Skull Valley Band of Goshute Indians v. Davis
| Decision Date | 26 July 2010 |
| Docket Number | Civil Action No. 07-cv-0526-DME-DON |
| Citation | 728 F.Supp.2d 1287 |
| Parties | SKULL VALLEY BAND OF GOSHUTE INDIANS, and Private Fuel Storage, Plaintiffs, v. Laura Daniel DAVIS, Associate Deputy Secretary of the Interior, Chad Calvert, Principal Deputy Assistant Secretary of the Interior for Land and Minerals Management, United States Department of the Interior, C. Stephen Allred, Assistant Secretary of the Interior for Land and Minerals Management, Defendants. |
| Court | U.S. District Court — District of Utah |
H. Michael Keller, Robert H. Scott, Thomas R. Barton, Van Cott Bagley Cornwall & McCarthy, Salt Lake City, UT, Margaret A. Swimmer, Hall Estill Hardwick Gable Golden Nelson PC, Tulsa, OK, Timothy A. Vollmann, Albuquerque, NM, for Plaintiffs.
Jeannette F. Swent, U.S. Attorney's Office, Salt Lake City, UT, Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, Roland Lee Leininger, U.S. Department of Justice, Denver, CO, for Defendants.
Plaintiffs, the Skull Valley Band of Goshute Indians ("Skull Valley Band") and Private Fuel Storage, LLC ("PFS"), invoke the Administrative Procedure Act ("APA"), to obtain review of two decisions made by the Department of Interior ("DOI") 1) denying a right-of-way application submitted by PFS and 2) disapproving a lease between the Skull Valley Band and PFS. Having jurisdiction under 28 U.S.C. §§ 1331 and 1362,1 the Court VACATES those decisions and REMANDS the right-of-way application and Plaintiffs' lease to the DOI for further consideration.
The administrative decisions at issue here stem from Plaintiffs' controversial plan to store spent nuclear fuel ("SNF") on the Skull Valley Band's reservation, located in Tooele County, Utah.2 SNF is abyproduct of nuclear generation of power; "[b]ecause SNF remains radioactive for thousands of years, long-term storage strategies are essential." Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1227 (10th Cir.2004). Many commercial reactor sites, however, were designed with minimal SNF storage because the utilities operating these plants had originally planned to reprocess the SNF. But that has not occurred, due to the relative abundance of uranium in the United States and the fear that plutonium created during reprocessing could be used for nuclear weapons. And, although the federal government agreed to take title to the SNF from the commercial power companies generating it and to provide for its permanent storage, that has not yet occurred.3See id.
Plaintiff PFS is a Delaware limited liability company described as "a consortium of utility companies, which formed in order to seek temporary storage options for" SNF until the federal government begins accepting SNF for permanent storage. Id. at 1227-28. Currently, these companies store SNF at their reactor sites. But that on-site storage is running out. Without additional storage options, these power companies may be forced to shut down their reactors prematurely. Additionally, these utilities cannot fully decommission a reactor, after permanently shutting it down, until the SNF at that site is removed.
To solve these storage problems, PFS, in 1996, entered into an agreement with the Skull Valley Band to lease approximately 820 acres of the Band's 18,000-acre reservation in order to build and operate an SNF storage facility. 4 PFS' general plan, which has already been licensed by the Nuclear Regulatory Commission ("NRC"), is to place the SNF, while it is still at the reactor sites, into sealed steelcanisters that will then be encased inside NRC-certified steel shipping casks. These 150-ton shipping casks would then be loaded onto specially designed rail cars and shipped to the Skull Valley storage site on commercial rail lines using trains dedicated only to transporting SNF.
The commercial rail line closest to the Skull Valley reservation runs parallel to Interstate 80 and is approximately twenty-four miles to the north of the site of the planned storage facility. Therefore, PFS intends to build an "intermodal transport facility" ("ITF") on federally-controlled land located between that commercial rail line and the interstate. At the ITF, PFS plans to use a crane to remove the 150-ton shipping casks containing the SNF from the rail cars and place those casks on "heavy haul" trucks that will then transport the casks the final twenty-four miles to the storage facility.
