ML091310479
Text
LBP-09-06 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARDS Before Administrative Judges:
In the Matter of U.S. DEPARTMENT OF ENERGY (High Level Waste Repository)
Docket No. 63-001-HLW May 11, 2009 MEMORANDUM AND ORDER (Identifying Participants and Admitted Contentions)
BOARD CAB-01 ASLBP No. 09-876-HLW William J. Froehlich, Chairman Thomas S. Moore Richard E. Wardwell BOARD CAB-02 ASLBP No. 09-877-HLW Michael M. Gibson, Chairman Alan S. Rosenthal Nicholas G. Trikouros BOARD CAB-03 ASLBP No. 09-878-HLW Paul S. Ryerson, Chairman Michael C. Farrar Mark O. Barnett
ii TABLE OF CONTENTS I.
BACKGROUND................................................................................................................
II.
KEY CRITERIA.................................................................................................................
A. Standards Governing Standing...................................................................................
B. Compliance with LSN Requirements.........................................................................
C. Standards Governing Contention Admissibility.........................................................
III. OVERARCHING ISSUES...............................................................................................
A. Special Requirements for NEPA Contentions...........................................................
- 1. Background........................................................................................................
- a. Nuclear Waste Policy Act............................................................................
- b. Commission Rulemaking.............................................................................
- c. Subsequent Events.....................................................................................
- d. NEI Decision................................................................................................
- e. Nevadas 2005 Petition...............................................................................
- f. Notice of Hearing..........................................................................................
- 2. Analysis..............................................................................................................
B. Transportation-Related NEPA Contentions...............................................................
C. Sufficiency of Affidavits.............................................................................................
- 1. Form of Affidavits................................................................................................
- 2. Supporting References.......................................................................................
D. Allegedly Heightened Standard for Admitting HLW Contentions..............................
E. TSPA Model-Based Contentions...............................................................................
F. Reasonable Assurance and Reasonable Expectation..........................................
G. Legal Issue Contentions...........................................................................................
IV. RULINGS ON STANDING..............................................................................................
A. Caliente (CAB-01).....................................................................................................
B. California (CAB-02)...................................................................................................
C. NCA (CAB-02)...........................................................................................................
D. JTS (CAB-02)............................................................................................................
E. NEI (CAB-03)............................................................................................................
- 1. Standing as of Right...........................................................................................
- 2. Discretionary Intervention...................................................................................
V. RULINGS ON LSN COMPLIANCE.................................................................................
A. Nevada (CAB-01)......................................................................................................
B. Clark (CAB-01)..........................................................................................................
C. JTS (CAB-02)............................................................................................................
- 1. TIM.....................................................................................................................
- 2. TSO....................................................................................................................
D. NCA (CAB-02)...........................................................................................................
E. Inyo (CAB-03).......................................................................................................... - 100 -
VI. RULINGS ON CONTENTIONS.................................................................................... - 101 -
VII. RULINGS ON PETITIONS........................................................................................... - 105 -
A. CAB-01.................................................................................................................... - 105 -
iii B. CAB-02.................................................................................................................... - 105 -
C. CAB-03.................................................................................................................... - 105 -
VIII. RULINGS ON PROCEDURAL MATTERS (CAB-01)................................................... - 106 -
A. Interested Governmental Bodies............................................................................. - 106 -
B. Eureka Motion for Leave to File a Reply................................................................. - 106 -
C. Nevadas Motion to Amend Petition to Intervene as a Full Party............................ - 107 -
IX. DISCUSSION (CAB-01)............................................................................................... - 108 -
A. Certain Admitted Contentions................................................................................. - 108 -
- 1. NEV-SAFETY-001............................................................................................ - 109 -
- a. Nevada, DOE and the NRC Staff Arguments............................................ - 109 -
- b. Board Analysis.......................................................................................... - 114 -
- 2. NEV-SAFETY-002............................................................................................ - 123 -
- 3. Institutional Concerns Regarding NEV-SAFETY-001 and -002....................... - 125 -
- 4. Legal Issue Contentions................................................................................... - 125 -
B. Inadmissible Contentions........................................................................................ - 127 -
X. DISCUSSION AND RULING ON MOTION (CAB-02)................................................... - 130 -
A. NCA Contentions..................................................................................................... - 130 -
- 1. NCA-MISC-001................................................................................................. - 130 -
- 2. NCA-MISC-002................................................................................................. - 131 -
B. JTS Contentions...................................................................................................... - 132 -
- 1. TSOs Motion for Leave to File Amended Petition............................................ - 132 -
- 2. JTS-NEPA-002................................................................................................. - 134 -
C. Certain California and Nevada Contentions............................................................ - 136 -
- 1. CAL-NEPA-005................................................................................................ - 136 -
- 2. CAL-NEPA-009................................................................................................ - 136 -
- 3. CAL-NEPA-016................................................................................................ - 137 -
- 4. NEV-SAFETY-130............................................................................................ - 138 -
XI. DISCUSSION (CAB-03)............................................................................................... - 138 -
A. Certain Admitted Contentions................................................................................. - 138 -
B. Inadmissible Contentions........................................................................................ - 139 -
XII. CONCLUSION.............................................................................................................. - 140 -
XIII. ORDER......................................................................................................................... - 141 -
ATTACHMENT A ATTACHMENT B
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARDS Before Administrative Judges:
In the Matter of U.S. DEPARTMENT OF ENERGY (High Level Waste Repository)
Docket No. 63-001-HLW May 11, 2009 MEMORANDUM AND ORDER (Identifying Participants and Admitted Contentions)
Before these three Construction Authorization Boards (CABs or Boards) are twelve petitions to intervene in the proceeding on the Application (Application) by the Department of Energy (DOE or Applicant) seeking authorization to construct a geologic repository for high-level nuclear waste (HLW) at Yucca Mountain, in Nye County, Nevada. Collectively, the petitions proffer 318 proposed contentions for adjudication.
DOE opposes all petitions in their entirety. The Nuclear Regulatory Commission Staff (NRC Staff) opposes the majority of petitions, but does not oppose the petitions of the State of Nevada (Nevada), Nye County (Nye), and the amended petition of Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation (TSO). The NRC Staff opposes 216 of the 239 contentions proffered, collectively, by Nevada, Nye, and TSO in its amended petition.
In addition, Eureka County, Nevada (Eureka) and Lincoln County, Nevada (Lincoln) filed unopposed requests to participate as interested governmental bodies under 10 C.F.R.
§ 2.315(c).
BOARD CAB-01 ASLBP No. 09-876-HLW William J. Froehlich, Chairman Thomas S. Moore Richard E. Wardwell BOARD CAB-02 ASLBP No. 09-877-HLW Michael M. Gibson, Chairman Alan S. Rosenthal Nicholas G. Trikouros BOARD CAB-03 ASLBP No. 09-878-HLW Paul S. Ryerson, Chairman Michael C. Farrar Mark O. Barnett
The three Boards were constituted to manage the first phase of this complex proceeding.1 In accordance with the Commissions regulations and applicable law, the Boards reviewed all intervention petitions with an important, but limited purpose, that is, to begin to simplify the proceeding by identifying matters that merit further consideration and rejecting at the outset: (1) petitions by participants that lack standing; (2) petitions by participants that were unable to demonstrate timely and substantial compliance with applicable Licensing Support Network (LSN) requirements; and (3) contentions that fail to satisfy applicable requirements.
The three Boards set forth their independent rulings in this Memorandum and Order.
The Chief Administrative Judge assigned Nevadas petition to CAB-01. Because of the number of proposed contentions submitted by Nevada, however, the Chief Administrative Judge allocated Nevadas 229 contentions among the Boards as follows:
CAB-01: Safety Contentions 1-67; NEPA Contentions 1-8; Miscellaneous Contentions 1-2.
CAB-02: Safety Contentions68-134; NEPA Contentions 9-16; Miscellaneous Contentions 3-4.
CAB-03: Safety Contentions 135-201; NEPA Contentions 17-23; Miscellaneous Contention 5.
The Chief Administrative Judge assigned each of the other petitions and associated contentions to a single Board, as follows:
CAB-01: Nye County; Clark County; White Pine County; and Caliente Hot Springs Resort.
CAB-02: State of California; Nevada Counties of Churchill, Esmeralda, Lander, and Mineral; Native Community Action Council; Timbisha Shoshone Tribe; and the Timbisha Shoshone Yucca Mountain Oversight Program.
1 See Department of Energy; Establishment of Atomic Safety and Licensing Boards, 74 Fed.
Reg. 4477 (Jan. 26, 2009).
CAB-03: Inyo County; and the Nuclear Energy Institute.
Each Board adopts as its own the discussion that follows concerning the legal standards that govern the Boards decisions and the conclusions reached on the overarching legal issues.
Each Board has independently ruled, however, upon the petitions and contentions for which it is responsible.
Collectively, through their independent rulings on assigned matters, the three Boards find that eight petitions should be granted. One petition - that of Caliente Hot Springs Resort -
must be denied, because the petitioner failed to demonstrate standing.
Two original petitioners - the Timbisha Shoshone Tribe and TSO - subsequently agreed to be treated as a single participant. They would have been admitted as a party on that basis, except for their failure to demonstrate substantial and timely compliance with the requirements of the LSN. The resulting entity, however, will be granted party status at such time as it can demonstrate LSN compliance. Finally, the Native Community Action Council would have been admitted as a party, except for its failure to demonstrate substantial and timely LSN compliance.
It likewise will be granted party status at such time as it can demonstrate LSN compliance.
The unopposed requests of Eureka and Lincoln to participate as interested governmental bodies are granted.
I.
BACKGROUND On June 3, 2008, DOE submitted the Application to the NRC. The NRC Staff accepted the Application for docketing on September 8, 2008.2 The NRC Staff also determined that it is practicable to adopt, with further supplementation, the Environmental Impact Statement (EIS) and supplements prepared by DOE.3 2 Department of Energy; Notice of Acceptance for Docketing of a License Application for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, NV, 73 Fed. Reg. 53,284 (Sept. 15, 2008).
3 See U.S. Nuclear Regulatory Commission Staffs Adoption Determination Report for the U.S.
Department of Energys Environmental Impact Statements for the Proposed Geologic Repository at Yucca Mountain (Sept. 5, 2008) (ADAMS Accession No. ML082420342).
The Commission published a hearing notice on October 22, 2008.4 The hearing notice required any person whose interests might be affected by this proceeding and who wished to participate as a party to file a petition for leave to intervene within sixty days of the notice, in accordance with 10 C.F.R. § 2.309.
On or before December 22, 2008, timely petitions were filed by: (1) Nevada;5 (2) the Nuclear Energy Institute (NEI);6 (3) Nye;7 (4) Churchill, Esmeralda, Lander, and Mineral Counties (jointly) (Nevada 4 Counties);8 (5) the State of California (California);9 (6) the Native Community Action Council (NCA);10 (7) the Timbisha Shoshone Tribe (TIM);11 (8) Clark County (Clark);12 (9) Inyo County (Inyo);13 (10) White Pine County (White Pine);14 (11) TSO;15 and 4 U.S. Department of Energy (High Level Waste Repository); Notice of Hearing and Opportunity to Petition for Leave to Intervene on an Application for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain, 73 Fed. Reg. 63,029 (Oct. 22, 2008) [Notice of Hearing].
5 State of Nevadas Petition to Intervene as a Full Party (Dec. 19, 2008) [Nevada Petition].
6 The Nuclear Energy Institutes Petition to Intervene (Dec. 19, 2008) [NEI Petition].
7 Nye County, Nevada Petition to Intervene and Contentions (Dec. 19, 2008) [Nye Petition].
8 Nevada Counties of Churchill, Esmeralda, Lander and Mineral Petition to Intervene (Dec. 19, 2008) [Nevada 4 Counties Petition].
9 State of Californias Petition for Leave to Intervene in the Hearing (Dec. 20, 2008) [California Petition]. Although California appears to have proffered 25 NEPA contentions, there is no CAL-NEPA-006.
10 Native Community Action Council Petition to Intervene as a Full Party (Dec. 22, 2008) [NCA Petition]. Although in previous orders and at oral argument we referred to the Native Community Action Council as NCAC, we will henceforth identify it by its designated three-letter acronym NCA.
11 Timbisha Shoshone Tribes Petition for Leave to Intervene in the Hearing (Dec. 22, 2008)
[TIM Petition].
12 Clark County, Nevadas Request for Hearing, Petition to Intervene and Filing of Contentions (Dec. 22, 2008) [Clark Petition].
13 Petition for Leave to Intervene by the County of Inyo, California on an Application by the U.S.
Department of Energy for Authority to Construct a Geologic High-Level Waste Repository at a Geologic Repository Operations Area at Yucca Mountain, Nevada (Dec. 22, 2008) [Inyo Petition].
(12) Caliente Hot Springs Resort (Caliente).16 Since filing its initial petition, TSO has sought to file an amended petition.17 Also, TIM and TSO have sought and obtained authorization to merge their respective efforts in this proceeding and to represent jointly the Timbisha Shoshone Tribe, hereinafter Joint Timbisha Shoshone Tribal Group (JTS).18 Eureka and Lincoln filed requests to participate as interested governmental participants in accordance with 10 C.F.R.
§ 2.315(c).19 On or before January 16, 2009, the Applicant filed timely answers.20 The Applicant filed a timely answer to TSOs proffered amended petition on March 27, 2009.21 14 White Pine Countys Request for Hearing and Petition for Leave to Intervene Including Supporting Contentions on the Application by the U.S. Department of Energy for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain (Dec. 22, 2008).
15 Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation Petition to Intervene as a Full Party (Dec. 22, 2008) [TSO Petition]. Although in previous orders and at oral argument we referred to the Timbisha Shoshone Yucca Mountain Oversight Program as TOP, we will henceforth identify it by its designated three-letter acronym TSO.
16 Caliente Hot Springs Resort - NEPA - Impacts on Land Use and Ownership (Dec. 19, 2008)
[Caliente Petition]. As discussed Section IV.A infra, while timely, the Caliente Petition was not initially filed and served in the manner specified by NRC regulations.
17 Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporations Corrected Motion for Leave to File Its Amended Petition to Intervene as a Full Party (Mar. 5, 2009) [TSO Corrected Motion for Leave]; Amended Petition of the Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation to Intervene as a Full Party (Mar. 5, 2009) [TSO Amended Petition].
18 CAB Order (Accepting Joint Representation of Timbisha Shoshone Tribe) (Apr. 22, 2009)
(unpublished).
19 Eureka County, Nevadas Request to Participate as Interested Governmental Participant (Dec. 22, 2008) [Eureka Request]; Lincoln County, Nevadas Corrected Request to Participate as Interested Governmental Participant (Dec. 22, 2008) [Lincoln Request].
20 Answer of the U.S. Department of Energy to the State of Nevadas Petition to Intervene (Jan. 16, 2009) [DOE Nevada Answer]; Answer of the U.S. Department of Energy to the Nuclear Energy Institutes Petition to Intervene (Jan. 16, 2009) [DOE NEI Answer]; Answer of the U.S.
Department of Energy to Nye County, Nevada Petition to Intervene and Contentions (Jan. 15, 2009) [DOE Nye Answer]; Answer of the U.S. Department of Energy to Nevada Counties of Churchill, Esmeralda, Lander and Mineral Petition to Intervene (Jan. 15, 2009) [DOE Nevada 4 Counties Answer]; Answer of the U.S. Department of Energy to State of Californias Petition for Leave to Intervene in the Hearing (Jan. 16, 2009) [DOE California Answer]; Answer of the U.S.
Department of Energy to the Native Community Action Council Petition to Intervene as a Full Party (Jan. 15, 2009) [DOE NCA Answer]; Answer of the U.S. Department of Energy to (continued)
On February 9, 2009, the NRC Staff filed a timely answer to all petitions.22 On March 20, 2009, the NRC Staff filed a timely answer to TSOs proffered amended petition.23 On or before February 24, 2009, ten of the petitioners filed timely replies.24 Two petitioners sought Timbisha Shoshone Tribes Petition for Leave to Intervene in the Hearing (Jan. 15, 2009) [DOE TIM Answer]; Answer of the U.S. Department of Energy to Clark County, Nevadas Request for Hearing, Petition to Intervene and Filing of Contentions (Jan. 15, 2009) [DOE Clark Answer];
Answer of the U.S. Department of Energy to a Petition for Leave to Intervene by the County of Inyo, California on an Application by the U.S. Department of Energy for Authority to Construct a Geologic High-Level Waste Repository at a Geologic Repository Operations Area at Yucca Mountain, Nevada (Jan. 15, 2009) [DOE Inyo Answer]; Answer of the U.S. Department of Energy to White Pine Countys Request for Hearing and Petition for Leave to Intervene Including Supporting Contentions on the Application by the U.S. Department of Energy for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain (Jan. 15, 2009) [DOE White Pine Answer]; Answer of the U.S. Department of Energy to the Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation Petition to Intervene as a Full Party (Jan. 15, 2009) [DOE TSO Answer]; Answer of the U.S.
Department of Energy to Caliente Hot Springs Resorts Petition to Intervene (Jan. 15, 2009).
21 U.S. Department of Energys Answer to Timbisha Shoshone Yucca Mountain Oversight Program Corrected Motion for Leave to File Amended Petition to Intervene and Amended Petition (Mar. 27, 2009) [DOE Answer to TSO Amended Petition].
22 NRC Staff Answer to Intervention Petitions (Feb. 9, 2009) [NRC Staff Answer].
23 NRC Staff Answer to the Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporations Motion for Leave to File Amended Intervention Petition and Amended Intervention Petition (Mar. 20, 2009) [NRC Staff Answer to TSO Amended Petition].
24 State of Nevadas Reply to DOEs Answer to Nevadas Petition to Intervene as a Full Party (Feb. 24, 2009) [Nevada DOE Reply]; State of Nevadas Reply to NRC Staffs Answer to Nevadas Petition to Intervene as a Full Party (Feb. 24, 2009); Reply of the Nuclear Energy Institute to the Answers to its Petition to Intervene by the Department of Energy, the NRC Staff, and the State of Nevada (Feb. 24, 2009) [NEI Reply]; Nye Countys Response to the Answers of NRC Staff and the Department of Energy (Feb. 24, 2009) [Nye Reply]; Nevada Counties of Churchill, Esmeralda, Lander and Mineral Replies to the U.S. Department of Energy Answer to the Nevada Counties of Churchill, Esmeralda, Lander and Mineral [Petition] to Intervene (Feb.
24, 2009) [Nevada 4 Counties DOE Reply]; Nevada Counties of Churchill, Esmeralda, Lander, and Mineral Replies to the NRC Staff Answer to the Nevada Counties of Churchill, Esmeralda, Lander, and Mineral Petition to Intervene (Feb. 24, 2009); State of Californias Reply to Answer of the U.S. Department of Energy and NRC Staff Answer (Feb. 23, 2009) [California Reply];
Reply of Clark County, Nevada to the Answers of the U.S. Department of Energy and the Nuclear Regulatory Commission Staff (Feb. 24, 2009) [Clark Reply]; Responses of the County of Inyo to the Answers of the U.S. Department of Energy and NRC Staff (Feb. 24, 2009) [Inyo Reply]; Corrected Reply of White Pine County to the U.S. Department of Energy and Nuclear Regulatory Commission Staff Answers to White Pine Countys Request for Hearing and Petition for Leave to Intervene Including Supporting Contentions on the Application by the U.S.
Department of Energy for Authority to Construct a Geologic Repository at a Geologic Repository Operations Area at Yucca Mountain (Feb. 23, 2009); Reply of the Timbisha Shoshone Yucca (continued)
and were granted 15-day extensions of time to file replies and timely submitted their replies on March 11, 2009.25 TSO filed timely replies to the DOE and NRC Staff answers to its proffered amended petition.26 On January 16, 2009, Nevada filed a motion to amend its petition to intervene as a full party.27 On February 9, 2009, Nevada filed an answer to NEIs petition to intervene.28 NEI filed a motion to strike Nevadas answer on February 13, 2009.29 Additional procedural as well as substantive issues have been raised, as more fully discussed infra.30 Mountain Oversight Program Non-Profit Corporation in Support of its Petition to Intervene as a Full Party (Feb. 24, 2009) [TSO Reply]; Caliente Hot Springs Resort LLCs (CHS) Reply to U.S.
Department of Energys (DOE) Answer to CHS Petition to Intervene (Feb. 23, 2009) [Caliente Reply].
25 See Native Community Action Councils Motion for Extension of Time (Feb. 24, 2009); The Timbisha Shoshone Tribes Amended Motion for Extension of Time and Finding of Good Cause for Late Filed Motion (Feb. 26, 2009); CAB Order (Granting Motion for Extension of Time) (Feb.
25, 2009) (unpublished); CAB Order (Granting Motion for Extension of Time) (Mar. 3, 2009)
(unpublished); Petition to Intervene by Native Community Action Council (Mar. 11, 2009)
(subsequently renamed Reply of the Native Community Action Council to the U.S. Department of Energys Answer to its Petition to Intervene as a Full Party) [NCA Reply]; Reply to NRC Staff and DOE Answers to Timbisha Shoshone Tribes Motion to Intervene as a Full Party (Mar. 11, 2009) [TIM Reply].
26 Reply of the Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation (TOP) to the NRC Staff Answer to TOPs Motion for Leave to File an Amended Petition and Amended Petition (Mar. 27, 2009) [TSO Reply to NRC Staff Answer to TSO Amended Petition];
Reply of the Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation (TOP) Motion for Leave to File an Amended Petition and Amended Petition (Apr. 3, 2009).
27 State of Nevadas Motion to Amend Petition to Intervene as a Full Party (Jan. 16, 2009)
[Nevada Motion to Amend].
28 Answer of the State of Nevada to the Nuclear Energy Institutes Petition to Intervene (Feb. 9, 2009).
29 The Nuclear Energy Institutes Motion to Strike Nevadas Answer to the Nuclear Energy Institutes Petition to Intervene (Feb. 13, 2009). It is not necessary to decide whether Nevada was entitled to file an answer to NEIs petition. As set forth infra, CAB-03 finds that NEI has standing and should be admitted as a party. Although CAB-03 does not admit two of NEIs nine contentions, that decision rests solely on grounds presented in the answers of DOE and the NRC Staff. NEIs motion to strike the Nevada NEI Answer is therefore moot.
30 See, e.g.,Section VIII infra.
On February 9, 2009, the Chief Administrative Judge designated CAB-01 to conduct the first prehearing conference pursuant to 10 C.F.R. § 2.1021,31 which, on March 12, 2009, CAB-01 conducted by telephone.32 On March 20, 2009, CAB-01 issued an order regarding that prehearing conference.33 The three CABs heard oral argument on the admissibility of contentions in Las Vegas, Nevada on March 31 through April 2, 2009.
II.
KEY CRITERIA Anyone who wishes to intervene as a party in this proceeding must: (1) establish that it has standing; (2) be able to demonstrate substantial and timely LSN compliance; and (3) proffer at least one admissible contention.34 A. Standards Governing Standing In this unique proceeding, the Commission has conferred standing as of right on certain parties. Pursuant to 10 C.F.R. § 2.309(d)(2)(iii), intervention is permitted by the State and local governmental body (county, municipality or other subdivision) in which the geologic repository operations area (GROA) is located, and by any affected federally-recognized Indian Tribe (AIT),
as defined in 10 C.F.R. Part 63, if the contention admission requirements in 10 C.F.R. § 2.309(f) are satisfied with respect to at least one contention. Additionally, in the Notice of Hearing, the Commission clarified that any affected unit of local government (AULG), as defined in section 2 of the Nuclear Waste Policy Act of 1982, as amended (NWPA),35 need not address 31 Chief Administrative Judge Order (Designating CAB01 to Conduct Conference) (Feb. 9, 2009)
(unpublished).
32 Tr. at 1-62.
33 CAB Order (Regarding Telephonic First Prehearing Conference) (Mar. 20, 2009)
(unpublished).
34 10 C.F.R. §§ 2.309(a), 2.1012(b).
35 42 U.S.C. §§ 10101-10270.
standing, but rather shall be considered a party provided that it files at least one admissible contention in accordance with 10 C.F.R. § 2.309(f).36 Otherwise, as more fully discussed below in connection with specific petitioners, a petition to intervene must provide information supporting the petitioners claim to standing, including: (1) the nature of the petitioners right under the governing statutes to be made a party; (2) the nature of the petitioners interest in the proceeding; and (3) the possible effect of any decision or order on the petitioners interest.37 In determining whether an individual or organization should be granted party status as of right, the NRC applies judicial standing concepts that require a participant to establish: (1) it has suffered or will suffer a distinct and palpable harm that constitutes injury-in-fact within the zone of interests arguably protected by the governing statute[s] (e.g., the Atomic Energy Act of 1954 (AEA),38 the National Environmental Policy Act of 1969 (NEPA)39); (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.40 An organization seeking to intervene in a representational capacity must:
(1) demonstrate that the licensing action will affect at least one of its members; (2) identify that member by name and address; and (3) show that it is authorized by that member to request a hearing on his or her behalf.41 Additionally, the member must qualify for standing in his or her own right, and the interests that the organization seeks to protect must be germane to its own 36 73 Fed. Reg. at 63,031.
37 10 C.F.R. § 2.309(d)(1).
38 42 U.S.C. §§ 2011-2297.
39 Id. §§ 4321-4347.
40 Georgia Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995)
(reciting standards for judicial standing).
41 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163 (2000).
purpose.42 Neither the petitioners contentions nor the requested relief, however, must require the participation of an individual member in the proceeding.43 In determining whether a petitioner has established standing, the Commission has directed us to construe the petition in favor of the petitioner.44 In this unique proceeding, however, the Commissions Notice of Hearing, as well as 10 C.F.R. § 2.309(a), also directs us, in ruling on petitions to intervene, to consider any failure of the petitioner to participate as a potential party in the pre-license application phase under 10 C.F.R. Part 2, Subpart J.45 Additionally, under 10 C.F.R. § 2.1012(b)(1), a petitioner may not be granted party status if it cannot demonstrate substantial and timely compliance with the requirements in 10 C.F.R.
§ 2.1003 concerning the availability of documentary material on the LSN.
B. Compliance with LSN Requirements The obligations and timetable for the production of documentary material on the LSN by DOE and the NRC Staff (both parties) and by the potential parties (now petitioners) are outlined in 10 C.F.R. § 2.1003. The definition of documentary material is set forth in 10 C.F.R.
§ 2.1001. The regulations also require that each party or potential party continue to supplement the production of its documentary material on the LSN.46 In addition to each partys or potential partys responsibilities under section 2.1003, section 2.1009(a) provides, inter alia, that each party or potential party shall establish specified procedures for implementing its LSN production. Section 2.1009(b) requires a certification to the Pre-License Application Presiding Officer (PAPO) Board that the party or potential party has complied with the implementation procedures of section 2.1009(a)(2) and that to the best of his 42 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007).
43 Id.
44 Georgia Tech, CLI-95-12, 42 NRC at 115.
45 73 Fed. Reg. at 63,030.
46 10 C.F.R. § 2.1003(e).
or her knowledge, the documentary material specified in section 2.1003 has been identified and made electronically available.47 In its Second Case Management Order and its Revised Second Case Management Order, the PAPO Board implemented a monthly supplementation and certification requirement with respect to LSN production by the parties and potential parties.48 The RSCMO and all subsequent PAPO case management orders now have been adopted by the CABs.49 Pursuant to 10 C.F.R. § 2.1012(b)(1), a petitioner must be able to demonstrate substantial and timely compliance with the above requirements before being granted party status in the HLW proceeding. In reviewing a petitioners compliance, the Boards also must find that a petitioner has complied with all applicable orders of the [PAPO Board].50 In the event a petitioner is found not to be in substantial and timely compliance with the LSN requirements, section 2.1012(b)(2) allows that petitioner to request party status upon a subsequent showing of compliance, although any grant of a request is conditioned on accepting the status of the proceeding at the time of admission.51 In addition, 10 C.F.R. § 2.309(a) provides that, in ruling on intervention petitions in the HLW proceeding, the Boards are to consider any failure of the petitioner to participate as a potential party in the pre-license application phase under subpart J of this part.52 DOE maintains that section 2.1012(b)(1) requires the petitioner, in its initial petition, affirmatively to demonstrate and to substantiate with factual support, apparently in affidavit form 47 Id. § 2.1009(b).
48 PAPO Board Second Case Management Order (Pre-License Application Phase Document Discovery and Dispute Resolution) (July 8, 2005) at 21-22 (unpublished) [SCMO]; PAPO Board Revised Second Case Management Order (Pre-License Application Phase Document Discovery and Dispute Resolution) (July 6, 2007) at 21 (unpublished) [RSCMO].
49 See CAB Case Management Order #1 (Jan. 29, 2009) at 2 (unpublished).
50 10 C.F.R. § 2.1012(c).
51 Id. § 2.1012(b)(2).
52 Id. § 2.309(a).
(although DOE does not definitively delineate the type of factual support necessary), that it has complied with the LSN requirements.53 DOEs position, however, is contrary to the plain language of the regulation.
Section 2.1012(b)(1) does not require an affirmative demonstration of compliance in an intervention petition. Instead, the regulation focuses on a petitioners ability to demonstrate compliance, rather than mandating when the demonstration must be made or outlining the manner in which the demonstration must occur. Section 2.1012(b)(1) states:
A person, including a potential party given access to the Licensing Support Network under this subpart, may not be granted party status under § 2.309, or status as an interested governmental participant under § 2.315, if it cannot demonstrate substantial and timely compliance with the requirements of § 2.1003 at the time it requests participation in the HLW licensing proceeding under
§ 2.309 or § 2.315.54 Although DOE places emphasis on the phrase at the time it requests participation in the HLW licensing proceeding to support its view that petitioners must make an affirmative demonstration of compliance in their initial petitions, this phrase must be read in context.
Because this provision includes the phrase if it cannot, it is clear that the at the time it requests participation language serves as a cut-off for the time period within which to judge the petitioners compliance, not the time the petitioner must demonstrate its compliance. Thus, contrary to DOEs argument, the time to judge a petitioners compliance cannot come before the petitioner has filed its reply to any DOE and NRC Staff answers - the end point of the petitioners request for participation as a party. Any other reading of section 2.1012(b) not only would ignore the plain language of the regulation but would force the petitioner into the untenable position of responding to a challenge that is yet to be made (or one that might never be made).
53 See, e.g., DOE Nevada Answer at 14-16.
54 10 C.F.R. § 2.1012(b)(1) (emphasis added).
In addition, section 2.1012(c), which describes the finding the Boards must make regarding a petitioners compliance with the LSN requirements, is similarly silent on, and in no way inconsistent with, our construction of section 2.1012(b)(1) regarding the timing and manner in which a petitioner must demonstrate its compliance. The section simply provides that [t]he Presiding Officer shall not make a finding of substantial and timely compliance pursuant to paragraph (b) of this section for any person who is not in compliance with all applicable orders of the [PAPO] designated pursuant to § 2.1010.55 Even assuming that the language of section 2.1012 were not clear and thus a review of the regulatory history were necessary, DOE has not cited any regulatory history, nor can the Boards find any, that supports its position. Indeed, by not objecting to the petitions on this ground, the NRC Staff seemingly agrees that the showing required under section 2.1012 is not as DOE would have it. The NRC Staff takes issue only with: (1) Calientes failure to participate in the PAPO proceeding and failure to make any documentary material available on the LSN, and (2) TIMs failure to file with the PAPO Board a certification of compliance.56 Moreover, as Nevada points out in its reply to DOEs answer, DOE applies inconsistently its view that LSN compliance must be demonstrated in the intervention petition.57 For example, DOE does not even challenge the LSN compliance of some petitioners that did not assert compliance in their petitions, yet it challenges the substance of Nevadas assertions of compliance in its petition.58 Further, not only does DOE fail to challenge the lack of an LSN compliance assertion in some petitions, it also makes the affirmative statement in some of its answers that it has no reason to believe that the [petitioners] are not in substantial and timely 55 Id. § 2.1012(c).
