Case 3:18-cv MMD-CBC Document 34 Filed 01/11/19 Page 1 of 21

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1 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 AARON D. FORD Attorney General C. WAYNE HOWLE (Bar No. ) Chief Deputy Attorney General DANIEL P. NUBEL (Bar No. ) Office of the Attorney General 00 North Carson Street Carson City, Nevada 0- T: () - E: whowle@ag.nv.gov dnubel@ag.nv.gov MARTA ADAMS (Bar No. ) Special Deputy Attorney General Adams Natural Resources Consulting Services, LLC Buzzys Ranch Road Carson City, Nevada 0 T: () - E: adamsnaturalresourcesllc@gmail.com *Martin G. Malsch, Esq. EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC K Street N.W., Suite 0 Washington, D.C. 00 T: () -0 E: mmalsch@nuclearlawyer.com *Charles J. Fitzpatrick, Esq. *John W. Lawrence, Esq. EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC 00 Rialto Boulevard, Building, Suite 0 Austin, Texas T: (0) -00 E: cfitzpatrick@nuclearlawyer.com jlawrence@nuclearlawyer.com *Special Deputy Attorneys General Attorneys for Plaintiff, State of Nevada STATE OF NEVADA, vs. UNITED STATES; et al., IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Plaintiff, Defendants. Case No. :-cv-00-mmd-cbc PLAINTIFF S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

2 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii I. INTRODUCTION... II. STATUTORY AND REGULATORY BACKGOUND... III. ARGUMENT... A. Injunction Standard... B. The Record Rule and the Review Standard... C. Judicial Estoppel... D. Likelihood of Success on the Merits.... Alternatives.... Transportation Accidents.... Cumulative Impacts... E. Irreparable Injury... F. The Balance of Equities... CERTIFICATE OF SERVICE... INDEX OF EXHIBITS... -i-

3 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Cases TABLE OF AUTHORITIES Am. Civil Liberties Union of Nevada v. Masto, 0 F.d 0 (th Cir. )... Arizona Dream Act Coal. v. Brewer, F.d 0 (th Cir. )... Beyond Nuclear v. U.S. Dep t of Energy, F. Supp. d 0 (D.D.C. )... 0 Florida Power & Light Co. v. Lorion, 0 U.S. ()... Granny Goose Foods, Inc. v. Teamsters & Auto Truck Drivers Local No. 0, U.S. ()... Helfand v. Gerson, 0 F.d 0 (th Cir. )... Motor Vehicles Mfrs. Assn. of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., U.S. ()... Ms. L. v. U.S. Immigration & Customs Enf t ( ICE ), 0 F. Supp. d (S.D. Cal. )..., New Hampshire v. Maine, U.S. (0)... Norton v. So. Utah Wilderness Alliance, U.S. (0)... Ocean Advocates v. U.S. Army Corps of Eng rs, 0 F.d (th Cir. 0)... Rissetto v. Plumbers & Steamfitters Local, F.d (th Cir. )... San Luis & Delta-Mendota Water Auth. v. Locke, F.d (th Cir. )... South Carolina v. U.S., WL at * (D.S.C. Dec., ), aff d, 0 F.d (th Cir. )..., Sw. Ctr. for Biological Diversity v. U.S.F.S., 00 F.d (th Cir. 0)... U.S. v. Rodriguez, WL, at * (D. Idaho Apr., )... Vincentini v. Comm r, T.C.M. (CCH) 00 (T.C. 0), aff d, F. App x 0 (th Cir. )... Winter v. NRDC, U.S. (0)... -ii-

4 Case :-cv-00-mmd-cbc Document Filed 0// Page of TABLE OF AUTHORITIES Statutes U.S.C U.S.C. (c)..., 0 U.S.C. (c)()... 0 U.S.C. (c)()... Regulations 0 C.F.R..0(c)... 0 C.F.R..(b)()... 0 C.F.R. 0.0(c) iii-

