457 F.3d 78 (D.C. Cir. 2006), 04-1309, Nevada v. Department of Energy

Docket Nº:04-1309.
Citation:457 F.3d 78
Party Name:State of NEVADA, Petitioner v. DEPARTMENT OF ENERGY, Respondent.
Case Date:August 08, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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457 F.3d 78 (D.C. Cir. 2006)

State of NEVADA, Petitioner

v.

DEPARTMENT OF ENERGY, Respondent.

No. 04-1309.

United States Court of Appeals, District of Columbia Circuit.

August 8, 2006

Argued October 18, 2005.

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Department of Energy

Joseph R. Egan, Special Deputy Attorney General, State of Nevada, argued the cause for the petitioner. Brian Sandoval, Attorney General, Marta A. Adams, Deputy Attorney General, Antonio Rossmann and Roger B. Moore, Special Deputy Attorneys General, State of Nevada, and Martin G. Malsch, Robert J. Cynkar, Charles J. Fitzpatrick and Paul H. Lamboley were on brief.

John A. Bryson, Attorney, United States Department of Justice, argued the cause for the respondent. Greer S. Goldman and Ronald M. Spritzer, Attorneys, United

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States Department of Justice were on brief.

Jean V. MacHarg, John C. Martin, Susan M. Mathiascheck, and Michael A. Bauser were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of respondent.

Before: Henderson and Randolph, Circuit Judges; and Edwards, Senior Circuit Judge.1

OPINION

Karen LeCraft Henderson, Circuit Judge.

Since scientists split the atom in 1942, nuclear technology has proliferated into many areas of society. No longer limited to the defense of our nation, nuclear technology is used in energy production, medical diagnosis and treatment, food processing and agriculture and sterilization of consumer goods. For all of the advances it has brought, however, those advances have come at a price—the waste that is the inevitable byproduct.

What to do with the waste has plagued scientists and policymakers for decades. As a result of scientific, political and regulatory consultation and comment, the consensus is that the waste should be stored in an underground repository to be located at Yucca Mountain, Nevada (Yucca). The State of Nevada (Nevada), concerned about the storage of nuclear waste within its borders, has vigorously opposed the construction of a nuclear repository at Yucca and, after failing in the political and regulatory arenas, has attacked the statutory and regulatory scheme governing the construction and operation of the Yucca repository. See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).

In this petition for review, Nevada asks us to review both the Final Environmental Impact Statement (FEIS) and that portion of the Record of Decision (ROD) the Department of Energy (DOE or Department) issued governing the transportation of nuclear waste from the production sources to Yucca. Nevada alleges the FEIS is procedurally flawed and therefore violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. it challenges the ROD under the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. for the reasons discussed below, we conclude that some of Nevada's claims are unripe for review and the remaining claims are without merit. Accordingly, we deny Nevada's petition for review.

I.

The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. §§ 10101 et seq., establishes the process for locating, constructing, operating and closing any repository for spent nuclear fuel (SNF) and high-level radioactive waste (HLW). Under the statutory scheme, the DOE is responsible for the development and operation of the repository once the Nuclear Regulatory Commission (NRC) issues a license for the project under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.

Pursuant to the NWPA, the DOE Secretary recommended Yucca to the President for development as the nation's underground nuclear waste repository. Following the NWPA's procedures, the President then recommended Yucca to the Congress. See Nuclear Energy Inst., 373 F.3d at 1261. Nevada objected to the proposed site and submitted a notice of disapproval, to which the Congress responded by passing the Yucca Mountain Development Act, Pub. L. No. 107-200, 116 Stat. 735 (2002), a

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joint resolution approving the development of a repository at Yucca.

On February 14, 2002, the DOE issued an FEIS for its repository site selection decision. Although much of the FEIS concentrated on the Yucca site, it also analyzed alternatives for, and the "potential environmental consequences" of, transporting nuclear waste from the many production sources throughout the country to the repository at Yucca. See u.S. Department of Energy, Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada 6-1 (February 12, 2002) (FEIS) (Joint Appendix (JA) 244). The FEIS analyzed two interstate transportation proposals: the mostly legal-weight truck alternative and the mostly-rail alternative. The FEIS also evaluated intrastate transportation alternatives under the mostly-rail scenario to transport waste from one of Nevada's mainline railroads to Yucca because there is currently no direct rail access to Yucca.

