their obligations to identify new or significant information. See, e.g.,

10 C.F.R. §§ 50.9, 52.6, 54.13. In connection with the WCD itself, the NRC has

demonstrated its ability and willingness to update and reconsider its NEP A

20

21

Resolving an environmental issue generically does not reduce the issue's importance. For example, in the context of license renewal, the NRC will still weigh all of the different environmental impacts from extended operation before making a renewal decision, whether those impacts occur generically or on a plant-specific basis. See 10 C.F.R. § 51.95.

If an agency fails to comply with its own rules, it opens the door to judicial reVIew. See Citizens to Protect Overton Park v. Volpe, 401 U.S. 402 (1971).

22

evaluations when necessary. The Petitioner States present no basis to dispense

with the NRC's reasonable approach to its environmental evaluations.

2. There Is No Basis for the Argument That Spent Fuel Storage Impacts Cannot Be Addressed Generically

The Petitioner States principally challenge the conclusions in the

WCD and TSR by arguing "that impacts of spent-fuel pools located on the site of

each reactor may be affected by site factors .... As a result, it was unreasonable

for NRC to analyze those impacts during the sixty years after a license expires in a

generic EA .... " Pet. St. Br. at 27. The alleged site-specific factors include leaks,

spent fuel fires, and impacts on nearby populations or property. However, through

several updates of the WCD, and many prior studies, the NRC has compiled a

substantial technical basis for its conclusions on the environmental impacts of

spent fuel storage - including the issues of leaks, fires, and offsite impacts. The

NRC's conclusions are applicable for all plants, due to the common designs,

common risks, common analyses, and common regulatory requirements applicable

to spent fuel storage facilities. Through careful assessments, the NRC has found

no significant potential for radiological releases, and therefore no significant

impacts on populations or property. The Commission's highly technical

conclusions are entitled to substantial deference. Baltimore Gas, 462 U.S. at 103

(suggesting courts be at their "most deferential" when examining agency

23

determinations made "at the frontiers of science."); see also Riverkeeper v. EPA,

358 F.3d 174, 184 (2d Cir. 2004).

The NRC's conclusion that spent fuel generated at any reactor can be

stored safely and without environmental impact for at least 60-years beyond the

license term is reflected in WCD Finding 4. The basis for Finding 4 is set forth in

detail in the Federal Register notice for the WCD. 75 Fed. Reg. at 81,069-81,074,

81,050-81,054 (J.A.~. The NRC's determination on spent fuel storage impacts

specifically encompasses the risks identified by the Petitioner States. Regardless

of variations in the site-specific deployment of common storage technologies, the

NRC's conclusion encompasses all sites.

Petitioner States base their position on site-specific experience (leaks)

and potential site-specific factors (rack configurations, type of liner, leak detection

system, etc.). Pet. St. Br. at 27-28. However, in neither their comments to the

NRC in the WCD proceeding, nor their briefs, have the Petitioner States clearly

articulated how past operating experience or site-specific variations of storage

configurations have not been addressed in the NRC's analyses, or are not bounded

by the NRC's generic conclusions. All operating experience must be from one

plant or another. However, the NRC has evaluated this experience and drawn

generic conclusions. Likewise, NRC's studies and conclusions have considered

the range of storage configurations utilized in the domestic nuclear industry. The

24

mere existence of site-specific variations does not on its face inhibit the NRC's

ability - and discretion - to reach generic conclusions, where justified.

The Petitioner States' argument related to leaks (Pet. St. Br. at 27-28)

was specifically raised as a comment in the NRC rulemaking. 75 Fed. Reg. at

81,051 (Comment 16) (J.A.->. Based on its review, including bounding dose

calculations and! or actual measurements, the NRC determined that the health

impacts of historic radioactive releases have been negligible. Id. at 81,070 -

81,071. Petitioner States also raise the issue of spent fuel pool fires. Pet. St. Br. at

38-39. Whether due to seismic hazards or terrorist attacks, the Commission

addressed the issue of fires in the basis for Finding 4. 75 Fed. Reg. at 81,069-

81,070 (J.A.->. The Commission also responded to comments regarding fires due

to terrorist attacks on fuel storage facilities. Id. at 81,050-51 (Comment 15). The

Petitioner States have not established that the NRC has been "arbitrary and

capricious" in its thorough review of these issues.