5 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Plaintiff, the State of Nevada ( Nevada or Plaintiff ), by and through legal counsel, hereby files its Reply in Support of its Motion for Preliminary Injunction. This Reply is based on the attached points and authorities and all pleadings on file, and the exhibits attached thereto. I. INTRODUCTION On January,, Defendants United States, et al., ( Defendants or DOE ) filed their Response to Plaintiff s Motion for Preliminary Injunction. As explained below, nothing in the Response effectively counters Nevada s arguments or undercuts the need for a preliminary injunction. The preliminary injunction Nevada seeks would prevent DOE from shipping all or part of one metric ton of weapons-grade plutonium from DOE s Savannah River Site in South Carolina to the Nevada National Security Site, located about 0 miles from Las Vegas. The proposed shipments, which constitute the proposed federal action for National Environmental Policy Act ( NEPA ), are described in a DOE Supplement Analysis ( SA ) (Exhibit of the Complaint (ECF No. -)). The SA does not claim that the proposed shipments (and subsequent indefinite storage at the Nevada National Security Site) will have no significant environmental impact. Instead, the SA purports to demonstrate that the shipments are adequately addressed in prior DOE environmental impact statements. The injunction would be prohibitory in nature, intended solely to preserve the status quo pending a decision on the merits of the case, which challenges DOE s compliance with NEPA. While, as Defendants point out, the proposed shipments are intended to comply with an order from a U.S. District Court for South Carolina, neither the order nor the underlying federal statute, 0 U.S.C. (c), require that the plutonium be shipped to Nevada they merely require DOE to remove the material from South Carolina and send it elsewhere (according to the order, by January, ). Moreover, both the order and the statute require DOE to comply with NEPA. The South Carolina court did not address whether DOE s current proposal to ship the material to Nevada complied with NEPA. --

6 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Finally, it is noteworthy that DOE s position in this case that NEPA is fully satisfied by a SA issued without any prior opportunity for public comment is utterly inconsistent with its position before the U.S. District Court in South Carolina. DOE represented in that litigation that shipping one ton of plutonium out of South Carolina in compliance with NEPA would require scoping meetings at potential sites, developing the analysis and drafting the document, providing the draft document for public comment, addressing the comments, revising the document, and publishing the final document and issuing the decision. A copy of the Declaration of Henry Allen Gunter is attached as Exhibit. Now, apparently because time constraints and litigation strategy require it, DOE has performed a classic flip-flop on what NEPA requires in regard to the proposed shipments. Clearly, DOE s proposal is a moving target, and Nevada cannot meaningfully protect its citizens and environment without a sufficient understanding of a proposal that looks like it is essentially designed to quickly, without appropriate NEPA compliance, transfer a problem and associated risks from South Carolina to Nevada. Here, not only is the form of the plutonium undefined (See inconsistent descriptions in both the SA and DOE s opposition papers referring to plutonium pits ), the proposed shipping packages are uncertain and possibly untested, the risks inherent in shipping this material have not been addressed and the period of time this dangerous material will be stored or staged at the Nevada National Security Site ( NNSS ) is indefinite. In fact, applying DOE s reasoning, DOE could ship consecutive metric tons of weapons-grade plutonium from South Carolina to Nevada without any additional NEPA analysis or public input. II. STATUTORY AND REGULATORY BACKGOUND While most of the discussion of the statutory and regulatory background on pages 0 of the Defendants Response is generally correct, one part is misleading. The discussion of the regulations governing the transportation of nuclear material on pages would leave the reader with the impression that the transportation of plutonium at issue here is subject to regulation and oversight by the U.S. Nuclear Regulatory Commission, an independent agency wholly separate from DOE. That is not --

7 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 true. The shipments at issue here are wholly exempt from licensing or oversight by the Commission because DOE is not a Commission licensee. 0 C.F.R..0(c) and.(b)(). The discussion in the Response fails to note that DOE has refused to respond to Nevada s reasonable request that the shipments be made with the same safety and security protections that apply generally to shipments of weapons-grade plutonium. See Nevada Motion, Exhibit D, Attachment, Nevada letter to DOE dated November,. This may be why the SA (Response Exhibit at pp. ) and Defendants Response (at p. ) both refer to a requirement that the plutonium be shipped in Type B packages, which are designed to protect against a breach of the inner containers and a release of plutonium under certain accident conditions, but then say that the shipments will be made in U.S. Department of Transportation certified shipping containers or their equivalent. Equivalence is never explained. Accordingly, DOE has left itself the wiggle room to ship in containers that have never been reviewed for compliance with transportation safety requirements by anyone except DOE itself, the shipper. III. ARGUMENT A. Injunction Standard Defendants argue (Response at p. ) that Nevada has the burden to prove by clear and convincing evidence that a preliminary injunction is appropriate. While Nevada agrees it has the burden of proof, the case cited, Granny Goose Foods, Inc. v. Teamsters & Auto Truck Drivers Local No. 0, U.S., (), does not support the application of a clear and convincing standard of proof. Nevada here merely asks for a prohibitory injunction to preserve the status quo. The Ninth Circuit applies separate standards for injunctions depending on whether they are prohibitory, i.e., whether they prevent future conduct, or mandatory, i.e., they go beyond maintaining the status quo. Ms. L. v. U.S. Immigration & Customs Enf t ( ICE ), 0 F. Supp. d, (S.D. Cal. ). A mandatory injunction orders a responsible party to take action, while a prohibitory injunction prohibits a party from taking action and preserves the --

