[00:00:01] Speaker 00: Case number 14-1210 at L. State of New York at L. Petitioners versus U.S. [00:00:06] Speaker 00: Nuclear Regulatory Commission at L. Mr. Amon for the petitioners. [00:00:10] Speaker 00: State of New York at L. Mr. Fettes for petitioners. [00:00:13] Speaker 00: NRDC, Inc. [00:00:14] Speaker 00: at L. Mr. Eberbach for respondents and Mr. Rebka for the intervener. [00:01:10] Speaker 03: May it please the court, Andrew Amon, for the states and tribe. [00:01:14] Speaker 03: Respondent NRC has a critical regulatory duty this court found unfulfilled four years ago and that remains unfulfilled today. [00:01:22] Speaker 08: I would say I hate to start with jurisdiction again, but I don't hate to. [00:01:26] Speaker 08: The statute you're coming up on here refers to this court having jurisdiction of the final order. [00:01:32] Speaker 08: It does not say we have jurisdiction over rulemaking, whether it be NRC under this circumstance. [00:01:42] Speaker 08: That would sound as if this would be a case under Hobbs to go to the district court, rather than the district court. [00:01:50] Speaker 08: Why should we not employ the statute by its term and say you're in the wrong court? [00:01:56] Speaker 03: uh... with respect your honor uh... well-established resumption in this court under investment company institute and it's a different statute but it establishes a general presumption that where review is provided for uh... in the court of appeals of reference to orders includes rules and i think that [00:02:19] Speaker 08: which would seem at least possibly to invoke a congressional intent to follow the APA and that we would have the jurisdiction over only the part of the statute gives us jurisdiction over the orders as opposed to rules. [00:02:35] Speaker 03: Well, the answer to that, Your Honor, is, first of all, in 2239A itself, Congress vested jurisdiction under the Hobbs Act for final orders in proceedings for the issuance and modification of rules dealing with the activities of licensees. [00:02:53] Speaker 08: Do you have anything called a order in this case? [00:02:56] Speaker 08: We don't have anything that has been... Well, that's what you bring, is there really? [00:03:02] Speaker 08: And I'm questioning whether we have jurisdiction in this to be the fourth or first instance. [00:03:04] Speaker 08: when it's the rule of the person under this statute. [00:03:09] Speaker 03: The background presumptions that this court and other courts have long employed provide that it does not matter whether the agency labels what it does in order. [00:03:21] Speaker 03: What it has done is, in substance, issued a final determination in a proceeding for the issuance and modification of rules. [00:03:36] Speaker 08: Well, what did Congress mean by inserting the ripped up, uh... [00:03:41] Speaker 03: Congress intended, and it's important also to note the terms in which Congress imported the APA. [00:03:49] Speaker 03: It adopted explicitly two definitions. [00:03:53] Speaker 03: It did not, pardon me, explicitly adopt the definition for rule and order. [00:03:59] Speaker 03: And if you do adopt the APA's definition of order as something that excludes the product of a rulemaking, [00:04:06] Speaker 03: then the language in 2239A about a final order from a petition for rulemaking or from a rulemaking proceeding becomes completely negatory. [00:04:17] Speaker 03: It's right out of the statute. [00:04:18] Speaker 08: One more final question and then I'll let you go back to what everybody wanted to talk about. [00:04:22] Speaker 08: Thank you. [00:04:23] Speaker 08: Although there's nothing called an order here, the rule normally is not an order. [00:04:28] Speaker 08: You're talking about background presumption. [00:04:30] Speaker 08: What is there in this case that is an order, a final order we could be having? [00:04:35] Speaker 03: The issuance of the final rule in the publication of the Federal Register. [00:04:41] Speaker 08: We see a lot of administrative procedure in this Court, and usually when there's an order, that comes out of an adjudicated proceeding. [00:04:49] Speaker 08: When there's a rule, it comes out of a rulemaking. [00:04:52] Speaker 08: You want to talk about background presumptions, but that doesn't mean very much. [00:04:57] Speaker 08: Even if there is one, it bursts like a bubble if there's something contrary. [00:05:01] Speaker 03: With respect, Your Honor, the statute in this case is, in anything, something that dictates in favor of applying the presumption, because Congress specifically provided, notwithstanding the incorporation to some extent of the APA, that the final order in a rulemaking proceeding, and that's any rulemaking proceeding, is something that is reviewable under the Hobbs Act. [00:05:32] Speaker 03: to get to the merits. [00:05:35] Speaker 03: New York 1 started in the Court of Appeals. [00:05:38] Speaker 03: New York 1 started in the Court of Appeals. [00:05:40] Speaker 03: Gage started in the Court of Appeals. [00:05:43] Speaker 03: The right black cake we cited started in the Court of Appeals. [00:05:45] Speaker 03: There are numerous instances of courts doing this. [00:05:48] Speaker 08: There's only one case that I'm familiar with, and that's one I got in the first period, where they actually asked the question, I think. [00:05:55] Speaker 08: And we've said a lot of times that you cannot find your seat in the president by [00:06:02] Speaker 08: which we did not discuss. [00:06:06] Speaker 08: Discuss the first circuit case that actually does discuss [00:06:19] Speaker 03: In any case, Your Honors, the First Circuit demonstrates why this court should find jurisdiction. [00:06:25] Speaker 03: Again, the general presumption, this is stated, is that if the language is ambiguous, and it is at most ambiguous here, then the Court of Appeals review is in the first, pardon me, where it goes in the first instance. [00:06:40] Speaker 08: I understand that the First Circuit came out that way, but... Well, and that's completely consistent with this court's... That's not binding on it. [00:06:45] Speaker 03: presumption in investment company and the Supreme Court's endorsement of that presumption in La Ryan. [00:06:51] Speaker 05: In any event... Don't be anxious. [00:06:53] Speaker 05: You'll get a chance to argue the merits. [00:06:54] Speaker 05: You're looking tense. [00:06:56] Speaker 05: Thank you. [00:06:57] Speaker 03: Thank you very much, Judge Edwards. [00:07:00] Speaker 05: I'm through. [00:07:02] Speaker 05: You're killing them, David. [00:07:04] Speaker ?: You're killing them. [00:07:07] Speaker ?: Go ahead, Jeff. [00:07:07] Speaker ?: Go back to what you wanted to say. [00:07:11] Speaker 03: That is that respondent NRC has a critical regulatory duty that this court found unfulfilled four years ago and that remains unfulfilled today. [00:07:22] Speaker 03: That duty is to take a hard look at the environmental impacts of allowing the extremely toxic spent nuclear fuel produced by more than 100 reactors around the country to be stored on site indefinitely. [00:07:34] Speaker 03: NRC claims that it took the required hard look through a one-size-fits-all generic environmental impact statement whose findings are binding and preclusive as to all plants in the country, even though important inputs include data from a plant in rural Virginia. [00:07:50] Speaker 03: Not all plants are located in areas like rural Virginia. [00:07:54] Speaker 03: Some are near densely populated urban centers or ancestral tribal lands, for example, and the impacts of storage spent fuel in those places will go unevaluated under NRC Generic Statement and Continued Storage Rule. [00:08:07] Speaker 03: That violates NEPA. [00:08:09] Speaker 03: The requirement for an environmental impact statement before a plant is licensed serves to inform the public by mandating agency disclosure, whether an interested party asks for it or not, of the impact of onsite storage at each plant to be licensed. [00:08:24] Speaker 08: Did not the generic leave open the possibility of such specific considerations in the issuance of a particular EPA statement, environmental impact statement, [00:08:35] Speaker 03: That is not what we have here, Your Honors. [00:08:38] Speaker 03: NRC has issued a rule, a GEIS, and with the continued storage rule, it's made the findings of that generic statement final and binding. [00:08:46] Speaker 08: That's not answering my question. [00:08:48] Speaker 08: Okay, Your Honor. [00:08:49] Speaker 08: There is many issues. [00:08:51] Speaker 08: The GEIS has many issues. [00:08:52] Speaker 08: Does that not leave open the possibility of site-specific language or regulation with respect to an EIS on a specific site? [00:09:03] Speaker 03: It does not here. [00:09:04] Speaker 03: This is the last word. [00:09:06] Speaker 08: I would not be any specific. [00:09:12] Speaker 03: That is