Many site-specific factors (e.g., seismic hazards) are inherently

addressed in the design and licensing of each nuclear power plant, spent fuel pool,

dry cask storage facility, or certified dry cask storage system. For example,

designs must meet performance standards in NRC regulations, considering site-

specific seismic hazards. The hazards are addressed by common regulations that

provide reasonable assurance that a failure of the structures, systems, and

25

components related to spent fuel storage will be very unlikely, such that overall

risk is very low. Carolina Environmental Study Group v. United States, 510 F.2d

796, 799 (D.C. Cir. 1975).22 Even at sites where earthquake risks are greater,

seismic design requirements assure that extreme failure scenarios remain unlikely

and that the risk is low.

Petitioner States allude to impacts on populations and property

generally (Pet. St. Br. at 29), and to other non-health impacts "in the event of a

significant release of radioactivity" (Pet. 8t. Br. at 40). However, with respect to

the highly speculative prospect of effects on property values due to extended onsite

storage, no correlation is made to environmental impacts?3 And, with respect to

non-health impacts in the event of radiological releases, these arguments start from

22

23

Compare San Luis Obispo Mothers for Peaee v. Nuclear Regulatory Comm 'n, 751 F.2d 1287, 1300-1304 (D.C. Cir. 1984), aff'd en bane, 789 F.2d 252 (D.C. Cir. 1986); see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 767-69 (2004) (a "rule of reason" is inherent in NEPA and its implementing regulations, and unlikely events need not be evaluated under NEPA).

Under NEP A, consideration of a particular effect requires "reasonably close causal relationship between a change in the physical environment and the effect at issue." Metropolitan Edison Co., et al. v. People Against Nuclear Energy et al., 460 U.S. 766, 774 (1983); see also Tongass Conservation Soe'y v. Cheney, 924 F.2d 1137, 1144 (D.C. Cir. 1991) (socioeconomic impacts are only relevant under NEP A when they are "interrelated" with "physical environmental effects") (quoting 40 C.F.R. § 1508.14); see also 40 C.F.R. § 1508.14 ("economic or social effects are not intended by the'mselves to require preparation of an environmental impact statement").

26

a premIse that there will be a release of radiological material, based on an

unspecified event. In contrast, the NRC has concluded - based on extensive

studies - that the licensed designs of storage systems provide reasonable

assurance that significant radiological releases will not occur. Moreover, because

the NRC's environmental assessment concludes that there are no significant

environmental impacts, a full scope EIS - considering health, property, and other

. . . d 24 Impacts - IS not reqUIre .

In sum, the NRC's conclusions on these matters are based upon

substantial analysis as described above and in the WCD Federal Register notice.

The NRC's conclusions are consistent with its decision in 2008 denying the

petitions for rulemaking related to NRC's license renewal rules, which were based

on very similar arguments by the State of New York and others. 73 Fed. Reg.

46,204, 46,208-46,211. The NRC's decisions on these technical matters are well

within the "agency's province of expertise," and are to be accorded deference by

the Court. State of New York, 589 F.3d at 555. While Petitioner States may

continue to disagree with the NRC's conclusions, the agency clearly has not

abused its discretion.

24 The NRC has considered the issue of non-health effects to some degree in Pacific Gas and Electric Co., 68 NRC at 520. With relatively small releases postulated from credible scenarios, human health, land contamination, and other environmental impacts would be very limited.

27

C. The WCD Does Not Allow Licensing of Reactors Without an EIS

1. The WCDITSR is Not a Licensing Decision

The crux of Petitioner Organizations' argument is that the "WCD

violates NEPA because it allows the licensing of reactors without an EIS." Pet.

Org. Br. at 19. However, this argument is based on an erroneous premise - that

the WCD is a licensing decision, and therefore requires an EIS under NEP A. But

the WCD is, for NEP A purposes, a generic environmental assessment of only one

issue germane to a licensing decision - the environmental impacts of temporary

storage after permanent cessation of operations, until removal from the site for

disposal by DOE. This generic determination is not a licensing decision; it does

not authorize any action by an NRC applicant or licensee; and therefore does not

in itself constitute a major federal action requiring an EIS. With respect to the

specific scope of issues considered in the WCD and TSR, the NRC found no

significant environmental impact.25

The WCD and TSR do not negate the need for further NRC

environmental review to support proposed licensing actions (often involving an

25 NEP A's "rule of reason ... ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process. Where the preparation of an EIS would serve no purpose in light of NEPA's regulatory scheme as a whole, no rule of reason worthy of that title would require an agency to prepare an EIS." Dep't of Transp. v. Pub. Citizen, 541 U.S. at 767 (citations and internal quotations omitted).