8 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 status quo pending a determination of the action on the merits. Arizona Dream Act Coal. v. Brewer, F.d 0, 00 (th Cir. ). Under the lesser standard of proof for a prohibitory injunction, plaintiffs need only demonstrate they are likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest. Ms. L., supra. In fact, absent a preliminary injunction the plutonium shipments will proceed and DOE will have every incentive to complete the shipments in order to moot the case. B. The Record Rule and the Review Standard Nevada here challenges the adequacy of DOE s SA (Response, Exhibit ), which as noted purports to demonstrate that the shipments of a total of one metric ton of weaponsgrade plutonium to and through Nevada are addressed adequately in previous DOE environmental statements dating back to, nearly years ago. Nevada s suit is brought under the Administrative Procedure Act and, therefore, the SA must stand or fall on its own, without additional justification in briefs or other materials supplied by government counsel. Florida Power & Light Co. v. Lorion, 0 U.S. (). The exceptions to this rule are limited and are explained in San Luis & Delta-Mendota Water Auth. v. Locke, F.d, (th Cir. ), as follows: We have also recognized several exceptions to this rule. Under Lands Council, a reviewing court may consider extra-record evidence where admission of that evidence () is necessary to determine whether the agency has considered all relevant factors and has explained its decision, () is necessary to determine whether the agency has relied on documents not in the record, () when supplementing the record is necessary to explain technical terms or complex subject matter, or () when plaintiffs make a showing of agency bad faith. Id. (quoting Sw. Ctr. for Biological Diversity v. U.S.F.S., 00 F.d, 0 (th Cir. 0)). Nevada does not dispute that the Court s review of the SA is deferential. But, as Nevada pointed out in its Motion for Preliminary Injunction (ECF No. ) at, the Court cannot simply rubber stamp the SA, Ocean Advocates v. U.S. Army Corps of Eng rs, --

9 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 0 F.d, (th Cir. 0), and must decide whether DOE has taken the requisite hard look at the new shipments to determine whether a supplemental environmental impact statement is required. See Norton v. So. Utah Wilderness Alliance, U.S., (0). C. Judicial Estoppel Most importantly, Defendants fail to acknowledge the complete reversal in their position regarding this metric ton of plutonium since. In South Carolina v. U.S., WL at * (D.S.C. Dec., ), aff d, 0 F.d (th Cir. ), Defendants submitted a Statement Concerning Remedy on August,, to assist the court in determining the proper remedy for the Defendants violation of 0 U.S.C. (c)(). A copy of the Defendants Statement Concerning Remedy is attached as Exhibit. The first line in Defendants introduction states, processing and moving defense plutonium, among the most powerful and potentially dangerous substances on the planet, is not an area to be taking shortcuts. Id. at. In practice, particularly when the project involves a substance with the potential to have as much impact on the environment as plutonium, this is a very thorough, deliberate process. Id. at. Next, Defendants emphasize, processing and removing large amounts of plutonium takes a significant amount of time to comply with the myriad of statutes, regulations, rules, and requirements that govern the handling, processing, transport, and disposition of defense plutonium. Id. at. A failure to do so could put Defendants employees, the environment, the public, and national security at risk. Id. (emphasis added). Taking this even a step further, Defendants argued that the State asks this Court to order Defendants to remove one metric ton of defense plutonium from South Carolina within two years, a feat which would not only be logistically impossible but also impossible to do in compliance with applicable statutes and regulations. Id. at (emphasis added). Defendants concluded, it is impossible for Defendants to remove one metric ton of defense plutonium [within two years] from South Carolina without violating NEPA and other laws, and without posing a --

