Nevada v. U.S. Dept. of Energy

• Decision Date: 27 September 2007
• Docket Number: No. 3:06-CV-153-ECRRAM.,3:06-CV-153-ECRRAM.
• Citation: 517 F.Supp.2d 1245
• Parties: State of NEVADA, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and its secretary, Samuel Bodman, Defendants.
• Court: U.S. District Court — District of Nevada

517 F.Supp.2d 1245

State of NEVADA, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and its secretary, Samuel Bodman, Defendants.

No. 3:06-CV-153-ECRRAM.

United States District Court, D. Nevada.

September 27, 2007.

COPYRIGHT MATERIAL OMITTED

State of Nevada: Charles J. Fitzpatrick, Joseph R. Egan, and Robert J. Cynkar, Egan Fitzpatrick Malsch and Cynkar, PLLC, San Antonio, TX, Marta A. Adams, Nevada Attorney General's Office, Carson City, for Plaintiffs or Petitioners.

United States Department of Energy and Secretary Samuel Bodman: Gregory W. Addington, U.S. Attorney's Office, Reno, for Defendants or Respondents.

ORDER

EDWARD C. REED, District Judge.

This case concerns the State of Nevada's request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for copies of the Department of Energy's ("DOE's") draft license applications to the Nuclear Regulatory Commission ("NRC") for the proposed Yucca Mountain nuclear waste repository. Before the Court are Defendants' Motion for Summary Judgment (# 24) ("DMSJ") and Plaintiffs Motion for Summary Judgment (# 39) ("PMSJ"). For the reasons set out below, Defendants' motion (# 24) is GRANTED and Plaintiffs motion (# 39) is DENIED.

I. BACKGROUND

The application to the Nuclear Regulatory Commission ("NRC") for the proposed nuclear waste repository will be made by the Department of Energy ("DOE") pursuant to unique procedures created pursuant to the Nuclear Waste Policy Act.

A. The Nuclear Waste Policy Act

In 2004, the D.C. Circuit broadly affirmed the constitutionality of the selection of the Yucca Mountain site, but it partially vacated Environmental Protection Agency regulations created as part of the approval process. Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (D.C.Cir.2004) (en banc). In that decision, the D.C. Circuit summarized at some length the convoluted legal backdrop for the present case:

In 1982, responding to growing quantities of radioactive waste and their potentially deadly health risks, Congress enacted the Nuclear Waste Policy Act (NWPA), directing the federal government to assume responsibility for permanently disposing of the nation's nuclear waste. Pub.L. No. 97-425, 96 Stat. 2201 (1982) (codified as amended at 42 U.S.C. §§ 10101-10270 (2000)). The NWPA put the United States on course to using geologic repositories buried deep below the earth's surface to house its nuclear waste....

The NWPA assigned distinct regulatory roles to the Department of Energy, the Environmental Protection Agency, and the Nuclear Regulatory Commission. Congress charged DOE with selecting, designing, and ultimately operating the repository. See id. §§ 10132-10134 (2000). It required EPA to establish generally applicable standards for protecting the environment from releases of radioactive materials, id. § 10141(a) (2000), and directed NRC to assume responsibility for licensing a DOE-proposed repository, id. § 10141(b).

The NWPA also established a multistage process for DOE to select an appropriate host site. The Act required the Secretary of Energy to begin by issuing general site-selection guidelines, id. § 10132(a), that DOE would then use to determine which candidate sites to recommend for intensive investigation, known as "site characterization," id. § 10132(b). Based on these guidelines, the Secretary was directed to nominate at least five sites, id. § 10132(b)(1)(A), and then to narrow the field to three for the President's consideration, id. § 10132(b)(1)(B).

Once the President approved the nominated sites, the Secretary was required to undertake site-characterization activities at each location. NWPA § 113(a) (codified as amended at 42 U.S.C. § 10133(a)). The NWPA also directed DOE, as part of its site-characterization program, to issue "criteria" for determining whether the candidate sites were "suitab[le] for housing a waste repository. 42 U.S.C. 10133(b)(1)(A)(iv). After completing the intensive site-characterization process, the Secretary was authorized to submit to the President, together with a final environmental impact statement, a recommendation that he approve one of the suitable sites for development. NWPA 114(a)(1) (codified as amended at 42 U.S.C. 10134(a)(1)).

Under the NWPA, once the President approved a site, he would then transmit his recommendation to Congress. Id. § 114(a)(2) (codified as amended at 42 U.S.C. 10134(a)(2)). The state within which the recommended site was located could then submit a "notice of disapproval" to Congress, an action that would effectively end the development process with respect to that site unless Congress passed a joint resolution overriding the state's disapproval and approving the site. See 42 U.S.C. 10136(b)(2) (2000).