28

EIS). As discussed above, licensing decisions (initial licenses, renewed licenses)

are supported by both generic and specific environmental reviews. Like Table S-3

and Table B-1, the WCD and TSR provide a piece of the environmental review

that is generic. The balance of the review is addressed in a site-specific EA, EIS,

or GElS supplement.26 Any specific license will be issued only upon completion

of the safety and environmental reviews. See Section IV.C, above.

The NRC has also addressed this argument in the WCD Federal

Register notice. 75 Fed. Reg. at 81,041 (J.A.~. Petitioner Organizations dismiss

the NRC's argument as mere "labeling." Pet. Org. Br. at 20. However, the NRC's

characterization of the WCD/TSR as a piece of a larger environmental review is

not "labeling." The characterization is consistent with the origins of the WCD in

the State of Minnesota decision, with the scope of the review inherent in the WCD,

and with the limited operative effect (or lack thereof) of the WCD and TSR. The

WCD/TSR provides no "approval" and authorizes no action - making it very

different from the issue of NRC's "approval" of a decommissioning plan addressed

in Citizens Awareness Network v. NRC, 59 F.3d 284, 292-93 (1st Cir. 1995) (in

which the court found that the NRC "actively" permitted the release of

26 For example, license amendments involving increases in spent fuel storage capacity at a reactor site are typically supported by an EA and associated finding of no significant impact. An EIS is required for an initial license and a GElS supplement is required for license renewal.

29

decommissioning funds, and "explicitly" authorized decommissioning activities by

"effectively grant [ing] permission to commence activities normally conducted

after decommissioning plan approval" and the requisite NEP A review)( emphasis

in original).

The Indian Point operating license renewal proceeding discussed

above demonstrates the NRC's process and the operation of the WCD and TSR.

The alleged "site-specific" factual issues that the Petitioner States have raised are

being litigated in the hearing process, to the extent they apply to the period of

extended operation under a renewed license. The Commission's waiver rule in 10

CFR § 2.335 will permit petitioners to raise other site-specific issues that are

pertinent to future licensing actions, consistent with the applicable rules for public

participation. But the allegation that one or more sites are different does not

invalidate the NRC's generic decision. As the Commission explained in its WCD,

in response to comments from the New York State Attorney General:

[T]he potential that one or more sites might not fall under the generic determination in the [WCD] and Rule is not sufficient reason for the Commission to require to a site-specific analysis for all sites. The 10 CFR § 2.335 waiver process is intended to address the circumstances that the Attorney General claims are present at Indian Point; and the adjudicatory proceeding for the Indian Point license renewal, not this rulemaking, is the proper venue to raise these issues.

75 Fed. Reg. at 81,057 (J.A.->.

30

Notably, as part of its property values contention, New York State

sought an exemption from and waiver of the TSR, as applied to Indian Point. See

July 6 Board Order at 10-11. The NRC Licensing Board found it unnecessary to

rule on the waiver request because it had already admitted for litigation the

question of whether the no-action alternative would lead to increased property

values. See id. at 18-19.27 Thus, Petitioner States' argument (see Pet. St. Br. at 30-

33) that the WCD/TSR preclude opportunities to seek consideration of the site-

specific impacts of spent fuel storage in NRC licensing proceedings lacks

foundation.

2. The NRC WCD Does Not Need to Address the Environmental Impacts of Spent Fuel Disposal

The Petitioner Organizations take a different approach to attacking the

WCD/TSR; they do not address the interim storage issue at all. Petitioner

Organizations challenge the rule because it does not itself address the impact of

spent fuel disposal. Pet. Org. Br. at 23. Petitioner Organizations argue that those

impacts are significant and must be addressed in an EIS. Id. at 22. The Petitioner

Organizations, in effect, challenge the continuing validity of Table S-3. Id. at 23-

25. However, this argument attacks a straw man. The WCD - by definition-

does not address spent fuel disposal. Disposal issues have been addressed in Table

27 These facts also undercut the Petitioner States' complaint that the Section 2.335 process "does not work as a practical matter." Pet. St. Br. at 31.