10 Case :-cv-00-mmd-cbc Document Filed 0// Page 0 of 0 significant risk to Defendants employees, to the environment and to national security. Id. at. In addition to these arguments, South Carolina submitted the declaration of its own expert to discuss the impossibility of removal within a two-year time frame. See the Declaration of Henry Allen Gunter attached as Exhibit. Mr. Gunter, at the time DOE utilized his declaration, was an employee of DOE at the Savannah River Site, and served as Plutonium Program Manager and Senior Technical Advisor to the Assistant Manager for Nuclear Materials Stabilization for over years. Id. at. Mr. Gunter s work concerned the production, storage and disposition of plutonium materials. Id. at. Mr. Gunter concluded that if DOE could identify alternate facilities, National Environmental Policy Act analysis would be required to support any decision to ship the plutonium to an alternate location which could take to years to complete. Id. at. The NEPA process would likely require scoping meetings at potential sites, developing the analysis and drafting the document, providing the draft document for public comment, addressing the comments, revising the document, and publishing the final document and issuing the decision. Id. Next, Mr. Gunter stated it would take to months, depending on the complexity of the analysis, to complete the safety analysis to support the transfer of [one metric ton of defense plutonium]. Id. Mr. Gunter warned that additional unnecessary exposure would be required of personnel at the alternate storage facility to handle and ultimately dispose of this plutonium. Id. at. Most alarmingly, Mr. Gunter acknowledged that no place exists today, other than SRS, with the required capacity, security, safety analysis, and surveillance program to receive and store any significant amount of this plutonium in the form and packaging configuration as it exists today. Id. at. Further, each shipment of undiluted plutonium represents an unnecessary risk to national security. Id. at. Mr. Gunter concluded that it would take approximately five years to ship one [metric ton] of defense plutonium offsite (two years to prepare and three years to repackage) if an offsite location were available with sufficient capacity, security, and authorization. Id. at. --

11 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Judicial estoppel, sometimes also known as the doctrine of preclusion of inconsistent positions, precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. Rissetto v. Plumbers & Steamfitters Local, F.d, 00 (th Cir. ). It is an equitable doctrine intended to protect the integrity of the judicial process by preventing a litigant from playing fast and loose with the courts. Helfand v. Gerson, 0 F.d 0, (th Cir. ). A litigation position such as this conveyed to a court becomes binding in any forum in which the same controversy arises. Am. Civil Liberties Union of Nevada v. Masto, 0 F.d 0, 0 (th Cir. ). See New Hampshire v. Maine, U.S., S. Ct. 0, L. Ed. d (0) (the doctrine of judicial estoppel prohibits a party from changing positions according to the exigencies of the moment (internal quotation marks omitted)); Helfand v. Gerson, 0 F.d 0 (th Cir. ) (a party taking a position in litigation precludes that party from later assuming an inconsistent position on the same issue). The State, like any party, is responsible for official representations that it makes to the court. Am. Civil Liberties Union of Nevada v. Masto, 0 F.d 0, 0 (th Cir. ). See Vincentini v. Comm r, T.C.M. (CCH) 00 (T.C. 0), aff d, F. App x 0 (th Cir. ) (judicially estopping the United States Government from asserting contrary positions in subsequent legal proceedings). Some courts apply judicial estoppel even if the litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing fast and loose with the court. U.S. v. Rodriguez, WL, at * (D. Idaho Apr., ). Defendants have now completely reversed course from these sworn statements. Just over a year ago, Defendants submitted to a federal court that it is impossible for Defendants to remove one metric ton of defense plutonium [within two years] from South Carolina without violating NEPA and other laws. See Defendants Statement Concerning Remedy at. Yet, Defendants now argue to this Court that a full NEPA analysis is not required, and that the pending shipment of one metric ton is just run-of-the-mill defense practice. Defendants cannot be allowed to take entirely --