Pursuant to this statutory regime, DOE promulgated site-selection guidelines in 1984 and applied them to nominate five candidate sites for characterization. Based on these guidelines, the Energy Secretary then recommended three sites to the President: Deaf Smith County, Texas; Hanford, Washington; and Yucca Mountain, Nevada. See Nevada v. Watkins, 939 F.2d 710, 713 (9th Cir. 1991). The President then approved each for characterization. Id.

In 1985, EPA promulgated 40 C.F.R. part 191, general health and safety standards to govern an eventual waste repository. EPA later revised these standards in response to a First Circuit decision remanding aspects of the regulation. See Natural Res. Def. Council, Inc. v. United States EPA, 824 F.2d 1258 (1st Cir.1987) (NRDC v. EPA). NRC then issued generic licensing standards in 10 C.F.R. part 60.

In 1987, however, because characterizing three separate sites was becoming both costly and time-consuming, Congress departed from the NWPA's original site-selection scheme and directed, through the Nuclear Waste Policy Amendments Act (NWPAA), that the nation's nuclear waste program focus exclusively on Yucca Mountain, Nevada. See Pub.L. No. 100-203, §§ 5001-5065, 101 Stat. 1330, 1330-227 to 1330-255 (1987) (codified in scattered sections of 42 U.S.C.). Located in the arid Nevada desert approximately 100 miles northwest of Las Vegas, Yucca Mountain sits on the Nevada Test Site, the nation's former nuclear bomb testing range. Under the NWPAA, Yucca became the only site that DOE could lawfully characterize. See 42 U.S.C. § 10133(a) (requiring the Energy Secretary to "carry out ... appropriate site characterization activities at the, Yucca Mountain site"); id. § 10172(a)(1)-(2) (2000) ("The Secretary shall provide for an orderly phase-out of site specific activities at all candidate sites other than the Yucca Mountain site ... [and] shall terminate all site specific activities (other than reclamation activities) at all candidate sites, other than the Yucca Mountain site....").

. . . .

DOE also focused its attention on the Nevada site, issuing new site-suitability criteria specific to Yucca Mountain. See 10 C.F.R. pt. 963 (2004). Pursuant to these criteria and a final environmental impact statement, the Energy Secretary found Yucca Mountain suitable for a repository, concluding that a Yucca facility is "likely to meet applicable radiation protection standards." Secretary's Recommendation at 26. Based on that finding, the Energy Secretary recommended Yucca Mountain to the President for development as the nation's underground nuclear waste repository. Id. at 6. Pursuant to NWPA procedures, the President then recommended Yucca to Congress. Objecting, Nevada submitted a notice of disapproval, to which Congress responded by passing a joint resolution approving the development of a repository at Yucca Mountain. See Pub.L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. § 10135 note (Supp. IV 2004)).

Nuclear Energy Institute, Inc., 373 F.3d at 1258-61.

The President's signature on the joint resolution in June of 2002 triggered a 90 day deadline for DOE to file an application with the NRC for the site. It appears that this deadline would have fallen in September 2002. See NWPA § 114(b) (codified as amended at 42 U.S.C. § 10134(b)). The DOE, however, apparently made December 2004 its target date for submitting its application. See Memorandum and Order of the Pre-License Application Presiding Officer Board ("PAPO Order"), In re Dep't of Energy, 62 N.R.C. 478, 2005 WL 5716382 (Sept. 22, 2005), rev'd by Memorandum and Order of the NRC ("NRC Order"), In re Dep't of Energy, 2006 WL 1704522 (Feb. 2, 2006).

B. The Yucca Mountain Pre-Application Process

Because the pre-application process provides the specific backdrop for this case, we pause to outline that process. Under the NWPA, the NRC has three years to approve or disapprove the application for a repository (i.e., the application for the Yucca Mountain site, 42 U.S.C. § 10133(a)) once the application is filed. NWPA § 114(d) (codified as amended at 42 U.S.C.A. § 10134(d)). Because the three year schedule was perceived to be tight, the NRC promulgated Subpart J to Title 10, part 2 of the Code of Federal Regulations, which uniquely requires the applicant, the DOE, to file documents related to the application six months prior to filing the application for the license. See 10 C.F.R. § 2.1003. Also to facilitate speedy disclosure, the regulations created an electronic docketing system, which was formerly known as the Licensing Support System ("LSS"), 54 Fed.Reg. 14925 (Apr. 14, 1989), and is currently called the Licensing Support Network ("LSN"), 10 C.F.R. § 2.1001. The purpose of both the pre-application process and the docketing system is to facilitate "the comprehensive and early review of the millions of pages of relevant licensing material by the potential parties to the proceeding, so as to permit the earlier submission of better focused contentions resulting in a substantial saying of time during the proceeding[.]" Id. at 14926; see also In re Dep't of Energy, 60 N.R.C. 469, 471, 2004 WL 3247597 (Nov. 10, 2004) ("[U]nder this first-of-a-kind provision, initial discovery will...