31

S-3. The WCD does not address or rely upon Table S-3. A collateral challenge to

the validity of Table S-3 is beyond the scope of the rule presently under review.

As already addressed above, in Minnesota v. NRC, the Court has

acknowledged and validated the Table S-3 generic approach to spent fuel disposal

impacts, although Table S-3 addressed an issue separate from the specific issue

isolated by the court in that case and addressed by the WCD/TSR. See 602 F.2d

412,416-17. Moreover, Table S-3 was itself upheld against challenge in 1983, in

Baltimore Gas and Electric Co. A new challenge to the rule is untimely under the

Hobbs Act.28 Natural Resources Defense Council v. NRC, 666 F.2d 595, 602

(1981) ("The 60-day period for seeking judicial review set forth in the Hobbs Act

is jurisdictional in nature, and may not be enlarged or altered by the courts")

(citations omitted).

Further, consistent with this Court's decision in Massachusetts v.

Interstate Commerce Comm 'n, 893 F.2d 1368 (D.C. Cir. 1990), Table S-3 is not

now subject to collateral attack through the WCD and TSR. In that case, this Court

rejected a collateral attack on a valuation method employed by the agency, which

had initiated a rulemaking proposing new accounting rules for cost of capital

determinations, but had not considered changes to or solicited comments on the

associated valuation method. The Court found Massachusetts' challenge to be

28 28 U.S.C. § 2344.

32

beyond the scope of the notice discussing proposed changes and an impermissible

collateral attack on long-settled agency policy. Id. at 1371. Likewise, the NRC

gave absolutely no indication that it contemplated or solicited comments on

changes to Table S-3 during the WCD rulemaking.

The NRC also explicitly addressed this argument in the WCD Federal

Register notice, in responding to comments. 75 Fed. Reg. at 81,043-81,044

(Comment 3)(J.A.~. The NRC explained that the WCD itself does not rely on

Table S-3, and therefore Table S-3 does not need to be reconsidered to support the

WCD. Id. at 81,044. The Commission concluded in the WCD that it continues to

have confidence in the feasibility of geologic disposal (consistent with NRC and

EP A standards). Id. While Table S-3 was based upon certain assumptions

regarding the technology/geology for disposal of spent fuel, those assumptions do

not impact the Commission's conclusions regarding the feasibility and

environmental impacts of disposa1.29 See, e.g., License Renewal GElS. The NRC

has not ruled out a future review or rulemaking to revise Table S-3; it simply does

29 Petitioner Organizations assert that their comments regarding the impact of storage at a non-bedded salt-site were "ignored." Pet. Org. Br. at 22. But the NRC specifically explained that the 1984 WCD was not premised on securing a bedded-salt site. 75 Fed. Reg. at 81,044 (J.A.~. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), which involves an agency's failure to respond to concerns raised by experts regarding the subject matter of the rulemaking, is not relevant here, where Table S-3 was unchanged and where the NRC gave a reasoned response to the comments below.

33

not need to take that action at this time. 75 Fed. Reg. at 81,045 (J.A.-,>. If

Petitioner Organizations believe action is required with respect to Table S-3, the

NRC's rules provide a procedure to petition for ru1emaking. See 10 C.F.R.

§ 2.802. If Petitioner Organizations are unsatisfied with the result of that petition,

they retain options to seek judicial review.

D. The WCD Adequately Addresses Barriers to Availability of a Repository

Petitioner Organizations next argue that the NRC has given

inadequate consideration to the effects of "institutional barriers" on the

environmental impacts of spent fuel disposal. Pet. Org. Br. at 25-28. Petitioner

Organizations argue that "the timeline for an eventual solution may need to be

measured in centuries rather than years or decades." Id. at 27. The suggestion is

that temporary storage will become the "de facto permanent disposal mechanism."

Id. at 28. This argument appears to be a challenge to WCD Finding 2 or, to a

lesser extent, Finding 4. In either case, Petitioner Organizations have not identified

a significant environmental impact requiring further analysis, much less an EIS.