correct, Your Honor. [00:09:13] Speaker 03: In fact, if you look at their own regulations, although they state in their brief, they seem to suggest that there will be some sort of plant consists plant specific considerations. [00:09:24] Speaker 08: What he said is [00:09:26] Speaker 03: Yes, if you look at the regulations that are part of the continued storage rule, particularly set forth at add 14 to add 15 of our reply brief, that is a regulation that when a plant is having its license renewed gets applied to determine [00:09:43] Speaker 03: what issues have environmental impacts that get additional review in the licensing stage and what don't. [00:09:50] Speaker 03: Category one, you don't get any review. [00:09:52] Speaker 03: Category two, you do. [00:09:53] Speaker 03: They've put on-site storage in category one. [00:09:56] Speaker 03: That means no more review. [00:09:58] Speaker 03: That means no, specifically also, one of the definitional criteria for [00:10:03] Speaker 03: category one is that the agency has already considered on a generic basis the type specific mitigation isn't worth the candle [00:10:15] Speaker 03: And this is a crucially important point, Your Honors, because in a lot of ways, this is where the information and decision forcing function of NEPA hits the road. [00:10:28] Speaker 03: Right now, this rule doesn't provide mitigation and alternatives, and it prevents mitigation and alternatives from ever happening at the license stage. [00:10:38] Speaker 03: That means that NRC and its licensees are excluded from having to even consider the costs and benefits [00:10:45] Speaker 03: of measures that, in the event of a spent fuel accident, could save lives. [00:10:50] Speaker 03: And in the case of a plant like Indian Point, it could save an awful lot of lives indeed. [00:10:56] Speaker 03: And that's just not acceptable underneath that. [00:10:58] Speaker 07: So play out specifically what the harm's going to be. [00:11:03] Speaker 07: when we have a site-specific, because of this generic statement. [00:11:08] Speaker 07: What is going to be missing when we do the site-specific licensing proceeding, or when they do the site-specific licensing proceeding? [00:11:15] Speaker 03: There will be no consideration of impacts at specific plants greater than the generically determined impacts. [00:11:28] Speaker 03: There is a waiver proceeding, but a couple of problems with that. [00:11:33] Speaker 03: If this court endorses the rule, it will be in effect endorsing the logic that it was reasonable for NRC to say that it's binding and preclusive. [00:11:44] Speaker 07: Can we endorse it subject to the waiver proceeding? [00:11:47] Speaker 03: Well, endorsing it subject to the waiver proceeding [00:11:51] Speaker 03: is saying that what they've done is not sufficient to allow licensure of plants, and that already is a statement that there's a violation of NEPA. [00:12:01] Speaker 03: The other problem, though, is that the way NEPA works... I'm not sure I understand that sentence. [00:12:07] Speaker 08: Do you elucidate that one, yeah? [00:12:09] Speaker 03: Sure. [00:12:14] Speaker 03: saying that there has to be a waiver is already saying that this is not a sufficient statement as to all plants in the country, and it's NRC's burden. [00:12:22] Speaker 07: But it's in essence a presumption, a generic presumption that we adopt, and then saying, well, if there's something that takes it out of the ordinary, and I understand your point about the real world of how the waiver works, I get that. [00:12:35] Speaker 07: but at least theoretically you could come in and a site-specific proceeding and say, wait, there are different kinds of impacts here that need to be considered different from the generic. [00:12:47] Speaker 03: I mean there are a few answers to that. [00:12:49] Speaker 03: One, NEPA requires this to be done. [00:12:52] Speaker 03: This generic environmental impact statement is essentially being made an environmental impact statement for every plant in the country. [00:12:58] Speaker 03: And it's NRC's burden under NEPA to assess [00:13:02] Speaker 03: known risks, known site-specific risks in the first instance, whether anyone asks for it or not. [00:13:09] Speaker 03: And the burden, by the way, of going through a waiver process is not trivial for an outside third party. [00:13:18] Speaker 03: In this case, the states and tribe have already expended significant resources just to comment on the GEIS. [00:13:26] Speaker 03: And NRC has said, we don't think those [00:13:32] Speaker 03: considerations warrant deviation from our Generic Environmental Impact Statement. [00:13:39] Speaker 05: But are you arguing that generic statements are impermissible as a matter of law? [00:13:43] Speaker 05: Because that's not what we said in New York 1. [00:13:45] Speaker 03: No, we are not arguing that they are impermissible as a matter of law. [00:13:49] Speaker 03: What we are saying is that if you're going to have a generic statement, then you're going to make that binding and preclusive as to all plants, then it needs to capture the full range of risks represented by all plants. [00:14:01] Speaker 06: How can you do that? [00:14:03] Speaker 03: Well, they can do something that's called a conservative and bounding analysis. [00:14:06] Speaker 03: And they've done this before. [00:14:08] Speaker 03: What that is, a conservative analysis is one that, if anything, overstates the risk. [00:14:13] Speaker 03: It doesn't, in any case, understate it. [00:14:16] Speaker 07: And a bounding analysis is an analysis that... But a conservative analysis could still be wrong as to certain plants, right? [00:14:24] Speaker 03: That would not be the idea, but a bounding analysis, in any event, when you put the two concepts together, it establishes a lower bound and an upper bound of expected impacts. [00:14:33] Speaker 03: And if you know, we're not asking NRC to speculate or imagine what is the worst possible thing that could happen. [00:14:43] Speaker 03: It knows that there is a plant that has population density around it twice that of the next highest plant and seven times that of the Suri plant that it looked at. [00:14:52] Speaker 03: and ten times that of most plants in the country. [00:14:58] Speaker 03: It also knows that, as we pointed out, the Indian Point plant has a drinking water reservoir that's six miles away and directly downwind. [00:15:09] Speaker 03: New York City itself, also, it's not merely a matter of multiplying the population to see the risks. [00:15:16] Speaker 03: There are unique risks that are presented by that community that is densely urbanized and located on a set of islands that makes it difficult to evacuate, difficult to remediate, and presents unique [00:15:30] Speaker 03: impacts for public health infrastructure and other infrastructure. [00:15:34] Speaker 03: So if you've got a bounding, pardon me, to go back to the concept of using a conservative and bounding analysis, which is one of the points that this court said you had to do, NRC had to use, [00:15:46] Speaker 03: If you've got a point that is up here, that is above the levels that you know that you have calculated, and we know this because they tell us, for example, on the top of page 39 of their brief, then you haven't done a conservative bounding analysis. [00:16:01] Speaker 03: They also, as a matter of, while they're not required as a matter of law to do site-specific review, they can have a combination of generic and site-specific. [00:16:11] Speaker 03: In the current practices, again, that deal with license renewal, there's a generic environmental impact statement, and then for severe reactor accidents, which are events that have [00:16:26] Speaker 03: would have consequences similar to a severe spent fuel accident. [00:16:30] Speaker 03: There is a site specific mitigation and alternatives analysis that is automatically part of every site specific licensing proceeding. [00:16:43] Speaker 03: And I see we're not saying they have to but the model exists for them to do that. [00:16:48] Speaker 05: And I'm still not I'm still not entirely sure what it is that you think they are deficient with respect to. [00:16:57] Speaker 05: the site-specific analysis apart from storage, defense, and fuel, which I understand you want that alternative, you want an alternative assessment where it wouldn't be done at all. [00:17:10] Speaker 05: But taking that off the table, what is it in particular that you couldn't get review out pursuant to a waiver at the license procedure that you think is a serious issue? [00:17:23] Speaker 05: What in particular? [00:17:24] Speaker 03: So there are three things that are wrong with this GEIS that are currently existing waiver provisions. [00:17:30] Speaker 03: One is that NRC has excluded any analysis of consequences of events it acknowledges are possible. [00:17:39] Speaker 03: That includes short-term