These heavy-haul trucks will do so using the existing two-lane Skull Valley Road. The trucks can travel no more than twenty miles per hour, while the posted speed limit on Skull Valley Road is fifty-five miles per hour. Each trip from the ITF to the storage facility by heavy-haul truck would take approximately 1.5 hours and would occur only during daylight. On each trip, these 150- to 180-foot-long trucks would be accompanied by two escort vehicles, one travelling 1,000 feet in front of the truck, and the other 1,000 feet behind it. PFS estimates that one to two trains will arrive at the ITF weekly, with each train carrying two to three shipping casks. PFS further estimates that a heavy-haul truck would need to make between two and four round trips per week, or between 100 and 200 round trips annually.5
Once at the storage facility, PFS will remove the canisters containing the SNF from the shipping casks and place those canisters inside storage casks, which will be steel-lined, filled with concrete and weigh approximately 180 tons. The twenty-foot-high storage casks will then be placed on cement pads and cooled in the open air.
The NRC licensed PFS to store a total of 40,000 metric tons (44,000 tons) of SNF at the Skull Valley facility. Because each cannister will hold ten metric tons of SNF, the facility will contain up to 4,000 storage casks, each encapsulating a cannister of SNF. PFS intends to accept for storage SNF from its own members, as well as from other utilities.
Plaintiffs' lease runs for twenty-five years, with an irrevocable option for an additional twenty-five-year term. The NRC has licensed the storage facility for twenty years; that license can be renewed for an additional twenty years.6 See 10 C.F.R. § 72.42.
When the NRC license expires and the lease ends, PFS must decommission the facility. This will involve removing all SNF, as well as the shipping and storage casks and, at the Band's request, any buildings and the cements pads, too. The NRC license includes provisions to insure that PFS has and will maintain the economic wherewithal to complete this decommissioning.
At the time they entered into this lease, Plaintiffs expected that, by the time the NRC license expired and the lease ended, the DOE will have begun operating a permanent storage facility that would then accept the SNF that had been stored temporarily at Skull Valley. But even without the existence of such a permanent storage facility, the lease obligates PFS to remove all of the SNF from the Skull Valley facility when the NRC license expires and the lease runs out. PFS intends to fulfill this obligation through its contracts with the utilities which will be storing their SNF at the Skull Valley facility. Those utilities will continue to own the SNF, even while it is stored at the Skull Valley facility, and they will be contractually obligated to remove their SNF from the Skull Valley site when PFS' NRC license expires, regardless of whether or not there is a DOE-operated permanent storage facility available.
In order to begin operating this storage facility on the Skull Valley Band's reservation, Plaintiffs had to obtain the approval of several federal administrative agencies. PFS, therefore, applied for a license from the NRC to operate the storage facility, and for a right-of-way from the Bureau of Land Management ("BLM"), a bureau within the DOI, on which to build and operate its ITF. Further, because the Skull Valley Band is a federally recognized Indian tribe, see 61 Fed. Reg. 58211-02 (Nov. 13, 1996), and the United States holds its land in trust, Plaintiffs had to obtain the approval of their lease agreement from the Bureau of Indian Affairs ("BIA"), another bureau within the DOI.
In considering Plaintiffs' requested administrative actions, each of these agencies first had to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f ("NEPA"). Briefly stated, NEPA requires a federal agency, "before undertaking 'major Federal actions significantly affecting the quality of the human environment,' " to evaluate and disclose the potential environmental impacts of that proposed action. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1172 (10th Cir.2007) (quoting 42 U.S.C. § 4332(2)(C)). This requirement serves "twin aims": Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir.2002) (quotations, citations omitted). NEPA imposes procedural, rather than substantive, requirements, however; it "does not mandate particular results."Lee v. U.S. Air Force, 354 F.3d 1229, 1237 (10th Cir.2004) (quotation omitted). Nor does it Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir.2008) (" Krueger ") (quotation, alteration omitted). Where, as here, "the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give...
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