In connection with Finding 2 the NRC evaluated the current prospects

for the availability of mined geologic repository capacity. 75 Fed. Reg. at 81,062-

81,067 (J.A.-,>. The NRC did not, by any measure, ignore the political and public

challenges related to developing a repository or determine that a repository would

be available quickly. The NRC considered the status of the Yucca Mountain

34

project, noting that "it appears uncertain whether the [project] will ever be

constructed." Id. at 81,062.30 And the Commission recognized that international

experience reflects the "broad social and political acceptance needed to construct a

repository." Id. at 81,064. But the NRC also noted the appointment of a Blue

Ribbon Commission to assess the state of spent fuel storage and disposal policy,

and that - until repealed or amended - NWPA remains "the controlling policy."

Id. at 81,063. Indeed, NWP A still mandates a national repository program. Id. at

81,049,81,063.

NEPA "does not require a crystal ball inquiry." Natural Resources

Defense Council v. Morton, 458 F.2d 827,837 (1972)(internal quotations omitted).

It does not call for certainty or precision, but merely an estimate of anticipated (not

30 DOE submitted its application to construct the Yucca Mountain repository on June 3, 2008. The NRC completed several substantial technical evaluations of DOE's application, none of which question the technical feasibility of building or operating a geological repository. See NUREG-1949, "Safety Evaluation Report Related to Disposal of High-Level Radioactive Wastes in a Geological Repository at Yucca Mountain, Nevada, Volume I" (Aug. 2010)(MLI02440298); NUREG-21 07, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Postclosure Volume: Repository Safety After Permanent Closure" (Aug. 2011)(MLI1223A273); NUREG-2108, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Preclosure Volume: Repository Safety Before Permanent Closure" (Sept. 2011)(MLI1250A093); NUREG-21 09, "Technical Evaluation Report on the Content of the U.S. Department of Energy's Yucca Mountain Repository License Application, Administrative and Programmatic Volume (Sept. 2011)(MLI1255A002).

35

unduly speculative) impacts. Louisiana Energy Servs. (Nat'l Enrichment Facility),

CLI-05-20, 62 NRC 523, 536 (2005). When faced with uncertainty, NEPA only

requires "reasonable forecasting." Scientists' Inst. for Pub. Irifo., Inc. v. AEC, 481

F.2d 1079, 1092 (D.C. Cir. 1973). NEPA allows agencies "to select their own

methodology as long as that methodology is reasonable." Hughes River Watershed

Conservancy v. Johnson, 165 F.3d 283,289 (4th Cir. 1999). At bottom, an agency

is obligated to "examine the relevant data and articulate a satisfactory explanation

for its action including a rational connection between the facts found and the

choices made." Motor Vehicle Mfrs. Ass'n of us., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29,43 (1983) (internal quotation marks omitted).

In light of all of the considerations above, the NRC reasonably

concluded that: ( a) geologic disposal is technically feasible; (b) that spent nuclear

fuel may be stored without significant impact for at least 60-years beyond the

licensed operating life of nuclear plants (60-years, if a renewed license has been

issued);31 and (c) a repository will be available "when necessary." The NRC's

conclusion reflects a rational analysis, based on the information presently

31 Cumulatively, the WCD considers the effects of spent fuel storage for 120-years. And the Commission has directed the NRC Staff to develop a plan for long-term rulemaking to address the impacts of storage beyond a 120-year time frame and to prepare an EIS to support this effort. SECY -09-0090. "Final Update of the Commission's Waste Confidence Decision" (Sept. 15, 2010)(ML0916660274).

36

available.32 This analysis satisfies the NEP A standard for careful consideration of

relevant issue in an environmental review.

VIII. CONCLUSION

For the reasons above, the Commission in revising the WCD and TSR

acted in accordance with NEP A and made rational technical determinations well

within its agency expertise. Under the applicable standard of review, the Petitions

for Review should be denied.

32 Petitioner Organizations cite 10 C.F.R. § 61.59(b) for the proposition that the WCD violates NEP A because it fails to address in an EIS what is meant by "necessary," or the impacts that may occur if and when spent fuel storage becomes de facto permanent disposal due to the loss of institutional controls. Reliance on §61.59(b) is inapposite. The regulation applies only to institutional controls related to disposal facilities.