high-volume pool leaks. [00:17:43] Speaker 05: Say that sentence again. [00:17:44] Speaker 03: They've excluded what? [00:17:45] Speaker 03: Consideration of consequences of events they've acknowledged there is a non-zero chance of happening. [00:17:52] Speaker 03: which is a violation of New York 1. [00:17:56] Speaker 03: Short-term, high-volume spent fuel pool leaks. [00:18:00] Speaker 03: And another is use of pools to store fuel after they're 120 years old. [00:18:08] Speaker 03: In other words, after the end of the 60-year decommissioning period. [00:18:12] Speaker 03: They acknowledge those are possible, but they don't consider the effects. [00:18:16] Speaker 03: So in that respect, the GEIS is defective regardless. [00:18:21] Speaker 05: Didn't they say something about leaks? [00:18:23] Speaker 03: They said about leaks, they did a generic analysis, again, not necessarily one that's suitable for all plants, but they did do a generic analysis of short-term low-volume leaks, or pardon me, long-term low-volume leaks. [00:18:38] Speaker 03: For short-term high-volume leaks, their answer is exactly the same one that they gave in New York 1 and that this court rejected, which is basically [00:18:46] Speaker 03: Oh, well, they've happened in the past, and no one has seriously gotten hurt, and NRC and its licensees are on the watch. [00:18:53] Speaker 05: This court said that is not... I thought they said that it was, in their view, it was an insignificant risk, which made it different from New York one. [00:19:03] Speaker 05: I... You may not buy that, but I thought that's what they said. [00:19:07] Speaker 03: We didn't, that, if your honor is suggesting that what they did was the equivalent of an environmental assessment in a Fonzie, they haven't made that argument. [00:19:16] Speaker 05: No, but I know, but I don't, whether you put it in a Fonzie or not is beside the point right now in trying to think this thing through. [00:19:21] Speaker 05: I thought they made a comment about leaks, which was not the same as what they said in New York 1. [00:19:27] Speaker 03: They did not make a comment as to short-term high-volume leaks that was different from what they said in New York 1. [00:19:36] Speaker 05: They didn't say they thought it was an insignificant risk or something like that. [00:19:39] Speaker 03: They might have said that, but the analysis is deficient for the same reasons, regardless of whether or not... Well, we would have started at the right point. [00:19:46] Speaker 05: So they said something that's different in New York 1. [00:19:49] Speaker 05: You're saying you don't like what they said here. [00:19:51] Speaker 05: My recollection is what they said here is different from what they said in the first case. [00:19:55] Speaker 03: What they said in the first case was different. [00:19:56] Speaker 03: There are different categories of leaks, Your Honor. [00:19:59] Speaker 03: I think that's true. [00:20:00] Speaker 05: They were referring to the past, and the court said that's not a good analysis. [00:20:03] Speaker 05: And I thought here they said, all right, we're looking to the future. [00:20:05] Speaker 05: We don't think it's significant. [00:20:06] Speaker 05: I think. [00:20:07] Speaker 05: I have to go back and look. [00:20:08] Speaker 03: They didn't do that, no. [00:20:10] Speaker 03: And not with respect to short-term high-volume leaks. [00:20:13] Speaker 03: They did not consider the consequences of those leaks. [00:20:16] Speaker 03: And by the way, another leak was recently just found at the Indian Point plant. [00:20:22] Speaker 03: where there's been elevated levels of tritium in the groundwater. [00:20:26] Speaker 03: And that's within the past two or three weeks. [00:20:28] Speaker 03: So this is not hypothetical stuff that we're dealing with here. [00:20:34] Speaker 03: So beyond that, again, I've mentioned the confusion of mitigation and alternatives analyses. [00:20:43] Speaker 03: And the fact that this is a one size fits all generic environmental impact statement [00:20:52] Speaker 03: where one size clearly doesn't fit all. [00:20:54] Speaker 05: And if NRC knows that... Let me make sure we're together. [00:20:58] Speaker 05: What else? [00:20:58] Speaker 05: What were the three things you said? [00:21:00] Speaker 05: Leaks? [00:21:01] Speaker 05: Sorry, yes, I'll... I really need to understand what it is specifically that you think they have failed to do having used this generic approach. [00:21:12] Speaker 05: They gave an answer on short term high volume leaks. [00:21:15] Speaker 05: You disagree with it, but they definitely gave an answer. [00:21:19] Speaker 05: All right, so I understand your point that what else? [00:21:22] Speaker 03: use of pools past 60 years, past the end of the 60-year decommissioning period. [00:21:33] Speaker 05: And what do you think they said that's inadequate? [00:21:36] Speaker 05: You're saying they didn't even address it at all, which is not my recollection. [00:21:39] Speaker 03: They didn't address the consequences. [00:21:41] Speaker 03: Again, Your Honor, if there's a non-zero chance of this happening, they have to at least analyze what the consequences will be. [00:21:48] Speaker 03: And they didn't analyze any consequences of spent fuel storage past 60 years at the end of the decommissioning period. [00:21:57] Speaker 03: And there's reason to think that spent fuel pool might be [00:22:03] Speaker 03: something that continues after that time. [00:22:05] Speaker 03: It costs a lot of money to move fuel from a pool to dry storage. [00:22:14] Speaker 03: Right now, these are LLCs that own these plant sites, and once they stop operating, they don't have any more money coming in the door. [00:22:22] Speaker 03: So 60 years down the road, there's no national repository [00:22:28] Speaker 03: You know, there are real reasons to suspect that it's going to continue to be left to the polls. [00:22:33] Speaker 05: What's the third thing? [00:22:35] Speaker 03: So, pardon me. [00:22:37] Speaker 03: There are three categories of problem with this, and I'll just recap those. [00:22:43] Speaker 03: NRC has violated NEPA by one, making a one-size-fits-all generic analysis binding and preclusive as to all plants. [00:22:54] Speaker 08: You have already admitted that you're not saying [00:22:57] Speaker 08: that generic EIS is unlawful, per se. [00:23:02] Speaker 03: we're not saying it's unlawful per se, but if you're going to, for example, use population... Category 1 is that this GEIS doesn't capture specific... Category 2 is failing to consider the consequences of events that have a non-zero chance of happening, including short-term high-volume leaks and use of storage pools past the end... Category 3 is precluding mitigation and alternatives analyses concerning the impacts of on-site storage. [00:23:32] Speaker 03: They, in their GEIS, considered mitigation and alternatives of issuing a rule, not mitigation alternatives with respect to on-site storage. [00:23:41] Speaker 03: And they've structured their rule such that that analysis doesn't take place in the site-specific licensing stage. [00:23:50] Speaker 03: And in fact, they've ruled in Indian Point in a ruling attached to our reply as Add 1 to Add 7 that [00:24:01] Speaker 03: They are not going to look at these because the GEIS already resolved everything. [00:24:06] Speaker 03: So the GEIS has made the alpha and the omega of environmental review of on-site storage impacts. [00:24:14] Speaker 03: And it leaves work undone that has to be done by the agency in the first instance without putting a burden on an interested party to come in and ask for something more to be done or not. [00:24:26] Speaker 06: Why don't we hear from your co-counsel? [00:24:29] Speaker 06: Thank you. [00:24:30] Speaker 06: We'll give you time for a bottle. [00:24:32] Speaker 03: Thank you, Your Honors. [00:24:44] Speaker 04: Good morning. [00:24:45] Speaker 04: May it please the court? [00:24:45] Speaker 04: Jeffrey Fettes for Environmental Petitioners. [00:24:49] Speaker 04: We're here before you for two significant reasons. [00:24:52] Speaker 04: The NRC violated this court's decision in New York 1. [00:24:55] Speaker 04: First, just as with the New York 1 decision, the NRC has enabled the licensing of reactors that produce nuclear waste, and it hasn't followed it with complete NEPA analysis that compares meaningful alternatives to the proposed action. [00:25:09] Speaker 04: The second reason, to the extent that it did that impacts analysis, the NRC has failed to analyze the probability A, repository would not be cited, and it's assumed away any potential harms or significant consequences without a lawful basis. [00:25:24] Speaker 04: For these two simple reasons, we think you should vacate the rule and its attendant generic EIS and remand it back to the agency. [00:25:32] Speaker 04: And turning to the first