56 See NRC Staff Answer at 34.
57 See Nevada DOE Reply at 13-15.
58 Compare DOE Nevada 4 Counties Answer at 2, and Nevada 4 Counties Petition (no mention of LSN compliance), with DOE Nevada Answer at 14-28, and Nevada Petition at 4 (asserting LSN compliance).
compliance with their LSN obligations at this time.59 In light of DOEs explicit position that a petitioners demonstration of LSN compliance must be made in the intervention petition, its affirmative statement that it has no reason to believe that a petitioner is not in substantial and timely compliance gives its more stringent demands a hollow ring.
Accordingly, the Boards are not persuaded by DOEs interpretation of the LSN regulations. Nothing in the regulations requires a petitioner to demonstrate its compliance in the initial petition. Whether a petitioner has met the regulatory requirements for LSN compliance, however, is a proper subject for challenge in an answer to a petition.60 Once raised in the answer, a petitioner then has the opportunity to respond to challenges to its LSN compliance in the reply.61 If such a challenge is not raised in the answer, the petitioner does not need to do anything. Indeed, at oral argument, DOE appeared to abandon its argument and concede that a petitioner need not affirmatively demonstrate in its petition that it has complied with the requirements of the LSN.62 The question remains as to what is required to demonstrate substantial and timely compliance with the LSN requirements when challenged. DOE argues, at least with respect to Nevadas petition, that Nevada has not provided factual support, by affidavit or otherwise, to substantiate its demonstration of substantial and timely compliance.63 DOE, however, provides 59 DOE Nevada 4 Counties Answer at 2. This statement is also made with regard to the petitions of Nye County and NEI, whose petitions also appear to lack an affirmative assertion of compliance with the LSN requirements. Compare DOE Nye Answer at 2, and DOE NEI Answer at 2, with Nye Petition, and NEI Petition. For an example of DOEs language with regard to a petition challenged by DOE that is silent on LSN compliance, see DOE Inyo Answer at 4-5 (Inyo Countys Petition is entirely silent about its LSN obligations. Inyo County has thus failed altogether to address this threshold requirement for intervention, and the Board therefore cannot find that Inyo County is in substantial and timely compliance in light of the Countys silence.).
60 See 10 C.F.R. § 2.309(h)(1).
61 See id. § 2.309(h)(2).
62 See Tr. at 692-93.
63 DOE Nevada Answer at 16.
no support, either by interpreting the language of the regulations or citing regulatory history, for this argument, nor can the Boards find any.64 Although the word demonstrate appears several times in 10 C.F.R. Part 2, no definition is provided. In instances where the Commission expects that the demonstration be accompanied by factual support, the Commission has so expressly stated. For example, the word demonstrate appears in section 2.326(a)(3) for what is required of a movant in filing a motion to reopen. The factual support requirement, however, is specifically, and separately, addressed in section 2.326(b). Therefore, as it did in other sections of Part 2, if the Commission required factual support or affidavits for demonstrating substantial and timely compliance under section 2.1202(b)(1), it presumably would have expressly demanded it.
Hence, when its compliance is challenged, a petitioner need only state in its reply that it has complied with the LSN requirements.65 The regulations and the PAPO Boards implementation of the LSN requirements already set forth the context of this statement - the initial and monthly supplemental certifications of compliance.66 Pursuant to 10 C.F.R.
§ 2.1009(b), the certification should be a straightforward statement67 that procedures have been 64 See id.
65 See 10 C.F.R. § 2.304(d)(1) (providing that the signer makes the representations in 10 C.F.R.
§ 2.304(d) that:
[t]he signature of a person signing a pleading or other similar document submitted by a participant is a representation that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, that to the best of his or her knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay.).
66 See id. §§ 2.1003(e), 2.1009(b); SCMO at 21-22; RSCMO at 21; see also Section V.A infra.
67 U.S. Dept of Energy (High-Level Waste Repository), LBP-04-20, 60 NRC 300, 339 (2004)
(noting that the NRC Staffs certification of compliance, in contrast with DOEs then-deficient certification of compliance, contained [n]o caveats. No cutoff date. Just a straightforward certification of compliance, just a simple statement that documentary material specified in 10 C.F.R. § 2.1003 has been identified and made electronically available. (internal citation omitted)).
establish[ed]... to implement the requirements in § 2.1003,68 and that to the best of [the certifying individuals] knowledge, the documentary material specified in § 2.1003 has been identified and made electronically available.69 In its August 31, 2004 Memorandum and Order granting Nevadas motion to strike DOEs certification, the PAPO Board found that the initial certification requirement embodied a good faith standard - i.e., that the parties or potential parties have made every reasonable effort to produce all of their documentary material.70 The PAPO Board carried forward that good faith standard in its RSMCO implementing a monthly supplementation and certification requirement with regard to LSN document production.
In mandating monthly supplementation, the PAPO Board explicitly stated that [e]ach potential party shall make a diligent good faith effort to include all after-created and after-discovered documents as promptly as possible in each monthly supplementation of documentary material
... and shall file a certification to that effect with the PAPO Board when the monthly supplement is made.71 Thus, the PAPO Board Order recognized that there necessarily would be a lag-time between the creation or belated discovery of documentary material and any supplementation and certification because of the nature of the process each party or petitioner would need to undertake with respect to its particular document review system. Accordingly, the PAPO Board called for the process to be completed as promptly as possible.
68 10 C.F.R. § 2.1009(a)(2).
69 Id. § 2.1009(b); see also U.S. Dept of Energy, LBP-04-20, 60 NRC at 313:
[T]he regulations do not prescribe any particular wording for the certification. The regulations simply require each potential party to [e]stablish procedures to implement the requirements in § 2.1003, and to have a responsible official...
certify to the [PAPO Board] that the procedures... have been implemented, and that to the best of his or her knowledge, the documentary material specified in
§ 2.1003 has been identified and made electronically available.
(internal citations omitted).
70 U.S. Dept of Energy, LBP-04-20, 60 NRC at 314-15.
71 RSCMO at 21. The RSCMO defined potential party to include what are now all petitioners and parties. RSCMO at 5; see also PAPO Board Fifth Case Management Order (Supplementation, Correction, and Changing of Privilege Logs) (Nov. 1, 2007) at 3 (unpublished) [FCMO].
Further, by including after-discovered documents in the supplementation provision, the PAPO Board necessarily recognized that no document location and production system is perfect, that mistakes would be made, and that those mistakes would need to be corrected. It imposed, therefore, a standard of diligent good faith effort on the parties and petitioners, not a requirement of perfection.72 Moreover, the PAPO Board did not impose, just as the regulations do not include, a certification or supplementation requirement either where a petitioner has no documentary material to make available on the LSN at the time for initial certification or where it has nothing to supplement. (Of course, an affirmative statement that the petitioner has no documentary material to make available on the LSN with regard to either an initial or supplemental production, if such be the case, must be set forth in the petitioners reply if its compliance is challenged.) In summary, the initial and monthly supplemental certifications embody the complete set of obligations with regard to a petitioners LSN compliance - i.e., the establishment of procedures for the review and production of documentary material, the review and initial production of documentary material, and the review and monthly supplemental production of documentary material - all according to a good faith standard.
Finally, it should be noted that, in a series of case management orders, the PAPO Board put in place a process for resolving LSN document disputes between and among the petitioners and parties involving the various categories of privilege claims and documents claimed to contain sensitive unclassified information.73 Other than motions to strike the initial certifications of various petitioners filed by DOE,74 and the motions to strike the certifications of DOE filed by 72 Compare DOE Nevada Answer at 19-25 (criticizing Nevadas call memos), with Nevada DOE Reply at 36-39 (criticizing DOEs call memos).
73 See SCMO; RSCMO; PAPO Board Third Case Management Order (Aug. 30, 2007)
(unpublished); PAPO Board Fourth Case Management Order (Concerning Electronic Filing, DDMS, Safeguards Information, and Other Items) (Oct. 5, 2007) at 5-8 (unpublished); FCMO.
74 See The Department of Energys Motion to Strike January 16, 2008 Certification of Clark County (Jan. 28, 2008); The Department of Energys Motion to Strike the January 17, 2008 Licensing Support Network Certification by the State of Nevada (Jan. 28, 2008); see also DOEs (continued)
Nevada,75 no contested LSN document discovery disputes were brought before the PAPO Board for resolution. Accordingly, with the exception of any newly raised matters in the answers of DOE and the NRC Staff that are addressed in this decision, there are no petitioners who are not in compliance with all applicable orders of the [PAPO Board].76 Similarly, because in developing case management orders for resolving LSN document disputes the PAPO Board generally mandated the participation of only DOE, the NRC Staff, and Nevada, and merely invited other petitioners to participate,77 the failure of any such petitioner to participate voluntarily with respect to any or all of the PAPO Board process was not inimical to the development of case management orders. Thus, the consideration of such participation in ruling upon any intervention petitions - called for by 10 C.F.R. § 2.309(a) - is, in the circumstances presented, not a factor.
C. Standards Governing Contention Admissibility The Commissions regulations establish the requirements for an admissible contention.
The Commission has said that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.78 An admissible contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; Motion to Strike 1/14/2008 Certification of the City of Las Vegas (Jan. 24, 2008) (The City of Las Vegas did not file an intervention petition in this proceeding.).
75 See Nevadas Motion to Strike the Department of Energys LSN Certification and for Related Relief (July 12, 2004); Motion to Strike DOEs October 19, 2007 LSN Recertification and to Suspend Certification Obligations of Others Until DOE Validly Recertifies (Oct. 29, 2007).
76 10 C.F.R. § 2.1012(c).
77 See PAPO Board Order (Scheduling Case Management Conference) (Apr. 13, 2005) at 1 (unpublished); PAPO Board Order (Scheduling Case Management Conference) (Apr. 19, 2007) at 2 (unpublished).
78 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
(3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions that support the petitioners position and on which the petitioner intends to rely at the hearing, including references to the specific sources and documents on which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists on a material issue of law or fact, including references to specific portions of the application that the petitioner disputes or, if the application is alleged to be deficient, the identification of such deficiencies and the supporting reasons for this allegation.79 Additionally, an admissible contention cannot challenge an existing Commission regulation. Absent a waiver, no rule or regulation of the Commission... is subject to attack...
in any adjudicatory proceeding.80 This rule bars contentions that: (1) advocate more or less stringent requirements than the NRC rules impose; (2) otherwise seek to litigate a generic determination that the Commission has established by rulemaking; or (3) raise a matter that is or is about to become the subject of rulemaking.81 Thus, an admissible contention must raise an issue that is both within the scope of the proceeding (generally defined by the hearing notice) and material to the findings the NRC must 79 10 C.F.R. § 2.309(f)(1)(i)-(vi).
80 Id. § 2.335(a). A waiver can be granted only in unusual and compelling circumstances.
Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-895, 28 NRC 7, 16 (1988), affd, CLI-88-10, 28 NRC 573, 597, recons. denied, CLI-89-3, 29 NRC 234 (1989)
(internal quotation marks and citations omitted). The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation... would not serve the purposes for which the rule or regulation was adopted. 10 C.F.R. § 2.335(b). The Commission requires that any request for such waiver or exception be accompanied by an affidavit that identifies with particularity the special circumstances alleged to justify the waiver or exception requested. Id.
81 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998) (providing a summary of Commission precedent).
make to support the action involved.82 A contention that attacks applicable statutory requirements, challenges the basic structure of the NRCs regulatory process, or merely expresses generalized policy grievances is not appropriate for a board hearing.83 Likewise, a petitioner must allege facts or provide expert opinion sufficient to establish a minimal basis [that indicates] the potential validity of the contention.84 The Commissions rules bar contentions where petitioners have only what amounts to generalized suspicions, hoping to substantiate them later.85 Although a petitioner does not have to prove its contention at the admissibility stage,86 [m]ere notice pleading is insufficient.87 The necessary factual support, however, need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion.88 Additionally, in ruling on the admissibility of individual contentions, each CAB has been mindful of the Advisory Pre-License Application Presiding Officer (APAPO) Boards Memorandum and Order dated June 20, 2008.89 Among other things, the APAPO Board Order directed petitioners to strive to frame narrow, single-issue contentions that should be 82 10 C.F.R. § 2.309(f)(1)(iii), (iv).
83 Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20-21 & n.33 (1974).
84 Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).
85 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1
& 2), CLI-03-17, 58 NRC 419, 424 (2003) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 338 (1999)).
86 Private Fuel Storage, CLI-04-22, 60 NRC at 139.
87 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003).
88 54 Fed. Reg. at 33,171.
89 U.S. Dept of Energy (High-Level Waste Repository), LBP-08-10, 67 NRC 450 (2008).
sufficiently specific as to define the relevant issues for eventual rulings on the merits, and not require the parties or [CABs] to devote substantial resources to narrow or to clarify them.90 In light of this instruction, as well as the limited time in which the CABs have been directed by the Commission to complete their review of numerous contentions, each CAB has refrained from attempting to restructure any contention. Rather, each CAB has simply ruled whether each contention before it is either admissible or inadmissible, in accordance with the Commissions regulations.
As more fully explained infra, the granting of petitions and admission of contentions is only the first step in managing the HLW proceeding. Many other steps will be taken before any contention is set for hearing.
Among other things, briefing schedules will be established for admitted legal issue contentions, the resolution of which may ultimately determine the outcome of related factual contentions. The CABs contemplate that many contentions that are admitted in this initial phase might have to be narrowed or otherwise restructured at later stages in the proceeding -
particularly where petitioners did not strictly adhere to the single-issue rule but nonetheless proffered contentions that contain sufficient information to satisfy the Commissions regulations.
Likewise, many admitted contentions may subsequently be consolidated or grouped for hearings on the merits.
III.
OVERARCHING ISSUES In addition to the foregoing requirements, and in light of the arguments that DOE and the NRC Staff repeatedly raise in response to nearly all proffered contentions, several issues concerning the admissibility of contentions merit further discussion.
A. Special Requirements for NEPA Contentions The Commission has by regulation imposed special requirements on contentions in this proceeding that involve NEPA.91 DOE contends that no petitioner has satisfied these pleading 90 Id. at 454.
standards for any contention.92 The NRC Staff contends that, save for two environmental contentions, NYE-NEPA-001 and JTS-NEPA-009,93 there are no contentions that satisfy these standards.94 DOE and the NRC Staff read the Commissions regulations too narrowly. Fairly read -
and especially when applied consistent with the decision in Nuclear Energy Institute, Inc. v.
Environmental Protection Agency,95 as the Commission has directed96 - the regulations concerning NEPA contentions impose two relevant requirements beyond those that apply to all contentions. First, each such contention must be supported by one or more affidavits which set forth factual and/or technical bases.97 Second, the affidavit or affidavits must set forth significant and substantial grounds for the claim that it is not practicable to adopt the EIS for the proposed repository prepared by DOE.98 As reflected in the rulings of individual Boards, all admitted NEPA contentions satisfy these additional requirements.
91 See 10 C.F.R. § 51.109.
92 See, e.g., DOE Nevada Answer at 4 (stating that
[i]n the case of its NEPA contentions, Nevada fails to address any of the mandatory requirements of 10 C.F.R. § 51.109 and 10 C.F.R. § 2.326 [and] did not submit the affidavit of a qualified expert in support of any of its NEPA contentions that separately addresses each of the factors under § 2.326, including a demonstration that its contention, if proven to be true, would or would likely result in a materially different outcome in the proceeding.)
93 As explained Section X.B, infra, TSO-NEPA-001 in TSOs amended petition has been designated as JTS-NEPA-009.
94 NRC Staff Answer at 1625; NRC Staff Answer to TSO Amended Petition at 11-13.
95 373 F.3d 1251, 1313-14 (D.C. Cir. 2004) [NEI v. EPA].
96 73 Fed. Reg. at 63,031. The Commission also directed that the NEPA contention admissibility requirements should be applied consistent with certain developments subsequent to the NEI v. EPA decision, and that the CABs should treat as a cognizable new consideration an attack on the Yucca Mountain environmental impact statements based on significant and substantial information that, if true, would render the statements inadequate. Id.
97 See 10 C.F.R. § 51.109(a)(2).
98 See id. § 51.109(c)(2).
- 1. Background
- a. Nuclear Waste Policy Act Section 114(f)(4) of the NWPA,99 provides that [a]ny [EIS] prepared in connection with a repository proposed to be constructed by [DOE] under this subtitle shall, to the extent practicable, be adopted by the [NRC] in connection with the issuance by the [NRC] of a construction authorization and license for such repository.100 The statute further provides that
[t]o the extent such statement is adopted by the [NRC], such adoption shall be deemed to also satisfy the responsibilities of the [NRC] under [NEPA] and no further consideration shall be required, except that nothing in this subsection shall affect any independent responsibilities of the [NRC] to protect public health under the [AEA].101
- b. Commission Rulemaking In 1988-89, the Commission conducted a rulemaking to consider the standards and procedures that should be used in licensing proceedings to determine whether the NRCs adoption of DOEs EIS is practicable.102 The Commission determined that the NWPA had altered the NRCs ordinary NEPA responsibilities so as to narrow the scope of the NRCs independent review of environmental issues that were already addressed by DOE in its EIS. As summarized by the Commission:
[The Commission] continues to emphasize its view that its role under NWPA is oriented toward health and safety issues and that, in general, nonradiological environmental issues are intended to be resolved in advance of NRC licensing decisions through the actions of [DOE], subject to Congressional and judicial review in accordance with NWPA and other applicable law. The Commission anticipates that many environmental questions would have been, or at least 99 NWPA § 114(f)(4), 42 U.S.C. § 10134(f)(4).
100 Id. (emphasis added).
101 Id.
102 See Proposed Rule, NEPA Review Procedures for Geologic Repositories for High-Level Waste, 53 Fed. Reg. 16,131 (May 5, 1988); Final Rule, NEPA Review Procedures for Geologic Repositories for High-Level Waste, 54 Fed. Reg. 27,864 (July 3, 1989).
could have been, adjudicated in connection with an [EIS] prepared by DOE, and such questions should not be reopened in proceedings before NRC.103 Under the Commissions final rule, the NRC Staff was required to present its position on whether it is practicable to adopt DOEs EIS without supplementation.104 Under section 51.109(a)(2), parties then were to be afforded the opportunity to submit contentions asserting that it is not practicable to adopt the DOE EIS:
Any other party to the proceeding who contends that it is not practicable to adopt the DOE [EIS], as it may have been supplemented, shall file a contention to that effect within thirty (30) days after the publication of the notice of hearing in the Federal Register. Such contention must be accompanied by one or more affidavits which set forth factual and/or technical bases for the claim that, under the principles set forth in paragraphs (c) and (d) of this section, it is not practicable to adopt the DOE [EIS], as it may have been supplemented. The presiding officer shall resolve disputes concerning adoption of the DOE [EIS] by using, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen under § 2.326 of this chapter.105 The relevant criteria governing the practicability of adoption are set forth in section 51.109(c):
The presiding officer will find that it is practicable to adopt any [EIS] prepared by
[DOE] in connection with a geologic repository proposed to be constructed under Title I of the [NWPA], unless:
(1)(i) The action proposed to be taken by the [NRC] differs from the action proposed in the license application submitted by [DOE]; and (ii) The difference may significantly affect the quality of the human environment; or (2) Significant and substantial new information or new considerations render such [EIS] inadequate.106 The criteria concerning motions to reopen, which are incorporated in section 103 54 Fed. Reg. at 27,865.
104 See id. at 27,868; see also 10 C.F.R. § 51.109(a)(1).
105 10 C.F.R. § 51.109(a)(2). In 2004, section 51.109(a)(2) was revised to reference a new section number for motions to reopen, as part of the Commissions overall revision of the rules of practice for adjudicatory hearings. See 69 Fed. Reg. at 2276. The standards for reopening were not changed.
106 10 C.F.R. § 51.109(c).
51.109(a)(2) by reference, are set forth in section 2.326(a):
A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.107 The procedures to be followed in motions to reopen, which are likewise incorporated in section 51.109(a)(2) by reference, are set forth in the remainder of section 2.326 and include, among other things, requirements that such a motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movants claim that the criteria of paragraph (a) of this section have been satisfied; that such affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised; and that [e]vidence contained in affidavits must meet the admissibility standards of this subpart.108 Section 51.109 was premised on the assumption that administrative litigation at the NRC of NEPA issues concerning the repository should be limited, because parties should already have had the opportunity to litigate many of these issues in another forum.109 The Commission expected that an interested person would have had an opportunity to challenge DOEs EIS in federal court after it was used to support DOEs recommendation of a site for the repository.110 With that expectation in mind, the regulations were designed to ensure that the environmental issues in any NRC proceeding on the proposed repository would appropriately 107 Id. § 2.326(a).
108 Id. § 2.326(b).
109 See 54 Fed. Reg. at 27,866-87.
110 Id.
focus on issues that were new - that could not have been raised at the earlier opportunity to challenge the EIS. Accordingly, the regulations adopted in section 51.109 focus not on the entire EIS - as would be the normal NRC practice - but rather on the NRCs decision to adopt the EIS. The regulations limit challenges to the NRCs adoption decision to those issues that had changed from the original Application, or that were issues raising significant and substantial new information111 that arose after the (expected) earlier opportunity to challenge the EIS.
This makes sense if parties had already had the opportunity to challenge any of the other issues regarding the EIS. Given that assumption, it also explains why the regulations direct the Boards to use the higher standards governing a motion to reopen when ruling upon the issues raised regarding adoption of the EIS - because litigation of the EIS in the NRCs administrative proceeding was seen as reopening the record on an already litigated EIS.
- c. Subsequent Events Actual events regarding judicial review of environmental issues at Yucca Mountain, however, transpired differently than had been anticipated.
Under the NWPA, when site characterization activities are completed, DOE may recommend site approval to the President and any such recommendation must be accompanied by an EIS.112 DOE submitted such an EIS and recommended the Yucca Mountain site to the President in February 2002. In accordance with section 114(a)(2) of the NWPA, the President then recommended the Yucca Mountain site to Congress.113 Under sections 115 and 116 of the NWPA, the affected state (Nevada) submitted a notice of disapproval in April 2002, which was 111 10 C.F.R. § 51.109(c)(2).
112 See NWPA § 114(a)(1), 42 U.S.C. § 10134(a)(1), (f)(1).
113 See NWPA § 114(a)(2), 42 U.S.C. § 10134(a)(2).
overcome by a Joint Resolution approved by Congress and signed by the President on July 23, 2002.114 As a result of these developments, DOE was required to submit an application for a construction authorization to the NRC under section 114(b) of the NWPA, irrespective of DOEs NEPA analysis.115 Instead of the EIS being used to support the recommendation of Yucca Mountain as a site for a repository, there was a Joint Resolution of Congress approving the Yucca Mountain site designation.
- d. NEI Decision In NEI v. EPA, the Court of Appeals for the District of Columbia (D.C. Circuit) held that these developments rendered any challenge to the EISs support for the Yucca Mountain site moot, and to the extent the NRC might rely upon the EIS, rendered challenges unripe because the NRC had not reached a decision regarding adopting or relying upon the EIS in a way that could have yet harmed the parties.116 The NEI v. EPA decision resulted from a complex series of events. After Congress approved the Yucca Mountain site by a Joint Resolution signed by the President, Nevada sought judicial review of: (1) DOEs decision to recommend the Yucca Mountain site to the President; (2) the Presidents decision to recommend the site to Congress; and (3) DOEs EIS, which had been prepared to support both recommendations.117 In response, DOE argued that the Joint Resolution had rendered moot Nevadas challenges to DOEs and the Presidents recommendations, with the result that Nevadas claims that the EIS was inadequate could not be considered as part of the challenges to those recommendations. Further, DOE argued that, 114 Pub. L. No. 107-200, 116 Stat. 735 (2002) (codified at 42 U.S.C. § 10135 note).
115 See NWPA § 114(b), 42 U.S.C. § 10134(b).
116 NEI v. EPA, 373 F.3d at 1302.
117 See id. at 1261-62.
insofar as the EIS might be used to support future DOE and NRC decisions, the EIS was not ripe for review because there was no final agency action affecting Nevada at that time.118 In the litigation resulting in the NEI v. EPA decision, Nevadas challenges to DOEs and the Presidents recommendations and to the EIS were combined with other issues raised by Nevada and other lawsuits concerning the proposed Yucca Mountain repository, including challenges to the Environmental Protection Agencys (EPA) final standards for the proposed repository.119 In NEI v. EPA, the court agreed with DOE that Congress enactment of the Joint Resolution had rendered moot issues concerning DOEs and the Presidents recommendation of the Yucca Mountain site.120 Thus, the court held that [i]nsofar as Nevadas instant challenge to the [EIS] is intended to reverse the decision to select the Yucca site, the challenge is moot.121 The court noted, however, the anticipated use of the EIS in future decision making related to Yucca Mountain, including its potential adoption by the NRC in its licensing proceeding, and considered whether the court should review the EIS because it might be used to support future decisions.122 The court determined that the EIS was not ripe for review under the two-part test used to determine ripeness: (1) the fitness of the issue for judicial decision; and (2) the hardship to the parties of withholding court consideration.123 Under the first prong of the test, the court noted that it was unclear to what extent the NRC would adopt the EIS and whether the EIS would require supplementation prior to any 118 Id. at 1312-13.
119 See 373 F.3d 1251; Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 66 Fed. Reg. 32,074 (June 13, 2001).
120 NEI v. EPA, 373 F.3d at 1309.
121 Id. at 1312.
122 See id. at 1312-13.
123 Id. (citing AT&T Corp. v. FCC, 349 F.3d 692, 699 (D.C. Cir. 2003)).
adoption. The court concluded that [o]ur review of the [EIS] therefore would benefit from postponing consideration until the [EIS] has been used to support a specific, concrete, and final decision.124 Under the second prong of the test, the court concluded that withholding consideration of Nevadas substantive claims at this time imposes no hardship on Nevada... [because]
Nevada may raise its substantive claims against the [EIS] if and when NRC or DOE makes...
a final decision.125 In reaching this conclusion as to hardship, the court stated that we rely on the assurances of counsel for both the NRC and DOE at oral argument that Nevada will be permitted to raise its substantive challenges to the [EIS] in any NRC proceeding to decide whether to adopt the [EIS] and in any DOE proceeding to select a transportation alternative.126 As the court explained:
The NWPAs mandate that the [EIS] be adopted by NRC to the extent practicable is intended to avoid duplication of the environmental review process.
See H.R. Rep. No.97-491, pt. 1, at 48, 53-54 (1982). But it cannot reasonably be interpreted to permit NRC to premise a construction-authorization or licensing decision upon an EIS that does not meet the substantive requirements of the NEPA or the Council on Environmental Qualitys NEPA regulations. See id. at 48 (The Committee intends that throughout the repository development program, the Secretary and other agencies meet the general requirements and the spirit of NEPA).127 Following oral argument, the NRC purported to clarify its position in a letter submitted to the court.128 The NRCs Office of General Counsel attempted to explain that the relevant regulations affect[ ] issues that can be raised and litigated at NRC administrative hearings, not issues that can be raised on judicial review.129 The court said that [t]he suggested distinction 124 NEI v. EPA, 373 F.3d at 1313.
125 Id.
126 Id.
127 Id. at 1314.
128 Id.
129 Id. (alteration in original).
makes no sense.130 The court declined to accept any clarification of Government counsels unequivocal representation to the court during oral argument and firmly reiterated the courts view that, in any event, any substantive defects in the [EIS] clearly would be relevant to the practicability of adopting the [EIS].131
- e. Nevadas 2005 Petition Thereafter, in April 2005, Nevada petitioned the Commission for rulemaking, contending that section 51.109 was at odds with the courts ruling in NEI v. EPA.132 Among other things, Nevada argued that the Commissions regulations should be revised to clarify that the court intended for boards to consider fully NEPA contentions concerning Yucca Mountain, and that the Commission should delete section 51.109(a)(2), with the result that the admission of NEPA contentions would be guided by the same principles in 10 C.F.R. § 2.309(f).133 On January 25, 2008, the Commission denied Nevadas petition.134 In denying the petition, the Commission rejected Nevadas argument that section 51.109(c) is inconsistent with the NEI v. EPA courts interpretation and therefore required correction.135 Rather, the Commission determined that the court itself had concluded the regulation as drafted adequately protected Nevadas interest in raising substantive claims against the EIS in administrative proceedings:
Government counsels unequivocal representation to the court during oral argument that Nevada will not be foreclosed from raising substantive claims against the [EIS] in administrative proceedings comports with the terms of the regulation and reflects a reasonable and compelling interpretation. Therefore, on 130 Id.
131 Id.
132 See State of Nevada; Receipt of Petition for Rulemaking, 70 Fed. Reg. 47,148 (Aug. 12, 2005).
133 Id. at 47,150.
134 See State of Nevada; Denial of Petition for Rulemaking, 73 Fed. Reg. 5762 (Jan. 31, 2008).
135 Id. at 5765.
the record at hand, there is no reason to assume that the regulation will bar consideration of Nevadas substantive claims in the relevant NRC administrative proceedings.136 Indeed, the Commission interpreted the NEI v. EPA decision as an expression of the courts satisfaction that the existing language of the regulation would allow consideration of Nevadas substantive claims:
This conclusion follows the courts explicit consideration of the language of the
§ 51.109(c) criteria. The court focused on the second criterion; i.e., that it might not be practicable for NRC to adopt the [EIS] if significant and substantial new information or new considerations render such environmental impact statement inadequate. The court noted that Government counsel assured the court that NRC will not construe the new information or new considerations requirement to preclude Nevada from raising substantive claims against the [EIS] in administrative proceedings. Further, the court observed that Nevadas claims have not been adjudicated on the merits here and presumably will not have been passed upon by any court prior to the relevant NRC proceedings. The claims thus would certainly raise new considerations with regard to any decision to adopt the [EIS]. There is no need for the Commission to expend the resources needed for a rulemaking to correct a rule which the court gave no indication of needing correction. NRC will treat Nevadas substantive claims against the [EIS]
as new considerations within the framework of § 51.109(c).137 The Commission thus concluded that, at a minimum, Nevadas substantive claims against the EIS must be treated as new considerations, regardless of whether the regulations might be read to the contrary. As to the unique procedures specified in the regulations, however, the Commission declined to address them, relying upon the general principle that an agency is not required to establish one uniform agency process for all NEPA reviews.138 The Commission therefore did not address with specificity how the unique procedures spelled out in 10 C.F.R. § 2.326 - which are directed to reopening closed records - should be reconciled with its determination that all substantive claims against the EIS will, in effect, 136 Id. at 5764-65 (quoting NEI v. EPA, 373 F.3d at 1314).
137 73 Fed. Reg. at 5765 (quoting NEI v. EPA, 373 F.3d at 1314) (internal citations and footnote omitted) (emphasis added).