Under the mostly legal-weight truck scenario, virtually all SNF2 and HLW would be placed in casks3 at the production sources and the casks then shipped by truck directly to Yucca. See fEIS 2-47 (JA 204). each truck together with each cask would meet legal-weight requirements. The mostly legal-weight truck option would transport approximately 53,000 shipments over 24 years. FEIS 6-4 (JA 247).

The mostly-rail scenario, by contrast, would provide for the shipment of SNF and HLW primarily by rail. FEIS 6-35 (JA 278). There are seventy-two commercial production sources and five DOE generator sources of nuclear waste nationwide. Id. Sixty-six of the commercial production sources and the five DOE generator sources have the capacity to load the waste into large-capacity rail shipping casks. Forty-two of the sixty-six production sources also have direct rail access and would place the casks directly on the rail line while the twenty-four sources able to load the casks but without rail access would ship the waste by barge via navigable waterways or heavy-haul trucks via highways to the nearest rail line.4 Id. from there the waste would travel by rail to one of Nevada's mainline railroads. Under the mostly-rail scenario some waste would have to be shipped by legal-weight trucks because at least six production sources cannot accommodate rail casks. Id. waste hauled by legal-weight truck would proceed directly from the production sources to Yucca, just as it would under the mostly legal-weight truck scenario. Under the mostly-rail scenario, about 9,600 rail shipments and 1,100 legal-weight truck shipments would occur over 24 years. FEIS 6-4 (JA 247). The FEIS designated the mostly-rail scenario as the DOE's preferred alternative. FEIS 6-35 (JA 278).

As noted earlier, because none of Nevada's mainline railroads connects to Yucca, the FEIS also considered alternatives for transporting the waste from a mainline railroad to Yucca. The first option was to construct an intermodal transfer station at

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a point on a mainline railroad, where the rail casks would be transferred from the rail cars to heavy-haul trucks. The trucks would then haul the waste to Yucca on one of Nevada's five existing highways to Yucca. The second option was to build a branch rail line from a mainline railroad to Yucca. The DOE identified five alternative "rail corridors"—each approximately one-quarter mile wide—in which to build a branch rail line. While the FEIS analyzed the environmental impact of building a rail line somewhere within each corridor, it did not analyze the impact of specific alternative track locations within each corridor. The DOE did not indicate a preference among the five rail corridors in the FEIS but it subsequently announced the Caliente Corridor as its preferred one. See notice of Preferred Nevada Rail Corridor, 68 Fed. Reg. 74,951, 74,951 (Dec. 29, 2003) ("The Department is now announcing the Caliente rail corridor as its preferred corridor in which to construct a rail line in Nevada, and Carlin as a secondary preference.").

On April 8, 2004, the DOE issued a ROD for transporting SNF and HLW to Yucca. See record of Decision on Mode of Transportation and Nevada Rail Corridor for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, NV, 69 Fed. Reg. 18,557 (April 8, 2004) (ROD). The ROD identified the mostly-rail option as the DOE's choice for the national transportation plan. Id. at 18,558. The Department also decided to construct a branch rail line from one of Nevada's existing mainline railroads to the repository at Yucca and selected the Caliente Corridor for any branch rail line it might decide to build. See id. ("In addition, the Department has decided to select the Caliente rail corridor in which to examine potential alignments within which to construct that rail line. Should the Department select an alignment within that corridor, it will obtain all necessary regulatory approvals before beginning construction." (footnote omitted)).

The ROD further noted that if the repository at Yucca became operational before a branch line could be completed, the DOE could nonetheless begin shipment of waste. Under this contingency, the waste would be shipped on legal-weight truck casks placed on rail cars which, once they arrived in Nevada, would be transferred to legal-weight trucks at an intermodal transfer station and then continue by truck to Yucca. The DOE did not supplement the FEIS notwithstanding this contingency, noted in the ROD, that it might transport waste in legal-weight truck casks via rail. The ROD alluded to a March 10, 2004 Supplemental Analysis (SA) the DOE had prepared, concluding that no Supplemental...

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