issue. [00:25:33] Speaker 07: What specifically do you want them to do on remand if you were to prevail? [00:25:38] Speaker 04: If we were to prevail, Your Honor, we would expect first that there would be a proper identification of the major federal action, which in this instance, consistent with the New York One decision, is the enabling of reactor licensing that allows for the production of nuclear waste. [00:25:58] Speaker 04: That would then elicit a meaningful set of alternatives. [00:26:01] Speaker 07: I don't think that's how New York One characterized the major federal action. [00:26:04] Speaker 04: They characterized the major federal action with the waste confidence determination as enabling licensing. [00:26:10] Speaker 04: It was a predicate to all future licensing, and it had preclusive effect, which is essentially the same situation we have here. [00:26:19] Speaker 04: If they were sent back, there would at least be an alternatives analysis that would compare a no-action alternative, which would be a curtailment of licensing, versus a status quo. [00:26:29] Speaker 05: There's nothing in New York want to say that. [00:26:32] Speaker 05: There's nothing in New York 1. [00:26:34] Speaker 05: I mean, that's just some lies. [00:26:35] Speaker 05: And I don't know if you're right on the statute, but it certainly seems to me that the court would have had that before then as an idea. [00:26:41] Speaker 05: That is, you're saying that they ought to consider cutting off all licensing going forward. [00:26:48] Speaker 04: No, Your Honor. [00:26:49] Speaker 05: I'm not understanding your argument. [00:26:51] Speaker 05: Then what are you saying? [00:26:51] Speaker 04: I understand. [00:26:52] Speaker 04: Your Honor, what New York 1 rightly said, and this is in the section I believe it's on [00:26:58] Speaker 04: I'm sorry, I don't have the page in front of me. [00:27:02] Speaker 04: But you have to, this is a major federal action because licensing has been enabled and there's a preclusive binding effect. [00:27:10] Speaker 04: And then it was, the court was quite clear where it said, we disagree with both parties. [00:27:14] Speaker 04: You have to go comply with NEPA. [00:27:16] Speaker 04: We had said at that point they have to go do an EIS and the court said not so fast. [00:27:20] Speaker 04: The court said they could do an EA, an issue of FONSI, or they could go do an EIS. [00:27:27] Speaker 04: But in either event, they would have to go back and comply with NEPA. [00:27:31] Speaker 04: We don't think we're in any way overreaching or extending beyond that court's ruling here by saying, OK, they have to go back and comply with NEPA. [00:27:40] Speaker 05: But wait, you threw in the notion [00:27:42] Speaker 05: meaningful alternatives. [00:27:43] Speaker 05: What are you talking about? [00:27:44] Speaker 04: Ah, that comes from NEPA, Your Honor. [00:27:46] Speaker 04: That's just simple, black-lettered NEPA law. [00:27:48] Speaker 05: No, but as against what? [00:27:49] Speaker 05: What do you want meaningful... This is where your argument's very confusing to me. [00:27:52] Speaker 05: When you say meaningful alternatives, I know what New York 1 says. [00:27:56] Speaker 05: I'm looking at it. [00:27:57] Speaker 05: Okay. [00:27:58] Speaker 05: But what... They don't seem to be saying what you're saying now. [00:28:01] Speaker 05: What do you mean by that? [00:28:02] Speaker 05: What did they fail to do with respect to considering meaningful alternatives? [00:28:07] Speaker 04: I understand, Your Honor. [00:28:08] Speaker 04: First, the alternatives that they considered in the generic EIS that's before you, that's in the record, literally looks at the environmental impacts of comparing a thin stack of paper versus producing a fat stack of paper. [00:28:21] Speaker 04: Nothing to do with nuclear waste, actually. [00:28:24] Speaker 04: And the alternatives are the heart of the EIS. [00:28:27] Speaker 04: And by alternatives, neighbor requires the federal government look before it leaves. [00:28:32] Speaker 04: Whether it's siding the highway, doing a timber sale cut, you have to look at the environmental alternatives. [00:28:40] Speaker 05: That's what they did in the GEIS. [00:28:42] Speaker 04: No, Your Honor. [00:28:43] Speaker 04: What they did in the GEIS, what they did in the GEIS was an impact analysis, not a look at alternatives that might provide mitigation of harm or even give this court or the decision maker an understanding of what the extent of waste might be. [00:28:58] Speaker 04: And that's what I'm talking about, meaningful alternatives. [00:29:01] Speaker 04: Compare for me. [00:29:02] Speaker 05: I may be dense today, but I'm not getting it. [00:29:05] Speaker 05: There's the rule in the GEIS, and I've had trouble parsing your distinctions here. [00:29:11] Speaker 05: Because the rule merely embraces a GEIS, and they're certainly discussing environmental impacts throughout through the GEIS, which is incorporated by the rule. [00:29:20] Speaker 05: Correct. [00:29:20] Speaker 05: And you keep saying they fail to consider alternatives. [00:29:23] Speaker 05: Alternatives to what? [00:29:25] Speaker 04: Alternatives, well, the alternative to the major federal action, which in this instance is enabling licensing. [00:29:32] Speaker 05: That's what I'm saying. [00:29:33] Speaker 05: So I asked you initially, you're saying they should have considered the possibility of no more licensing. [00:29:38] Speaker 05: And then you quickly said, no, that's not what I'm saying. [00:29:41] Speaker 04: No, they should have considered the possibility of no more licensing. [00:29:43] Speaker 04: No, that's what I asked you. [00:29:44] Speaker 05: I asked that five minutes ago, and you said no. [00:29:46] Speaker 05: I'm sorry, Your Honor. [00:29:46] Speaker 05: I thought I was... So you're saying they failed, and New York, maybe you're doing this intentionally because New York one didn't say that. [00:29:53] Speaker 05: They were supposed to consider the possibility of no more licensing. [00:29:58] Speaker 05: Or also continuing licensing. [00:30:00] Speaker 05: Both. [00:30:01] Speaker 05: Well, they clearly are talking about continuing, but you're saying their failure was not considering the possibility of no more. [00:30:07] Speaker 05: We're done. [00:30:07] Speaker 05: That was one of their failures. [00:30:08] Speaker 05: Even though Congress said, you do it. [00:30:11] Speaker 04: Well, Congress didn't – you have to be very clear about what Congress said. [00:30:15] Speaker 04: They don't have to license in any instance. [00:30:17] Speaker 04: There's a – the commission's Detroit Edison decision that's cited in our brief is quite clear that they would not license, but for the confidence that they could dispose of the waste safely – manage, store, and dispose of the waste safely. [00:30:33] Speaker 04: So they don't have to license in any instance, and we're not challenging that. [00:30:37] Speaker 04: We're simply, as holding up a comparison under NEPA, [00:30:41] Speaker 04: All we're saying is they need to be able to look at a no-action alternative, which would curtail licensing, and a status quo alternative, which would continue licensing, and what both the reasonably foreseeable impacts from those alternative decisions would be. [00:30:58] Speaker 04: So this is merely the alternatives analysis that's the heart of the NEPA statute. [00:31:04] Speaker 05: And do you see that anywhere in New York 1? [00:31:07] Speaker 04: I see in New York 1 [00:31:08] Speaker 05: That they have to do a no-action alternative, because I didn't see it. [00:31:13] Speaker 04: I see a remand back to the agency to comply with NEPA. [00:31:18] Speaker 05: NEPA necessarily... You're stating this is a huge proposition, and I don't know how my colleagues could have missed it if it was that big. [00:31:28] Speaker 05: Well, it's not there. [00:31:30] Speaker 04: New York 1, Your Honor, was focused on two things in our section of that decision. [00:31:35] Speaker 04: And New York 1 was focused on, is this a major federal action? [00:31:39] Speaker 04: And the NRC said no, it was not. [00:31:41] Speaker 01: We said yes, it was because it enabled licensing. [00:31:44] Speaker 04: Then the court said, and you have to comply with NEPA. [00:31:48] Speaker 04: Fundamental to complying with NEPA is looking at a no-action alternative as well as... And did they say that? [00:31:53] Speaker 05: I didn't see that. [00:31:55] Speaker 05: Fundamental to complying with NEPA is a no-action alternative. [00:31:58] Speaker 05: I didn't see that. [00:32:00] Speaker 05: They certainly, they were talking about things that are in the GEIS. [00:32:04] Speaker 05: Now those were the things that New York One was going through and that's what the agency was responding to. [00:32:09] Speaker 04: The agency, Your Honor, did an impact analysis where it