12 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 contradictory positions with two federal courts regarding the removal and transportation of this plutonium. This court should judicially estop Defendants from arguing that this shipment is being completed in compliance with NEPA when Defendants argued the impossibility of such just over a year ago. At the very least, Defendants should be required to explain to this Court why its position regarding the feasibility and safety of shipping one metric ton of plutonium by January,, has changed so dramatically in such a short amount of time. D. Likelihood of Success on the Merits DOE of course argues that it has adequately analyzed its shipments in prior environmental impact statements. As explained below, DOE s explanation why this is so (in SA) is arbitrary and capricious because it is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicles Mfrs. Assn. of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., U.S., (). While the Response refers generally to six such DOE statements (Response at pp. ), it actually focuses on only three of them to support DOE s argument: the Final Surplus Plutonium SEIS ; the NNSS EIS ; and the Transformation SPEIS (Response at pp. ). In each case the Response refers to various pages with no exact quotations or even paraphrases of what is analyzed therein, making it difficult to determine whether the references apply at all to these shipments. DOE s reliance on the NNSS EIS is especially problematic. The NNSS EIS is a site wide NEPA document, prepared pursuant to DOE NEPA regulation 0 C.F.R. 0.0(c), and is almost six years old. 0 C.F.R. 0.0(d) of DOE s NEPA regulation provides that DOE shall evaluate site-wide NEPA documents prepared under 0.0(c) at least every The Response also refers (at p. ) to a NEPA document prepared years ago by the U.S. Nuclear Regulatory Commission entitled Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes. This is not a DOE environmental impact statement and it is not listed in the SA as one of the environmental impact statements DOE reviewed and relied upon (or tiered from) to demonstrate that prior environmental impacts statements adequately addressed the proposed new shipments of plutonium. See SA at pp. iii and. As noted in this Reply, the SA must stand or fall on its own without additional technical support from government counsel. DOE s reliance on this NRC NEPA document is especially questionable because DOE was not a cooperating agency in its preparation. --

13 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 five years in order to determine whether the existing EIS remains adequate or whether to prepare a new site-wide EIS or supplement the existing EIS, as appropriate. It does not appear that the required evaluation was completed. A key consideration here is whether any of the referenced prior environmental impact statements adequately discuss the radiological risk (both probability and consequences) from accidents arising from transporting and storing plutonium in Nevada. DOE concedes that the Final Surplus Plutonium SEIS did not specifically consider transporting plutonium to the NNSS [Nevada National Security Site] (Response at p. ). The cited references (Response at p. ) to the Transformation SPEIS (Response, Exhibit ) mostly contain descriptions of the proposed action and alternatives, including some descriptions of transportation of nuclear materials. However there is no discussion here of radiological transportation risks. Nor is there discussion of the risk specifically in Las Vegas, Nevada s economic engine. The referenced portions (Response at p. ) of the NNSS EIS (Response, Exhibit ) comprise mostly irrelevant, narrative discussions of things having nothing to do with plutonium transportation accidents, like transportation of low-level radioactive waste (LLW) and mixed low-level waste (MLLW). Often it is impossible to tell exactly what nuclear materials are being discussed. Table - approaches relevancy, because it provides transportation risk estimates for special nuclear material in Nevada, but the reader is not informed whether this special nuclear material includes plutonium.. Alternatives In Nevada s Motion, Nevada argued first (with a supporting affidavit) that there are viable destinations outside of South Carolina for this one metric ton of plutonium other than the NNSS, that these alternatives present less risk, but that none of these alternatives were analyzed in any of the previous environmental impact statements cited by DOE (Nevada Motion at pp. ). Defendants argument in its Response (at p. ) entirely misses the point of Nevada s argument. --

14 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Nevada agrees that the SA is not a proper document for a discussion of previously unevaluated alternatives. Nevada s point was that, because the discussion of alternatives is at the heart of any environmental impact statement, the fact that alternative destinations for the shipments of this one metric ton of plutonium were not discussed in any of the prior environmental impact statements establishes that the shipments are simply beyond the scope of the prior statements. And, if they are beyond scope, then it follows that they constitute a substantial change in the previous proposed actions that is relevant to environmental concerns, and meet the established criteria for when a supplemental environmental impact statement is required. In its Response, DOE does not dispute that such viable alternatives exist or that the alternatives identified by Nevada are not mentioned in any prior DOE environmental impact statement. Unless DOE is compelled to do a supplemental environmental impact statement for these new plutonium shipments, no one outside of DOE will ever know why the site in Nevada was chosen. DOE adds an argument (Response at p. ) that the SA, in conjunction with some unnamed prior NEPA studies, demonstrates that no significant environmental effects are presented by the shipments of one metric ton of weapons-grade plutonium over thousands of miles to Nevada for an indefinite storage period. Accordingly, DOE says, no discussion of alternatives is required. The SA makes no such claim, nor could it. As noted above, the SA must stand or fall on its own, without the benefit of innovative and technically unsupported additions of counsel. Finally, DOE makes much of Beyond Nuclear v. U.S. Dep t of Energy, F. Supp. d 0 (D.D.C. ). It is apparent that Beyond Nuclear involved an adequate DOE Supplement Analysis that did a credible job of demonstrating that the new action was addressed in the prior environmental impact statements the SA at issue here fails in this task. -0-