138 73 Fed. Reg. at 5765.
automatically qualify as new considerations.139 Subsequently, by letter from NRCs Assistant General Counsel to Nevadas counsel, the NRC Staff confirmed the treatment of NEPA claims as new considerations and certain related matters, but likewise did not reconcile section 2.326.140
- f. Notice of Hearing In accordance with the Commissions ruling on Nevadas petition, the Notice of Hearing in this proceeding provided as follows with respect to environmental contentions:
In addition to meeting NRC's regular contention admissibility requirements in 10 C.F.R. § 2.309(f), environmental contentions addressing any DOE [EIS] or supplement must also conform to the requirements and address the applicable factors outlined in 10 C.F.R. § 51.109 governing NRC's adoption of DOE's [EISs].
The requirements of section 51.109 should be applied consistent with [NEI v.
EPA], a court decision discussing section 51.109, and consistent with the Commission's denial of the State of Nevada's petition to amend section 51.109 and the Office of the General Counsel's subsequent letter clarifying the Commission's denial. Under 10 C.F.R. § 51.109(c), the presiding officer should treat as a cognizable new consideration an attack on the Yucca Mountain
[EISs] based on significant and substantial information that, if true, would render the statements inadequate. Under 10 C.F.R. § 51.109(a)(2), a presiding officer considering environmental contentions should apply NRC reopening procedures and standards in 10 C.F.R. § 2.326 to the extent possible.141
- 2. Analysis Taken together, the Commissions special requirements for NEPA contentions must be applied in the following manner:
First, 10 C.F.R. § 51.109(a)(2) unambiguously requires that each factual NEPA contention must be accompanied by one or more affidavits. (As explained in Section III.G infra, however, a purely legal issue contention cannot logically require affidavit support, as by definition such a contention alleges no facts that require support.)
139 Id.
140 Letter from Bradley W. Jones, Assistant General Counsel for the NRC, to Martin G. Malsch, counsel for Nevada (Mar. 20, 2008) (ADAMS Accession No. ML080810175).
141 73 Fed. Reg. at 63,031 (internal citations omitted).
Second, such affidavit or affidavits must set forth factual and/or technical bases for the claim that it is not practicable to adopt the DOE EIS.142 In the present circumstances, the only relevant test for such a claim under the regulations is whether the supporting affidavit or affidavits present [s]ignificant and substantial new information or new considerations sufficient to render such environmental impact statement inadequate.143 Because the Commissions Notice of Hearing instructs the Boards to treat otherwise admissible NEPA contentions as presenting cognizable new considerations, however, the test is reduced to merely determining whether such affidavits present significant and substantial information that, if true, would render the [DOE environmental] statements inadequate.144 We need not, at this admissibility stage, further define the standard that will ultimately apply in adjudicating NEPA contentions on the merits. At this point, a petitioner does not have to prove its contentions,145 and we do not adjudicate disputed facts.146 It is sufficient, for example, for a petition to allege, with support in a reasoned affidavit from a competent expert, that incomplete and inadequate [EIS] analyses of the cumulative impacts of land surface discharge of groundwater contaminated with radionuclides and other repository derived contaminants are significant deficiencies sufficient to preclude adoption of DOEs EIS.147 Third, in considering such environmental contentions, Boards are directed to use, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen a 142 10 C.F.R. § 51.109(a)(2).
143 Id. § 51.109(c)(2).
144 73 Fed. Reg. at 63,031.
145 Private Fuel Storage, CLI-04-22, 60 NRC at 139.
146 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 244 (2006) (citing Mississippi Power & Light, Co. (Grand Gulf Nuclear Station, Units 1 & 2),
ALAB-130, 6 AEC 423, 426 (1973)).
147 See Nevada Petition at 1128.
closed record pursuant to 10 C.F.R. § 2.326.148 On close examination, however, it is apparent that, in the circumstances of this proceeding, the criteria and procedures in 10 C.F.R. § 2.326 are either irrelevant or redundant.
Section 2.326(a) sets forth three criteria. The first - whether the motion is timely - is irrelevant here, as the Commission specified in the Notice of Hearing when petitions were due.149 The second - whether the motion addresses a significant safety or environmental issue - merely duplicates the requirement in 10 C.F.R § 51.109(c)(2) and the Notice of Hearing that NEPA contentions present significant and substantial information.150 The third - whether the proffered information would likely cause a materially different result - is superseded by the Commissions direction to treat as cognizable those contentions that set forth information that, if true, would render the [DOE environmental] statements inadequate.151 The balance of section 2.326 sets forth procedural requirements in three subsections.
Section 2.326(b) requires affidavits that set forth the factual and/or technical bases for satisfying the three criteria in section 2.326(a) discussed above. As noted, petitions in this proceeding are timely if filed with the Office of the Secretary on or before the date set in the Notice of Hearing, and there is no need to establish timeliness by affidavit. Section 2.326(b) also requires affidavit support to demonstrate a significant safety or environmental issue and the likelihood of a materially different result.152 That obligation, however, is necessarily satisfied by competent affidavits that satisfy the requirements of 10 C.F.R. § 51.109 and the 148 10 C.F.R. § 51.109(a)(2).
149 73 Fed. Reg. at 63,030, 63,032.
150 Id. at 63,031.
151 Id. The relevant materially different result here could not be a different outcome of the application process itself, as NEPA does not command one outcome over another. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA itself does not mandate particular results, but simply prescribes the necessary process.).
152 10 C.F.R. § 2.326(a).
Notice of Hearing for affidavit support sufficient to present significant and substantial information that, if true, would render the [DOE environmental] statements inadequate.153 (Contrary to DOEs claims during oral argument,154 the Boards are not aware of multiple standards of reliability for affidavits; all affidavits are expected to be relevant, material, and reliable.155) Section 2.326(c), which concerns confidential informants, and section 2.326(d),
which concerns nontimely contentions, are inapplicable.
In summary, reading 10 C.F.R. § 51.109 together with the Notice of Hearing, and using the criteria and procedures set forth in 10 C.F.R. § 2.326 to the extent possible, we find that, in addition to the usual contention admissibility requirements set forth in section 2.309(f)(1), factual NEPA contentions must be supported by one or more competent affidavits and such affidavits must present significant and substantial information that, if true, would render the DOE environmental statements inadequate. This represents a significant additional burden, as generally contentions may, but need not necessarily, be supported by affidavits at all.156 Likewise, the significant and substantial test prevents our admitting any contentions that merely flyspeck DOEs environmental analysis, as DOE and the NRC Staff fear.157 But to impose greater burdens - as DOE and the NRC Staff apparently would prefer -
cannot be squared with either our directions from the Commission or with the agencies representations to the D.C. Circuit in the NEI v. EPA case, in which the court relied on the assurances of counsel for both the NRC and DOE at oral argument that Nevada will be permitted to raise substantive challenges to the [EIS] in any NRC proceeding to decide whether 153 73 Fed. Reg. at 63,031.
154 Tr. at 157.
155 10 C.F.R. §§ 2.337(a), 2.711(e).
156 See id. § 2.309(f)(1).
157 See, e.g., DOE Nevada Answer at 57-60; NRC Staff Answer at 1065-66, 1153-54, 1438, 1487, 1510.
to adopt the [EIS].158 This point takes on added significance because the court emphatically rejected NRC counsels attempt, in effect, to withdraw its representations concerning the ability of petitioners such as Nevada to raise substantive challenges to the adequacy of the EIS in future administrative proceedings.
B. Transportation-Related NEPA Contentions As DOE correctly points out, the NRC does not have regulatory authority over DOEs transportation of nuclear waste to the proposed repository.159 DOE also correctly points out that, while the NWPA requires it to use NRC-certified casks for shipment of nuclear waste to the proposed repository, such certification requirements are governed by different regulations, and are not directly at issue in this proceeding.160 DOE argues that contentions challenging the accuracy or adequacy of DOEs NEPA analysis of the impacts of transporting [nuclear waste]
are not proper subjects for contentions in this proceeding.161 That conclusion is not correct.
As explained above, by regulation and in the Notice of Hearing, the Commission established special pleading requirements for all NEPA contentions.162 The Commission did so because, under the NWPA, the NRCs NEPA responsibilities are limited to determining whether it is practicable to adopt DOEs environmental documents.163 But the NRCs NEPA responsibilities have not been abrogated entirely. In this proceeding, the NRC is obligated under NEPA to analyze and to disclose all environmental effects of the proposed repository, not just the effects of those portions of the repository over which the NRC has direct regulatory control. Contentions that address such environmental effects, including transportation-related 158 373 F.3d at 1313.
159 See, e.g., DOE Nevada Answer at 64-65.
160 See id. at 65.
161 Id. at 70.
162 See Section III.A supra.
163 NWPA § 114(f)(4), 42 U.S.C. § 10134(f)(4); see also 73 Fed. Reg. at 63,031.
effects, may not be dismissed at this early stage of the proceeding if they satisfy the Commissions special pleading requirements for HLW NEPA contentions.
In other words, in addition to satisfying the usual contention admissibility requirements in 10 C.F.R. § 2.309(f)(1), such factual contentions must be supported by one or more competent affidavits presenting significant and substantial information that, if true, would render the [DOE]
environmental statements inadequate.164 As reflected in the rulings of individual Boards, the admitted contentions concerning transportation-related matters satisfy these NEPA requirements.
NEPA imposes upon every federal agency the duty to the examine to the fullest extent possible the environmental consequences of any proposed federal action that might significantly affect[ ] the quality of the human environment.165 NEPA requires federal agencies to examine, to analyze, and to disclose not only direct effects, but also indirect effects that are later in time or farther removed in distance, but are still reasonably foreseeable.166 If federal agencies were free to ignore related effects that they do not directly regulate, NEPA would be meaningless. For example, no agency but EPA would be obligated to consider air pollution associated with increased traffic, as only EPA directly regulates vehicle emissions under the Clean Air Act.167 Transportation of nuclear waste is a foreseeable consequence of constructing a nuclear waste repository. As California persuasively argues, [w]ithout transportation of the waste to it, Yucca Mountain would be just a very large, fancy, and expensive hole in a mountain.168 The 164 See Section III.A supra; 73 Fed. Reg. at 63,031.
165 NEPA § 102, 42 U.S.C. § 4332.
166 40 C.F.R. § 1508.8(b), adopted by the NRC at 10 C.F.R. § 51.14(b).
167 Compare Sierra Club v. U.S. Dept of Transp., 962 F. Supp. 1037, 1045 (N.D. Ill. 1997) (EIS incomplete without analysis of effect of toll road on production of ozone in the region).
168 California Reply at 25.
Commission, for example, has stated that there can be no serious dispute that the NRCs environmental analysis in connection with licensing nuclear facilities should extend to related offsite construction projects - such as connecting roads and railroad spurs.169 Likewise, there can be no serious dispute that the NRCs NEPA responsibilities do not end at the boundaries of the proposed repository, but rather extend to the transportation of nuclear waste to the repository. The two are closely interdependent. Without the repository, waste would not be transported to Yucca Mountain. Without transportation of waste to it, construction of the repository would be irrational. Under NEPA, both must be considered.
DOE argues that the Supreme Courts decision in Department of Transportation v.
Public Citizen170 renders transportation impacts outside the scope of the NRCs NEPA responsibilities.171 In Public Citizen, however, the essential decision being challenged was made by the President (who is not subject to NEPA), and implemented by an agency that, by statute, lacked discretion to undo that decision or to attach environmental conditions. The Public Citizen decision was premised on its unusual facts.172 Public Citizen did not create an exemption from NEPA for the transportation-related effects of federal actions; it held only that an agency may be excused from complying with NEPA where it has no discretion to prevent, or to refuse to take, the action involved. The narrowness of the Public Citizen holding has been 169 Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), CLI-77-1, 5 NRC 1, 8 (1977); see also Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-247, 8 AEC 936 (1974) (Licensing Board correctly assessed environmental impacts of transmission line routes extending ninety miles beyond the nuclear facility).
170 541 U.S. 752 (2004).
171 See, e.g., DOE Nevada Answer at 1871, 1882, 1892, 1900, 1907, 1914, 1921, 1929, 1947.
172 See 541 U.S. at 770.
recognized in later decisions of the Supreme Court173 and other courts.174 Thus, DOEs argument is not persuasive.
Nor do we find pertinent California Trout v. Schaefer,175 a case that DOE cited for the first time during oral argument.176 That decision addressed the concurrent yet independent jurisdiction of two federal agencies. 177 That is not the situation here, where DOE is the Applicant before the NRC. Without NRC authorization, no repository will be constructed and no transportation of waste to the repository will occur. In the NWPA, Congress expressly addressed and established the scope of the NRCs NEPA responsibilities relative to DOE in the unique circumstances of this proceeding. The Commission has implemented those defined responsibilities through regulations. While DOE would have responsibility for constructing and operating the proposed facility, the NRC is not, as DOE seemed to contend during oral argument, a lesser agency with no jurisdiction and no responsibilities under NEPA to consider the environmental impact statements being prepared by another federal agency.178 DOE also contends that the NRC lacks jurisdiction to consider transportation-related environmental effects because DOEs transportation-related environmental documents have been, or at least could have been, challenged on direct review in a federal court of appeals.179 This argument lacks merit.
173 Natl Assn of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2535 (2007).
174 See, e.g., Ctr. for Biological Diversity v. Natl Highway Traffic Safety Admin., 538 F.3d 1172, 1213 (9th Cir. 2008); Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 963 (9th Cir. 2005), overruled on other grounds sub nom. by Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007).
175 58 F.3d 469 (9th Cir. 1995).
176 See Tr. at 176, 190; Letter to the CABs from Donald J. Silverman, counsel for DOE (Apr. 14, 2009) (ADAMS Accession No. ML091040464).
177 Cal. Trout v. Shaefer, 58 F.3d at 474.
178 Tr. at 175.
179 See, e.g., DOE Nevada Answer at 66-69.
First, under the NWPA, the NRC must undertake its own assessment of DOEs environmental documents to determine whether it is practicable to adopt them.180 That assessment, while more limited than it would otherwise be under NEPA, nonetheless requires an independent assessment by the NRC that is not necessarily dictated by the results of direct appeals from DOE decisions. On the contrary, in promulgating special pleading requirements for environmental contentions, the Commission explained that it assumed that many environmental questions would have been, or at least could have been, adjudicated in connection with an environment impact statement prepared by DOE.181 The Commission anticipated direct appeals from DOEs environmental documents, and saw them as grounds for restricting - but not eliminating - contentions directed at the NRCs independent decision whether to adopt them.
Second, while some issues involving some of the same DOE transportation-related environmental documents may have previously been litigated in Nevada v. Department of Energy,182 the DOE Application at issue here is based on a 2008 Supplemental EIS (SEIS) that obviously was not before the D.C. Circuit in 2006. Nor were many of the present petitioners. At hearings on the merits, DOE might wish to argue res judicata or collateral estoppel as to specific facts and specific petitioners, based on past or perhaps future court litigation.183 That earlier DOE environmental documents were considered by the D.C. Circuit to some extent in 2006, however, is not grounds for wholesale rejection of contentions that address whether it is practicable for the NRC to adopt more recent versions of such documents.
180 NWPA § 114(f)(4), 42 U.S.C. § 10134(f)(4).
181 NEPA Review Procedures for Geologic Repositories for High-Level Waste, 54 Fed. Reg.
27,864, 27,865 (July 3, 1989).
182 457 F.3d 78 (D.C. Cir. 2006).
183 See Letter to the CABs from Donald J. Silverman, counsel for DOE (Apr. 14, 2009) (ADAMS Accession No. ML091040464) (advising of petitions for review filed by California and Nevada in the United States Court of Appeals for the Ninth Circuit on April 6 and 7, 2009).
We repeat: The NWPA has limited, but not eliminated, the scope of the NRCs NEPA responsibilities. The Commission has addressed those limitations by imposing special pleading requirements for all NEPA contentions. If those requirements are satisfied, Boards cannot dismiss otherwise admissible contentions at this stage of the proceeding.
C. Sufficiency of Affidavits
- 1. Form of Affidavits DOE challenges Nevadas practice (and that of some other petitioners) of placing everything that it is offering in support of each of its contentions in the body of the contention itself and, then, in affidavits accompanying its contentions, having its experts adopt specified paragraphs as their own opinions. According to DOE, the requirements of section 2.309(f)(1) are not satisfied by expert affidavits that simply incorporate by reference what is in the contention itself.184 Thus, DOE would have it that virtually all of Nevadas contentions must fail for this reason alone. The Boards reject DOEs argument.
To put DOEs position in context, it is useful to examine its impact on one of the many Nevada contentions that would, under DOEs thesis, fail to satisfy the requirements of section 2.309(f)(1)(v) and possibly (vi) as well. For illustrative purposes, we consider NEV-SAFETY-009.
That contention constitutes a challenge to the effect that the infiltration model used for the Yucca Mountain project applies current meteorological data for predicting future climates in the Yucca Mountain region over the course of the next 10,000 years.185 According to the contention, the use of the existing model is flawed because it fails to acknowledge that atmospheric carbon dioxide concentrations are increasing at an annual rate of one to two parts per million by volume and, as a result, the climate status adopted by DOE for the next 10,000 184 DOE Nevada Answer at 47-48.
185 Nevada Petition at 92.
years cannot be justified.186 It follows, Nevada maintains, that the model challenged in NEV-SAFETY-009 does not comply with the regulatory requirements found in 10 C.F.R.
§ 63.305(c).187 With respect to the obligation to provide a concise statement of the alleged facts or expert opinions undergirding the contention,188 Nevada critiques (in paragraph 5) what it asserts is the U.S. Geological Survey (USGS)-produced study (Forester et al.) on which the challenged statements in the Safety Analysis Report (SAR) are primarily based.189 Nevada references different studies (e.g., Solomon S. et al.) that it says show the central hypothesis in the Forester study to be flawed and untenable.190 The Forester study hypothesis - that future insolation-correlated climate patterns may resemble those of past periods with similar insolation -
assertedly conflicts with the consideration that both insolation and greenhouse gas concentrations are fundamental forcing factors of climate change.191 In addition, Nevada cites an exchange of memoranda within USGS that is taken to establish that the Forester study did not receive the external review that it was required to receive under the agencys report policy.192 By way of expert support for the foregoing representations, as well as those advanced by Nevada with regard to the requirement that it establish the existence of a genuine dispute on a material issue of fact or law, Nevada cites, inter alia, the affidavit submitted by Dr. Michael C.
Thorne. Dr. Thorne is a British environmental scientist who, according to his attached 186 Id.
187 Id. at 93.
188 10 C.F.R. § 2.309(f)(1)(v).
189 Nevada Petition at 94-95.
190 Id. at 94.
191 Id. (internal citations omitted).
192 Id. at 94-95.
curriculum vitae (CV), has extensive experience in the areas of climatology germane to the issue presented by NEV-SAFETY-009. In relevant part, the affidavit states:
Within the Petition are numerous contentions, each comprised of several paragraphs. I hereby adopt as my own opinions the statements contained within Paragraph 5 of those specific contentions identified in Attachment B to this Affidavit.
Also within the Petition are numerous contentions relating to the TSPA. I hereby adopt as my own opinions the statements contained within Paragraph 6 of those specific contentions identified in Attachment C to this Affidavit.193 By paragraphs 5 and 6, the affiant had reference to the discussion in the Nevada contentions designated to meet, respectively, the expert opinion and genuine dispute requirements contained in section 2.309(f)(1)(v) and (vi). In Appendix B, he listed those contentions for which he was adopting as his own opinion the content of Nevadas paragraph 5 discussion. In Appendix C, he listed the contentions as to which he adopted as his own opinion the content of paragraph 6. NEV-SAFETY-009 is listed in both Appendices, and thus Dr.
Thorne has adopted as [his] own opinions the content of both paragraph 5 and paragraph 6 of that contention.194 In responding to paragraph 5 in NEV-SAFETY-009, DOE presented this universal response to the incorporation in the Thorne affidavit (and those of other Nevada experts) of the content of the contention:
Nevadas petition does attach several affidavits (Jonathan Overpeck and Michael C. Thorne), which purportedly provide expert opinions to support this contention. However, rather than providing information to support the assertions in paragraph 5 of this contention, the affidavits simply adopt the otherwise unsupported assertions made in paragraph 5 of the contention. That approach falls short of the requirement to provide conclusions supported by reasoned bases or explanation.195 The Boards are aware of no support for DOEs position in either the Statement of 193 Nevada Petition, Exh. 3, Affidavit of Dr. Michael C. Thorne ¶¶ 2-3 (Dec. 19, 2008) [Thorne Aff.].
194 Thorne Aff. ¶¶ 2-3.
195 DOE Nevada Answer at 158.
Considerations underlying section 2.309(f)(1)196 or decisions of the Commission interpreting and applying that section, and DOE provides none. Thus, the relevant question is whether the purposes served by the admissibility requirements imposed by that section are not satisfied by the affidavits that DOE attacks.
Adopting DOEs position would exalt form over substance. The objective of the section 2.309(f)(1)(v) and (vi) requirements is to ensure that Boards admit only those conditions that have been demonstrated to have sufficient substance to warrant further consideration on the merits. One method of demonstrating that a particular contention is worthy of admission is, of course, the furnishing of the reasoned opinion of a qualified expert.
In the case of Dr. Thornes support of NEV-SAFETY-009, DOEs objection to the form of the affidavit would have evaporated if all of the discussion in paragraph 5 of the contention regarding the Forester and Solomon studies had been found in the affidavit itself. Why then should it be of any significance that, instead, Nevada elected to include that discussion in the body of the contention and then had Dr. Thorne subscribe to it in his affidavit? At bottom, what is important is that the claim made in NEV-SAFETY-009 has the support of the opinion of a clearly qualified expert. Although there might be other reasons for not admitting the contention, the form of Dr. Thornes affidavit should not be one of them.
DOEs suggestion - that what has been provided is no more than the opinion of Nevada counsel who drafted the contentions - is both surprising and meritless. DOEs counsel are experienced litigators, who surely have had occasion to prepare many affidavits for the signature of the affiant and submission to an adjudicatory tribunal. They must be aware that the process of affidavit preparation almost inevitably involves the collaborative effort of counsel and affiant, and that what is submitted to the tribunal will represent the views of the affiant even though the drafting of the document might have been accomplished by the counsel. That being so, it is not important whether or not Nevada counsel drafted paragraph 5 in NEV-SAFETY-009 196 See 69 Fed. Reg. 2182.
and the other contentions receiving Dr. Thornes endorsement. Absent any indication to the contrary, there is every reason to believe Nevadas express representation that the expert was involved in its formulation, if not its actual composition.197 DOE has provided no reason to doubt the authenticity of Nevadas experts statements.
DOE further contended, at oral argument, that Nevadas affidavits should be rejected because they violate the June 20, 2008 APAPO Board Order198 directive that affidavits should contain numbered paragraphs that can be cited with specificity.199 DOE ignores the APAPO Boards purpose. The APAPO Board anticipated that numerous contentions might be supported by a given expert, and hoped to be able to identify the specific portions of supporting affidavits relevant to specific contentions. Instead, Nevadas experts adopted specific paragraphs of specific contentions as their own - thereby accomplishing the same objective by other means.
In any event, directly contrary to DOEs position, the APAPO Board Order expressly stated that its requirements were not intended to make the process more difficult.200 On the contrary, the APAPO Board stated that, absent bad faith, because the requirements are being imposed for the first time in a unique and complex proceeding, failure to comply... shall not be grounds...
to object to the admissibility of a proffered contention.201
- 2. Supporting References Both DOE and the NRC Staff insist that an experts opinion should be accompanied by a specific reference to supporting sources and documents.202 They contend that any contention lacking such documentation must not be admitted.
197 See Nevada DOE Reply at 61; see also 10 C.F.R. § 2.304(d).
198 U.S. Dept of Energy, LBP-08-10, 67 NRC 450.
199 Tr. at 433-34.
200 U.S. Dept of Energy, LBP-08-10, 67 NRC at 452.
201 Id.
202 See, e.g., DOE Nevada Answer at 765-66; NRC Staff Answer at 503-504.
DOE and the NRC Staff claim that the requirement that expert opinion must invariably be accompanied by a reference to supporting sources and documents is based on section 2.309(f)(1)(v). That provision requires references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position. It says nothing about references upon which an expert might rely in offering expert opinion. And it surely cannot reasonably be interpreted to require a petitioner to produce, at this stage, its exhibit list for a hearing. On the contrary, [a] petitioner does not have to provide a complete or final list of its experts or evidence or prove the merits of its contention at the admissibility stage.203 Fairly read, section 2.309(f)(1)(v) offers the petitioner an opportunity to bolster the required concise statement of... alleged facts or expert opinions with specific sources and documents on which the requestor/petitioner intends to rely. If a petitioner so chooses, then it must give references to such sources and documents. As with a summary disposition motion, however, the support for a contention should be viewed in a light that is favorable to the petitioner.204 The requirement for such support generally is fulfilled when the sponsor of an otherwise acceptable contention provides a brief recitation of the factors underlying the contention or references to documents and texts that provide such reasons.205 Insofar as the Boards can determine, section 2.309(f)(1)(v) has never been interpreted as imposing a requirement that an experts opinion must include specific references to supporting sources and documents. The Boards have not been directed to anything in the Statement of Considerations pertaining to the underlying purpose of section 2.309(f)(1) that lends credence to this position. Nor have the Boards been made aware of any Commission decision in which a contention was found unacceptable because the expert did not support his 203 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 356 (2006).
204 Id.
205 54 Fed. Reg. at 33,170 (emphasis added) (internal quotations omitted) (quoting Texas Utils.
Elec. Co. (Comanche Peak Steam Elec. Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987)).
or her conclusions with identification of the sources or documents upon which that opinion rested.
The decisions cited by DOE stand simply for the unremarkable proposition that expert opinion must not be limited to bald conclusory statements such as that the application under consideration is deficient, inadequate, or wrong.206 Not a word in any of those decisions might be taken as imposing a strict obligation upon an expert to buttress a tendered opinion with references to specific sources or documents.
The absence of any such imposed obligation in either the applicable Statement of Considerations or the decisions interpreting and applying section 2.309(f)(1)(v) is not surprising.
The purpose of that subsection, when read in conjunction with the subsection (vi) requirement of the existence of a genuine dispute on an issue of material fact or law, is to ensure that there is possibly enough substance to the contention to warrant further exploration. As explained in the Statement of Considerations, the Commissions objective was to ensure that the adjudicatory process is used to address real, concrete, specific issues that are appropriate for litigation.207 It is to that end that an expert opinion is provided. Although that opinion must provide a sufficient foundation for the conclusions stated therein, it is fatuous to suggest that, in all instances, the expert must refer to specific sources or documents.
It is not invariably the case that an expert opinion will have at its foundation some independent source or document. In some instances the opinion tendered in support of a particular contention might appropriately be based upon conclusions formulated by the expert following his or her own study over the course of perhaps many years. Depending upon the nature of the study, there might or might not be the accumulation of data in furtherance of the 206 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, CLI-03-13, 58 NRC at 203; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station, Units 1 & 2), LBP-02-4, 55 NRC 49, 66 (2002); Private Fuel Storage, LBP-98-7, 47 NRC at 181.
207 69 Fed. Reg. at 2202.
furnished conclusions. In formulating its contention admissibility criteria, the Commission was presumably aware of these considerations.
Finally, a crucial flaw in DOEs position was exposed at oral argument. According to DOEs counsel, DOE was entitled to be supplied with the sources and documents undergirding an experts expressed opinion because such access was necessary to enable DOE to try to persuade the Boards, presumably by furnishing counter sources and documents, that the experts opinion was in error.208 But such exploration of the substantiality of expert opinion is manifestly not appropriate at the contention admissibility stage. Instead, going as it does to the merits, it must await the filing of motions for summary disposition or the convening of an adjudicatory hearing.
Accordingly, in passing upon whether a particular contention meets the section 2.309(f)(1)(v)-(vi) admissibility test, the Boards have confined their inquiry to whether, with or without references to particular sources or documents, the supporting expert opinion has offered enough to justify a conclusion that the contention is worthy of further consideration on its merits. If the contention satisfies that test, it then moves on for that examination, either on motion for summary disposition or following an evidentiary hearing.
D. Allegedly Heightened Standard for Admitting HLW Contentions Despite the established contention admissibility standards of 10 C.F.R. § 2.309(f)(1),
DOE argues in its answers to all the intervention petitions, except that of Caliente, that petitioners have a heightened obligation to proffer focused and adequately supported contentions in this proceeding because of the existence of the LSN. 209 Citing selected portions of an internal agency document and the voluminous regulatory history of 10 C.F.R. Part 2, 208 Tr. at 443-44, 446.
209 See, e.g., DOE Nevada Answer at 29-34; DOE NEI Answer at 29-32; DOE Nye Answer at 4-6; DOE Nevada 4 Counties Answer at 4-6; DOE California Answer at 29-32; DOE NCA Answer at 26-29; DOE TIM Answer at 34-36; DOE Clark Answer at 11-14; DOE Inyo Answer at 11-14; DOE White Pine Answer at 4-7; DOE TSO Answer at 27-30.
Subpart J, DOE asserts that the purpose of the LSN was to afford potential participants the opportunity to frame focused contentions.210 DOE then sets out its view of the completeness, extensiveness, and usefulness of its LSN document collection and appears to argue that its enormous document productions, coupled with the purpose of the LSN to provide petitioners with the opportunity to frame focused contentions, raises the bar for contention admissibility in this proceeding.211 All of the petitioners who addressed the issue, as well as the NRC Staff, disagree with DOE.212 Insofar as DOE continues to assert this argument,213 its position is without merit. The standards embodied in section 2.309(f)(1) have been in existence, for the most part, since 1989.214 If, in subsequently promulgating Subpart J containing the LSN provisions, the Commission had wanted to raise the standard for the admissibility of contentions because of the LSN, it could have done so explicitly, as it did in 10 C.F.R. § 51.109(a)(2) with respect to the admissibility of contentions raising NEPA issues. The Commission did just the opposite. In promulgating Subpart J, the Commission expressly provided that section 2.309 was to remain unchanged.215 210 See, e.g., DOE Nevada Answer at 29-30.
211 See, e.g., id. at 29-34; Tr. at 651-54. For a countervailing view of the completeness, extensiveness, and usefulness of the DOE LSN collection, see, e.g., Nevada DOE Reply at 30-33, 36-39.
212 See Nevada 4 Counties DOE Reply at 5-6; Tr. at 671; Nye Reply at 12 n.4; Tr. at 678; Clark Reply at 19-20; Tr. at 673-74; Nevada DOE Reply at 29-39; Tr. at 661-66. See also Tr. at 670 (NRC Staff), 672-73 (NCA), 674-75 (TIM), 675-76 (TSO).
213 See Tr. at 656-57; but see Tr. at 679.
214 See 54 Fed. Reg. 33,168.
215 See 10 C.F.R. § 2.1000.
E. TSPA Model-Based Contentions NRC regulations concerning the proposed repository are set forth in 10 C.F.R. Part 63.
Among other things, the regulations impose limits on radiological exposures.216 The regulations further provide that compliance with such limits, over necessarily long time periods, requires a performance assessment.217 Under the Commissions regulations, not any performance assessment will do, but only one that meets a number of very specific requirements.218 DOE endeavors to satisfy the Commissions performance assessment requirements through a complex model designated the Total System Performance Assessment (TSPA).219 Nevada and other petitioners proffer more than 100 contentions alleging various defects in the TSPA. The overwhelming majority of such contentions allege that these defects result in one or more violations of the Commissions regulations and are supported by affidavits from competent experts.
DOE opposes the admission of all contentions concerning the TSPA. The NRC Staff opposes the vast majority of those contentions.220 That such contentions allege violations of the Commissions regulations for performance assessments, DOE argues, does not make them material to this proceeding.221 Rather, DOE asserts, such contentions must also demonstrate how each alleged defect in the TSPA either independently or cumulatively in combination with other contentions could result in an increase in the mean dose above regulatory limits.222 216 Id. § 63.311.