created three scenarios, and we have problems with that as well. [00:32:19] Speaker 04: But the actual alternatives consistent with a major federal action that they, Your Honor, the alternatives that they present under this generic EIS have to do entirely with production of the rule and the environmental impacts that are attendant to either looking at this generically, which we have no objection to, [00:32:38] Speaker 04: I mean, as was discussed previously, or looking at this individually. [00:32:44] Speaker 04: They could have gone either way. [00:32:45] Speaker 04: That's not for us to say. [00:32:48] Speaker 04: But in the alternatives that NEPA requires, Your Honor, just by statute, we're not even there trying to prescribe all the reasonable scenarios that they have to look at. [00:32:58] Speaker 04: We're just suggesting to you that there's a status quo and a no action that are fundamental to the statute. [00:33:06] Speaker 04: Now let me turn briefly to the impact analysis. [00:33:12] Speaker 04: Again, this court was clear in New York 1 where it talked about probabilities and consequences will equal impacts. [00:33:21] Speaker 04: And here they got it wrong with both respective probabilities and consequences. [00:33:26] Speaker 04: First, they talked about citing a repository as highly likely in the near term. [00:33:31] Speaker 04: And we think they should analyze the probability of the right geology, the right waste package. [00:33:36] Speaker 04: and that hasn't been done. [00:33:38] Speaker 04: And second, there's a presumption that government and private institutions will exist and guarantee oversight of spent fuel storage forever. [00:33:47] Speaker 04: This is contrary to law as well as common sense. [00:33:51] Speaker 04: Regarding consequences, there's no thorough hard-lit quantitative analysis that's required by the agencies in need for regulations, the 10 CFR 5171D. [00:34:02] Speaker 04: And that doesn't exist at all. [00:34:05] Speaker 04: And so that's something that we would hope would be rectified on remand. [00:34:09] Speaker 08: And finally, what would be the rectification you're looking for on remand on that? [00:34:15] Speaker 04: The thorough quantitative analysis that gives us an estimate, and this is a good segue, Your Honor, to the cumulative impacts argument, that gives us an estimate of the waste, where it might be released, and what those impacts would be, a quantitative look. [00:34:29] Speaker 04: an impact to air, land, water, public health in the event that institutional controls fail, which turns us to cumulative impacts where they got it wrong with respect to both time and scope. [00:34:43] Speaker 04: They don't look at past burdens, they don't look at the existing burden, and they don't also look at the reasonably foreseeable spent fuel that we may have in the future. [00:34:53] Speaker 04: They get it wrong with respect to scope. [00:34:55] Speaker 04: They look at the waste of a hypothetical reactor rather than the existing thousands of metric tons or potentially many thousands of metric tons in a status quo alternative that I was discussing with Judge Edwards. [00:35:08] Speaker 04: They have to do this analysis now because they've made this decision now. [00:35:12] Speaker 04: under Detroit Edison, the Commission's Detroit Edison and Calvert-Cliff's decisions, they have made this decision to enable licensing. [00:35:20] Speaker 04: They've stripped nuclear waste from being raised in any current or future licensing decision, and they've precluded litigation on it by their own words. [00:35:30] Speaker 04: So we're in a very similar situation to 2012, except now there's [00:35:36] Speaker 04: parts of the impact analysis have been done. [00:35:39] Speaker 04: Little else, Your Honor. [00:35:40] Speaker 04: And so for these reasons, we urge you to remand, to vacate the rule, and to attend the generic EIS and remand. [00:35:47] Speaker 04: And once you have any further questions. [00:35:48] Speaker 07: Thank you. [00:36:00] Speaker 09: Good morning. [00:36:01] Speaker 09: May it please the court? [00:36:02] Speaker 09: My name is Andrew Aberbach. [00:36:03] Speaker 09: I appear on behalf of the Nuclear Regulatory Commission in the United States. [00:36:07] Speaker 09: I'd like to begin with the issue of jurisdiction. [00:36:11] Speaker 09: I think the critical point I'd like to make is that [00:36:18] Speaker 09: What is reviewable before this court is determined with respect to Section 2239 of 42 United States Code, in other words, the Atomic Energy Act itself. [00:36:28] Speaker 09: The Hobbs Act specifically states that the actions reviewable directly in appellate court are those quote, made reviewable unquote, by the Atomic Energy Act. [00:36:38] Speaker 09: And for that reason, I think it's appropriate to consider the question of jurisdiction solely with reference to the Atomic Energy Act itself, [00:36:45] Speaker 09: and not with reference to whether or not the Hobbs Act, with respect to other agencies, differentiates between orders or final orders or rules, or with respect to the APA. [00:36:57] Speaker 09: Again, this is solely a function and a creature of the Atomic Energy Act. [00:37:02] Speaker 09: And what the Atomic Energy Act makes clear is that each of the three types of proceedings will culminate, each of the three types of proceedings [00:37:10] Speaker 09: described in section one eighty nine a will culminate in a final order and make that clear. [00:37:17] Speaker 09: Well in section one eighty nine be the first two. [00:37:22] Speaker 09: any of the final order in any of the proceedings described in subsection 189A. [00:37:27] Speaker 09: It doesn't differentiate between traditional adjudicatory proceedings and rulemaking proceedings. [00:37:33] Speaker 09: It speaks to any proceedings. [00:37:35] Speaker 09: Doesn't it differentiate between distinguish between orders and rules? [00:37:41] Speaker 09: 239 itself. [00:37:42] Speaker 09: Section 189b speaks of a final order in any of the proceedings described in section 189a, but section 189a doesn't suggest anywhere that a final [00:37:56] Speaker 09: decision in a rulemaking proceeding doesn't constitute an order within the meaning of the Atomic Energy Act. [00:38:02] Speaker 08: It doesn't say that it does, no. [00:38:03] Speaker 08: But this Court did say... And I have to say, you should know by now, it's not clear to me, so that wasn't a very wide way to do this. [00:38:12] Speaker 08: But it never really says that at all. [00:38:14] Speaker 08: It does use the term rule and order as if there could be anything. [00:38:18] Speaker 08: I don't believe it does, Your Honor. [00:38:21] Speaker 09: No, I believe Section 189A simply refers to three different kinds of proceedings, and then Section 189B speaks to the final order in any of them. [00:38:32] Speaker 08: And I would note that this Court... No, Your Honor, but I think it's... [00:38:42] Speaker 08: I think even the case, you cited in yours a little bit, also, the citizen's case from the first circuit, I think even there, it refers them and the units. [00:38:54] Speaker 08: It does, Your Honor, but I would submit for the reasons we've... To come up and say that it's queer is not really a wise place to begin. [00:39:01] Speaker 09: Well, Your Honor, that's certainly the position we've taken in our brief, and I would note that [00:39:07] Speaker 09: I think that where the citizens' awareness didn't get it right in terms of finding ambiguity was to look to sources other than the Atomic Energy Act. [00:39:13] Speaker 09: You're not relying on citizens' awareness. [00:39:15] Speaker 09: Well, we certainly believe that the policy reason set forth not only in citizens' awareness, but by the Supreme Court in Lurien, certainly militates in favor of jurisdiction in this instance. [00:39:28] Speaker 09: Having now begun with your speech, you may want to move on to Mary. [00:39:32] Speaker 09: I will take note of that, Your Honor. [00:39:35] Speaker 09: Thank you. [00:39:36] Speaker 09: The Continued Storage Rule represents the agency's hard look at the environmental impacts of continued storage beyond the license life of nuclear reactor. [00:39:44] Speaker 09: The rule itself [00:39:46] Speaker 09: incorporates a generic environmental impact statement which spans more than two volumes, more than a thousand pages, and represents the agency's efforts in more than two years of work compiling it. [00:39:59] Speaker 09: Contrary to the petitioner's assertions, however, it does not do a number of different things. [00:40:04] Speaker 09: It does not constitute a licensing decision. [00:40:06] Speaker 09: it does not prevent the agency from considering the impacts when it issues a decision. [00:40:11] Speaker 09: Instead, it is one of the many things that the agency must consider each time it considers whether to issue a license. [00:40:17] Speaker 09: And I