15 Case :-cv-00-mmd-cbc Document Filed 0// Page of. Transportation Accidents Nevada argued (under likelihood of success on the merits) that none of the referenced environmental impact statements discussed either transportation in Nevada of plutonium intended for future pit production or the health consequences of transportation accidents involving these materials (Nevada s Motion at pp. ). DOE appears to 0 concede the point (Response at p. ) when it weakly argues that the underlying NEPA analysis thoroughly considered not just the risks of accidents but also the potential harm. The risk of an accident is the product of the accident probability and the accident consequences. Nevada does not doubt that the underlying but undisclosed calculations supporting DOE s risk estimates included both terms. The point of Nevada s argument was that both terms accident probability and accident consequences (typically health effects) had to be disclosed in the prior impact statements and they were not.. Cumulative Impacts Finally, Nevada argued (under likelihood of success on the merits) that the SA (and the prior environmental impact statements) failed to discuss cumulative impacts from future foreseeable plutonium shipments (Nevada s Motion at pp. ). Defendants respond by arguing that such additional shipments are speculative and covered by previous impact statements in any event. But, the additional shipments are hardly speculative they are required by the same statute that compelled DOE to ship the one metric ton of plutonium discussed in the SA. 0 U.S.C. (c)() requires that, in addition to the one metric ton, DOE must also ship out of South Carolina not later than January,, an amount of defense plutonium or defense plutonium materials equal to the amount of defense plutonium or defense plutonium materials transferred to the Savannah River Site between April, 0, and January,, but not processed by --

16 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 the MOX facility. Surely any proposed action that is required by statute is reasonably foreseeable, if not virtually inevitable. Moreover, DOE s bare assertion that any such additional shipments are somehow already addressed in prior DOE environmental impact statements is unsupported by any detailed references that can be evaluated. DOE s theory here seems to be that, if any number of shipments, of any form of plutonium, in any part of the United States, is addressed in any prior impact statement, no matter how old, then no further analysis is required for the new shipments of plutonium in Nevada at issue here. But this completely ignores the possibility that local conditions, including population densities and geographic features, may differ from the entirely generic conditions assumed in such analyses, particularly given that many of the prior evaluations are decades old. E. Irreparable Injury DOE argues (Response at pp. ) that Nevada has not demonstrated any irreparable injury. Nevada did not attempt to demonstrate that the shipments would pose the threat of irreparable physical injury to any Nevada person or resource. It could not do so for the simple reason that DOE failed to disclose sufficient information about the shipments to permit Nevada to perform any independent analysis of shipment risks. Among other things, the SA failed to disclose the form of plutonium being shipped and DOE refused to respond to Nevada s reasonable request that the shipments be made with the same safety and security protections that apply generally to shipments of weaponsgrade plutonium. The Response states (at p. ) that the plutonium is in the form of nuclear weapon cores or pits, but the SA says nothing about the physical form of the plutonium. This new possibility that DOE proposes to ship actual nuclear weapon pits to The full text of subsection (c) is as follows: If the MOX production objective is not achieved as of January,, the Secretary shall, consistent with the National Environmental Policy Act of [ U.S.C., et seq.] and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere () not later than January,, not less than metric ton of defense plutonium or defense plutonium materials; and () not later than January,, an amount of defense plutonium or defense plutonium materials equal to the amount of defense plutonium or defense plutonium materials transferred to the Savannah River Site between April, 0, and January,, but not processed by the MOX facility. --