217 Id. § 63.102(j); see also 10 C.F.R. § 63.113.
218 See, e.g., 10 C.F.R. § 63.114.
219 Yucca Mountain Repository License Application Safety Analysis Report at 2.4-1 (2008).
220 See, e.g., NRC Staff Answer at 1575-76 (The NRC Staff does not object to a contention that focuses on net infiltration modeling (NEV-SAFETY-40)).
221 DOE Nevada Answer at 4.
222 Id.
Nevada in particular, DOE contends, has the ability to quantify the impacts of its contentions on dose and at a minimum to provide a qualitative analysis of how the contention would affect the model, including the likely range of impacts on dose.223 DOE and the NRC Staff would have the Boards create barriers to the admissibility of contentions that do not exist under the Commissions regulations. As reflected in the rulings of individual Boards, all admitted contentions that allege defects in the TSPA satisfy the requirements of 10 C.F.R § 2.309(f)(1). Arguments to the contrary are unpersuasive.
First, Part 63 requires more than a performance assessment that demonstrates compliance with dose standards. To be used for this purpose, a performance assessment must itself comply with specific and separately articulated requirements.224 In promulgating Part 63, the Commission made clear that these involve a range of considerations, including requirements for addressing uncertainty, providing technical basis for models, and additional requirements, beyond expected performance.225 For example, Nevadas TSPA contentions all allege separate and specific violations of Part 63, e.g., that the TSPA: (1) omits the full range of defensible and reasonable parameter distributions;226 (2) is not based on credible models and parameters;227 (3) omits features, events and processes (FEP) that should have been included;228 (4) fails to account for uncertainties and variabilities in parameter values;229 (5) fails to provide for the technical basis 223 Id.
224 See, e.g., 10 C.F.R. §§ 63.101, 63.102, 63.114, 63.305.
225 Disposal of High-Level Radioactive Wastes in a Proposed Geologic Repository at Yucca Mountain, NV, 66 Fed. Reg. 55,732, 55,747 (Nov. 2, 2001) (emphasis added).
226 See, e.g., Nevada Petition at 231 (citing 10 C.F.R. § 63.304).
227 See, e.g., Nevada Petition at 374 (citing 10 C.F.R. § 63.102(h)).
228 See, e.g., Nevada Petition at 542 (citing 10 C.F.R. § 63.114(e)).
229 See, e.g., Nevada Petition at 625 (citing 10 C.F.R. § 63.114(b)).
for parameter ranges, probability distributions, or bounding values;230 and (6) fails to consider alternative conceptual models of features and processes that are consistent with available data and current scientific understanding.231 Proffered contentions that adequately allege violations of such regulatory requirements raise material issues in and of themselves, because, as the Commission clarified in promulgating Part 63, any determination that the postclosure performance objectives will be met will be based on a comprehensive set of regulatory requirements, including requirements beyond expected performance for increasing confidence232 in achieving this goal. These separate requirements in the Commissions regulations cannot be ignored, as if the only requirement in Part 63 were to demonstrate compliance with dose standards by any method that the Applicant chooses.
Moreover, 10 C.F.R. § 63.114(c) specifies that any performance assessment used to demonstrate compliance with 10 C.F.R. § 63.113 must [c]onsider alternative conceptual models. Section 63.102(j) defines a performance assessment as a systematic analysis that quantitatively estimate[s] radiological exposures. Read together, the Commissions regulations require that alternative conceptual models must be considered in the systematic analysis in the TSPA that quantitatively estimate[s] radiological exposures.
DOE cites NRC case law, purportedly for the proposition that petitioners must more fully explain the implications of the deficiencies they allege in the TSPA.233 DOEs citations are inapposite. No cited case stands for the proposition that well-supported allegations of violations of specific, relevant NRC regulations of the kind at issue here fail to raise a material issue.234 230 See, e.g., Nevada Petition at 625.
231 See, e.g., id. at 824 (citing 10 C.F.R. § 63.114(c)).
232 66 Fed. Reg. at 55,747.
233 See, e.g., DOE Nevada Answer at 53-57.
234 See McGuire, CLI-03-17, 58 NRC 419 (intervenors did not perform the bare minimum preparations; there was no attempt to perform any independent analysis); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 67 NRC __ (July 31, (continued)
DOE dismisses the requirements of Part 63 as process regulations.235 Even assuming that alleged violations of Commission regulations might not raise a material issue in certain circumstances, these proceedings present no such case. When the Commission developed Part 63, it explained in response to comments that the repositorys post-closure safety would not depend solely upon meeting a dose standard. Instead, post-closure safety would depend upon a comprehensive set of requirements, including the ones on which Nevada relies.236 Second, some TSPA-related contentions do assert, explicitly or by implication, that alleged defects in the TSPA will increase the likelihood that dose standards might not be achieved. Clark, for example, contends that alleged errors could mean that the risk is greater than reported in the TSPA and that the TSPA could underestimate the consequences and likelihood of post-closure radioactive releases. 237 Separate and apart from alleged violations of other specific regulatory requirements that apply to the TSPA, such qualitative predictions -
when adequately supported by reasoned affidavits from competent experts - are by themselves sufficient to admit contentions. During a discussion of TSPA-related contentions before the APAPO Board in May 2008, counsel for DOE appeared to agree:
JUDGE BOLLWERK: So what youre saying is if they have an affidavit from an expert that says, this is material, that would suffice?
MR. SILVERMAN: With a sufficient - a reasonable explanation that... would be appropriate at this stage of the proceeding, yes.238 2008) (contention was not well supported by the expert); Pilgrim, LBP-06-23, 64 NRC 257 (well supported contention was admitted); Dominion Nuclear Connecticut (Millstone Nuclear Power Station, Unit 2), LBP-03-12, 58 NRC 75 (2003) (petitioner offered only bald assertions and provided little support for them); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), LBP-03-17, 58 NRC 221 (2003) (intervenors did not show that a model was defective or used incorrectly but simply that a different result would be achieved using their own model); Florida Power & Light Co. (Turkey Point Plant Unit Nos. 3 &
4), LBP-90-16, 31 NRC 509 (1990) (Petitioner made minimal effort to support its contentions).
235 Tr. at 216.
236 See generally 66 Fed. Reg. at 55,747.
237 Clark Petition at 6, 22.
238 APAPO Board Conference Transcript (May 14, 2008) at 96 [APAPO Tr.].
Third, to require petitioners to rerun the TSPA themselves, in order to demonstrate the individual or collective effects of the defects they allege, would improperly require the Boards to adjudicate the merits of contentions before admitting them.239 At hearings on the merits, DOE will have several choices. For example, DOE may try to disprove the alleged defects. Or DOE may endeavor to show that, individually and collectively, the alleged defects do not affect the TSPA even if assumed to be true. Or DOE may try to disprove some of the alleged defects and endeavor to show that, individually and collectively, any remaining alleged defects will not affect the TSPA.
But DOE cannot, at the contention admissibility stage, demand that petitioners rerun DOEs TSPA in order to demonstrate the impact of alleged defects. Again, in proceedings before the APAPO Board, counsel for DOE appeared to agree:
MR. SILVERMAN: Im not suggesting they have to rerun the TSPA in its entirety, but they do have a burden as a petitioner to identify a genuine issue of material fact.240 DOE counsel also represented to the Board:
MR. SILVERMAN: If I understand [Nevada counsel] correctly, he is saying that the State would endeavor to identify as specifically as reasonable possible errors in models or sub models as individual contentions. We agree with that.
He is saying that they would not necessarily need to identify the implications of - the cumulative implications, perhaps, of all of those various errors. I believe hes saying that. And if thats true I think thats right.241 Finally, petitioners have at the very least raised a substantial fact question as to whether it would have been reasonably possible for them to rerun the TSPA before filing their contentions. Compared to notice pleading in the federal courts, the NRCs contention 239 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 9-10 (2002).
240 APAPO Tr. at 95.
241 APAPO Tr. at 89-90.
requirements have correctly been called strict by design.242 They are not intended, however, to require the impossible.
Nevadas experts have stated in affidavits that, to reflect the consequences of individual contentions, it would be necessary to perform a substantial number of additional modeling cases that are beyond the practical ability of anyone other than DOE to perform. Nevadas experts have also stated, in affidavits, that to reflect the cumulative effects of relevant contentions would require analysis of many thousands of possible changes. As Nevada explains in relevant contentions that are supported by affidavits:
Because the TSPA is a complex non-linear model, and changes in the approach adopted are likely to result in changes in the results obtained that vary both as a function of time postclosure and from realization to realization within a modeling case, a determination whether acceptance of this contention would necessarily lead to calculated doses in excess of EPAs dose standards would require DOE to perform a substantial number of additional modeling cases that are not included in the [Application] and that are beyond the practical ability of anyone else to perform. Moreover, there are more than 100 Nevada TSPA contentions with characteristics like this one. These relate to a total of 19 different broad aspects of the TSPA. Therefore, there are many thousands of possible changes that would need to be made to DOEs TSPA approach to include the effects of accepting this one contention along with all possible combinations of Nevadas other contentions relating to different aspects of the TSPA, even if all contentions relating to each broad aspect of the TSPA were considered together in defining the variant cases. This vastly increases the burden and complexity of showing the dose effects of acceptance of Nevadas contentions.243 DOE suggests otherwise. DOE notes that Nevadas own expert purports to be qualified and experienced in performing risk assessments for nuclear waste disposal facilities,244 pointing out that Nevada has acquired relevant software, that DOE held a tutorial for Nevada on the TSPA, and that the TSPA can be scrutinized and run on Nevadas computers.245 DOE asserts that Nevada should not only be able to run the TSPA model, but even without doing so, 242 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI 24, 54 NRC 349, 358 (2001).
243 See, e.g., Nevada Petition at 95-96.
244 DOE Nevada Answer at 50 (citing Thorne Aff. ¶ 1).
245 DOE Nevada Answer at 50-51.
Nevada should be able to provide at least a qualitative assessment, and in many cases a quantitative assessment, of the effect of its alleged errors and deficiencies on the repositorys ability to meet regulatory standards.246 These suggestions by DOE merely illustrate that there exists a factual dispute that cannot be resolved against petitioners at the contention admissibility stage247 - especially where petitioners version of the facts is supported by sworn affidavits and DOEs version is not.
F. Reasonable Assurance and Reasonable Expectation Under 10 C.F.R. § 63.31, the Commission may authorize construction of the proposed repository if, inter alia, DOEs Application provides a reasonable assurance of preclosure safety and a reasonable expectation of postclosure safety.248 According to DOE, Nevada has made no effort to demonstrate and has not even asserted that DOE has failed to satisfy the reasonable expectation standard identified by 10 C.F.R. § 63.101 as the general standard for postclosure matters.249 Thus, DOE argues, Nevada has neglected to make the materiality showing required for contention admissibility.250 The Boards are not persuaded.
Underlying DOEs argument is the assumption that reasonable expectation connotes less exacting obligations than does reasonable assurance - the standard applicable to most 246 Id. at 52.
247 See, e.g., McGuire/Catawba, CLI-02-17, 56 NRC at 9-10.
248 Specifically, with regard to safety, the Commission must find:
(1) That there is reasonable assurance that the types and amounts of radioactive materials described in the application can be received and possessed in a geologic repository operations area of the design proposed without unreasonable risk to the health and safety of the public; and (2) That there is reasonable expectation that the materials can be disposed of without unreasonable risk to the health and safety of the public.
10 C.F.R. § 63.31(a) (emphasis added).
249 DOE Nevada Answer at 40.
250 See 10 C.F.R. § 2.309(f)(1)(iv).
types of licensing cases that come before the NRC.251 According to DOE, the reasonable expectation standard requires a different level and type of technical proof252 than the reasonable assurance standard and encompasses use of cautious but reasonable approaches consistent with present knowledge in lieu of bounding or more conservative approaces [sic].253 DOE further claims that the reasonable expectation standard takes into account inherent uncertainties in the post-closure model, and that [t]o merely assert the existence of such uncertainties, without specifying their impact on a finding NRC must make in its issuance of the construction authorization, amounts to an improper challenge to Part 63, which explicitly recognizes that such uncertainties exist and cannot be eliminated.254 In making this argument, DOE relies on statements of the EPA suggesting that reasonable expectation is a more flexible alternative to the standard NRC applies in reactor licensing cases.255 DOE finds these EPA statements to be relevant because, under the NWPA and the Energy Policy Act of 1992 (EnPA), the Commissions technical requirements and criteria must be consistent with the radiological protection standards promulgated by EPA.256 Thus, DOE argues, the proper application of the reasonable expectation standard must take into account the statements by EPA in promulgating the standards required by [EnPA].257 At 251 See, e.g., 10 C.F.R. §§ 50.35(c) (reactor construction permits), 50.57(a)(3) (reactor operating licenses), 52.24(a)(3) (early site permits), 52.54(a)(3) (standard design certifications),
52.97(a)(1)(iii) (combined licenses), 52.167(a)(2) (manufacturing licenses), 54.29(a) (renewed licenses).
252 DOE Answer to Nevada at 41.
253 Id. at 40.
254 Id. at 39.
255 Id. at 41-42.
256 See NWPA § 121(b)(1)(C), 42 U.S.C. § 10141(b)(1)(C); EnPA § 801(b)(1), 42 U.S.C. § 10141 note.
257 DOE Nevada Answer at 41 (citing 66 Fed. Reg. at 32,101-03; Proposed Rule, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 70 Fed. Reg.
(continued)
oral argument, however, DOE counsel appeared to retreat from this reliance on EPAs statements, conceding that I dont think they have a great amount of weight or consideration in the discussion we have here.258 At oral argument, DOE likewise retreated from the position that reasonable expectation and reasonable assurance call for different levels of proof. Instead, DOE acknowledged that the same standard of proof applies to both preclosure and postclosure safety - namely, proof by a preponderance of the evidence - but insisted that the methodology for the Commission to reach its finding of reasonable assurance and reasonable expectation is different.259 In support of this position, DOE pointed to 10 C.F.R. § 63.304, which lists four characteristics of the reasonable expectation standard.260 According to section 63.304, reasonable expectation:
(1) Requires less than absolute proof because absolute proof is impossible to attain for disposal due to the uncertainty of projecting long-term performance; (2) Accounts for the inherently greater uncertainties in making long-term projections of the performance of the Yucca Mountain disposal system; (3) Does not exclude important parameters from assessments and analyses simply because they are difficult to precisely quantify to a high degree of confidence; and (4) Focuses performance assessments and analyses on the full range of defensible and reasonable parameter distributions rather than only upon extreme physical situations and parameter values.
In DOEs view, these characteristics indicate a significant departure from the methodology applied under the reasonable assurance standard.
In response, Nevada contended that most of these four characteristics could also be used to describe reasonable assurance.261 According to Nevada, any difference in the degree 49,014, 49,020-21 (Aug. 22, 2005); Final Rule, Public Health and Environmental Radiation Protection Standards for Yucca Mountain, NV, 73 Fed. Reg. 61,256, 61,271-73 (Oct. 15, 2008)).
258 Tr. at 399.
259 Tr. at 380 (emphasis added).
260 Tr. at 363-64.
261 Tr. at 387-89.
of acceptable uncertainty under the two standards is only slight and should not be granted any significance at the contention admissibility stage.262 The Boards agree with Nevada that DOE invokes a distinction without a difference. The NRC has repeatedly indicated that reasonable expectation and reasonable assurance mean virtually the same thing. In 2001, when it first decided to impose a reasonable expectation standard on post-closure safety rather than reasonable assurance,263 the Commission justified this change as an attempt to avoid any misunderstanding and to achieve consistency with final EPA standards,264 but not as an effort to lower the standard of proof that DOE must meet. In 2003, when Nevada challenged the reasonable expectation standard in federal court, arguing that the NWPA contemplates a higher reasonable assurance standard, the Commission replied that the two standards are [v]irtually [i]ndistinguishable.265 In 2007, the NRC reaffirmed this position in a letter denying Nevadas request for a binding interpretation of the phrase reasonable expectation.266 And just recently, upon issuing the final rule implementing a dose standard after 10,000 years, the Commission once again confirmed that the two terms are substantially identical.267 The Commission has thus made clear its intention to treat reasonable assurance and reasonable expectation as equivalent standards. Moreover, the NRC is not bound by any contrary interpretation provided by EPA. The NWPA clearly delineates the differing roles of 262 Tr. at 389-90, 403-04.
263 See 66 Fed. Reg. at 55,739-40 (revising the standard for postclosure safety, based on critical comments received from EPA and others).
264 Id. at 55,740.
265 Final Brief for the Federal Respondents, Nevada v. Nuclear Regulatory Commn, No. 02-1116 (June 6, 2003) at 47, available at http://www.state.nv.us/nucwaste/legal/nrc/index.htm.
266 Letter from Karen D. Cyr, General Counsel for the NRC, to Martin G. Malsch, counsel for Nevada (May 18, 2007) (ADAMS Accession No. ML071920180).
267 Final Rule, Implementation of a Dose Standard After 10,000 Years, 74 Fed. Reg. 10,811, 10,826 (Mar. 13, 2009).
EPA and the NRC in the HLW proceeding. The EPA is responsible for promulgating standards for environmental protection, and the NRC is tasked with promulgating the criteria it will apply in the licensing proceeding.268 NRCs criteria must not be inconsistent with EPAs environmental protection standards.269 But nothing in the language of NWPA or EnPA limits NRCs freedom to define the standard by which DOE must demonstrate safety, security, and environmental protection to the agency. Further, EPA itself has acknowledged that NRC may establish requirements that are more stringent than EPAs minimum requirements for implementation of the disposal standards.270 EPA recognizes that NRC has the authority to interpret reasonable expectation more strictly than EPA would prefer. Thus, DOEs reliance on EPAs statements is misplaced; NRC has the authority to interpret the phrase reasonable expectation as it sees fit.
And the Commission has made clear that, for purposes of the HLW proceeding, reasonable assurance and reasonable expectation mean virtually the same thing.
Finally, even if the Boards were to treat reasonable expectation as a lower standard of proof - or as requiring a different methodology - DOE provides no practical guidance on how that standard should be implemented. Presumably, if DOE were right, Nevada would be required to demonstrate a greater level of uncertainty in DOEs Application in order to prevail on one of its contentions. But nowhere does DOE quantify the greater showing that Nevada must make. As Nevada noted at oral argument, neither the NRC nor DOE has articulated either the level of proof required or the amount of uncertainty allowed.271 Thus, DOE would leave the Boards to implement an undefined standard of proof that falls somewhere between reasonable 268 See NWPA § 121(a), (b)(1)(A), 42 U.S.C. § 10141(a), (b)(1)(A); EnPA § 801(a), 42 U.S.C.
§ 10141 note.
269 See NWPA § 121(b)(1)(C), 42 U.S.C. § 10141(b)(1)(C); EnPA § 801(b)(1), 42 U.S.C.
§ 10141 note.
270 Proposed Rule, Environmental Radiation Protection Standards for Yucca Mountain, NV, 64 Fed. Reg. 46,976, 46,997 (Aug. 27, 1999).
271 Tr. at 388-90.
assurance and no assurance at all. This is not a workable standard for admitting contentions.
Ultimately, the Boards would be forced to apply it no differently than they apply reasonable assurance - on a case-by-case basis, using their own best judgment under the circumstances.272 G. Legal Issue Contentions Under 10 C.F.R. § 2.309(f)(1)(i), a contention may raise an issue of law or fact. As the Commissions rules formerly made clear, [i]f... the presiding officer determines that any of the admitted contentions constitute pure issues of law, those contentions must be decided on the basis of briefs or oral argument according to a schedule determined by the... presiding officer.273 Although this explanation was dropped from the regulations in 2004, the reason was merely to simplify the rules, not to change them.274 Not all the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) necessarily apply to legal issue contentions. For example, a purely legal issue contention obviously need not allege facts under section 2.309(f)(1)(v). Likewise, the requirement that a NEPA contention be accompanied by one or more affidavits, pursuant to 10 C.F.R. § 51.109(a)(2),
ought not apply to a legal issue contention under NEPA, as that section requires only affidavits 272 See, e.g., Amergen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 340 (Dec. 18, 2007) (stating that whether the reasonable assurance standard is satisfied is based on sound technical judgment applied on a case-by-case basis); CLI-09-07, 69 NRC __, __ (Apr. 1, 2009) (slip op. at 35) (declining to disturb LBP-07-17) (Reasonable assurance... is based on sound technical judgment of the particulars of a case and on compliance with our regulations.); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC __, __ (Oct. 30, 2008) (slip op. at 57-58) (stating, in concurrence, that the reasonable assurance requires a licensing board to tak[e] all relevant facts and circumstances into account).
273 10 C.F.R. § 2.714(e) (2003). In 2004, the Commission codified the requirements of former section 2.714, together with rules regarding contentions set forth in Commission cases, in section 2.309. See 69 Fed. Reg. 2182.
274 See 69 Fed. Reg. at 2182 (Commission amending regulations to make them more effective and efficient).
which set forth factual and/or technical bases for the claim. There is no requirement that legal arguments be presented by affidavit.
The Boards have admitted as legal issue contentions: (1) certain contentions so identified by petitioners; (2) certain contentions not so identified by petitioners but identified as such by the Boards; and (3) certain contentions that contain factual allegations but that also are in part appropriate for resolution as a legal issue. Additionally, it should be recognized that some factual contentions have been admitted at this time contingent upon the outcome of a related legal issue contention.
Briefing schedules for legal issue contentions will be set forth in a subsequent order.
The Boards contemplate that, after such legal issue contentions are resolved, many remaining related factual contentions may be appropriate for summary disposition.275 IV.
RULINGS ON STANDING The standing of most petitioners is not disputed. Nevada has standing as of right as the host state for the GROA pursuant to 10 C.F.R. §§ 2.309(d)(2)(iii) and 63.63(a) and Part III, Paragraph A of the Notice of Hearing.276 Nye has standing as the host county of the proposed Yucca Mountain repository pursuant to 10 C.F.R. § 2.309(d)(2)(iii). Pursuant to the Notice of Hearing, Nevada 4 Counties, Clark, Inyo, and White Pine need not address the standing requirements of 10 C.F.R. § 2.309(d) because they are AULGs as defined in section 2 of the NWPA,277 and have been designated as such by the Secretary of Energy.278 The standing of other petitioners is discussed below.
275 See 10 C.F.R. § 2.1025(a).
276 See 73 Fed. Reg. at 63,031.
277 NWPA § 2(31), 42 U.S.C. § 10101(31).
278 73 Fed. Reg. at 63,031.
A. Caliente (CAB-01)
Contrary to 10 C.F.R. § 2.1013(c) and the directive in the Notice of Hearing requiring that all pleadings be filed via the agencys Electronic Information Exchange (EIE),279 Calientes initial intervention petition, signed by its attorney, was not filed electronically and contains a single contention and nothing more.280 That filing did not even address, much less establish, Calientes standing. Thus, Caliente did not demonstrate that it met the requirements for standing, a necessary requisite for party status in the proceeding. Nor did Calientes petition contain a request, under 10 C.F.R. § 2.309(e), for discretionary intervention or address the six factors that must be balanced in considering such a request.
Subsequent to its initial filing, Caliente filed electronically the identical intervention petition out of time.281 Thereafter, in its reply to the answers of DOE and the NRC Staff, Caliente attempted to remedy the numerous procedural and substantive defects in its nontimely petition, pleading counsels ignorance of the Commissions electronic filing rules and inexperience regarding NRC practice.282 That attempt, including its efforts to address the factors for nontimely filings in 10 C.F.R. § 2.309(c) and to establish its standing, came too late.
A petitioners reply must narrowly focus upon the legal and factual arguments first presented in its petition and cannot be used as a vehicle to remedy a very deficient petition to which opposing parties have no opportunity to respond.283 Accordingly, Caliente has failed to 279 Id. at 63,030.
280 Caliente Petition.
281 See id. (filed electronically on January 5, 2009).
282 See Caliente Reply.
283 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC __, __
(slip op. at 10 n.30) (Aug. 22, 2008) (citing Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant),
CLI-06-17, 63 NRC 727, 732 (2006) ([a]llowing new claims in a reply... would unfairly deprive other participants of an opportunity to rebut the new claims)); Louisiana Energy Servs., L.P.
(Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225, reconsideration denied, CLI-04-35, 60 NRC 619 (2004).
demonstrate its standing and CAB-01 need not address such issues as Calientes failure to file its initial petition via the EIE or its failure to file an affidavit in support of its proffered NEPA contention.
B. California (CAB-02)
Under the Commissions regulations, because the HLW repository is not to be located within Californias boundaries, California is not entitled to automatic standing in this proceeding.284 Rather, it must show that it meets the requirements for standing set forth in 10 C.F.R. § 2.309(d). California asserts two primary injuries as the basis for its standing to intervene: the threat posed by transportation of radioactive waste through California, and the threat posed by the migration of radioactive material from Yucca Mountain into Californias groundwater.285 California also seeks discretionary intervention under 10 C.F.R. § 2.309(e).286 In its answer, NRC Staff concedes that California has established standing based on the injury it alleges due to groundwater contamination.287 It does not address Californias other asserted bases for standing. For its part, DOE objects to Californias standing with regard to both of its asserted injuries. Regarding the transportation of radioactive waste, it insists that Californias injury is too speculative, given that transportation routes through California have not yet been identified.288 DOE also asserts that, because the selection of transportation routes occurs outside of the NRC licensing process, Californias alleged injury cannot be redressed in the instant proceeding.289 With regard to groundwater contamination, DOE maintains that California makes no showing of whether any such contamination will occur, when it will occur, 284 See 10 C.F.R. § 2.309(d)(2)(iii).
285 California Petition at 9.
286 Id. at 15-18.
287 NRC Staff Answer at 29.
288 DOE California Answer at 24.
289 Id. at 23.
and what adverse effects it would have.290 Additionally, DOE opposes Californias discretionary intervention.291 The Board finds that California has established standing to intervene as a matter of right.
It is undisputed that, if the NRC decides to grant DOEs Application, HLW will be transported through the State of California. This flows directly from the construction and operation of a repository at Yucca Mountain. This is not a speculative injury, as DOE insists, but an injury that is real and concrete. The fact that DOE has yet to identify specific transportation routes through California in no way diminishes this threat.292 Finally, as California points out in its reply, the NRC does have the authority to redress this injury - namely, by ensuring that transportation impacts are addressed pursuant to NEPA. California is not asking the NRC to make routing decisions - decisions which fall under DOEs regulatory control. Rather, California is asking for an analysis of transportation impacts in DOEs EISs, a request that falls squarely within the scope of this proceeding. As discussed in Section III.B supra, where the Boards reject the argument that NEPA contentions related to transportation cannot be adjudicated in this proceeding, NEPA obligates the NRC to analyze and to disclose all the environmental effects - not just those arising from the portions of the repository over which the NRC has direct regulatory control.
Thus, we find that California has met the requirements for standing as a matter of right, based on the threats related to the transportation of radioactive waste. Because we have determined that California is entitled to standing as of right, we need not reach Californias request for discretionary intervention.
290 Id. at 24-25.
291 Id. at 25-28.
292 See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 415 (2001) (finding that petitioner organizations had established standing based on their members proximity to transportation routes, even where it was not possible to predict with accuracy which of its members [were] most likely to be harmed or the extent of the damage), revd on other grounds, CLI-02-24, 56 NRC 335 (2002).
C. NCA (CAB-02)
NCA describes itself as a Nevada non-profit corporation composed of a Board of Directors from Native American communities downwind from the Nevada Test Site that experience adverse health consequences known to be plausible from exposure to radiation.293 NCA contends that disposal of HLW at Yucca Mountain, combined with the history of weapons testing at the Nevada Test Site, will result in radiological injuries to NCAs members.294 NCA also believes that [f]ailure to protect Mother Earth from radioactive material is to violate NCAs free exercise of religion under the First Amendment.295 NCAs asserted interest in the proceeding is its longstanding interest in protecting the high quality of life, health and safety of this and future generations of Newe and Nuwuvi [the Native American people] from radiation health effects that injure them individually and collectively.296 As an alternative to standing as a matter of right, NCA also seeks discretionary intervention under 10 C.F.R. § 2.309(e).297 In its answer, DOE argues that, as a non-profit corporation, NCA has established neither representational nor organizational standing. As to organizational standing, DOE states that NCA never identifies its members, nor does it describe who exactly it purports to be representing and that NCAs asserted interest in the proceeding is not sufficiently concrete and particular to establish a basis for standing.298 As to representational standing, DOE argues that NCA has failed to identify an individual member of the organization, to demonstrate that the member has standing in his or her own right, and to show that the member has authorized NCA 293 NCA Petition at 3.
294 Id. at 5.
295 Id.
296 Id.
297 Id. at 4.
298 DOE NCA Answer at 20-22.
to intervene on his or her behalf.299 Finally, DOE argues that NCAs petition does not meet or even address the six factors required for a grant of discretionary intervention.300 The NRC Staff, largely mirroring the arguments that DOE makes, also asserts that NCA has failed to establish both representational and organizational standing.301 NCAs reply elaborates on its case for representational standing. Generally, a petitioners reply cannot be used to remedy a deficient petition, because opposing parties have no opportunity to respond.302 NCA asks the Board to apply a standard of fundamental fairness, however, because NCA filed its initial petition without the assistance of counsel.303 At oral argument, both the NRC Staff and DOE acknowledged that, due to NCAs prior lack of counsel, it would not be inappropriate for the Board to consider the declarations submitted with NCAs reply.304 Accordingly, we will take those declarations into account in making our standing determination. The declarations are from three NCA members, identified by name and address, who live either in the vicinity of Yucca Mountain or adjacent to transportation routes projected to carry HLW to and from the repository.305 Their declarations allege in detail the radiological and cultural injuries these individuals would suffer as a result of the NRCs decision to grant DOEs 299 Id. at 22-23.
300 Id. at 23-25.
301 NRC Staff Answer at 19-22.
302 Palisades, CLI-06-17, 63 NRC at 732; Louisiana Energy Servs., CLI-04-25, 60 NRC at 225.
303 NCA Reply at 10-11; see also Crow Butte Res., Inc. (License Amendment for the North Trend Expansion Project), LBP-08-06, 67 NRC 241, 278 (2008); Shaw Areva MOX Servs.
(Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 188 (2007).
304 Tr. at 558-59.
305 NCA Reply, Exh. 3, Declaration of Ian Zabarte (Mar. 9, 2009), Exh. 6, Declaration of Pauline Esteves (Mar. 6, 2009), Exh. 7, Declaration of Calvin Meyers (Mar. 6, 2009).
Application. Thus, we find that NCA has met the requirements for representational standing, and we grant NCA standing to intervene pursuant to 10 C.F.R. § 2.309(d).306 D. JTS (CAB-02)
Pursuant to 10 C.F.R. § 63.2, the Secretary of the Interior has found that the Timbisha Shoshone Tribe (Tribe) is an AIT for purposes of the NWPA.307 Thus, the Tribe is automatically entitled to participate in the Yucca Mountain proceeding pursuant to 10 C.F.R. § 2.309(d)(2)(iii).
Initially, however, two separate tribal entities filed petitions to intervene, each purporting to be the Tribes sole authorized representative. Those two entities, TSO and TIM, represented two factions that are embroiled in an ongoing disagreement over tribal leadership that is currently pending within the Bureau of Indian Affairs (BIA) and in federal district court. 308 While those disputes remain unresolved, both entities initially sought to intervene as separate parties in this proceeding.