think in that sense, what's most important to take away from today is the sense of context that's missing from the petitioner's presentation here. [00:40:27] Speaker 09: Yes, the agency considers [00:40:30] Speaker 09: the generic environmental impact statement, which is two volumes, but then it also considers a host of additional environmental considerations each time it issues a license. [00:40:38] Speaker 05: What is it that you will not consider in an individual licensing? [00:40:43] Speaker 09: The only thing that is precluded by the rule is the impacts themselves that are identified within the generic environmental impact statement. [00:40:51] Speaker 09: That doesn't preclude the agency, and in fact it specifically contemplates that the agency will consider [00:40:57] Speaker 09: all of the impacts when deciding whether or not to issue a license. [00:41:00] Speaker 09: And in that sense, the major federal action we're talking about here, the major federal action into which these impacts are fed, is the decision to issue or to renew a license. [00:41:10] Speaker 09: And when that time comes, the agency considers mitigation, it considers alternatives, it considers all the things that it's required to do under NEPA. [00:41:19] Speaker 09: And that includes, for example, a no-action alternative, meaning should we not license this plan? [00:41:24] Speaker 09: There's no obligation that it do so somehow now simply because it's generically identified these impacts. [00:41:31] Speaker 09: Rather, the agency has reasonably concluded that the appropriate time to consider the impacts, the appropriate time to consider mitigation and alternatives is when it decides to issue a license. [00:41:40] Speaker 05: You want to go through this again. [00:41:42] Speaker 05: You started out by saying, I said, what's precluded? [00:41:45] Speaker 05: You said impacts. [00:41:47] Speaker 05: Then you continued on to say, but we'll consider impacts in licensing. [00:41:51] Speaker 05: What's precluded is the idea- It's really important for us to understand this. [00:41:54] Speaker 05: Is either some things that are precluded or not? [00:41:56] Speaker 05: Now you start, I was writing as you to make sure I didn't misstate you. [00:42:00] Speaker 09: You didn't misstate me, but let me be a little finer about my words then. [00:42:04] Speaker 09: The word that I think we're tripping on here is the word consider. [00:42:09] Speaker 05: What the agency- Let me give you the questions bothering me, then you can do whatever else you want to do. [00:42:14] Speaker 05: What is foreclosed [00:42:17] Speaker 05: in the subsequent licensing decision, what will the agency not look at again? [00:42:23] Speaker 09: The agency will not re-identify the impacts that it has identified in the Generic Environmental Impact Statement. [00:42:32] Speaker 09: However, that does not mean that the agency won't consider whether those impacts, as identified, militate or don't militate in favor of the issuance of a license. [00:42:42] Speaker 08: We've now said... What their extent and effect is with respect to specific facts. [00:42:47] Speaker 08: Exactly. [00:42:48] Speaker 08: The question of whether those impacts exist [00:42:51] Speaker 08: Whether they exist and what they aren't is precluded. [00:42:56] Speaker 08: I meant those to be the same thing, I think. [00:42:58] Speaker 08: What things are is that they exist. [00:43:01] Speaker 08: But you wouldn't reconsider the extent or effect or how it affected that particular site for purposes of life. [00:43:12] Speaker 08: It's that clear. [00:43:14] Speaker 09: It was the question whether or not we would consider it. [00:43:16] Speaker 08: You would consider how much impact what it does with respect to that particular site and whether that should support or oppose L.I. [00:43:28] Speaker 08: You would consider that, is that right? [00:43:30] Speaker 09: I pause only to take some issue with the word how much because we've assigned a value to those impacts. [00:43:37] Speaker 09: We have characterized them. [00:43:39] Speaker 08: We're trying to find out what we're talking about. [00:43:44] Speaker 09: We, for example, with respect to, let's say, land use, that's one of the impacts identified in the Generic Environmental Impact Statement, we characterize them as small. [00:43:53] Speaker 09: When the agency decides to issue a license, it must accept, for purposes of licensing, that those impacts are small. [00:44:02] Speaker 05: Which was the example you just gave? [00:44:04] Speaker 09: I said land use. [00:44:05] Speaker 09: Land use. [00:44:06] Speaker 05: Suppose in the individual license it's not small. [00:44:10] Speaker 09: Well, that's generically assessed for purposes... But suppose it's wrong. [00:44:13] Speaker 05: Well... Suppose you're there now and everyone's looking and even the hardest liners in the agency all agree, shh, don't say anything, but this is really... our initial assessment is dead wrong on this one. [00:44:25] Speaker 05: You wouldn't look at it? [00:44:26] Speaker 09: Two points, Your Honor. [00:44:27] Speaker 09: Number one, there certainly is the opportunity to seek a waiver with respect to that determination. [00:44:31] Speaker 05: A good opportunity? [00:44:33] Speaker 09: I'm sorry, a good opportunity? [00:44:37] Speaker 05: No, I'm serious. [00:44:38] Speaker 05: I'm not getting it. [00:44:40] Speaker 05: There could be situations with respect to some of this where the generic assumption turns out to be dead wrong on a particular site. [00:44:48] Speaker 05: Will you hold the line and say, no, no, no, we've already done that. [00:44:51] Speaker 05: We're not going to look at it again. [00:44:52] Speaker 05: Yes or no? [00:44:55] Speaker 05: No. [00:44:55] Speaker 05: You won't look at it again. [00:44:57] Speaker 09: No, we will not, as the court says, hold the line if we're wrong. [00:45:01] Speaker 09: But let me, let me, let me explain that. [00:45:02] Speaker 09: You would look at it again, you've said. [00:45:04] Speaker 05: You would look at it. [00:45:05] Speaker 05: We're writing an opinion. [00:45:06] Speaker 05: They absolutely assured us. [00:45:07] Speaker 05: They would look at it again. [00:45:09] Speaker 05: If someone comes and shows this is wrong, they said we're a good agency and thoughtful. [00:45:13] Speaker 05: If it's wrong, we'll look at it again. [00:45:15] Speaker 09: We would do so in two ways, Your Honor. [00:45:16] Speaker 09: Yes, we would do so in two ways. [00:45:17] Speaker 09: Let me explain both of them, if I may. [00:45:19] Speaker 09: First, we would certainly entertain a request for a waiver to the extent that someone came in and said, geez, you're wrong. [00:45:24] Speaker 09: All the things you said don't turn out to have been correct. [00:45:27] Speaker 09: Number one, we would evaluate whether or not a waiver is appropriate. [00:45:30] Speaker 09: Number two, the agency has an ongoing responsibility to consider whether or not there's new and significant information that it must consider pursuant to NEPA. [00:45:37] Speaker 09: And to the extent there is new and significant information, it needs to reevaluate things. [00:45:41] Speaker 05: And the agency constantly... I understand that argument. [00:45:44] Speaker 05: We're a good agency. [00:45:45] Speaker 05: We do our best every day. [00:45:46] Speaker 05: But that's not our point, the question in any way for me. [00:45:49] Speaker 05: I want to know if when you get to an individual licensing situation, you have certain assumptions, as you said, generically made, and there may be situations where some of those assumptions are simply wrong. [00:46:00] Speaker 05: And I can't quite, are you saying, yes, we will reconsider them if someone raises it, and we say no, that would be subject to review? [00:46:09] Speaker 05: Sure. [00:46:11] Speaker 09: Your Honor, these aren't really assumptions. [00:46:13] Speaker 09: These are findings made after noticing comments. [00:46:15] Speaker 05: Sometimes findings are wrong, right? [00:46:18] Speaker 09: Certainly, Your Honor. [00:46:18] Speaker 05: Especially generic. [00:46:19] Speaker 05: When you're talking about generic findings and then you go to an individual situation, it may turn out that the finding doesn't work. [00:46:26] Speaker 09: I concede that there are times when the agency is not correct, and the agency needs to re-evaluate whether or not there is new and significant information that undermines the analysis that is performed. [00:46:38] Speaker 05: Can someone in the licensing proceedings say, you have to consider this, because your assessment about leaks here or whatever is wrong? [00:46:46] Speaker 05: Your generic assessment is wrong. [00:46:48] Speaker 09: That's what the waiver process is for, Your Honor. [00:46:50] Speaker 09: But they would need to invoke the waiver process. [00:46:52] Speaker 09: Because the agency