17 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 Nevada raises serious safety questions. For example, Defendants Response represents (at p. ) that each shipment of plutonium will be contained in a 0 double-sealed shipping container. However, DOE s own standard for such containers (DOE-STD-0- (March ), attached hereto as Exhibit )) provides (under p., Scope ) that the standard is not intended for intact weapon components, including pits. Therefore, it would appear from the SA and the Response that the shipments could be made in containers that only DOE will review, using either a safety standard that does not apply or no safety standard at all. Nevada argued that it would be irreparably injured because, without a preliminary injunction to preserve the status quo, the shipments could be completed before the merits of the case could be considered and decided. DOE would then successfully evade compliance with NEPA, and the injury to the NEPA decision process, which would have included consideration of alternatives and Nevada and other public comments, would be irreparable (Nevada Motion at pp. 0). No one would ever know why the plutonium was shipped to Nevada as opposed to the other locations listed in the Frazier affidavit (attached to the Nevada s Motion). The cases cited on pages 0 of Nevada s Motion establish that this injury to the NEPA decision process is a cognizable and irreparable injury and the Response make no attempt to distinguish them. Instead, the Response argues (at p. ) that this kind of irreparable injury is not by itself sufficient to grant a preliminary injunction. Nevada does not disagree that is why Nevada s Motion discusses the other factors that warrant a preliminary injunction under Winter v. NRDC, U.S., (0). However, it remains that shipments of this kind do create the potential for grave harm to Nevada and its citizens. DOE s own Surplus Plutonium EIS (Exhibit K to Nevada s Complaint at Tables L- and L- and Exhibit to the Response) concludes that () the radiation dose to an exposed urban population from transportation accidents involving plutonium dioxide could be as high as,0 rem, resulting in cancer fatalities, and () the total radiation dose to an exposed urban population from --

18 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 transportation accidents involving plutonium pits could be as high as,0 rem, resulting in cancer fatalities. DOE states in its response that, in its discussions with Nevada about the proposed shipments, Nevada admitted it had no concerns about safety or security and never expressed any grave or pressing safety concern (Response at p. ). That is misleading Nevada asked DOE for more information about the shipments and requested assurance that the shipments be made with the same safety and security protections that apply generally to shipments of weapons-grade plutonium, and DOE did not respond (Exhibit D to Nevada s Complaint). Most of the discussions predated the SA, whose inadequacy raised new Nevada concerns. F. The Balance of Equities Defendants argue here that the balance of equities favors DOE because the shipments are needed to comply with the South Carolina Court s order and to further DOE s national security mission (Response at pp. ). But nothing in the order requires that the plutonium be shipped to Nevada. Moreover, the plain text of the applicable statute (0 U.S.C. (c)) requires both removal from South Carolina by a date certain and full compliance with NEPA. The statute on its face does not, as Defendants apparently suggest, elevate the public interest in removal from South Carolina over the public interest in NEPA compliance (the objective of Nevada s lawsuit). Finally, the notion that the shipments are necessary to advance DOE s national security mission cannot be reconciled with DOE s position before the U.S. District Court --

19 Case :-cv-00-mmd-cbc Document Filed 0// Page of in South Carolina opposing the issuance of an order compelling the shipments. Moreover, there is nothing in the SA that argues, let alone establishes, that the shipments are needed to advance any national security interest. DATED this th day of January,. 0 By: By: By: AARON D. FORD Attorney General /s/ C. Wayne Howle C. WAYNE HOWLE (Bar No. ) Chief Deputy Attorney General DANIEL P. NUBEL (Bar No. ) Deputy Attorney General /s/ Marta Adams MARTA ADAMS (Bar No. ) Special Deputy Attorney General EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC /s/ Martin G. Malsch MARTIN G. MALSCH Special Deputy Attorney General --

20 Case :-cv-00-mmd-cbc Document Filed 0// Page of 0 CERTIFICATE OF SERVICE I certify that I am an employee of the State of Nevada, Office of the Attorney General, and that on this th day of January,, I served a true and correct copy of the foregoing NEVADA S REPLY TO DEFENDANTS RESPONSE OPPOSING NEVADA S MOTION FOR PRELIMINARY INJUNCTION, by U.S. District Court CM/ECF electronic service to: David L. Negri, Esq. E: david.negri@usdoj.gov Counsel for United States of America and All Defendants Brian R. Irvine, Esq. E: birvine@dickinsonwright.com Counsel for the State of South Carolina /s/ Dorene A. Wright --

21 Case :-cv-00-mmd-cbc Document Filed 0// Page of EXHIBIT NO. INDEX OF EXHIBITS EXHIBIT DESCRIPTION NUMBER OF PAGES. Declaration of Henry Allen Gunter filed August,. Defendants Statement Concerning Remedy filed August,. DOE Standard Stabilization, Packaging and Storage of Plutonium-Bearing Materials, DOE-STD-0-, March 0 --