In its amended petition to intervene, TSO argued that the Boards should grant TSO standing to intervene on the basis of its status as an AIT.309 Alternatively, TSO asserted arguments for representational standing and discretionary intervention. For its part, TIM asserted standing on the sole basis of its status as an AIT, entitled to automatic standing.310 306 For other standing requirements, see Section II.A supra. Causation and redressability have not been challenged and appear to be satisfied with respect to NCA.
307 Letter from Department of the Interior, Assistant Secretary-Indian Affairs Carl J. Artman to Chairman Joe Kennedy of Timbisha Shoshone Tribe (June 29, 2007) at 4.
308 According to counsel for TIM and counsel for TSO, there are two or three administrative appeals pending in the BIA, and the Assistant Secretary for Indian Affairs will not make a final determination as to the recognized tribal council for roughly five months. Tr. at 498-502.
Moreover, any such BIA determination is subject to judicial review under the Administrative Procedure Act. Tr. at 502. To complicate matters further, TIM argues that some of these issues [regarding tribal leadership] are not issues for the BIA to determine. They are issues that are to be resolved by a sovereign tribe. Tr. at 503.
309 TSO Amended Petition at 8-11. Because we grant TSOs motion for leave to file an amended petition, see Section X.B infra, we now consider the arguments for standing raised in TSOs amended petition.
310 TIM Petition at 2-4.
That is, TIM claimed to be the duly authorized representative of the Tribe, without any regard for TSOs statements to the contrary.311 Alternatively, TIM argued that the Board should permit it to intervene on a discretionary basis under 10 C.F.R. § 2.309(e).312 In their answers, both DOE and the NRC Staff conceded that the Tribe is an AIT and thus entitled to a presumption of standing under 10 C.F.R. § 2.309(d)(2)(iii).313 Nevertheless, because these two separate entities filed petitions purporting to be the sole representative of the Tribe, both DOE and the NRC Staff maintained that only one should be granted standing as an AIT. According to DOE, the entity found not to be the Tribes official representative should be denied participation in this proceeding for lack of standing.314 The NRC Staff, on the other hand, did not take such a hard line. Rather, the NRC Staff conceded that, in the event TSO were found not to be entitled to represent the Tribe, TSO still met the requirements for representational standing.315 Because TIMs petition did not specifically address representational standing, however, the NRC Staff insisted that TIM should be required to specifically establish its authorization to represent the Tribe or address whether it, as a non-governmental entity, meets the NRCs standing requirements.316 At oral argument, the Board expressed concern about the competing bids for standing as representatives of the same AIT. The Board found that it was in no position to resolve the dispute between TIM and TSO in terms of which group is the sole legitimate representative of 311 Id.
312 Id. at 14-18.
313 DOE Answer to TSO Amended Petition at 23; NRC Staff Answer to TSO Amended Petition at 7; DOE TIM Answer at 7; NRC Staff Answer at 29-30.
314 DOE TIM Answer at 7.
315 NRC Staff Answer to TSO Amended Petition at 9-10.
316 NRC Staff Answer at 32.
the [Tribe].317 At the same time, however, the Board noted that Commission regulations might prevent it from admitting both parties as tribal representatives.318 Indeed, section 2.309(d)(2)(ii) instructs a Board to grant party status only to a single representative for each AIT.319 Thus, faced with the possibility that neither petitioner would attain party status, TIM and TSO agreed to confer regarding joint representation of the Tribe.320 On April 20, 2009, TIM and TSO filed a Joint Statement,321 accompanied by a Letter of Understanding, setting forth their agreement to work together as a single participant in this proceeding until such time as the dispute between them is resolved. The Boards then issued an order recognizing the new entity, JTS, as a petitioner to intervene.322 At this time, we find that JTS has established standing based on its status as the single designated representative of an AIT, pursuant to 10 C.F.R. § 2.309(d)(2)(iii). Henceforth, all of the contentions proffered by TIM and TSO will be treated as the contentions of JTS.
There remains one final matter to resolve. Prior to the formation of JTS, TSO moved for leave to file an answer to TIMs reply, along with a proffered answer.323 That answer related solely to the internal leadership dispute between TIM and TSO. Given that we now grant standing to JTS, the Board has no reason to consider the details of that dispute. Accordingly, we deny as moot TSOs motion for leave to file an answer to TIMs reply.
317 Tr. at 497.
318 Tr. at 529-30.
319 10 C.F.R. § 2.309(d)(2)(ii) (emphasis added).
320 Tr. at 532-34.
321 Joint Statement of Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporation (TOP) and Timbisha Shoshone Tribe (TIM) Regarding Participation as a Single Entity (Apr. 20, 2009).
322 CAB Order (Accepting Joint Representation of Timbisha Shoshone Tribe) (Apr. 22, 2009)
(unpublished).
323 Timbisha Shoshone Yucca Mountain Oversight Program Non-Profit Corporations Motion for Leave to File an Answer to the Timbisha Shoshone Tribes Reply to NRC Staff and DOE Answers to Its Motion to Intervene as a Full Party (Mar. 17, 2009).
E. NEI (CAB-03)
NEI is the policy organization responsible for representing the nuclear industry before the executive, judicial and legislative branches of government on regulatory, technical and legal issues that generally affect its members.324 NEI does not seek organizational standing, but rather representational standing on behalf of its members.325 For the reasons set forth below, we find that NEI has standing as of right. In the alternative, we find that NEI qualifies for discretionary intervention.
- 1. Standing as of Right NEI asserts that affidavits submitted by its members that own nuclear power plants establish the grounds on which they merit standing: their role and obligations as set forth in the NWPA, as well as their direct safety, security, environmental, operational, and financial interests in the timely licensing of the Yucca Mountain waste repository.326 NEI argues that those interests can be affected: (1) by the continuing unavailability of a repository; (2) by the need for additional and ongoing [spent fuel] onsite storage [at power plants]; and (3) by the proposed design of the repository.327 NEI also emphasizes the multi-billion dollar contribution its members have been required to make to the Nuclear Waste Fund, which was established under the NWPA.328 NEI asserts that all those interests are within the zone of interests of the AEA, NEPA, and the NWPA.329 NEI points out that it has - without challenge - participated elsewhere in related Yucca Mountain matters: in the pre-application phase of this very agency adjudication; 324 NEI Petition at 1-2.
325 Id. at 1; see also Section II.A supra.
326 NEI Petition at 3.
327 Id.
328 Id. at 3-4, 8.
329 Id. at 1.
in numerous federal agency rulemakings; and in the federal court litigation (NEI v. EPA) discussed supra, where the D.C. Circuit determined that NEI had standing as an intervenor to challenge a federal regulation affecting repository design.330 Additionally, NEI bases its representational standing on radiological impacts to workers both at: (1) the repository, due to their increased exposure attributable to the alleged overdesign; and (2) reactor sites, due to the need for extended nuclear waste storage onsite if the licensing of the repository is delayed.331 NEIs original petition asserts that its membership includes unions,332 although its supporting affidavits then came only from companies operating nuclear power plants and from NEIs Director of the Yucca Mountain Project. These affidavits set forth the interests of NEI and its members, including unions.
DOE argues that NEIs grounds for standing as of right are inadequate. Specifically, DOE asserts: (1) the economic interest of NEIs members is not within the zone of interests protected by the statutes specifically at issue here, i.e., the AEA, the NWPA, and NEPA;333 (2) risks to repository workers do not affect NEIs members;334 and (3) risks to workers at commercial nuclear sites are outside the scope of this proceeding, which DOE says is limited to impacts at the GROA.335 Finally, DOE contends that NEIs past participation in both the pre-application stage of this proceeding and before the D.C. Circuit does not necessarily mean that NEI has standing here. It points out that there was no standing requirement for the PAPO proceedings.336 DOE 330 Id. at 5-6.
331 Id. at 5 & n.5.
332 Id. at 2; Tr. at 91-92.
333 DOE NEI Answer at 17.
334 Id. at 21-22.
335 Id. at 22-23.
336 Tr. at 95.
also differentiates the facts of the NEI v. EPA case from those before this Board and argues that that case did not hold that NEI has standing generally under the NWPA or because some of its members would be harmed if the repository is delayed.337 Instead, DOE argues, injury-in-fact standing was based on a specific record and a likely connection between the challenged regulation and harm to NEIs members.338 The NRC Staffs arguments are similar to DOEs. The NRC Staff adds, regarding NEIs claim that its members will suffer occupational risk and radiological exposures due to interim storage and disposal, that NEI does not suggest that it represents the workers at their members power reactor sites (or at the repository site for that matter) or show that these workers have authorized NEI to act on their behalf.339 The key issues to be resolved are: (1) what are the zones of interests protected by the statutes at issue in this proceeding; and (2) whether the economic harm discussed in NEIs petition is itself sufficient, or is sufficiently related to environmental or radiological harm, to allow standing under the AEA or NEPA.340 DOE argues that, in seeking standing based on the NWPAs purpose of facilitating disposal of its members nuclear waste, NEI is impermissibly trying to predicate standing on the overall purpose behind a statutory scheme, rather than a specific statutory provision.341 NEI asserts, in response, that this reading fundamentally
... ignores the zone of interests created by the NWPA.342 The Board agrees with NEI.
337 DOE NEI Answer at 20.
338 Id.
339 NRC Staff Answer at 26.
340 For other standing requirements, see Section II.A supra. The Board focuses on the first requirement - that the petitioner has suffered a distinct harm that constitutes injury-in-fact within the zone of interests - because it is the only prong of the standing as of right test that the NRC Staff and DOE challenge in their answers. NEI does address the other two requirements -
causation and redressability - in its petition. NEI Petition at 3.
341 DOE NEI Answer at 21.
342 NEI Reply at 7.
To be sure, economic interests are sometimes insufficient to establish standing. In the context of AEA licensing cases, the Commission frequently denies standing, for example, to competitors of an applicant or licensee who assert that their businesses would be injured if the pending request were granted.343 The Commission has insisted, in most instances, that economic interests must be linked to potential radiological or environmental risks.344 The situation here is different. First, NEI seeks intervention to support DOEs Application based on its members economic interest in the availability of the repository. Rather than constituting a competitor or merely a concerned bystander,345 NEI represents those who are not only within the zone of interests of the NWPA but also are the intended beneficiaries of that Act.
Indeed, they can claim to be the real parties in interest in the success of DOEs Application, and have been supplying its financing through the targeted financial levy on their generation of power. Recognizing an economic standing interest in these circumstances is also consistent with the Commissions River Bend decision, which acknowledged the analogous standing of the part-owner of a facility. 346 And NEIs taking of a position in favor of the repository is not disqualifying, for there is precedent for the principle that intervention is allowable to those who wish to support a proposal that will affect their interests if the proceeding has one outcome rather than another.347 343 See, e.g., Intl Uranium (USA) Corp. (Request for Materials License Amendment), CLI-00-04, 51 NRC 88, 88-89 (2000).
344 See, e.g., Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI 16, 55 NRC 317, 336-38 (2002).
345 DOE NEI Answer at 5 (internal citations omitted).
346 Gulf States Utils. Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 48-50 (1994).
347 See, e.g., Nuclear Engg Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 743 (1978), cited with approval in Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 69 (1994).
NEI v. EPA is instructive as well. The D.C. Circuit granted NEI standing for several reasons. With respect to injury-in-fact, the court found delaying the opening of the Yucca Mountain repository would inflict concrete harm on NEI members [who] expend substantial sums to operate their own storage facilities.348 Additionally, NEIs use of litigation to speed the licensing of the Yucca Mountain repository was found to be germane to NEIs purpose and did not require the actual participation of any of its members individually.349 The court found that the test to demonstrate prudential standing is not meant to be especially demanding.350 Under that test - by which a party must show that its members concerns arguably fall within the zone of interests protected or regulated by the statutory provision... invoked in the suit - a partys attempt to establish standing will fail only if [the petitioner's] interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.351 In NEI v. EPA, the court stated that, while Congress did intend for section 801(a) of the EnPA to protect the public, it is equally obvious that Congress intended section 801(a) to facilitate construction of a permanent nuclear waste repository - the very interest that NEI advances here.352 Furthermore, [a]s evinced in the NWPA and later in EnPA, Congress viewed EPA standards as a basic prerequisite for developing an underground repository.353 This congressional purpose, according to the court, showed that NEIs interests arguably fall within section 801(a)s zone of interests, thus giving the organization prudential standing.354 348 373 F.3d at 1279 (internal citations omitted).
349 Id. (internal citations omitted).
350 Id. (internal citations omitted).
351 Id. at 1279-80 (internal citations omitted).
352 Id. at 1280.
353 Id.
354 Id.
We find unpersuasive the argument that the Postal Workers case355 suggests that NEIs members economic interests are not within the zone of interests protected by the statutes that NEI invokes. Unlike NEI, the Postal Workers litigant tried to rely on very narrow statutory provisions to challenge the much broader aspects of a statute that had no meaningful relationship to the litigants situation.
Likewise, while DOE is correct that the Commission noted in a 1989 rulemaking that the industrys interest in HLW is economic and may not satisfy the Commissions traditional, judicial test for standing,356 we do not agree that a passing observation by the Commission in a twenty-year-old rulemaking - one that only states that economic interests may not support standing -
is controlling. This is especially so because more recent precedent supports NEIs standing in this proceeding.357 We thus conclude that the economic interests of its nuclear utility members in the Application confer standing upon NEI. But in any event, NEI has shown how the economic interests at stake are indeed linked to potential radiological or environmental risks. The allegedly overdesigned elements of the project, NEI contends, will create occupational risks and exposures for workers at operating reactors and fuel storage installations, as well as workers at the Yucca Mountain site.358 In addition, there will be [e]nvironmental impacts associated with the delay in decommissioning of sites... due to the continuing presence of 355 Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991).
356 Final Rulemaking, Submission and Management of Records and Documents Related to the Licensing of a Geologic Repository for the Disposal of High-Level Radioactive Waste, 54 Fed.
Reg. 14,925, 14,931 (Apr. 14, 1989).
357 See, e.g., Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-03-2, 57 NRC 19, 26-27 (2003); Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 244-45 (1991).
358 NEI Petition, Attach. 1, Affidavit of Rodney McCullum in Support of the Standing of the Nuclear Energy Institute ¶ 8 (Dec. 2008).
used nuclear fuel.359 Other NEI members assert that an increase in duration of onsite storage will incur operational and financial impacts, occupational radiation exposures, and security requirements.360 Beyond the affidavit submitted by NEI that its membership includes unions, it is clear that the utilities that are NEI members have a cognizable interest in the health and safety of their workplaces (whether or not individual workers formally authorize their employer or NEI to represent their interests). It is in the self-interest of NEI utility company members to protect their employees, to keep them on the job, and to avoid potential liabilities that could be caused by the radiological and environmental harms associated with extended onsite storage.
Furthermore, agency precedent supports the assertion that there are certain organizations for which such authorization might be presumed.361 While this line of cases originated with a citizens group - Union of Concerned Scientists (UCS) - the similarities to NEI are instructive. Essentially, these cases hold that for certain organizations whose organizational objectives... in regard to nuclear power are clearly defined and well advertised[,] there can be little doubt that it is a desire to support the pursuit of those goals that motivates the... participation of their members.362 The cases go on to state that [i]n such a situation, it might be reasonably inferred that by joining the organization, the members were implicitly authorizing it to represent any personal interests which might be affected by the proceeding.363 Based on NEIs clearly-defined and well-known positions on nuclear energy and 359 NEI Reply at 3.
360 NEI Petition, Attach. 2, Affidavit of J.A. Stall Authorizing Representation by the Nuclear Energy Institute ¶ 9 (Dec. 9, 2008).
361 See Consol. Edison Co. of New York (Indian Point, Unit No. 2), LBP-82-25, 15 NRC 715, 734 (1982) (internal quotations omitted) (quoting Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 396 (1979)); Virginia Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-536, 9 NRC 402, 404 n.2 (1979).
362 Indian Point, LBP-82-25, 15 NRC at 734.
363 Allens Creek, ALAB-535, 9 NRC at 396.
the nuclear waste repository specifically - evidenced through its active participation in NRC regulatory and licensing activities and general advocacy in support of the Yucca Mountain repository - we can, under the organizational objectives doctrine, presume that both its company and union members have authorized NEI to act on their behalf for all issues for which they themselves could have standing.
Moreover, a supplemental affidavit from an NEI official did expressly state that five major national trade unions are NEI members (and that they expect that members of those unions will be employed at Yucca Mountain).364 While petitioners may not use their reply pleadings to provide new threshold support for their contentions,365 here NEI simply used its reply to clarify and to develop information included in its initial petition.
It is not of consequence that those unions did not expressly state that they authorized NEI to represent them in this matter. When an organization like NEI takes formal corporate action to initiate litigation not only germane but integral to its purpose (e.g., to file a petition here), that action can constitute the requisite, if implicit, proof of authorization that DOE would insist upon.366 That is how trade associations do business.367 In any event, utility company members have provided explicit justification for NEI to represent their interests, which, as we have seen, inherently include the protection of their employees.
In light of the Commissions decision in Palisades,368 we do not address the question of whether NEIs member unions have demonstrated here sufficient explicit or implicit 364 NEI Reply, Attach. 1, Supplemental Affidavit of Rodney McCullum in Support of NEIs Standing ¶¶ 2-3 (Feb. 24, 2009).
365 Louisiana Energy Servs., CLI-04-35, 60 NRC at 623.
366 DOE NEI Answer at 13 (citing Palisades, CLI-07-18, 65 NRC at 410). Compare Allens Creek, ALAB-535, 9 NRC at 395-97, with Associated Gen. Contractors of North Dakota v. Otter Tail Power Co., 611 F.2d 684, 690-91 (1979).
367 Hunt v. Washington State Adver. Commn, 432 U.S. 333, 342-45 (1977).
368 CLI-08-19, 68 NRC __.
authorization to allow them to speak for their members. In Palisades, where the challenge was to a license transfer that a union was concerned could affect the community and workers, the Commission held that unions could not - in light of the general reasons behind and purposes of their existence - be deemed to be the automatic representatives of their members for purposes of that litigation.369 Whether that same restriction would apply here - where the unions appear before us in their capacity as NEI members to promote what is presumably the very interest for which their members authorized them to join NEI - is a matter we need not address, since NEIs standing already has sufficient foundation.
We find little to commend DOEs assertion that health and safety impacts felt at distant nuclear plant sites caused by the delay in completion of its proposed repository are outside the scope of the proceeding. To the contrary, our NEPA jurisprudence reflects determinations that off-site impacts caused by on-site activities can support the admissibility of a contention. By parity of reasoning, the same principle can be considered in support of a petitioners health and safety-based standing, even if the offsite locations cannot be regulated in the proceeding in which standing is sought.370
- 2. Discretionary Intervention In the alternative, NEI maintains that it qualifies for discretionary intervention based upon the six factors in 10 C.F.R. § 2.309(e). The three factors weighing in favor of intervention are:
(1) the extent the petitioners participation may reasonably be expected to assist in developing a sound record;371 (2) the nature and extent of the petitioners interest in the proceeding; and 369 Id. (slip op. at 7-9).
370 See Wolf Creek, CLI-77-1, 5 NRC at 8; see also Detroit Edison Co. (Greenwood Energy Ctr.,
Units 2 & 3), ALAB-247, 8 AEC 936 (1974). We note that at oral argument, counsel for DOE admitted that DOEs pleading on this issue was not as clear as it might have been and explained that DOE is simply asserting that the NEI petition alleges that those radiological injuries are attributable not to the proposed activity, which is the Yucca Mountain Repository, not to the application that is before us, but to the sort of ancillary effect of having to continue to store radioactive waste at the nuclear power plants. Tr. at 88-89.
371 10 C.F.R. § 2.309(e)(1)(i).
(3) the possible effect of a potential decision on that interest.372 The three factors weighing against intervention are: (1) the availability of other means to protect the petitioners interest; (2) the extent that interest will be represented by an existing party; and (3) the extent that the petitioners participation will inappropriately broaden the issues or delay the proceeding.373 While NEI acknowledges that discretionary intervention is an extraordinary procedure, it asserts that this is the extraordinary case in which discretionary intervention should be granted. 374 NEI maintains that: (1) it will assist in developing a sound record, as it will provide direct, substantive expertise via its staff, its contractors, and the staff of its members;375 (2) its members have a direct and substantial interest in the proceeding; and (3) any decision that may be issued will directly impact its members. Additionally, NEI argues that the factors weighing against intervention have little weight: (1) there is not another forum to address these issues; (2) no other party will address these issues because no other party supports the Application;376 and (3) its participation will not unduly broaden or delay the proceeding.377 NEI points out that its longstanding support of the repository program demonstrates that it is motivated to expedite the proceedings.378 DOE maintains that NEI has not shown that it should be allowed discretionary intervention.379 DOE focuses on two of the six relevant criteria: (1) the extent to which NEI can 372 Id. § 2.309(e)(1)(ii), (iii).
373 Id. § 2.309(e)(2)(i)-(iii).
374 NEI Reply at 17-18.
375 NEI Petition at 7.
376 NEI asserts that DOE lacks the vigor and technical expertise of NEI and its interests are not identical to those of NEI. Id. at 8.
377 Id.
378 Id.
379 DOE NEI Answer at 24-28.
be reasonably expected to assist in developing a sound record;380 and (2) the potential [that NEIs participation would have] to inappropriately broaden or delay the proceeding.381 DOE argues that both factors militate against allowing discretionary intervention.
If NEI were found not to have adequately established its standing as of right, the situation before us presents an appropriate case to permit discretionary intervention. We recognize that the Commission has stated that discretionary intervention is an extraordinary procedure that will not be granted unless there are compelling factors in favor of such intervention.382 We agree, however, with NEI that there are compelling factors in this instance to support discretionary intervention for NEI pursuant to 10 C.F.R. § 2.309(e).
NEIs case for discretionary intervention is similar to that of the Alabama Electric Cooperative in Perry.383 Alabama Electric Cooperative was a direct beneficiary in another proceeding of license conditions similar to those at issue in that case and argued - even though it did not have an injury-in-fact - that it had a direct interest in the outcome of the case.384 Alabama Electric Cooperative was allowed discretionary intervention because the Board believed that its interests were within the zone of interests related to the proceeding and that, due to its extensive participation in similar proceedings in the past, it would provide valuable insight in developing a sound record.385 NEIs members are certainly among the intended beneficiaries of the NWPA, if not also the real parties in interest in its implementation through the construction and operation of the proposed repository. There is no other party that we are prepared to say can represent their 380 Id. at 24-25; see also 10 C.F.R. § 2.309(e)(1).
381 DOE NEI Answer at 24, 27-28; see also 10 C.F.R. § 2.309(e)(2).
382 69 Fed. Reg. at 2201.
384 Id. at 248-49.
385 Id. at 250-51.
interests. Although DOE claims to do so, DOE ignores the years of controversy and litigation between DOE and the nuclear industry over that agencys failure to take title and possession of spent nuclear fuel. The existence of that continuing controversy makes us hesitant to entrust NEIs members interests entirely to DOE.
NEIs members have represented that they have the expertise to contribute to the development of a sound record and there is no reason to doubt the accuracy of that representation. Among other things, NEI has put forward experts on the TSPA-related contentions it filed.
In short, NEIs reliance upon the general expertise of its members and their employees, and the fact that its members have extensive experience in the handling and storage of spent fuel, is sufficient. On top of the other petitioners 309 proffered contentions, NEI would add nine more. To be sure, NEIs participation might make the proceeding somewhat more complicated.
Nonetheless, given the significance of NEIs status regarding the Yucca Mountain proposal, the complexity of the matter, and the decades of delays on DOEs part in preparing and filing the Application, we find that NEIs ability to enhance the record, particularly as to TSPA matters, far outweighs any delay its participation might cause. Petitioners have been granted discretionary intervention on similar grounds as NEI asserts, as well as for less compelling reasons.386 386 Id. (granting discretionary intervention to an intervenor that benefited from a similar anti-trust license condition in another proceeding and had previous experience with similar anti-trust matters); Consol. Edison Co. of New York (Indian Point, Unit 2), CLI-82-15, 16 NRC 27, 31 (1982), adopting as its own ruling the one-sentence dictum from LBP-82-25, 15 NRC 715, 736 n.10 (1982) (granting discretionary intervention to a citizens group); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 87-88 (1979) (would have granted discretionary intervention to a citizens group that had shown that its experts could assist with the proceeding); Pub. Serv. Co. of Oklahoma (Black Fox Station, Units 1 & 2), ALAB-397, 5 NRC 1143, 1148-49 (1977) (granting discretionary intervention to an intervenor who raised unique contentions and provided expert support); Virginia Elec. & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-363, 4 NRC 631, 633-34 (1976) (granting discretionary intervention to an intervenor who raised a serious issue and was well-equipped to make a contribution to the record). We are aware, as the Commission pointed out in Siemaszko, that all of these cases were decided many years ago. Andrew Siemaszko, CLI-06-16, 63 NRC 708, 716-17 (2006).
Recognizing how extraordinary the procedure is and how seldom it should be utilized, however, we do not believe that its failure to be invoked (or to be approved by the Commission) in recent times ought to influence our decision today. See id. at 715-24.
We do not think this conclusion conflicts with the Commissions Siemaszko decision, which made clear the hurdles an entity seeking discretionary intervention must overcome.387 There, discretionary intervention was denied because the group seeking discretionary intervention had filed no contentions of its own,388 had not demonstrated how its tangible interests (as opposed to its intellectual ones) would be affected by the proceeding, was essentially seeking only to support an existing party (the subject of the enforcement action), and had provided what was deemed insufficient information about the contribution its experts could be expected to make.389 In contrast, NEI has filed contentions of its own, demonstrated how its real interests will be affected, shown that no other entity can represent its interests, and put forward experts well-versed in the contentions it has advanced. In our judgment, NEI meets the strict discretionary intervention criteria that the Commission re-emphasized in Siemaszko.
V.
RULINGS ON LSN COMPLIANCE The LSN compliance of NEI, Nye, Nevada 4 Counties, California, and White Pine has not been challenged. Because Caliente has not established standing, as determined by CAB-01, its LSN compliance need not be addressed. The LSN compliance of other petitioners is discussed below.
A. Nevada (CAB-01)
Although not required to do so,390 Nevada asserts in its petition that it submitted an adequate and timely initial LSN certification and adequate and timely supplemental certifications, as well as participated fully in all pre-application phases of this proceeding 387 See CLI-06-16, 63 NRC at 715-24.
388 The dissent points out, with some justification, that the contention requirement might be viewed as ordinarily inapplicable to enforcement proceedings. See id. at 725-26.
389 Siemaszko, CLI-06-16, 63 NRC at 719-24.
390 See Section II.B supra.
before two licensing boards and the Commission.391 DOE challenges this assertion as failing to meet the requirements for demonstrating substantial and timely compliance under 10 C.F.R.
§ 2.1012(b)(1).392 DOE argues that Nevada cannot demonstrate substantial and timely compliance with the LSN requirements because it has not properly reviewed and produced all of its documentary material.393 First, DOE alleges that, in a number of Nevadas proffered contentions, the asserted supporting material for the contention lacks LSN numbers or attached copies of the documents, and concludes, therefore, that Nevada has not produced all of its supporting documentary material.394 Second, DOE claims that Nevada has not produced all of its non-supporting documentary material, alleging that: (1) the call memos used by Nevada to guide its experts and staff on identifying documentary material do not ask for a review and production of non-supporting material following DOEs submittal of its Application; (2) Nevada did not update its call memos to remedy a too-narrow interpretation of what constituted non-supporting documentary material, nor did it state in its petition that it updated them; and (3) the small quantity of the material produced after Nevadas initial certification signifies that Nevada could not have produced all of its non-supporting documentary material.395 Third, DOE argues that Nevada has not produced all of the reports and studies prepared by or on behalf of Nevada because there are experts who have worked for Nevada for a number of years and DOE therefore suspects that there are likely to be additional reports and studies in existence.396 Further, DOE declares that, because Nevadas recent production includes some documents that 391 Nevada Petition at 4.
392 DOE Nevada Answer at 16.
393 Id.
394 Id. at 16-17.
395 Id. at 17-25.
396 Id. at 25-27.
pre-date Nevadas initial certification, this calls into question Nevadas initial certification and indicates that Nevadas word that it has complied is insufficient to demonstrate compliance.397 In its reply, Nevada contends that DOEs arguments are an attempt to re-litigate the challenges that DOE made in its failed motion to strike Nevadas initial LSN certification.398 Rebutting DOEs challenges to Nevadas production of supporting documentary material, non-supporting documentary material, and documentary material in the form of reports and studies, Nevada maintains that DOEs allegations are based upon mere speculation and an erroneous analysis of its LSN document collection.399 In addition, Nevada points out that DOE improperly relies on the dissenting opinion from the PAPO Boards ruling denying DOEs motion to strike, notwithstanding the fact that this opinion was rejected by a majority of that Board, whose decision was later affirmed by the Commission on appeal.400 Nevada argues that DOE has failed to show that any particular document is missing; Nevada reiterates throughout its petition and reply, consistent with its duty to comply with the good faith standard, that if any document is missing, Nevada will provide assistance to DOE in locating the material.401 Ultimately, Nevada submits that it has acted in good faith to make all of its documentary material available on the LSN and that it is in full compliance with the LSN requirements, and attaches a detailed declaration of one of its counsel personally involved in Nevadas efforts to ensure compliance with all LSN regulations.402 397 Id. at 26-27; see also id. at 16 (claiming that demonstrating compliance under section 2.1012(b) requires attachment of affidavits or other factual support).
398 Nevada DOE Reply at 15; see U.S. Dept of Energy (High Level Waste Repository: Pre-Application Matters), LBP-08-5, 67 NRC 205 (2008), affd, CLI-08-22, 68 NRC __ (Sept. 8, 2008).
399 Nevada DOE Reply at 18-29.
400 Id. at 15.
401 See, e.g., Nevada Petition at 14-15; Nevada DOE Reply at 19.
402 Nevada DOE Reply at 12, 18; id., Attach. 1, Declaration of Charles J. Fitzpatrick ¶¶ 1-3 (Feb.
24, 2009) [Fitzpatrick Decl.].
There is no need for a point-by-point recitation of Nevada counsels declaration. It suffices to note that it provides a full, complete, and detailed explanation and response to DOEs circumstantial claims. It amply demonstrates that DOEs charges regarding alleged deficiencies in Nevadas LSN document collection are, at best, based upon speculation, conjecture, and erroneous inferences. Counsels declaration, which forms the underpinnings of Nevadas reply, adequately answers each of DOEs factually unsubstantiated allegations. The declaration spells out the steps Nevada voluntarily took to address each of the points raised by the dissent to the PAPO Board majoritys ruling denying DOEs earlier motion to strike Nevadas certification of its LSN document collection, 403 even though Nevada disagreed with the dissents unsupported position404 and the majoritys ruling was affirmed by the Commission.405 403 See Nevada DOE Reply at 2, 5-12; Fitzpatrick Decl. ¶¶ 4-5; U.S. Dept of Energy, LBP-08-5, 67 NRC 205; id. at 218 (Karlin, J., dissenting).
404 See Nevada DOE Reply at 16-17; Fitzpatrick Decl. ¶ 5(h).
405 See U.S. Dept of Energy, CLI-08-22, 68 NRC at __, __ (slip op. at 4, 6). In LBP-08-5, 67 NRC at 209-10, the PAPO Board majority held, over a lengthy dissent, that DOE as the movant failed to meet its burden of proof pursuant to 10 C.F.R. § 2.325. The Commission in CLI-08-22, 68 NRC at __ (slip op. at 4), affirmed only that holding.