has pursuant to its rule-making authority, [00:46:56] Speaker 09: as contemplated by the New York One decision gone ahead and generically assess those impacts that are, in the words of the court, essentially common to all plants. [00:47:05] Speaker 09: It has made those findings and those findings have reclusive effect until and unless there's a determination made that they are no longer valid. [00:47:13] Speaker 08: You're talking way past the question. [00:47:15] Speaker 08: In order to make a short answer to the question, they can come in, in the waiver proceeding, and say either [00:47:22] Speaker 08: that generic funding was wrong, or in this specific circumstance, is generic funding? [00:47:29] Speaker 09: That's correct, Your Honor. [00:47:30] Speaker 08: It's a little more common. [00:47:30] Speaker 08: They can't do that. [00:47:31] Speaker 09: They can't do that. [00:47:32] Speaker 09: That's the thrust of what they need to say. [00:47:33] Speaker 09: I don't want to suggest that that's all that they need to say, because there are a number of specific conclusions that need to be drawn. [00:47:40] Speaker 09: But that certainly would be the thrust of the argument. [00:47:42] Speaker 05: But are you meaning to say, with what you just added, that, look, our waiver process is so difficult, we're never going to grant it? [00:47:48] Speaker 05: Well, we're trying to figure this out because, you know, we've got to write something. [00:47:52] Speaker 05: You either have a waiver process that allows reasonable claims, which would be subject to review if denied, or not. [00:47:59] Speaker 05: Is it a hard one? [00:48:01] Speaker 05: If you were on the other side, would you want to have to face off in that waiver process? [00:48:06] Speaker 09: I think it's a fair process. [00:48:13] Speaker 09: You think it's what? [00:48:13] Speaker 09: I think it's a fair process. [00:48:15] Speaker 09: I think it takes note of the fact that the agency has done by rulemaking what it is permitted to do generically and it provides an opportunity to be heard fully and for this court to have judicial review over its determination with respect to a waiver [00:48:31] Speaker 09: And in that sense, it is exactly the type of scenario that the court contemplated the first time. [00:48:38] Speaker 09: I remind the court that when we were here last time, the petitioners made the same argument, suggesting that the waiver process was unfairly stacked against them. [00:48:47] Speaker 09: And that's not what this court held. [00:48:48] Speaker 09: This court specifically said that given the opportunity for a waiver, we would consider it perfectly appropriate, provided that it uses conservative bounding assumptions for the agency to rely on its waiver process in the events that [00:49:02] Speaker 09: in the event that someone came in and said, wait, there's something wrong with the analysis as applied to a particular plant. [00:49:13] Speaker 09: One of the things I mentioned earlier was this idea of context. [00:49:16] Speaker 09: And again, I think that that's the most important thing here. [00:49:19] Speaker 09: In addition to the fact that there's the impacts of continued storage itself, each time that the agency issues a license, it thoroughly assesses the operational impacts that will be incurred at the plant. [00:49:32] Speaker 09: And a very important finding that the agency makes, this is on page 1018 and 19 of the Joint Appendix, is that it doesn't expect [00:49:40] Speaker 09: the impacts experienced during continued storage to vary beyond that which exists during the term of the operation of the plant, during the license term. [00:49:52] Speaker 09: And what that means is that it will consider all of the scenarios that the petitioners here are concerned about. [00:49:58] Speaker 09: Specifically, it considers the effects of an accident on a site-specific basis. [00:50:02] Speaker 09: It considers the effects of a fire on a site-specific basis. [00:50:05] Speaker 09: It is fully aware of the fact that certain plants, for example, the plant in Indian Point, [00:50:10] Speaker 09: are located in more densely populated areas. [00:50:15] Speaker 09: That is known to the decision maker at the time the decision is made. [00:50:19] Speaker 09: And it's known to the decision maker as a consequence of each of the volumes of environmental analysis that the agency performs and discloses in accordance with NEPA prior to the time it issues a license. [00:50:33] Speaker 09: A few points that I want to make in connection with the arguments that were raised earlier. [00:50:49] Speaker 09: with respect to the issue of short-term high-volume leaks, that is something that, in fact, the agency did address. [00:50:56] Speaker 09: And the court was correct in suggesting that the agency addressed it, explained why it was that those particular types of leaks were not likely to have a significant impact [00:51:05] Speaker 09: were not likely to happen and instead focused its analysis on leak scenarios that in fact were likely to happen. [00:51:12] Speaker 09: What the court had instructed the agency to do on remand here was to form a forward-looking analysis of what the impacts of leaks would be. [00:51:19] Speaker 09: That's precisely what the agency did here. [00:51:21] Speaker 09: The second point that the state referred to in its list of primary arguments was the idea that [00:51:29] Speaker 09: the agency had failed to consider the possibility that fuel would remain in spent fuel pools for more than 60 years after the license life of a reactor. [00:51:37] Speaker 09: And we explained in our brief why it was that that was a thoroughly reasonable assumption. [00:51:41] Speaker 09: There are three primary reasons for that. [00:51:44] Speaker 09: The first is that that comports with the operating experience that the agency has observed. [00:51:49] Speaker 09: as plants have begun to decommission. [00:51:52] Speaker 09: The second is that that's exactly what the NRC's regulations provide for, meaning that fuel will be removed from each pool within 60 years. [00:52:00] Speaker 09: And the third point is, with regard to the issue of whether or not funding is available, that the United States government is on the hook for the cost of storing spent fuel because the United States is contractually obligated to pay for those costs [00:52:14] Speaker 09: as a consequence of the utilities having entered into a standard contract for covering the delivery of spent fuel to a repository. [00:52:23] Speaker 08: Thank you. [00:52:44] Speaker 02: May it please the Court, David Rapka on behalf of the Nuclear Energy Institute and the Consolidated Interveners. [00:52:51] Speaker 02: The question before the Court is whether the NRC has taken a hard look at the environmental impacts of continued storage. [00:52:58] Speaker 02: All of the issues of licensing reactors and renewing licenses for reactors were not within the scope of this particular environmental impact statement that the NRC prepared. [00:53:07] Speaker 02: This court in New York 1 sent the prior rule back to the agency to consider specifically three issues, the issue of spent fuel pool fires, the issue of leaks, and the issue of a no repository scenario. [00:53:19] Speaker 02: The NRC looked in detail at all of those issues, considered all of the issues that have been raised here in this proceeding by the petitioners and through the comments of rulemaking record, and discussed those in its generic environmental impact statement. [00:53:33] Speaker 02: The NRC fully satisfied the remand in New York 1 and went far beyond that, in fact, in its comprehensive analysis of the issues. [00:53:42] Speaker 02: With respect to fires, there was some discussion earlier this morning about whether or not the NRC's analysis met that obligation. [00:53:50] Speaker 02: The Generic Environmental Impact Statement specifically addressed both the probability and consequences of fires. [00:53:56] Speaker 02: It did so in a way that applied to all sites. [00:53:59] Speaker 02: It came to the conclusion that the probability of a fire on an annualized basis [00:54:03] Speaker 02: was a number with six zeros after the decimal place, but went on to analyze the consequences of those fires. [00:54:12] Speaker 02: It described them both quantitatively and qualitatively, described them as being potentially large on the order at all sites, [00:54:19] Speaker 02: of the consequences of severe accidents at reactor sites, which have been previously considered. [00:54:26] Speaker 02: So the NRC fully met its obligation to disclose all of the issues related to spent fuel pool fires. [00:54:32] Speaker 02: With respect to leaks, the NRC went through a forward-looking analysis, much more than just looking at the fact that past leaks have occurred. [00:54:40] Speaker 02: They looked at design requirements. [00:54:42] Speaker 02: They looked at the [00:54:45] Speaker 02: the characteristics of sites that are licensed for nuclear reactors and concluded that the risks at all sites are small, including the short-duration high-volume leak. [00:54:56] Speaker 02: It included – it concluded in that context the mitigation of those leaks, which have a minimal risk, was not necessary. [00:55:04] Speaker 02: Now, the NRC will consider no licensing action alternatives in future licensing proceedings, either for an initial license or for a new license renewal application. [00:55:16] Speaker 02: The NRC cannot go backwards in time and undo licensing decisions made in the past where waste already exists at a site. [00:55:24] Speaker 02: So the concept that there is some broad no action alternative [00:55:29] Speaker 02: A no-action alternative to continued storage with respect to existing waste is a concept that is meaningless. [00:55:39] Speaker 02: Whether the NRC should go on and issue licenses in the future for new plants or new renewed licenses [00:55:46] Speaker 02: The NEPA obligation attaches to individual licensing decisions, and in the proceedings on those initial decisions or renewal decisions, the NRC will take the impacts of continued storage, add them to the impacts of operation and or the impacts of the renewal period, and make the determination as to whether the costs [00:56:06] Speaker 02: the benefits of the project outweigh the costs. [00:56:10] Speaker 02: That's how the impacts that are generically determined in the continued storage generic environmental impact statement are incorporated into initial licensing decisions or future renewed license decisions. [00:56:21] Speaker 02: So, yes, the waiver provision is available if there are special circumstances, but in addition to that, at any time there are new circumstances, the regulatory framework provides interested stakeholders many opportunities to raise concerns. [00:56:36] Speaker 02: For example, there's a petition for rulemaking process. [00:56:41] Speaker 02: is required, is obligated to consider good faith petitions for rulemaking, make a decision that's reviewable by this court or another court, and therefore we cannot presume that the NRC will not take its regulatory obligations seriously in the future. [00:56:59] Speaker 02: With respect to – the organizations in their briefs have made some issues related to institutional controls. [00:57:06] Speaker 02: Nothing in New York 1 required the NRC to go back and consider the scenario of not only a no-repository scenario, but a no-repository plus an end of institutional controls or an end of government-as-we-know-it scenario. [00:57:21] Speaker 02: That truly would be a remote and speculative scenario that NEPA does not require be evaluated. [00:57:27] Speaker 02: In addition, it would be a worst-case scenario of the type in Nethal Valley that's not required under NEPA. [00:57:35] Speaker 02: So the NRC has made reasonable assumptions in its analysis that allow that analysis to be something that is meaningful to a decision maker. [00:57:45] Speaker 02: In addition, the organizations in the reply brief make a point about they cite some legislative history for the Nuclear Waste Policy Act and suggest that Congress made a finding in that act that institutional controls were not reliable. [00:58:00] Speaker 02: But in fact, if you read that cited piece of legislative history, the petitioners left off the very next sentence, which makes it clear that what Congress was deciding in the act was that [00:58:13] Speaker 02: The obligation for disposal should rest with the generation that experiences and benefits from the electricity produced. [00:58:22] Speaker 02: They recommended that approach as opposed to relying on institutional controls. [00:58:28] Speaker 02: They were not making some finding that institutional controls were inherently unreliable or that NEPA requires an assumption that there will be no institutional controls going forward. [00:58:42] Speaker 02: Thank you. [00:58:49] Speaker 07: be a couple minutes for a bottle. [00:58:54] Speaker 03: Thank you, Your Honors, and I'd like to just briefly address a few things that Council for NRC has said that simply aren't accurate. [00:59:04] Speaker 03: One is he said that there is site-specific review of the impacts of on-site storage that's part of the licensing. [00:59:10] Speaker 03: That has never been done for Indian Point. [00:59:13] Speaker 03: We have not seen any study from NRC of the effects of a spent fuel accident at Indian Point. [00:59:21] Speaker 03: And NRC's obligations on ANIPA are not fulfilled as long as that remains the case. [00:59:28] Speaker 03: Second, NRC said that we could do a generic analysis under New York 1 as long as we use conservative and bounding assumptions and have a waiver process. [00:59:41] Speaker 03: They haven't used conservative and bounding assumptions. [00:59:45] Speaker 03: If you want to use conservative bounding assumptions to make an analysis, [00:59:49] Speaker 03: that works for all plants, then you use the data that would present the upper bound of what's available. [00:59:57] Speaker 03: So you could plug in population density data for Indian Point, and then you would have generic analysis that would be suitable for Indian Point. [01:00:05] Speaker 03: It would also be suitable for every other plant in the country because Indian Point has twice as many people as any other plant. [01:00:13] Speaker 03: I'd also like to, again, talk about the waiver process. [01:00:18] Speaker 03: The states and tribes submitted some 400 pages of technical, extensive, expert-informed comments pointing out why this generic analysis is not suitable for a plant like Indian Point. [01:00:37] Speaker 03: And the agency rejected that and said, no, we think the generic determinations are appropriate for all plants. [01:00:43] Speaker 03: It did that without considering consequences it acknowledges are outside of the range that it considered. [01:00:50] Speaker 03: And NEPA does not place the burden on interested parties who are at an information deficit to come in and have the wherewithal to go toe to toe with the agency in a waiver proceeding. [01:01:02] Speaker 03: Thank you, Your Honors. [01:01:03] Speaker 06: Thank you. [01:01:12] Speaker 04: Your Honor, Council for NRC fundamentally recast here at the podium today, the proposed action is issuance or renewal of reactor licenses. [01:01:21] Speaker 04: And that's fundamentally inconsistent with the generic EIS, where the proposed action was the administrative action of promulgating a rule. [01:01:30] Speaker 04: Thus, the alternatives in the GEIS were absurdly what volume of paper was going to be generated. [01:01:37] Speaker 04: Whereas here, and at risk of [01:01:39] Speaker 04: entertaining Judge Edward Zyer again on bringing this up, the alternatives to the major federal action. [01:01:47] Speaker 04: The alternatives to the major federal action of licensing have been made now. [01:01:55] Speaker 04: They've made this analysis now with Detroit Edison, cited in our brief. [01:02:00] Speaker 04: They've relied on the findings, they've made the decision now, and they've stripped the issue of nuclear waste from being raised henceforth in any future proceeding. [01:02:09] Speaker 04: So a full and complete analysis [01:02:12] Speaker 04: And here, Your Honor, we'd submit that for the NEPA that was bothering Judge Edwards, you look at our brief in 19-20-21, where we discuss it, and specifically we're talking about 40 CFR, 1,500.2, and 10 CFR, 51.71. [01:02:30] Speaker 08: Is there existing a time when you or anyone else evicted the petition for a waiver and the [01:02:43] Speaker 04: waving on that subject matter? [01:02:47] Speaker 04: Not on nuclear waste subject matter, your honor, and I don't know if others have. [01:02:52] Speaker 04: NRDC has petitioned for waivers and we've always been denied. [01:02:56] Speaker 04: And as far as I know, there's never been a waiver petition granted. [01:02:59] Speaker 08: There's reasons and reasons for granting or not granting waivers. [01:03:02] Speaker 08: What I'm trying to find out is if the waiver procedure actually provides a way to raise these issues. [01:03:09] Speaker 08: Or do they simply say we're not even going to consider a waiver on those issues? [01:03:13] Speaker 04: Under the Calvert-Cliff Commission decision, they've already stated that all these issues are generic and it will preclude any future party from raising these matters. [01:03:21] Speaker 04: They were quite specific with that. [01:03:23] Speaker 04: So I think for us, especially with the generic issues that environmental petitioners have brought to you, I don't see any chance that we'd meet the unique circumstances of getting a waiver granted. [01:03:34] Speaker 04: Mr. Analyst, the Court has anything further. [01:03:36] Speaker 07: Thank you all. [01:03:37] Speaker 07: The case is submitted.