37

Ellen C. Ginsberg, Esq. Jerry Bonanno, Esq. Nuclear Energy Institute, Inc. 1776 I Street, N.W. Washington, DC 20006 (202) 739-8147 ecg@nei.org jxb@nei.org

L. Jager Smith, Jr. Wise Carter Child & Caraway, P .A. 1340 Echelon Parkway Jackson, MS 39213 601-368-5572

Dated in Washington, D.C. this 21st day of November 2011

38

Respectfully submitted,

David A. Repka, Esq.* Rachel Miras-Wilson, Esq. Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006 202-282-5726 drepka@winston.com rwilson@winston.com

Attorneys For Nuclear Energy Institute, Inc.

Brad Fagg* Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 202-739-5191 bfagg@morganlewis.com

Attorneys for Entergy Nuclear Operations, Inc.

* Counsel of Record

CERTIFICATE OF COMPLIANCE

In accordance with Fed. R. App. P 32(a)(7)(C) and Circuit Rule 32-1,

the undersigned counsel hereby certifies that the foregoing Answering Brief of

Intervenor-Respondent is proportionally spaced, has a type face of 14 points or

more, and contains 8,735 words, excluding the title page, Table of Contents, Table

of Authorities, Corporate Disclosure Statement, and certificates of counsel. The

CERTIFICATE OF SERVICE

I hereby certify that I have this day served copies of the foregoing

"Consolidated Answering Brief of Intervenor Respondents Nuclear Energy

Institute and Entergy" upon those listed on the attached service list by Electronic

Case Filing ("ECF"), for those registered for ECF, and two copies, by U.S. Mail,

first class, postage prepaid.

Dated: November 21,2011

Respectfully submitted,

David A. Repka * Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006 (202) 282-5726 drepka@winston.com

COUNSEL FOR THE NUCLEAR ENERGY INSTITUTE

* Counsel of Record

1

SERVICE LIST

John Emad Arbab, Esq. U.S. Department of Justice Environment & Natural Resources Division P.O. Box 23795, L'Enfant Plaza Sta. Washington, D.C. 20026-3795

Diane Curran, Esq. Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, N.W. Suite 600 Washington, D.C. 20036

George Jepsen, Esq. Attorney General Robert Snook, Esq. Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06106 Tel. (860) 808-5020 robert.snook@ct.gov

William H. Sorrell, Esq. Attorney General Thea 1. Schwartz, Esq. Kyle H. Landis-Marinello, Esq. Office of the Attorney General 109 State Street Montpelier, Vermont 05609-1001 Tel. (802) 828-3186 Email: tschwartz@atg.state.vt.us

John F. Cordes, Jr., Esq., Robert Michael Rader, Esq. Nuclear Regulatory Commission Room 14 H3, 11555 Rockville Pike One White Flint North Rockville, Maryland 20852

Geoffrey H. Fettus, Esq. Natural Resources Defense Council, Inc. 1152 15th Street NW, Suite 300 Washington, DC 20005

Monica Wagner, Esq. Assistant Solicitor General Janice A. Dean, Esq. John J. Sipos, Esq. Assistant Attorneys General Office of the Attorney General For the State of New York

2

120 Broadway New York, New York 10271 Tel. (212) 416-6351 E-mail: monica.wagner@ag.ny.gov

Joseph F. Halloran, Esq. Sara K. Van Norman, Esq. Kasey W. Kincaid, Esq. Jacobson, Buffalo, Magnuson, Anderson, & Hogan, P.C. 335 Atrium Office Building 1295 Bandana Blvd. St. Paul, Minnesota 55108

Kevin P. Auerbacher, Esq. Ruth E. Musetto, Esq. New Jersey Division of Law Environmental Enforcement & Homeland Security Section 25 Market Street Trenton, New Jersey 08625-0093

3

ADDENDUM

ADDENDUM TABLE OF CONTENTS

28 U.S.C. § 2344…………………………………………………………………...1 42 U.S.C. § 2011 …………………………………………………………………..2 42 U.S.C. § 4321 ………………………………………………………………..189 42. U.S.C. § 10101………………………………………………………………231 10 C.F.R. § 50.9………………………………………………………………….284 10 C.F.R. § 51.100……………………………………………………………….286 10 C.F.R. § 51.104……………………………………………………………….288 10 C.F.R. § 51.53………………………………………………………………...290 10 C.F.R. § 51.72………………………………………………………………...294 10 C.F.R. § 51.92………………………………………………………………...295 10 C.F.R. § 51.95………………………………………………………………...297 10 C.F.R.