In its ruling, the PAPO Board majority also responded to the dissents arguments, identifying two separate and independent reasons why the dissent provided no justification for the rejection of the Nevada certification. Apparently reading the majoritys response to the dissent as an additional holding, the Commission neither considered nor expressed any view on it. CLI-08-22, 68 NRC at __ (slip op. at 4). In responding to the dissents lengthy assertions, the PAPO Board majority concluded that DOE had not raised the numerous factual issues upon which the dissent fixated. LBP-08-5, 67 NRC at 212. Additionally, the majority determined that at the current stage of the proceeding the dissents legal premise regarding supporting and non-supporting documentary material (DM-1 and DM-2, respectively) within the meaning of 10 C.F.R. § 2.1001 was faulty, stating that:
In short, it is only information that either supports or fails to support a partys position in the proceeding that comes within the ambit of DM-1 and DM-2. Yet, manifestly, no potential party (i.e., petitioner) has such a position prior to the institution of the proceeding - an event that necessarily abides the filing and docketing of the license application and the filing of contentions.
Id. at 213 (footnote omitted). In so stating, the PAPO Board majority was merely reiterating the same basic point, ignored by the dissent, that a unanimous PAPO Board had made a mere five months earlier in the FCMO:
After contentions are filed, and the parties take positions, the duty to supplement will expand to a third category. This is because documentary material includes information a participant intends to rely on or cite in support of its position in the proceeding (Class 1) and information that does not support that information or (continued)
In other words, Nevada re-reviewed all of the documents in its possession, although it was not required to do so, to ensure that it did not neglect to produce any documentary material in its initial document production.406 The declaration also spells out the steps Nevada took to meet the subsequent obligation to review and produce documentary material that arose when DOEs Application was filed and Nevada had taken a position in the proceeding by filing contentions.407 Indeed, at oral argument, DOE appeared to abandon its challenge to the completeness of Nevadas LSN document production, stating that [w]ell accept Mr.
Fitzpatricks [Nevadas counsel] representation.408 Thus, as a majority of the PAPO Board previously determined in its decision denying DOEs motion to strike, DOEs challenges here are similarly nothing more than speculation and conjecture that Nevadas LSN production is incomplete.409 Without a great deal more, there is no basis upon which the Board can or should make what amount to factual findings regarding the insufficiency of Nevadas LSN production.
At this stage of the proceeding, all parties and petitioners already have had the opportunity to challenge, with motions to strike, the LSN certifications of any other parties or petitioners in the pre-license application phase of the proceeding. Absent a credible factual challenge to the sufficiency of the production of documentary material under 10 C.F.R.
§ 2.1003, all that is now required under the regulations are Nevadas initial and monthly that partys position (Class 2), 10 C.F.R. § 2.1001, and parties cannot assess the full extent of these two classes of documentary material (and produce it) until contentions are filed and positions known.
FCMO at 3 n.5. The PAPO Boards FCMO was neither appealed by a potential party nor reviewed by the Commission sua sponte.
406 Fitzpatrick Decl. ¶¶ 4-5.
407 Id.
408 Tr. at 699.
409 U.S. Dept of Energy, LBP-08-5, 67 NRC at 210.
supplemental certifications.410 DOE has not disputed that Nevada made the required certifications, nor could it, because Nevada has shown that it is in substantial and timely compliance with this requirement. Nevada made its initial certification on January 17, 2008,411 and made certifications of its monthly supplementations thereafter.412 Nevada was also a full participant in the pre-license application phase of this proceeding.413 It bears repeating that, although Nevada need not have made its compliance assertions in its petition, and making them in its reply would suffice, Nevada attached to its reply a declaration from counsel indicating the steps Nevada has taken to ensure compliance. Although including such documentation was unnecessary, it more than demonstrates Nevadas substantial and timely compliance with the LSN requirements.
B. Clark (CAB-01)
Although DOE argues that Clark is not in substantial and timely compliance with the LSN requirements, the Board concludes that it is and rejects DOEs arguments to the contrary.
Specifically, DOE initially claimed that Clark should be denied party status in this proceeding pursuant to 10 C.F.R. § 2.1012(b)(1) because it failed to address its compliance with the LSN requirements in its petition.414 As discussed in Section II.B supra, however, section 2.1012(b)(1) requires no such affirmative statement of LSN compliance in the petition. Moreover, it seems 410 See 10 C.F.R. §§ 2.1003(e), 2.1009(b); SCMO at 21-22; RSCMO at 21; see also 10 C.F.R.
§ 2.1012(c).
411 Nevada Petition at 4.
412 See, e.g., The State of Nevadas Certification of Compliance (Jan. 17, 2008); The State of Nevadas Certification of LSN Supplementation (Feb. 1, 2008; Feb. 26, 2008; Mar. 31, 2008; Apr. 28, 2008; May 30, 2008; June 27, 2008; July 30, 2008; Aug. 29, 2008; Sept. 29, 2008; Oct.
30, 2008; Nov. 25, 2008).
413 Nevada Petition at 4.
414 DOE Clark Answer at 4.
that DOE conceded this point at oral argument,415 so it would now appear that DOE agrees that Clarks petition should not be denied on this ground.
DOE argues that Clark cannot demonstrate substantial and timely compliance because it has not properly reviewed and produced all of its documentary material as required by 10 C.F.R. § 2.1003. As support for this assertion, DOE questions whether the sixty-nine documents Clark made available on the LSN represent all of Clarks documents in light of the reported millions of dollars the County has spent on Yucca Mountain-related work product.416 Additionally, DOE points out that the CVs of two of Clarks experts, Dr. Alvin Mushkatel and Dr.
Sheila Conway, cite documents that are not included in Clarks LSN production, and that there are no documents on the LSN that were authored by Clark expert Dr. Dennis Bley.417 According to DOE, this indicates that Clark has failed to make available all reports and studies prepared by it or on its behalf as defined under 10 C.F.R. § 2.1001.418 DOE also argues that Clark has not produced all of its non-supporting documentary material because: (1) it did not state in its petition that it conducted a review for this material after it agreed to modify its review procedures in an August 2008 settlement agreement with DOE that resolved DOEs motion to strike419 Clarks initial LSN certification;420 (2) the limited number of documents produced after Clark modified its procedures, particularly because they are dated within the past few years and a significant percentage of them are not non-supporting 415 See Tr. at 692-93.
416 DOE Clark Answer at 5.
417 Id. at 5-7.
418 Id. at 7-8.
419 See The Department of Energys Motion to Strike January 16, 2008 Certification of Clark County (Jan. 28, 2008); Jointly Proposed Order on the Department of Energys Motion to Strike January 16, 2008 Certification of Clark County (Aug. 13, 2008) [Jointly Proposed Order]; PAPO Board Order (Ruling on Department of Energy Motion to Strike Certification of Clark County)
(Aug. 26, 2008) (unpublished).
420 DOE Clark Answer at 8.
documents, indicates that a proper review was not conducted;421 and (3) there is an absence of internal memoranda and e-mails in Clarks LSN production, which would be the documents expected to contain non-supporting information.422 In a footnote, DOE also notes that there is an absence of graphic-oriented documentary material as delineated in 10 C.F.R.
§ 2.1003(a)(2), other than what is included in already-produced reports in Clarks LSN collection.423 As Clark points out in its reply, however, the DOEs efforts to prove that [Clark] has documents that it should have posted but did not are factually incorrect and premised on nothing but the DOEs own conjecture and presumptions.424 DOEs arguments here are similar to those presented in DOEs failed attempt to strike Nevadas LSN certification in 2008 and DOEs failed attempt to challenge the sufficiency of Nevadas LSN compliance, which was rejected above, in that they are based upon speculation, conjecture, and erroneous inferences.
Its arguments fall short of a credible factual challenge to the sufficiency of Clarks production of documentary material under 10 C.F.R. § 2.1003. Moreover, to the extent DOE alleges that Clark lacks the requisite procedures for complying with the LSN requirements, without a showing that Clark reversed its policy for the review and production of documentary material in violation of the August 2008 settlement agreement, DOE would be seeking to undo what was already resolved in that agreement.425 421 Id. at 8-9.
422 Id. at 9.
423 Id. at 8 n.7.
424 Clark Reply at 9.
425 See Jointly Proposed Order at 1, stating:
To resolve that Motion, DOE and [Clark] conferred and [Clark] agreed to revise its [LSN procedures], assured DOE that it had and would continue to make available on the LSN all its Documentary Material, implemented document preservation procedures inclusive of e-mails, and agreed to revise its certification language. Accordingly, to resolve DOEs motion, DOE and [Clark] jointly (continued)
Even assuming DOE had raised a sufficient factual challenge to Clarks LSN document collection, Clark responds to DOEs challenges to the substance of that collection. Clark asserts that [its] production is in line with its resources, its policies, and the narrow scope of its contentions.426 Regarding its production of reports and studies, Clark asserts that [t]he reports or studies that were prepared by Drs. Conway and Mushkatel on behalf of [Clark] have indeed been posted on the LSN timely, and were cited appropriately in [Clarks] Petition.427 Clark does not directly address, however, DOEs answer insofar as it points out that an apparent 2007 update of a document listed in Dr. Conways CV is not included on the LSN even though Clark produced what appears to be a version of the report dated August 2005.428 If Clark determines the document to have been mistakenly left out of its LSN collection, it should correct its error and produce the document promptly. If that is the case, it does not necessarily mean that Clark would not be in substantial and timely compliance with the LSN requirements.
As DOE said in its response to Nevadas 2004 motion to strike its LSN certification in the PAPO proceeding, [n]o participants production will attain the unreachable goal of perfection, and no participants judgment calls will be free from good faith disagreements. Such disputes, however, do not make a participants certification unlawful or invalid.429 That is the nature of the good faith standard embodied in the LSN certification requirement.
propose that the PAPO Board enter an order allowing [Clark] to substitute a revised certification effective January 16, 2008.
426 Clark Reply at 9.
427 Id. at 10.
428 See DOE Clark Answer at 7.
429 Answer of the Department of Energy to the State of Nevadas Motion to Strike (July 22, 2004) at 2; see also U.S. Dept of Energy, LBP-04-20, 60 NRC at 313 & n.26 (pointing out that DOE agrees that perfection is not required and any production is bound to have some human mistakes).
With regard to e-mails and internal memoranda, Clark responds that substantive discussions relative to the HLW take place via teleconference or face-to-face meetings.430 According to Clark, if it did have any e-mails or internal memoranda to produce, its current review procedures would uncover them.431 Finally, with regard to non-supporting documentary material, Clark asserts that it does not have a duty actively to seek documentary material (i.e.,
the material must first be in its possession or control to require production) and that it is not required to explain which of its documentary material supports or does not support its position.432 Clark states that it has met its burden to produce non-supporting documentary material, and if there are any such documents, they exist on the LSN.433 Absent a credible factual challenge to the sufficiency of Clarks LSN production, all that is needed with respect to Clarks compliance is a statement of compliance in its reply. That is what Clark has done here. It states in its reply that it filed its initial LSN certification on January 16, 2008,434 and has continued to supplement its LSN production since August 2008, which is the date after which DOE withdrew its motion to strike Clarks initial certification pursuant to the settlement agreement with Clark.435 In addition, Clark emphasizes that it has performed an adequate review and production of its documentary material436 and makes the incontrovertible observation that it cannot post documents that do not exist.437 430 Clark Reply at 12-13 & n.26.
431 Id. at 12.
432 Id. at 13 & n.29.
433 Id. at 14.
434 Id. at 4.
435 See, e.g., Clark County Certification of Licensing Support Network Supplementation (Feb.
22, 2008; Mar. 28, 2008; Apr. 30, 2008; May 30, 2008; June 27, 2008; July 31, 2008; Aug. 29, 2008; Oct. 1, 2008; Oct. 29, 2008; Nov. 26, 2008; Dec. 30, 2008).
436 Clark Reply at 9-10, 14.
437 Id. at 12.
The Board notes that Clark did not attach to its reply a declaration of its compliance as did Nevada (although, as stated above with respect to Nevada, it was not required to do so).
Under 10 C.F.R. § 2.304(d)(1) - which is applicable in this proceeding because Subpart J contains no specific signature requirement438 - an electronic signature on a document serves as the signers representation under subsection (d) that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, that to the best of his or her knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay.439 In light of the representations that were made by counsels signing the reply, Clarks reply is the functional equivalent of a declaration. Accordingly, the Board finds that Clarks representations in its reply amply demonstrate that it is in substantial and timely compliance with the LSN requirements.
C. JTS (CAB-02)
Although TIM and TSO are now recognized as a single entity under the name of JTS, looking back we can only consider each entitys separate compliance with the LSN requirements. As explained below, neither TIM nor TSO has demonstrated substantial and timely compliance pursuant to 10 C.F.R. § 2.1012(b)(1). Thus, going forward, JTS must make a demonstration of subsequent compliance pursuant to section 2.1012(b)(2) before we can grant JTS party status.
- 1. TIM In its answer to TIMs petition, DOE argues that TIM failed to demonstrate substantial and timely compliance with the LSN requirements and, for that reason, must be denied party status under section 2.1012(b)(1).440 In its reply, however, TIM insists that it complied with all 438 See 10 C.F.R. Part 2, Subpart J (even though section 2.304 is not listed in 10 C.F.R.
§ 2.1001 as a section that takes precedence over the provisions of Subpart J).
439 10 C.F.R. § 2.304(d).
440 DOE TIM Answer at 4-6.
the LSN requirements in a substantial and timely manner, with the exception of the requirement to file a certification under section 2.1009(b).441 Coincident with its reply, TIM filed a motion, accompanied by a proffered LSN certification, requesting that the Board accept its certification out of time for good cause. 442 In this motion, TIM seeks to demonstrate that numerous internal and external difficulties prevented it from filing its initial certification on time.443 TIM insists, however, that all documents referenced by the Tribe are either generally publicly available documents, or documents listed on other (potential) parties certified LSNs. Therefore, there is no prejudice to any party including DOE and NRC Staff.444 Although the NRC Staff raises no objection to TIMs motion, DOE objects on several grounds. First, DOE argues that TIMs proffered certification addresses the wrong time period -
namely, it demonstrates compliance as of March 11, 2009, rather than as of the date on which TIM filed its petition to intervene.445 This argument demonstrates a misunderstanding of the requirements of Subpart J. As explained in Section II.B supra, the time to judge a petitioners compliance cannot come before the petitioner has filed its reply to any DOE and NRC Staff answers - the end point of the petitioners request for participation as a party. Thus, TIMs proffered certification is correct to demonstrate compliance as of March 11, 2009, the date on which TIM filed its reply.
441 TIM Reply at 6.
442 Motion for Certification of Licensing Support Network Out of Time for Good Cause (Mar. 11, 2009) [TIM Motion for LSN Certification].
443 Id. at 2.
444 Id. at 5.
445 The Department of Energys Opposition to March 11, 2009 Motion of Timbisha Shoshone Tribe for Certification of Licensing Support Network Out of Time for Good Cause (Mar. 23, 2009) at 4-5 [DOE Answer to TIM Motion for LSN Certification].
Second, DOE argues that TIMs motion fails to demonstrate LSN compliance even as of March 11, 2009.446 According to DOE, TIMs proffered certification is facially inadequate because it provides no information about TIMs LSN procedures.447 This is a problem, DOE claims, because TIM previously provided DOE with a copy of its procedures on January 13, 2009, and those procedures were seriously deficient.448 Specifically, DOE alleges, TIM failed to account for certain categories of documentary material, as defined in section 2.1001, that TIM is required to make available on the LSN under section 2.1003.449 When DOE notified TIM about alleged deficiencies in its procedures, DOE claims that TIM failed to respond, and instead simply filed its motion for late LSN certification.450 In DOEs view, the Board cannot accept this late certification without some sort of assurance that TIM has corrected the deficiencies in its procedures.
For its part, TIM insists that DOEs objections to its procedures are excessive in nature given the circumstances and content/procedures of other certified LSNs.451 TIM insists that
[t]here is no distinction as to the procedures that the Tribe is following compared with other certified LSNs.452 Despite this insistence, however, TIM neglects to provide the Board with any examples of procedures drafted by other certified LSNs. Therefore, we have no measure by which to judge TIMs procedures. In any case, looking at the substance of DOEs objections, the deficiencies it alleges appear to be legitimate. For example, DOE notes that TIMs procedures call for the posting of only supporting documents material, a small subset of all the 446 Id. at 5.
447 Id. at 6.
448 Id. at 6-7.
449 Id. at 7-10.
450 Id. at 2-4.
451 TIM Motion for LSN Certification at 5.
452 Id.
documentary material required on the LSN.453 Additionally, DOE faults TIMs procedures for suggesting that compliance with section 2.1003 can be achieved by creating a link to a document available on the internet.454 Indeed, the PAPO Board has made clear that a documents availability on the internet does not authorize its exclusion from the LSN.455 As the preceding examples make clear, DOEs challenges to TIMs procedures are more than mere speculation and conjecture, and indeed constitute credible factual challenges to the sufficiency of TIMs documentary production. At the same time, in recognizing DOEs challenges, we do not hold TIM to an impracticable standard. As the PAPO Board has stated, perfection is not required and any production is bound to have some human mistakes.456 Still, TIM must make a good faith effort to produce all documentary material.457 If TIM abides by its procedures as written, assuming they have not changed since January 13, 2009, those procedures may well exclude important documentary material from the LSN. Moreover, even though DOE admits it has suffered no prejudice to date,458 it might suffer prejudice as the proceeding continues beyond the contention admissibility phase. For this reason, we deny TIMs motion for LSN certification out of time; we find that TIM has failed to demonstrate substantial and timely compliance; and we decline to grant TIM, now known as JTS, party status under section 2.1012(b)(1).
Section 2.1012(b)(2), however, allows a person denied admission later to request party status upon a showing of subsequent compliance with the requirements of § 2.1003. Thus, in accordance with section 2.1012(b)(2), JTS will be admitted as a party in the proceeding once it 453 DOE Answer to TIM Motion for LSN Certification at 7.
454 Id. at 8-9.
455 U.S. Dept of Energy, LBP-04-20, 60 NRC at 329-30.
456 Id. at 313 & n.26.
457 Id. at 314-15.
458 Tr. at 567.
has complied with the requirements of section 2.1003. At such time as JTS can demonstrate compliance, JTS will be granted party status, conditioned on accepting the status of the proceeding at the time of admission.459 We advise JTS, however, that in preparing to make a demonstration of subsequent compliance, it should make every effort to consult with DOE as required under section 2.323(b). Indeed, section 2.323(b) is designed to encourage discussion and exchange of information between the parties, so that if filing a motion becomes necessary, the parties can at least inform the Board of what facts remain in contention. The Board suggests that JTS take no more than 45 days to demonstrate subsequent compliance with the LSN requirements.
- 2. TSO In its amended petition to intervene, TSO asserts that it has substantially and timely complied with the provisions of Subpart J, including Section 2.1003 and Section 2.1009.460 TSO also asserts that it submitted an adequate and timely LSN certification with its original petition on December 22, 2008, and a timely supplemental certification on February 28, 2009.461 In its answer, however, DOE challenges TSOs statement of LSN compliance on several grounds. First, DOE contends that TSO failed to provide an affidavit in support of its bare assertion of compliance.462 As explained in section II.B supra of this decision, however, section 2.1012(b)(1) contains no requirement that a petitioner provide an affidavit along with its petition.
TSOs failure to provide an affidavit does not preclude it from otherwise demonstrating compliance.
459 10 C.F.R. § 2.1012(b)(2).
460 TSO Amended Petition at 16. Because we grant TSOs motion for leave to file an amended petition, see Section X.B infra, we now consider the arguments for LSN compliance raised in TSOs amended petition.
461 Id. at 17.
462 DOE Answer to TSO Amended Petition at 19-20.
Next, DOE points to a number of circumstances that call into question TSOs assertion of compliance.463 The first such circumstance is TSOs admission in its February 24, 2009 reply that it had not fully satisfied each of the NRCs LSN requirements.464 According to DOE, this admission suggests that TSO remained out of compliance on March 5, 2009, when it filed its amended petition. The second of DOEs cited circumstances is TSOs statement in its reply that publicly available materials are exempt from the LSN, even though no such exemption exists in section 2.1005.465 According to DOE, this statement demonstrates that TSO has an improperly narrow view of the documentary material it must make available on the LSN.466 Of course, neither of the above-cited circumstances proves that TSO failed to demonstrate substantial and timely compliance. However, given TSOs failure to address those circumstances in a reply to DOEs answer, we must treat DOEs concerns as credible factual challenges to the sufficiency of TSOs documentary production. As a consequence, we find that TSO has failed to demonstrate substantial and timely compliance with the LSN requirements, and we decline to grant TSO, now known as JTS, party status at this time.
Again, section 2.1012(b)(2) allows a person denied admission to later request party status upon a showing of subsequent compliance with the requirements of § 2.1003. Thus, as explained above, JTS will be admitted as a party in the proceeding once it has complied with the requirements of section 2.1003. At such time as JTS can demonstrate compliance, JTS will be granted party status, conditioned on accepting the status of the proceeding at the time of 463 Id. at 22.
464 Id. at 20 (citing TSO Reply at 17).
465 DOE Answer to TSO Amended Petition at 21.
466 Id.
admission.467 The Board suggests that JTS take no more than 45 days to demonstrate subsequent compliance with the LSN requirements.
D. NCA (CAB-02)
DOE faults NCA for failing to demonstrate substantial and timely compliance with the requirements of sections 2.1003 and 2.1009 and for failing to comply with all applicable orders of the PAPO Board as required by section 2.1012(c) at the time it filed its petition to intervene.468 DOE acknowledges that NCA submitted a Certification of Electronically Available Documentary Material with its petition to intervene, but it finds that certification to be facially inadequate.469 That certification states that all of NCAs documentary material has been identified and made electronically available. But, in fact, NCA had posted no documents to the LSN as of that date.470 Therefore, DOE argues, NCA should not be granted party status in this proceeding.
The Board agrees with DOE that, under section 2.1012(b)(1), it may not admit a party to this proceeding absent a demonstration of substantial and timely compliance with the requirements of section 2.1003. Moreover, we agree that NCA has failed to demonstrate such compliance, given NCAs admission in its reply that it may possess some documents not in the record, and within the scope of the regulation.471 Thus, we are unable to grant NCA party status at this time. But, as with TIM and TSO, in accordance with section 2.1012(b)(2), NCA will be admitted as a party in the proceeding once it has complied with the requirements of section 2.1003. At such time as NCA can demonstrate compliance, NCA will be granted party status, 467 10 C.F.R. § 2.1012(b)(2).
468 DOE NCA Answer at 3-4.
469 Id. at 5.
470 On May 5, 2009, NCA filed a new Certification of Availability of Native Community Action Council LSN Document Collection. After the time has expired for parties to respond, the certification will be addressed.
471 NCA Reply at 8.
- 100 -
conditioned on accepting the status of the proceeding at the time of admission.472 Again, the Board suggests that NCA take no more than 45 days to demonstrate subsequent compliance with the LSN requirements.
E. Inyo (CAB-03)
DOE, but not the NRC Staff, challenges Inyos substantial and timely compliance with the LSN requirements.473 As discussed in Section II.B supra, the relevant standard is one of good faith.
In DOEs answer, DOE discusses Inyos LSN production through December 18, 2008.
DOE alleges that, as of that date, Inyos entire LSN collection consisted of merely 33 documents.474 DOE describes numerous categories of documents that, in DOEs view, should exist and yet could not be located in Inyo Countys collection as of December 2008.475 DOE claims that Inyo Countys LSN production is materially incomplete on its face.476 In reply, Inyos counsel represents that, beginning in January 2009, Inyo reviewed all relevant documents in its possession and in the possession of its contractors to ensure that all responsive documents were identified and placed on the LSN.477 Based on that review, counsel represents that, during February 2009, the County submitted additional documents to the LSN and that additional documents would be submitted until completion of the review in early March.478 Counsel for Inyo further represents that, in good faith compliance all documents in 472 10 C.F.R. § 2.1012(b)(2).
473 DOE Inyo Answer at 4-9; NRC Staff Answer at 33-34.
474 DOE Inyo Answer at 6.
475 See id. at 5-9.
476 Id. at 5.
477 Inyo Reply at 5.
478 Id.
- 101 -
support and in non-support of the Countys petition have been submitted to the LSN, or will be submitted to the LSN by early March 2009.479 Additionally, counsel explains that, with respect to Inyos contentions concerning volcanism, there were no significant documents to submit before contentions were filed.
According to Inyos counsel, the County did not contract with the expert who supported those contentions until December 2007.480 According to counsel, the experts final report was first submitted to Inyo in January 2009, when it was immediately placed on the LSN (as were all 2008 monthly progress reports from the expert).481 The electronic hearing docket indicates that Inyo filed supplemental certifications of its LSN compliance on January 5, January 27, February 17, March 14, and March 25, 2009, and that, subsequent to DOEs review, the Countys LSN collection has expanded eleven-fold to include at least 367 documents. Based on those facts, as well as the representations of Inyos counsel, the Board finds that the County now has demonstrated good faith compliance. Should DOE conclude otherwise after further review of the Inyos expanded LSN collection, it may file an appropriate motion.
VI.
RULINGS ON CONTENTIONS Each CAB analyzed the contentions for which it is responsible to determine whether they meet the six requirements of 10 C.F.R. § 2.309(f)(1)(i)-(vi), do not improperly challenge a rule or regulation of the Commission in violation of 10 C.F.R. § 2.335, and otherwise comply with the admissibility standards discussed in Section III supra. As part of that process, the Boards have read, analyzed and discussed the more than 12,000 pages of petitions, answers, and replies that were filed.
479 Id.
480 Id.
481 Id.
- 102 -
The Boards decisions to admit a large proportion of proffered contentions is driven by our resolution of the overarching issues that formed the major portions of the DOE and NRC Staff opposition to the proffered contentions.482 It also involved the Boards determination that in many respects the opposition to contentions was based on an attempt to address the underlying factual merits, a step that comes at a later stage in the proceeding. Implicit in each Boards rulings on contentions, as well, is the rejection of the specific arguments raised in opposition to that contention.
The contentions proffered by petitioners that have demonstrated standing, and that satisfy the foregoing admissibility standards, are set forth in Attachment A, which identifies the rulings made by each of the three CABs. Each contention listed in Attachment A satisfies the six requirements of 10 C.F.R. § 2.309(f)(1)(i)-(vi), does not improperly challenge a rule or regulation of the Commission in violation of 10 C.F.R. § 2.335, and otherwise complies with the admissibility standards discussed above. The contentions listed in Attachment A are admissible.
The contentions proffered by petitioners that have demonstrated standing, but that do not satisfy the foregoing admissibility standards, are set forth in Attachment B, which identifies the rulings made by each of the three CABs. Each contention listed in Attachment B fails to satisfy one or more admissibility requirements. The principal deficiency or deficiencies the applicable CAB found in each such contention are identified in Sections IX-XI infra. The contentions listed in Attachment B are inadmissible.
The CABs, whose members collectively possess more than eighty years experience as NRC judges, recognize that their decisions result in admitting a higher percentage of contentions than has often been the case in other proceedings. In part, this might stem from:
(1) the APAPO Board Order,483 which instructed petitioners to organize their contentions so as 482 See Section III supra.
483 U.S. Dept. of Energy, LBP-08-10, 67 NRC 450.
- 103 -
to address directly the Commissions specific requirements; (2) the significant resources that many government entities have obviously devoted to preparing their petitions; and (3) the experience and qualifications of most petitioners counsel and numerous supporting experts.
The Boards, however, have done nothing more nor less than admit contentions that comply with the Commissions pleading requirements and not admit the relatively few that fail to comply. The purpose of those requirements is explained in Oconee484 - a case that DOE cites more than 400 times in its answers to the petitioners filings.
In an earlier era, as the Commission explained in Oconee, Boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.485 Intervenors often had negligible knowledge of nuclear power issues and, in fact, no direct case to present, but instead attempted to unearth a case through cross-examination.486 In revising its contention admissibility requirements, the Commission sought to preclude a contention from being admitted where an intervenor has no facts to support its positions, but rather hopes to use discovery or cross-examination as a fishing expedition.487 The Commission therefore amended its rules to require that contentions have at least some minimal factual and legal foundation in support.488 That is all. That is what DOE agreed at oral argument is the standard.489 As the Commission emphasized in Oconee, the contention requirements were never intended to be turned into a fortress to deny intervention.490 484 CLI-99-11, 49 NRC 328.
485 Id. at 334.
486 Id.
487 Id. at 335 (citing 54 Fed. Reg. at 33,171).
488 Oconee, CLI-99-11, 49 NRC at 334.
489 Tr. at 260.
490 Oconee, CLI-99-11, 49 NRC at 335 (citing Peach Bottom, ALAB-216, 8 AEC at 21). On April 10, 2009, in response to a request made during oral argument, DOE submitted five examples of contentions from other proceedings that DOE contends were better drafted than (continued)
- 104 -
The Boards, of course, express no view as to which, if any, admitted contentions might ultimately prove meritorious. The Boards determine only that the admitted contentions satisfy the Commissions pleading requirements.
This complex proceeding will require active case management. As discussed, subsequent briefing on legal issue contentions that will likely affect the outcome of related factual contentions will be required. Because the APAPO Board required petitioners to proffer narrow, single-issue contentions,491 many contentions appear closely related to other contentions and might ultimately be fit candidates for consolidation or other disposition on a joint basis. It is apparent, for example, that at least twenty of the contentions proffered by petitioners are nearly identical and at least twenty-two are sufficiently similar to warrant grouping together for hearing.492 Furthermore, in its petition, Nevada grouped its single-issue contentions by subject categories. Consideration will be given to combining many of its contentions, as well as those from other petitioners, into these or similar topic areas. Clearly, close control of discovery will also be necessary, as the Commissions regulations contemplate.493 those of the state of Nevada. Department of Energy Response to Request from the March 31, 2009 Oral Argument (Apr. 10, 2009) at 1. The Boards do not find DOEs examples persuasive.
Tellingly, however, admission of even DOEs allegedly superior contentions was opposed by the applicant in four of the five cases - suggesting, perhaps, that applicants all too frequently conflate the adequacy of pleadings with challenges to the merits.
491 U.S. Dept of Energy, LBP-08-10, 67 NRC at 454.
492 For example, the following contentions appear to be identical: INY-SAFETY-003/CLK-SAFETY-006/NEV-SAFETY-153, CLK-SAFETY-003 through -011 with NEV-SAFETY-150 through -158, INY-NEPA-001/CAL-NEPA-021, and INY-NEPA-003 through -005 with CAL-NEPA-022 through CAL-NEPA-024. In addition, CLK-SAFETY-003/CLK-SAFETY-005/CLK-SAFETY-009/CLK-SAFETY-011/NEV-SAFETY-150/NEV-SAFETY-152/NEV-SAFETY-156/NEV-SAFETY-158 are similar in their assessment and modeling of upper crust impacts on volcanism. CLK-SAFETY-004/CLK-SAFETY-008/NEV-SAFETY-151/NEV-SAFETY-155 deal with the period of time to assess volcanism and are sufficiently similar to warrant grouping.
Also, INY-NEPA-005/CAL-NEPA-023/CAL-NEPA-024/NYE-NEPA-001 all deal with potential radiological impacts to saturated groundwater resources, while TIM-NEPA-01/NEV-NEPA-21/INY-NEPA-004/INY-NEPA-005/CAL-NEPA-023/CAL-NEPA-024/NYE-NEPA-001 relate to potential impacts from the discharge of this contaminated groundwater.
493 10 C.F.R. § 2.1021(a)(5).
- 105 -
The Commission has delegated authority adequate to ensure the careful management that the HLW proceeding requires, and the Boards are confident that it will be exercised appropriately. The proper and efficient conduct of this proceeding will depend on such management, and not on prematurely adjudicating the merits of contentions that have been adequately pled.
VII.
RULINGS ON PETITIONS A. CAB-01 As set forth above, Nevada, Clark, Nye, and White Pine each have at least one admissible contention meeting the requirements of 10 C.F.R § 2.309(f), have standing in accordance with 10 C.F.R § 2.309(d) or are exempt from having to establish standing, and have complied with the LSN requirements of 10 C.F.R. §§ 2.1003, 2.1009, and 2.1012. Therefore, in accordance with 10 C.F.R. § 2.309(a), the Board grants the intervention petitions of Nevada, Clark, Nye, and White Pine and admits them as parties to this proceeding. Because Caliente has failed to establish its standing, the Board denies its intervention petition.
B. CAB-02 As set forth above, California and Nevada 4 Counties each have at least one admissible contention meeting the requirements of 10 C.F.R. § 2.309(f), have standing in accordance with 10 C.F.R. § 2.309(d) or are exempt from having to establish standing, and have complied with the LSN requirements of 10 C.F.R. §§ 2.1003, 2.1009, and 2.1012. Therefore, in accordance with 10 C.F.R. § 2.309 (a), the Board grants the intervention petitions of California and Nevada 4 Counties and admits them as parties to this proceeding.
NCA and JTS likewise each have at least one admissible contention and have established standing, but have not established LSN compliance. At such time as they can demonstrate LSN compliance, each will be granted party status.
C. CAB-03 As set forth above, Inyo and NEI each have at least one admissible contention meeting the requirements of 10 C.F.R. § 2.309(f), have standing in accordance with 10 C.F.R. § 2.309(d)
- 106 -
or are exempt from having to establish standing, and have complied with the LSN requirements of 10 C.F.R. §§ 2.1003, 2.1009, and 2.1012. Therefore, in accordance with 10 C.F.R.
§ 2.309(a), the Board grants the intervention petitions of Inyo and NEI and admits them as parties to this proceeding.
VIII.
RULINGS ON PROCEDURAL MATTERS (CAB-01)
A. Interested Governmental Bodies The unopposed requests from Eureka and Lincoln to participate as interested governmental bodies, pursuant to 10 C.F.R. § 2.315(c), are granted.
B. Eureka Motion for Leave to File a Reply On February 24, 2009, Eureka filed a motion for leave to file a reply, with its reply attached, to the answers filed by DOE and the NRC Staff relating to categories of issues and potential contentions on which Eureka intends to participate.494 Eureka previously filed an unopposed request to participate as an interested governmental participant under 10 C.F.R.
§ 2.315(c) on December 22, 2008.495 Eureka does not identify the contentions that it seeks to address in its motion496 - and, indeed, does not identify the precise answers filed by DOE and the NRC Staff to which it seeks to reply - but merely asserts that it desires to reply to DOE and the NRC Staff with respect to some of their general arguments in opposition to the admission of several general categories of contentions.497 494 Eureka Countys Motion for Leave to File Reply to Oppositions by the U.S. Department of Energy and the NRC Staff to Admission of Contentions on which Eureka County Intends to Participate (Feb. 24, 2009) [Eureka Motion].
495 Eureka Request.
496 Eureka Countys Reply to Oppositions by the U.S. Department of Energy and the NRC Staff to Admission of Contentions on which Eureka County Intends to Participate (Feb. 24, 2009) at 2
[Eureka Reply]. Eureka names NEV-NEPA-003, NEV-NEPA-005, and NEV-NEPA-006 as examples of contentions for which it argues the NRC Staff applies an overly high standard for contention admissibility. See id. at 7 n.1. Eureka does not claim, however, that it will be participating on those specific contentions.
497 Eureka Motion at 2.
- 107 -
The NRC Rules of Practice prohibit Eureka, asking to participate as an interested governmental participant in accordance with 10 C.F.R. § 2.315(c), from filing a reply to DOEs and the NRC Staffs answers. The right to file answers and associated replies with respect to petitions to intervene is governed by 10 C.F.R. § 2.309(h), which provides, in pertinent part that:
(2) Except in a proceeding under 10 C.F.R. § 52.103, the requestor/petitioner may file a reply to any answer. The reply must be filed within 7 days after service of that answer.
(3) No other written answers or replies will be entertained.
(emphasis added). Further, while interested governmental participants are afforded many rights and responsibilities with respect to participation in a proceeding, they are limited to participation on admitted contentions.498 Thus, all of the rights afforded to interested governmental participants are to apply after contentions have been admitted. Nothing in the rules provides for interested governmental participants to file replies and the plain text of 10 C.F.R. § 2.309(h)(2) and (3) forbids the action requested by Eureka. Accordingly its motion is denied.
C. Nevadas Motion to Amend Petition to Intervene as a Full Party On January 16, 2009, Nevada filed a motion to amend its petition.499 In its motion, Nevada seeks leave to amend NEV-SAFETY-003, originally filed in its petition.500 Nevada bases its motion on the availability of a document containing close-out information regarding
[DOEs] Condition Report CR-6330 at LSN# DEN001606280.501 Nevada claims that this document relates to the implementation of DOEs Augmented Quality Assurance Program, 498 10 C.F.R. § 2.315(c).
499 Nevada Motion to Amend.
500 Nevada Petition at 45-72.
501 Nevada Motion to Amend at 1-2.
- 108 -
which is part of the discussion in Nevadas original contention, NEV-SAFETY-003. The NRC Staff and DOE filed answers opposing Nevadas motion.502 As set forth in Attachment A, NEV-SAFETY-003 is admitted in this proceeding. The Board notes that, at most, the information on which the motion to amend is based is essentially cumulative of that supplied in the contention. Although Nevada claims that the information upon which the amendment to its contention is based is materially different from information previously available,503 a comparison of the content of NEV-SAFETY-003, as filed, with the document referred to in the motion shows that the information upon which the amended contention is based is not materially different from the information that is already included in NEV-SAFETY-003. Therefore, Nevadas motion to amend its contention is denied.
IX.
DISCUSSION (CAB-01)
The Board provides the following additional discussion concerning the admission of certain contentions, the designation and admission of certain legal issue contentions, and a brief explanation for finding four contentions inadmissible.
A. Certain Admitted Contentions The contentions that CAB-01 finds admissible are identified in Attachment A. Two admitted contentions - NEV-SAFETY-001 and NEV-SAFETY-002 discussed in Sections 1 and 2 below - present issues that are notably different from Nevadas other safety contentions.
Therefore, as is more fully explained in Section 3, these contentions may pose unique institutional concerns of special interest to the Commission. Legal issue contentions admitted to this proceeding are discussed in Section 4 below.
502 See Corrected NRC Staff Answer to the State of Nevadas Motion to Amend Petition to Intervene as a Full Party (Jan. 26, 2009); U.S. Department of Energys Answer Opposing State of Nevadas Motion to Amend Petition to Intervene as a Full Party (Feb. 10, 2009).
503 Nevada Motion to Amend at 1.
- 109 -
- 1. NEV-SAFETY-001
- a. Nevada, DOE and the NRC Staff Arguments Nevadas first safety contention, NEV-SAFETY-001-DOE Integrity, alleges that [t]he
[Application] cannot be granted because DOE lacks the requisite integrity to be an NRC licensee.504 In its brief explanation of the basis for the contention, Nevada states that DOEs continuing and past actions related to Yucca Mountain reveal a pattern of material false statements and omissions and an elevation of schedule considerations over safety and compliance. Taken together, these actions indicate that DOE has a defective safety culture and lack of integrity that are inconsistent with being a responsible NRC licensee.505 Citing two cases where the character or integrity of an applicant was at issue, Nevada asserts that DOEs integrity is a proper consideration in a licensing proceeding, which must be addressed under 10 C.F.R. § 63.31(a)(1) and (2) in order for the NRC to find that there is a reasonable assurance of safety.506 As support for its contention, Nevada describes instances as recent as the tendering of the [Application] indicating that DOE abetted or tolerated, if not established, a culture in which meeting artificial schedules was more important than safety or compliance, and withheld material safety information from the NRC, with apparent willful intent.507 For example, Nevada attaches documents that purportedly indicate DOE: (1) established an artificial deadline of June 30, 2008 for submission of the application and let it be known that schedule was elevated over a technically defensible and credible license application; (2) continued with the tunneling of the exploratory study facility at Yucca Mountain in order to meet a schedule, despite reports of workers exposure to toxic silica; and (3) omitted important safety information from the 504 Nevada Petition at 16.
505 Id.
506 Id. (citing Georgia Tech, CLI-95-12, 42 NRC 111; Georgia Power Co. (Vogtle Elec.
Generating Plant, Units 1 & 2), CLI-93-16, 38 NRC 25 (1993)).
507 Nevada Petition at 18.
- 110 -
Application by excluding a report by the Oak Ridge Institute for Science and Education that criticized DOEs infiltration model.508 In all, Nevada lists no fewer than forty documents to support its contention.
In its answer, DOE argues that this contention is inadmissible because it: (1) is outside the scope of the proceeding (and therefore is not material to the findings the NRC must make in the proceeding); (2) is not adequately supported; and (3) does not raise a genuine dispute on a material issue of fact or law because it lacks adequate support.509 In asserting that the contention is outside the scope of the proceeding, DOE claims that section 182(a) of the AEA, which authorizes the NRC to consider the character of the applicant in a licensing proceeding, does not apply to DOE.510 DOE also points out that Congress designated DOE as the Applicant in the NWPA, making DOE the only appropriate applicant for this licensing proceeding.511 Accordingly, DOE argues, the contention constitutes an impermissible challenge to the NWPA.512 The NRC Staff, for the most part, makes similar arguments that this contention is outside of the scope of the proceeding - the only ground on which the NRC Staff asserts that this contention is inadmissible.513 For these same reasons, DOE also asserts that the issue raised in NEV-SAFETY-001 is not material to the findings the NRC must make regarding DOEs Application.514 508 Id. at 17-26.
509 DOE Nevada Answer at 74-75.
510 See AEA § 182(a), 42 U.S.C. § 2232(a).
511 DOE Nevada Answer at 75.
512 Id. at 78-79.
513 See NRC Staff Answer at 141-42 (asserting that the cases Nevada cites are distinguishable because they do not involve the NWPA or the HLW repository, and characterizing Nevadas contention as a challenge to Congress designation of DOE as the licensee).
514 DOE Nevada Answer at 79.
- 111 -
Additionally, DOE argues that Nevada has not provided adequate facts or expert opinion in support of NEV-SAFETY-001.515 Citing NRC case law, DOE claims that alleged historical deficiencies may not be used as the foundation for a contention.516 DOE also asserts that allegations of multiple violations alone are insufficient to support a contention, stating that an ongoing pattern must be shown, and that any consideration of the ongoing pattern must include consideration of an applicants corrective actions as evidence of its good character.517 Moreover, DOE asserts that, because it is a federal agency, a presumption of regularity attaches to [its] actions,518 and therefore Nevada has an elevated burden, beyond what the case law imposes, to support its contention with clear evidence.519 DOE concludes that Nevada has not made the showing that NRC case law and its status as a federal agency require to support NEV-SAFETY-001.520 This is tied to DOEs final argument that, because of a lack of sufficient support for NEV-SAFETY-001, Nevada has failed to place DOEs character and integrity in genuine dispute.521 With regard to DOEs scope of proceeding and materiality claims, Nevada responds that DOE takes out of context the snippet of legislative history of the AEA purportedly supporting its argument that the character requirement of section 182(a) does not apply to DOE.522 Nevada points out that section 11 of the AEA defines person to include [g]overnment agenc[ies] other 515 Id. at 79-95. In its answer, DOE combines the factual support argument with its argument that Nevada has not raised a genuine issue of material fact or law. For purposes of clarity, these two contention admissibility factors will be discussed separately.
516 Id. at 80-81.
517 Id. at 81-82.
518 Id. at 82 (quoting U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)).
519 DOE Nevada Answer at 82-83.
520 Id. at 84-94.
521 Id. at 84.
522 Nevada DOE Reply at 73.
- 112 -
than the Commission, as well as state and foreign governments,523 and other sections in the AEA generally require all persons to be licensed when conducting nuclear activities. Thus, Nevada argues, DOEs position is without merit and the character requirement of AEA section 182(a) applies to DOE as a license applicant notwithstanding the fact that it is a government agency.524 In addressing DOEs argument that the designation of DOE as the Applicant in the NWPA precludes any consideration of DOEs character under the AEA, Nevada points out that section 114(f)(5) of the NWPA explicitly states that [n]othing in this chapter shall be construed to amend or otherwise detract from the licensing requirements of the [NRC].525 Thus, Nevada argues that, in enacting the NWPA, Congress specifically preserved NRCs authority under
[AEA section 182(a)] to impose such character and safety culture requirements on DOE,526 and
[d]esignating DOE as the [A]pplicant is manifestly not the same as designating DOE as a fully qualified licensee.527 Because the NRC Staffs argument regarding the scope of the proceeding is similar to DOEs, Nevada makes the same arguments in its reply to the NRC Staffs answer.528 With respect to DOEs combined arguments that NEV-SAFETY-001 is not supported by sufficient facts or expert opinion and thus fails to raise a genuine dispute on an issue of material fact or law, Nevada notes that DOE appears to have misapprehended what is alleged in NEV-SAFETY-001, stating that it focuses specifically on one aspect of character that is of special relevance to NRC - that aspect of character that embodies organizational safety 523 AEA § 11(s), 42 U.S.C. § 2014(s).
524 Nevada DOE Reply at 73.
525 Id. at 75.
526 Id.; see also Nevada NRC Reply at 25 (responding similarly to the NRC Staffs arguments).
527 Nevada DOE Reply at 75.
528 See Nevada NRC Reply at 25.
- 113 -
culture.529 Contrary to DOEs interpretation of the case law that historical information cannot be used to support a contention regarding the applicants character, Nevada asserts that to plead an ongoing problem reference to historical information logically must be included.530 In addition, although it disputes DOEs assertion that alleging multiple violations is insufficient to support a character-based contention, Nevada does not disagree with DOEs interpretation of the case law to the extent that it is read as requiring that an ongoing pattern be presented and that pattern be tied to the licensing action in dispute.531 Nevada also disputes DOEs argument that Nevada faces an elevated burden for supporting its contention due to DOEs status as a government agency, stating that the cases
[DOE] cites do not establish criteria for admission of contentions.532 Furthermore, Nevada insists, if the NRC were to apply a presumption of regularity to DOE in reviewing its Application, this would eviscerate the NRC review process.... contrary to section 114(f)(5) of the NWPA, in that the NWPA does not diminish the NRCs authority to require applicants to show they meet specific licensing requirements.533 Finally, Nevada asserts that DOEs remaining arguments regarding the support provided for Nevadas contention address the merits of NEV-SAFETY-001, which is improper at the contention admissibility stage.534 According to Nevada, it has satisfied the requirements for supporting this contention, and the contention, on its face, raises a material dispute with DOE.535 529 Nevada DOE Reply 76.
530 Id. at 77.
531 Id. at 77.
532 Id. at 78.
533 Id. at 78-79.
534 Id. at 79-80.
535 Id. at 76-77.
- 114 -
- b. Board Analysis The Board finds that Nevada has met the contention admissibility factors for NEV-SAFETY-001, and, as noted in Attachment A, admits the contention. Contrary to DOEs characterization, NEV-SAFETY-001 will not redirect this proceeding into a wide-ranging inquiry into the general character and integrity of a department of the United States government.536 As presented, NEV-SAFETY-001 is a narrowly-drawn contention in which Nevada alleges a pattern of conduct on the part of DOE - largely with respect to Yucca Mountain - that raises the issue of whether DOE has a deficient organizational safety culture where schedule considerations are elevated over safety and compliance with the regulations.537 Nevada further alleges that this conduct, which includes alleged actions that took place in this very proceeding, is directly relevant to whether the NRC can find, as it is required to do in order to authorize construction of the HLW repository, that there is reasonable assurance of safety under 10 C.F.R. § 63.31.538 With regard to the specific admissibility requirements of 10 C.F.R. § 2.309(f)(1), neither DOE nor the NRC Staff disputes that NEV-SAFETY-001 satisfies the admissibility criteria of 10 C.F.R. § 2.309(f)(1)(i) and (ii).539 The Board finds that Nevada has met these two criteria with its statement of the issue raised and its brief explanation of the basis for the contention.
NEV-SAFETY-001 is also within the scope of this proceeding, as required under 10 C.F.R. § 2.309(f)(1)(iii). The scope of the proceeding is generally established by the Commission in its initial hearing notice and any order referring the proceeding to a licensing 536 DOE Nevada Answer at 75.
537 Nevada Petition at 16; Nevada DOE Reply at 76.
538 Nevada Petition at 16.
539 See DOE Nevada Answer at 75; NRC Staff Answer at 141.
- 115 -
board.540 Here, the Notice of Hearing states that [t]he hearing will consider the application for construction authorization filed by DOE pursuant to Section 114 of the [NWPA], 42 U.S.C.
10134, and pursuant to 10 C.F.R. Parts 2 and 63.541 The notice further states:
The matters of fact and law to be considered are whether the application satisfies the applicable safety, security, and technical standards of the AEA and NWPA and the NRCs standards in 10 C.F.R. Part 63 for a construction authorization for a high-level waste geologic repository, and also whether the applicable requirements of the [NEPA] and NRCs NEPA regulations, 10 C.F.R. Part 51, have been met.542 As discussed above, in its petition and reply Nevada cites NRC case law, 10 C.F.R. Part 63, the AEA, and the NWPA for its assertion that NEV-SAFETY-001 is within the scope of the proceeding. Nevada has explained how these authorities - which (with the exception of NRC case law) are listed in the Notice of Hearing as the basis for the NRCs review of DOEs Application - relate to the issue it raises; thus Nevada satisfies 10 C.F.R. § 2.309(f)(1)(iii) by demonstrating that the issue raised in NEV-SAFETY-001 is within the scope of the proceeding.
As DOE and the NRC Staff would have it, however, the uniqueness of this proceeding, with DOE as a federal agency Applicant, changes the scope inquiry. A review of the applicable law, however, shows that, as stated above, NEV-SAFETY-001 is within the scope of this proceeding.
First, AEA section 182(a) applies to DOE,543 and nothing in the NWPA detracts from its application to this proceeding, Congress designation of DOE as the Applicant notwithstanding.
Section 182(a) provides the general information that must be included in any application for a license issued under the AEA. It states:
540 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-825, 22 NRC 785, 790-91 (1985).
541 73 Fed. Reg. at 63,029.
542 Id.
543 See discussion infra in this Section (providing further explication of the application of AEA section 182(a) through Commission case law).
- 116 -
Each application for a license hereunder shall be in writing and shall specifically state such information as the Commission, by rule or regulation, may determine to be necessary to decide such of the technical and financial qualifications of the applicant, the character of the applicant, and citizenship of the applicant, or any other qualifications of the applicant as the Commission may deem appropriate for the license.544 In support of its assertion that section 182(a) does not apply to DOE, DOE cites a few references to the word private in the legislative history, insisting that section 182(a) applies only to private applicants. These references, however, appear in the context of a general discussion of the purpose of the AEA, which recognized that the prior law placed prohibitions on private participation in atomic energy545 and explained that this was being changed to allow the Commission (then the Atomic Energy Commission) to license private industry and private persons.546 Although this discussion refers to licensing the private sector, it says nothing of this being the only reason for the license criteria in section 182(a).
Furthermore, person is defined under section 11(s) of the AEA to include not only private entities, but also any... Government agency other than the Commission,547 and a person, as the term is used throughout the AEA, is required to be licensed in order to conduct nuclear activities.548 Thus, in terms of the Commissions treatment of private entities and government actors under the AEA, there is no difference.
DOEs reference to the word character in the legislative history to support its assertion that a review of an applicants character under section 182(a) is linked solely to a concern over 544 AEA § 182(a), 42 U.S.C. § 2232(a) (emphasis added).
545 S. Rep. No. 1699-83, at 9 (1954), reprinted in 1954 U.S.C.C.A.N. 3456, 3464.
546 Id.
547 AEA § 11(s), 42 U.S.C. § 2014(s).
548 See, e.g., AEA § 101, 42 U.S.C. § 2131:
It shall be unlawful, except as provided in section 91, for any person within the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any utilization or production facility except under and in accordance with a license issued by the Commission pursuant to section 103 or section 104.
- 117 -
access to restricted data is similarly taken out of context. Although this reference in the legislative history explains that access to restricted data requires an investigation of an individuals character, it falls within a discussion of the information control provisions of the law. It is not linked to the general license criteria of section 182(a).549 Additionally, and contrary to the argument made by DOE and the NRC Staff, Congress designation of DOE as the Applicant under the NWPA does not alter the fact that section 182(a) applies to DOE. When Congress designated DOE as the Applicant for the HLW repository, it did not abrogate the Commissions review of the Application to be submitted by DOE. To the contrary, in NWPA section 114(d) Congress directed the NRC to consider an application for a construction authorization for all or part of a repository in accordance with the laws applicable to such applications, and set forth a schedule for the final decision approving or disapproving the issuance of a construction authorization.550 Congress thus envisioned a situation where, after the Commissions review, the Commission could find that DOE, although the designated Applicant, would not be the designated licensee.
DOE and the NRC Staff erroneously conflate applicants with licensees in arguing that AEA section 182(a) does not apply in this proceeding. In questioning DOEs safety culture, Nevada is not challenging DOEs designation as the Applicant. Nevada plainly alleges that DOE has a defective safety culture and lack of integrity that are inconsistent with being a responsible NRC licensee.551 In other words, Nevada is asserting that, if the NRC finds that DOEs allegedly defective safety culture precludes a finding of reasonable assurance and reasonable expectation of safety under 10 C.F.R. § 63.31(a)(1) and (2), then the construction authorization cannot be granted - not that it should be granted with another entity substituted as the licensee.
549 See S. Rep. No. 1699-83, at 7.
550 NWPA § 114(d), 42 U.S.C. § 10134(d) (emphasis added).
551 Nevada Petition at 16 (emphasis added).
- 118 -
Furthermore, the NWPA explicitly provides that it does not diminish any part of the Commissions authority to review license applications and issue licenses under the AEA.
Section 114(f)(5) of the NWPA states: [n]othing in this Act shall be construed to amend or otherwise detract from the licensing requirements of the Nuclear Regulatory Commission established in title II of the Energy Reorganization Act of 1974552 - for example, the licensing requirements promulgated pursuant to the authority granted to the Commission under the AEA.553 Significantly, the listing of the statutory authorities appearing at the beginning of 10 C.F.R. Part 63, which outlines the licensing requirements that DOE must meet for its Application to be granted, cites AEA section 182.554 As Nevada points out, adequate character and safety culture are licensing requirements of the [NRC], imposed pursuant to section 182[(a)] of the AEA.555 Although Congress designated DOE as the Applicant, that designation can in no way constrain the Commissions authority to review DOEs Application. Any other interpretation of the AEA would be in direct contravention of Congress mandate that the NRC, an independent regulatory agency whose duty it is to ensure the public health and safety, perform a full review of the Application.
The plain language of section 114(f)(5) of the NWPA also clearly contradicts DOEs final argument that section 182(a) does not apply to this proceeding because section 121(b) of the NWPA provides more specific requirements that supersede the general provisions of AEA section 182(a).556 According to DOE, section 121(b), in authorizing the Commission to promulgate technical requirements and criteria that it will apply in its review of the 552 NWPA § 114(f)(5), 42 U.S.C. § 10134(f)(5). Title II of the Energy Reorganization Act of 1974 established the NRC.
553 See, e.g., 10 C.F.R. Part 63 (the AEA is included among the authorities cited for promulgation of Part 63).
554 See id.
555 Nevada DOE Reply at 75.
556 DOE Nevada Answer at 77.
- 119 -
Application,557 omits reference to a review of the applicants character.558 DOE therefore argues that the proceeding is limited to an inquiry into the technical adequacy of the application, not the general character or integrity of the applicant.559 This argument, however, ignores the plain language of NWPA section 114(f)(5) stating that nothing in the NWPA detracts from the Commissions other applicable licensing requirements, which would include requirements pertaining to the qualifications of the applicant under the AEA.
Second, although the Commission has not promulgated a rule or regulation requiring an applicant to include information in its application regarding its character pursuant to AEA section 182(a), NRC case law makes clear that an applicants character is appropriate for consideration in a licensing proceeding. As the Commission has stated:
Commission precedent establishes that lack of either technical competence or character qualifications on the part of licensee or applicant is sufficient grounds for the revocation of a license or the denial of a license application. The Commission has looked to whether a licensee's management displays the climate, resources, attitude, and leadership that the Commission expects of a licensee. In making determinations about integrity or character, the Commission may consider evidence bearing upon the licensees candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect public health and safety. The past performance of management or high-ranking officers, as reflected in deliberate violations of regulations or untruthful reports to the Commission, may indicate whether a licensee will comply with agency standards, and will candidly respond to NRC inquiries.560 In keeping with this approach, as long as the petitioner alleges, with sufficient support, that the applicants bad character or lack of integrity has direct and obvious relevance to the licensing action at issue in the proceeding, a character-based contention is admissible.561 557 NWPA § 121(b), 42 U.S.C. § 10141(b).
558 DOE Nevada Answer at 77 (citing NWPA § 121(b), 42 U.S.C. § 10141(b)).
559 DOE Nevada Answer at 77.
560 Vogtle, CLI-93-16, 38 NRC at 31 (internal citations omitted).
561 See Millstone, CLI-01-24, 54 NRC at 365-66; Georgia Tech, CLI-95-12, 42 NRC at 120-21; Vogtle, CLI-93-16, 38 NRC at 36, 39-42.
- 120 -
It is true, as the NRC Staff points out, that none of these cases involve[s] repository licensing or addresses the unique requirements of the NWPA.562 The AEA defines a person to include both private and government entities. Thus, the Board is not at liberty to ignore these clearly applicable precedents merely because there is a federal applicant involved. Accordingly, the Board concludes that NEV-SAFETY-001 is within the scope of this proceeding.
The Board also finds, for the reasons set forth above, that Nevada has met the requirements of 10 C.F.R. § 2.309(f)(1)(iv). Nevada has shown that its character allegations are material to the safety findings that the NRC must make under 10 C.F.R. § 63.31(a)(1) and (2) to support a decision on the Application.563 Further, Nevada has provided factual support for its contention sufficient for it to be admitted in this proceeding as required by 10 C.F.R. § 2.309(f)(1)(v). Section 2.309(f)(1)(v) requires a concise statement of the alleged facts or expert opinions which support the...
petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the... petitioner intends to rely to support its position on the issue.564 Additionally, under NRC case law, contentions that raise character and integrity issues must show an ongoing pattern of problems associated with the applicants character that have a direct and obvious relationship to the licensing action at issue.565 As the Commission has explained, the allegations in these types of contentions must be of more than historical interest.566 562 NRC Staff Answer at 142.
563 See Vogtle, CLI-93-16, 38 NRC at 31 (The integrity or character of a licensee's [or applicants] management personnel bears on the Commission's ability to find reasonable assurance that a facility can be safely operated.).
564 10 C.F.R. § 2.309(f)(1)(v).
565 See Millstone, CLI-01-24, 54 NRC at 365-66; Georgia Tech, CLI-95-12, 42 NRC at 120-21; Vogtle, CLI-93-16, 38 NRC at 36, 39-42.
566 Georgia Tech, CLI-95-12, 42 NRC at 120.
- 121 -
DOE would have it that, because it is a government agency, a presumption of regularity applies to its actions.567 Thus, DOE argues, Nevada must support its character-based contentions with clear evidence.568 As discussed above, however, because DOE is a person under the AEA like all other license applicants, it does not automatically receive special status by virtue of being a federal agency in proceedings before the NRC. Moreover, the NRC generally presumes that licensees will comply with its regulations;569 this is likely why the Commission placed strict limits on contentions regarding character and integrity issues such that they must present an ongoing pattern that has a direct and obvious relationship to the licensing action at issue in order to be admitted.570 Thus, there is no merit to DOEs argument that, when DOE is before the Commission, a heightened standard applies for the admissibility of integrity contentions beyond what is imposed by 10 C.F.R. § 2.309(f)(1) and Commission case law - e.g., a showing of clear evidence.
Nevada has provided specific examples of conduct (and has provided documents in support of these examples) on the part of DOE management and employees that occurred over a period of years, continuing to the present, which includes conduct in this licensing proceeding.571 Nevada alleges that these examples show that DOE elevates schedule over safety concerns and compliance with NRC regulations.572 DOE accuses Nevada of cherry-picking documents and groups of documents and reading them out of context. Its challenges to the documents and examples of DOEs conduct, however, improperly focus on the merits of 567 DOE Nevada Answer at 82-83.
568 Id. at 83.
569 See GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207 (2000) (noting that [a]bsent [sufficient] support, this agency has declined to assume that licensees will contravene our regulations).
570 See Millstone, CLI-01-24, 54 NRC at 366.
571 See Nevada Petition at 17-26.
572 See id.
- 122 -
Nevadas allegations.573 For example, although it might later prove true, as DOE insists, that the author of one of the e-mails Nevada cites was not being literal in his statements,574 this is properly investigated after the contention admissibility phase when the merits inquiry takes place. And while the case DOE cites indicates that an investigation into the applicants character should also include a review of the applicants good character,575 the procedural posture of that case involved a decision on the merits.576 In proffering contentions Nevada need not make the full investigation and present both sides of the case. Pursuant to 10 C.F.R.
§ 2.309(f)(1)(v) and NRC case law, Nevada has provided sufficient support to have its contention admitted.
Finally, Nevadas contention is admissible because it also meets the requirements of 10 C.F.R. § 2.309(f)(1)(vi). Nevada points out that an applicant is not required to address character in the application because the NRC has not promulgated rules or regulations requiring it, and notes that DOE has not addressed its character in the Application.577 The cases that Nevada cites578 show that this information is relevant in a licensing proceeding.579 Further, the Commission has affirmed board findings that a genuine dispute exists despite the fact that character or integrity is not required by regulation to be addressed in the license application.580 573 See generally DOE Nevada Answer at 84-95.
574 See id. at 90.
575 See id. at 82 (citing Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 373-74 (1985)).
576 See South Texas, ALAB-799, 21 NRC 360 (appeal of partial initial decision).
577 Nevada Petition at 27.
578 See id. at 16-17.
579 Georgia Tech, CLI-95-12, 42 NRC at 120-21; Vogtle, CLI-93-16, 38 NRC at 30-32, 36, 39-42.
580 See, e.g., Vogtle, CLI-93-16, 38 NRC at 41:
We accept arguendo that Commission regulations did not require [the applicant] to include references to character allegations in its application. However, in fairness, we cannot then require that to adequately specify a dispute over a material fact, a petitioner (continued)
- 123 -
Indeed, when affirming the admission of such a contention, the Commission acknowledged that it had not issued a rule or regulation pursuant to its authority under AEA section 182(a) regarding review of an applicants character or integrity.581 With the support Nevada has provided for its contention alleging the presence of a safety issue due to a defective organizational safety culture and lack of integrity on the part of DOE, together with its showing that this issue is material to an NRC licensing decision, Nevada has shown the existence of a genuine dispute on a material issue. Accordingly, the Board finds NEV-SAFETY-001 admissible.
- 2. NEV-SAFETY-002 In its second contention, NEV-SAFETY-002-DOE Management, Nevada alleges that
[t]he [Application] cannot be granted because DOE lacks the requisite management ability to construct and operate a safe repository.582 Nevada provides in its brief explanation of the basis for NEV-SAFETY-002 that:
DOEs current and past activities related to Yucca Mountain, as well as its activities with respect to its uniform mismanagement of other large projects, establishes a level of management incapacity on the part of DOE that would jeopardize the design, construction, and operation of a proposed Yucca Mountain repository, would fail to protect the public health and safety and that would fail to comply with NRC requirements, thus rendering DOE unqualified to be an NRC licensee.583 NEV-SAFETY-002 differs from NEV-SAFETY-001 in that it does not allege that DOE will choose not to comply with NRC regulations, but rather that it lacks the ability to properly comply with NRC regulations. For contention admissibility purposes, however, these two types of must refer to a particular portion of the licensee's application, when the licensee neither identified, nor was obligated to identify, the disputed issue in its application. Such a narrow reading of section 2.714(b)(2)(iii) would have the unintended effect of prohibiting petitioners from raising issues otherwise germane to a proceeding.
581 Id. at 30-31.
582 Nevada Petition at 28.
583 Id.
- 124 -
allegations are treated similarly.584 Thus, for the reasons discussed above in NEV-SAFETY-001, the Board finds, as noted in Attachment A, that NEV-SAFETY-002 is admissible.
DOE and the NRC Staffs arguments challenging the admissibility of this contention are in large part repeats of the arguments challenging the admissibility of NEV-SAFETY-001,585 and there is no need to freight this decision with a recounting of them here. It is enough to note that these arguments remain unconvincing. As it does in NEV-SAFETY-001, Nevada points out that NRC case law and the Commissions regulations contemplate a review of an applicants management competence in a licensing proceeding when the issue is properly raised.586 Nevada has raised an issue that, if found to be meritorious, would preclude the NRC from finding reasonable assurance and reasonable expectation of safety under 10 C.F.R.
§ 63.31(a)(1) and (2).587 Because the NRCs finding of reasonable assurance and reasonable expectation of safety is required before a construction authorization is granted, this issue is within the scope of and material to the findings the NRC must make in this proceeding. Nevada provides sufficient support588 for this contention with examples of current and past activities related to Yucca Mountain, as well as [DOEs] activities with respect to its uniform mismanagement of other large projects589 to show that a genuine dispute exists on a material issue. Accordingly, the Board finds that NEV-SAFETY-002 is admissible.
584 See Vogtle, CLI-93-16, 38 NRC at 31-32 (Commission precedent establishes that lack of either technical competence or character qualifications on the part of licensee or applicant is sufficient grounds for the revocation of a license or the denial of a license application.
(emphasis added)); Louisiana Energy Services, L.P. (Claiborne Enrichment Ctr.), LBP-91-41, 34 NRC 332, 343, 359 (1991); see also Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1206-07 (1984).
585 See DOE Nevada Answer at 96-112; NRC Staff Answer at 143-45.
586 Nevada Petition at 28-30.
587 Id. at 28-29.
588 See id. at 30-44.
589 Id. at 28.
- 125 -
- 3. Institutional Concerns Regarding NEV-SAFETY-001 and -002 A final important comment is in order regarding these contentions.
From an institutional perspective, the Board cannot close its eyes to the apparent incongruity of one federal agency - even though an independent regulatory commission -
presiding over and ultimately reaching a decision about the integrity and management competence of another federal department - even though DOE is statutorily defined as a person just as any other applicant under the AEA. Although applicable Commission precedent clearly teaches that an applicants character and management competence are appropriate issues in a licensing proceeding, an adjudication in the unique circumstances of the Yucca Mountain proceeding may present an institutional policy issue that the Commission may wish to consider. Accordingly, the Board believes it is appropriate to call this matter to the attention of the Commission.
- 4. Legal Issue Contentions The following contentions assigned to CAB-01 are designated legal issue contentions by Nevada590 and are admitted as such:
NEV-SAFETY-004 Content of Quality Assurance Program NEV-SAFETY-005 Emergency Plan NEV-SAFETY-006 Part 21 Compliance NEV-MISC-002 Alternate Waste Storage Plans The Board also identifies the following contentions as legal issue contentions and finds them admissible:
NEV-SAFETY-009 Increasing CO2 Levels on Future Climate Projections NEV-SAFETY-010 Consideration of Forcing Functions on Future Climate Projections NEV-SAFETY-011 Human Induced Climate Changes on Prediction of the Next Glacial Period NEV-SAFETY-012 Projections of Future Wetter Climate Conditions NEV-SAFETY-013 Future Climate Projections Need to Include Extreme Precipitation Events NEV-SAFETY-019 Future Infiltration Projections Need to Include Reduced Vegetation Cover NYE-SAFETY-004 Failure to Fully Consider Possible Air Quality and Radiological Changes due to Pre-Closure Construction and Operational Activity 590 Id. at 14, 73, 76, 80, 1147.
- 126 -
While the underlying factual components of these Board-identified contentions meet all the admissibility criteria, a legal issue may preclude their further consideration in this proceeding. For example, NEV-SAFETY-009,591 NEV-SAFETY-010,592 NEV-SAFETY-011,593 NEV-SAFETY-012,594 NEV-SAFETY-013,595 and NEV-SAFETY-019596 relate to the effect of climate change for either the pre-10,000 year period or the post-10,000 year period or both.
Prior to further assessing these contentions, the legal issues must be briefed.
The Board notes that NEV-SAFETY-010,597 listed above, is a contention of omission alleging that DOE ignored the basic aspects of climate forcing functions relevant to the prediction of climate change over the next 10,000 years, thereby rendering the conclusions regarding long-term climate projections inaccurate and incomplete. Even though Nevadas references to the SAR are erroneous and were not corrected in Nevadas reply,598 the contention still meets admissibility requirements because a contention of omission need not necessarily address a specific section of the SAR.
NYE-SAFETY-004599 alleges that DOE has inadequately considered the radiation dose to members of the public from naturally occurring radon and its decay products emitted as a result of repository construction and normal operations. The threshold legal issue of what authority, if any, the NRC has to regulate radon and its daughters will require further briefing.
591 Id. at 92.
592 Id. at 97.
593 Id. at 102.
594 Id. at 107.
595 Id. at 113.
596 Id. at 142.
597 Id. at 97.
598 Id.; DOE Nevada Answer at 165-66.
599 Nye Petition at 44.
- 127 -
Finally, the Board notes that NEV-SAFETY-041600 also presents a legal issue. NEV-SAFETY-041 first alleges that DOE's exclusion of land-surface erosion as a FEP is incorrect because erosion studies and actual observations show that down cutting into the superficial formations will significantly change the modeling boundary conditions well before 10,000 years, and will erode the whole crest of the mountain within 1,000,000 years to depths below the elevation of the emplacement drifts. The component regarding whether DOE should have screened the erosion FEP for the first 10,000 years is admitted. Whether DOE is required to extend its assessment of FEPs excluded for the pre-10,000 year period to the period beyond 10,000 years after closure, and to what extent it must provide support regarding only the post-10,000 year period for erosion, is admitted as a legal issue component of the contention.
B. Inadmissible Contentions As identified in Attachment B, CAB-01 finds the following contentions inadmissible:
NEV-MISC-001 Erosion and Geological Disposal CLK-SAFETY-001 DOEs Inadequate Treatment of Uncertainty CLK-SAFETY-012 DOEs Prior Institutional Failures Render It Unfit to be Licensee NYE-JOINT-Lack of NIMS in Emergency Planning SAFETY-005 NEV-MISC-001,601 designated a legal issue by Nevada, posits that construction authorization cannot be granted because, as alleged in NEV-SAFETY-041, Yucca Mountain will erode to the level of the repository drifts beginning around 500,000 years after waste emplacement.602 Nevada argues that:
exposing the waste packages to the atmosphere, with the result that for the period after about 500,000 years and continuing throughout the period of geologic stability (defined as 1,000,000 years), the facility will no longer constitute a repository but would, at best, constitute a retrievable storage facility, in violation of sections 2(18),114(d), 141(g) and 302(d) of the NWPA, 600 Nevada Petition at 238.
601 Id. at 1144.
602 Id.
- 128 -
section 801(a) of the EnPA, and Public Law No. 107-200 (42 U.S.C. § 10135 note).603 The contention does not satisfy section 2.309(f)(1)(vi) because it does not present a genuine dispute on a material issue of law or fact. The contention raises a legal issue that depends upon resolution of factual issues presented in NEV-SAFETY-041. If those factual issues are ultimately proven valid, the Application fails and the legal issue raised in NEV-MISC-001 is moot. If, on the other hand, the factual issues underlying NEV-SAFETY-041 are invalid, then this legal issue contention is irrelevant. Accordingly, NEV-MISC-001 is inadmissible.
CLK-SAFETY-001 states that DOEs evaluation of risk is unreliable and fails to comply with the safety requirements of 10 C.F.R. Part 63. Clark states that the [t]reatment of uncertainty in the SAR is neither complete, integrated, nor unbiased.604 Further, it states that three important sources of uncertainty that impact the SAR results - data assumptions, model assumptions, and methods assumptions - appear in the SAR primarily as assumptions, screening analyses, and claims of conservatism, and are presented without associated technical bases.605 The Board finds that CLK-SAFETY-001 is inadmissible because it does not provide the necessary facts or expert opinion required by 10 C.F.R. § 2.309(f)(1)(v). The contention also fails to provide sufficient information to show that there is a genuine dispute of material issue of fact or law as required by 10 C.F.R. § 2.309(f)(1)(vi).
CLK-SAFETY-012 alleges that DOE lacks the requisite institutional integrity to be granted a license to construct and operate a repository in a safe and secure manner for high level radioactive waste and spent nuclear fuel at Yucca Mountain.606 With the notable exception of the quality of the support Clark proffers for its contention, this contention is 603 Id.
604 Clark Petition at 3.
605 Id.
606 Id. at 85.
- 129 -
generally similar to Nevadas NEV-SAFETY-001 challenging whether DOE has the requisite integrity to be an NRC licensee. And like the arguments of DOE and the NRC Staff contesting the admissibility of NEV-SAFETY-001, those same arguments are repeated in their opposition to CLK-SAFETY-012. With the exception of DOEs assertion that the contention lacks adequate support and for the reasons previously detailed regarding NEV-SAFETY-001, those DOE and NRC Staff arguments remain unavailing. Unlike NEV-SAFETY-001, however, CLK-SAFETY-012 is inadmissible for failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(v). None of the proffered support for its contention shows, as it must under Commission precedent, an ongoing pattern of problems associated with the Applicants character that has a direct and obvious relationship to the grant of a construction permit for the Yucca Mountain repository.607 For example, Clarks primary support rests upon its lessons learned report about DOEs Waste Isolation Pilot Plant (WIPP) facility in Carlsbad, New Mexico,608 but that material fails to establish the requisite connection in either time or subject matter between the WIPP-related claims and the Yucca Mountain licensing action. Similarly, the Countys reliance upon a recent Government Accountability Office Report purportedly criticizing DOEs ineffectiveness in managing other projects and an eight-year-old DOE Inspector General Report criticizing statements in DOE repository evaluation documents609 falls far short of establishing this same required direct and timely nexus. Accordingly, CLK-SAFETY-012 is inadmissible.
NYE-JOINT-SAFETY-005 alleges that DOE has failed to include key interoperability and standardized procedure and terminology requirements of the National Incident Management System (NIMS) in its Emergency Planning required as part of its SAR.610 As a result, Nye asserts that it and other offsite agencies are unable to plan properly and respond to 607 See Millstone, CLI-01-24, 54 NRC at 365-66; Georgia Tech, CLI-95-12, 42 NRC at 120-21; Vogtle, CLI-93-16, 38 NRC at 36, 39-42.
608 Clark Petition at 87-88.
609 Id. at 88 (citations omitted).
610 Nye Petition at 56.
- 130 -
onsite emergency actions as required by 10 C.F.R. §§ 63.161 and 72.32(b). The contention is inadmissible as beyond the scope of the proceeding in violation of 10 C.F.R. § 2.309(f)(1)(iii), for not providing necessary facts or expert opinion as required by 10 C.F.R. § 2.309(f)(1)(v), and for failing to provide sufficient information to show that there is a genuine dispute of material issue of fact or law as required by 10 C.F.R. § 2.309(f)(1)(iv). Whether requirements of other federal agencies have been met is not a proper subject for this NRC proceeding.
X.
DISCUSSION AND RULING ON MOTION (CAB-02)
A. NCA Contentions NCA submitted three contentions with its original petition, but it did not label those contentions as either safety or environmental. The Board therefore adopts the labels given to these contentions by the NRC Staff in its answer, treating the first two contentions as NCA-MISC-001 and NCA-MISC-002 and treating the third contention as NCA-NEPA-001. As explained below, the Board admits NCA-MISC-001 and notes further briefing on the legal issue will be required. NCA-MISC-002 is inadmissible as explained below and the Board finds NCA-NEPA-001 admissible.
- 1. NCA-MISC-001 In this contention, NCA claims that DOEs Application fails to comply with 10 C.F.R.
§ 63.121(a)(1) and (2) because the Western Shoshone Nation retains an interest in the land surrounding Yucca Mountain.611 To the extent that it relies on the Treaty of Ruby Valley, the contention is inadmissible for the reason that any title to the land conferred by that treaty were long ago extinguished.612 Otherwise, the contention is admissible as raising a viable legal issue.
611 NCA Petition at 7-10.
612 See United States v. Dann, 470 U.S. 39, 41-42 (1985); DOE NCA Answer at 51 (citing Final Supplemental EIS for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada Vol. I at 3-8); NRC Staff Answer at 1543-44.
- 131 -
- 2. NCA-MISC-002 In this contention, NCA alleges that [w]ater right [sic] are a reserved property interest not ceded to the [United States] by the Treaty of Ruby Valley.613 Therefore, NCA contends, DOE cannot obtain water rights sufficient to meet the requirements of 10 C.F.R. § 63.121(b) and (d).
As a separate argument, NCA challenges the DOE application as materially incomplete because it fails to consider the Western Shoshone Nations jurisdiction over the water rights within Newe Sogobia or the needs of the Newe individually or collectively.614 In its reply, NCA cites two federal court cases for the proposition that the Western Shoshone Nation retains its water rights even after its land rights have been extinguished.615 When asked about those cases at oral argument, NCA explained that federal courts have consistently said that the destruction of - by the United States, by Congress, of the tribe's land interest does not destroy reserved hunting, fishing, gathering, water rights.616 However, when pressed on this point, NCA admitted that those reserved hunting, fishing, gathering, and water rights must originate in a treaty in order to survive. And NCA counsel was unable to point to language in the Treaty of Ruby Valley which specifically reserves water rights to the Western Shoshone Nation.617 Thus, contrary to NCAs claim, the Western Shoshone Nation cannot claim jurisdiction over the water rights at issue here. Because these alleged water rights form the sole ground for this contention, it raises an issue that falls outside the scope of this proceeding. Accordingly, NCA-MISC-002 is inadmissible because it fails to comply with the requirements of 10 C.F.R § 2.309(f)(1)(iii).
613 NCA Petition at 10.
614 Id. at 11.
615 NCA Reply at 24-25; (citing United States v. Winans, 198 U.S. 371 (1905); United States v.
Adair, 723 F.2d 1394 (9th Cir. 1983)); see also Tr. at 533-34.
616 Tr. at 550.
617 Tr. at 556.
- 132 -
B. JTS Contentions As previously explained, the contentions of JTS are deemed to consist of all the contentions proffered by TIM and TSO in their respective petitions to intervene. For its part, TIM proffered eight NEPA contentions, which will henceforth be identified as JTS-NEPA-001 through JTS-NEPA-008. TSO proffered two contentions in its amended petition to intervene, one of which TSO withdrew in its reply to DOEs answer.618 Because the Board allows TSO to file an amended petition, as discussed below, CAB-02 now recognizes the sole remaining contention in TSOs amended petition as JTS-NEPA-009. Thus, in effect, JTS has proffered a total of nine NEPA contentions, numbered JTS-NEPA-001 through JTS-NEPA-009.
- 1. TSOs Motion for Leave to File Amended Petition TSOs history as a petitioner in this proceeding, while relatively short, is complex. In its original petition to intervene, TSO proffered three contentions, two miscellaneous and one NEPA, which were substantially identical to those proffered by NCA. In its reply, however, TSO withdrew the two miscellaneous contentions, retaining a single NEPA contention.619 Then, a week later, TSO filed a motion for leave to file an amended petition, to be considered only if the Board determined that TSOs original petition failed to state at least one admissible contention.620 The amended petition contains one NEPA contention and one miscellaneous contention. Both DOE and NRC Staff filed answers to TSOs amended petition, and in its reply to the NRC Staffs answer, TSO withdrew its sole miscellaneous contention.621 Because the Board allows TSO to file an amended petition, as discussed below, just one NEPA contention remains.
618 TSO Reply to NRC Staff Answer to TSO Amended Petition at 6-7.
619 TSO Reply at 22 n.12.
620 TSO Corrected Motion for Leave at 1.
621 TSO Reply to NRC Staff Answer to TSO Amended Petition at 6-7.
- 133 -
TSO seeks to file its amended petition on two alternative grounds. First, TSO argues that the motion should be granted, pursuant to 10 C.F.R. § 2.309(f)(2), because the amended petition is based on information that was not previously available and is materially distinct from the information that was available.622 Alternatively, TSO contends that the 10 C.F.R.
§ 2.309(c)(1) factors for nontimely filings weigh in favor of granting the Motion.623 In its answer, DOE objects to the motion on both alternative grounds.624 The NRC Staff, however, believes that TSO has demonstrated good cause for its late filing, and therefore the motion should be granted under section 2.309(c)(1).625 To begin, TSOs amended petition is clearly not acceptable as a non-timely filing under section 2.309(f)(2). TSO insists that its amended petition relies on information that was not previously available.626 In fact, this newly available information amounts to nothing more than affidavits prepared by TSOs own experts.627 Assuming the information underlying those affidavits was available at the time TSO filed its original petition, the affidavits themselves cannot constitute previously unavailable information. As the NRC Staff points out, [t]he information contemplated by § 2.309(f)(2) is not information created, developed, and adduced by the very petitioner who proposes to use it to support his non-timely contentions under a guise of timeliness.628 Therefore, the Board does not grant TSOs motion based on section 2.309(f)(2).
622 TSO Corrected Motion for Leave at 2.
623 Id.
624 DOE Answer to TSO Amended Petition at 3-17.
625 NRC Staff Answer to TSO Amended Petition at 4-5.
626 TSO Corrected Motion for Leave at 10-11; see also 10 C.F.R. § 2.309(f)(2)(i).
627 TSO Corrected Motion for Leave at 10.
628 NRC Staff Answer to TSO Amended Petition at 7.
- 134 -
On the other hand, TSOs amended petition is appropriately treated as a nontimely filing under 10 C.F.R. § 2.309(c)(1). As the NRC Staff points out, good cause is the most important factor to be weighed in allowing an untimely filing under section 2.309(c)(1).629 TSO identifies a number of factors that prevented it from completing its petition on time, including the ongoing leadership dispute with TIM, TSOs inability to obtain funds from DOE, and TIMs alleged interference with TSOs records and resources.630 Accordingly, TSO has established good cause for its late filing. Because the remaining section 2.309(c)(1) factors also generally weigh in favor of granting the motion, the Board grants TSOs motion for leave to file an amended petition. Therefore, the Board declines to consider the contentions proffered in TSOs original petition and admits TSO-NEPA-001 under its new label, JTS-NEPA-009. The Board finds all nine of JTSs NEPA contentions to be admissible, with the sole exception of JTS-NEPA-002, which is discussed below.
- 2. JTS-NEPA-002 In JTS-NEPA-002, TIM (now recognized as JTS) challenges DOEs proclamation in its EIS that NWPA section 114(f)(2) and (3) relieves DOE of its NEPA responsibility to consider all alternatives to a repository at Yucca Mountain.631 TIM maintains that DOE is nonetheless required under NEPA to consider an alternative repository configuration at Yucca Mountain, and specifically contends that DOEs environmental review under NEPA should consider a surface-based storage facility or near-surface storage facility.632 While TIM concedes that NWPA section 114(f)(2) excuses DOE from considering alternatives to isolation in a repository, it asserts that the same statute provides no descriptors indicating that the repository need be 629 Id. at 3; see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 564 (2005).
630 TSO Corrected Motion for Leave at 6-7.
631 TIM Petition at 25-26.
632 Id. at 24.
- 135 -
deep or mined.633 TIM also maintains that the geographic area under consideration for repository operations extends beyond the limits of Yucca Mountain physiographically, and that section 114(f)(3) of the NWPA offers DOE no relief from broadening the definition of Yucca Mountain in a practical sense,634 and hence from studying physiographical alternatives thereto.
As stated by DOE, the NWPA expressly precludes DOE from the need to consider alternatives to geologic disposal, or alternative sites to the Yucca Mountain site,635 and defines repository as any system licensed by the Commission that is intended to be used for, or may be used for the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel.636 Contrary to TIMs interpretation of the NWPA, the Commission is therefore prevented from considering alternatives to deep, geologic disposal at Yucca Mountain. Thus, TIMs assertion that DOE need analyze alternatives that are surface-based and not deep or mined is in direct conflict with this statutory requirement and outside the scope of this proceeding. Therefore, the Board finds JTS-NEPA-002 inadmissible because it does not meet the requirements of 10 C.F.R § 2.309(f)(1)(iii). It also fails to present a genuine dispute on a material issue of fact or law as required by 10 C.F.R § 2.309(f)(1)(vi).
We note that CAB-01 has admitted NEV-NEPA-022, a contention that might appear facially similar to JTS-NEPA-002. Upon closer examination, however, NEV-NEPA-022 is distinguishable. Nevada takes issue with DOEs analysis of two no-action alternatives in DOEs Final EIS (FEIS), arguing that neither alternative is likely, reasonable or feasible and instead both alternatives are remote and speculative.637 Unlike TIM, Nevada does not insist that DOE 633 Id. at 26.
634 Id.
635 NWPA § 114(a)(1)(D), 42 U.S.C. § 10134(a)(1)(D).
636 NWPA § 2(18), 42 U.S.C. § 10101(18) (emphasis added).
637 Nevada Petition at 1132.
- 136 -
undertake an analysis of alternatives that the NWPA prohibits DOE from considering. Rather, it criticizes the no-action alternatives that DOE has already analyzed in its FEIS.
C. Certain California and Nevada Contentions
- 1. CAL-NEPA-005 CAL-NEPA-005 asserts that DOEs environmental documents present an incomplete and inaccurate project description that describes Yucca Mountain as having only a capacity of 70,000 metric tons heavy metal638 with a portion of that amount being transported through California, when it is reasonably foreseeable that Congress at DOEs request may authorize a capacity up to four times that total. The current capacity of the repository is fixed at 70,000 metric tons by section 114(d) of the NWPA. Because, in these circumstances, the significance of the current capacity limitation is unclear, CAL-NEPA-005 is admitted as a legal issue contention.639 As discussed below, two California contentions are not admitted.
- 2. CAL-NEPA-009 In this contention, California contends that DOE refused to hold public meetings on its Repository SEIS in areas of maximum population and potential environmental impacts in the State of California, despite explicit and specific requests from California that it hold such public hearings.640 Thus, California maintains, DOEs environmental documents are inadequate and incomplete, and they fail to comply with NEPAs procedural requirements.641 Despite its claim that DOE has not complied with NEPA, California does not refer to any of the regulations implementing NEPA or explain how DOEs actions failed to meet those regulations. Nor does California indicate how the NRCs findings pursuant to 10 C.F.R. 638 California Petition at 37.
639 NWPA § 114(d), 42 U.S.C. § 10134(d).
640 California Petition at 50.
641 Id.
- 137 -
§ 63.31(c) would be affected by DOEs alleged failure to conduct public hearings. Thus, California fails to demonstrate that the issue raised in this contention is material to the findings the NRC must make.642 Moreover, pertinent NEPA regulations do not even specify the number or location of public meetings required to satisfy an agencys public review process for its environmental document.643 Therefore, the Board finds CAL-NEPA-009 inadmissible because it does not meet the requirement of 10 C.F.R § 2.309(f)(1)(iv).
- 3. CAL-NEPA-016 In CAL-NEPA-016, California asserts that DOE did not follow the National Academy of Sciences recommendation for an independent analysis of security measures for transport of HLW and, as a result, failed to include essential security and environmental information required by the NRC regulations.644 California argues that the NRC, by adopting DOEs environmental documents, does not comply with 10 C.F.R. § 63.31(b) and (c) because, without the necessary independent review, the NRC could not determine that the activities will not be inimical to the common defense and security.645 California has not demonstrated any link to a NEPA requirement or an NRC regulation.
The Board finds that CAL-NEPA-016 is not within the scope of this proceeding and therefore is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii).
642 10 C.F.R. § 2.309(f)(1)(iv).
643 See 40 C.F.R. § 1506.6 (Agencies shall [h]old or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency.).
Although the NRCs regulations do not specifically address public meetings, the NRC Staff usually conducts a public meeting or meetings near the site of the proposed action to receive public comments. See Division of Waste Management, Office of Nuclear Material Safety and Safeguards, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748 (Aug. 2003) at 4-17 (ADAMS Accession No. ML032450279).
644 California Petition at 78.
645 Id. at 79.
- 138 -
- 4. NEV-SAFETY-130 NEV-SAFETY-130 challenges DOEs Drip Shield Emplacement Plan, Equipment, and Schedule.646 Although the Board finds that NEV-SAFETY-130 meets all the requirements of 10 C.F.R. § 2.309(f)(1)(i)-(vi) and is admissible, we note that the contentions invocation of questionable Congressional funding does not provide foundational support for the contention.647 XI.
DISCUSSION (CAB-03)
A. Certain Admitted Contentions The following are admitted as legal issue contentions (regardless of whether so identified by the petitioner), on which further briefing will be required:
NEV-SAFETY-146 Reliance on preliminary or conceptual design information NEV-SAFETY-149 Deviations in design and waste emplacement NEV-SAFETY-161 Critical role of drip shield NEV-SAFETY-169 Deferred retrieval plans NEV-SAFETY-171 PMA and QA NEV-SAFETY-184 Right-of-way N-48602 NEV-SAFETY-185 Right-of-way N-47748 NEV-SAFETY-186 Ranch boundary land NEV-SAFETY-187 Public Land Order 7653 NEV-SAFETY-188 Public Land Order 6802/7534 NEV-SAFETY-189 Patent 27-83-002 NEV-SAFETY-190 Unpatented lode and placer mining claims NEV-SAFETY-191 Nye County monitoring wells NEV-SAFETY-192 Land outside DOEs rights-of-way NEV-SAFETY-193 Land withdrawal NEV-SAFETY-194 VH-1 water rights NEV-SAFETY-201 Reliance on preliminary or conceptual design information The Board recognizes that NEV-SAFETY-146 is identical to NEV-SAFETY-201. To avoid possible confusion, we have admitted both contentions, with the expectation that they will subsequently be consolidated.
NEV-SAFETY-146 concerns DOEs reliance on preliminary or conceptual design information.648 In ruling on that and other contentions, the Board has generally not accepted at 646 Nevada Petition at 701.
647 Id. at 708.
648 Nevada Petition at 770.
- 139 -
this point the argument that a contention is, in effect, premature - that a contention raises an issue that should be considered at a later stage in the licensing process. Accordingly, the Board contemplates that the eventual disposition of certain admitted contentions, such as NEV-SAFETY-139,649 may depend on how NEV-SAFETY-146 is decided, or on subsequent briefing of other legal issues that bear on DOEs prematurity defense.
B. Inadmissible Contentions The Board is not admitting nine contentions.
NEV-SAFETY-135650 violates 10 C.F.R. § 2.309(f)(1)(iv) and (vi) in that it fails to demonstrate a genuine dispute on a material issue. The challenged design is not important to safety within the meaning of NRC regulations, and the contention ignores design features that render an airtight closure unnecessary and irrelevant.
NEV-SAFETY-195,651 NEV-SAFETY-197,652 and NEV-SAFETY-198653 all violate 10 C.F.R. § 2.335 and involve the subject matter of a pending Commission rulemaking. Nevada has petitioned, under 10 C.F.R. § 2.335(b), for a waiver on the ground that special circumstances are such that pertinent regulations would not serve purposes for which they were adopted. Nevadas waiver petition will be addressed in a subsequent order or orders, along with various admitted legal issue contentions.
NEV-NEPA-017654 raises no genuine dispute on an issue, contrary to 10 C.F.R.
§ 2.309(f)(1)(vi). The contention urges a legal interpretation of the NWPA that is contrary to the plain meaning of the statute and Commission interpretations thereof.
649 Id. at 739.
650 Id. at 726.
651 Id. at 1016.
652 Id. at 1025.
653 Id. at 1028.
654 Id. at 1116.
- 140 -
NEV-NEPA-019655 violates 10 C.F.R. § 2.309(f)(1)(iv) and (vi) in that it seeks further environmental analysis that is contrary to the rule of reason regarding the practical limits of projecting radiation doses beyond 1,000,000 years into the future.
INYO-JOINT-SAFETY-004656 is beyond the scope of this proceeding and fails to show a genuine dispute on a material issue, in violation of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).
Whether requirements of other federal agencies have been met is not a proper subject for a NRC proceeding.
NEI-NEPA-002657 fails to demonstrate a genuine dispute on a material issue, contrary to 10 C.F.R. § 2.309(f)(1)(vi). DOEs challenged environmental analysis presents a permissible worst case scenario. NEPA allows an agency to conservatively bound adverse environmental impacts, either deliberately or inadvertently.
NEI-NEPA-003658 is not admissible as either a factual or legal issue contention. Insofar as it is proffered as a factual contention, it lacks the required affidavit support.659 Insofar as it is proffered as a legal issue contention, contrary to 10 C.F.R. § 2.309(f)(1)(vi), it does not present a genuine dispute because, even were the challenged analysis not required, it would be permissible.
XII.
CONCLUSION For the reasons set forth above, the petitions of Nevada, NEI, Nye, Nevada 4 Counties, California, Clark, Inyo, and White Pine are granted and the petition of Caliente is denied.
At this time, petitioners NCA and JTS have established their standing and each have at least one admissible contention. As previously explained, both petitioners have yet to 655 Id. at 1121.
656 Inyo Petition at 86.
657 NEI Petition at 44.
658 Id. at 48.
659 See Section III.A supra.
- 141 -
demonstrate compliance with all requirements of 10 C.F.R. § 2.1012(b) and need to do so before their petitions may be granted.
Subsequent orders will address the briefing of legal issue contentions, initial discovery disclosures, scheduling, and other case management matters.
XIII.
ORDER For the foregoing reasons, it is this 11th day of May 2009, ORDERED that:
- 1. Calientes petition to intervene in this proceeding is denied for failure to demonstrate standing.
- 2. The petitions to intervene of Nevada, NEI, Nye, Nevada 4 Counties, California, Clark, Inyo, and White Pine are granted.
- 3. NCA and JTS have established their standing and each have at least one admissible contention. Until they can demonstrate compliance with the LSN requirements, however, their party status is denied.
- 4. The contentions listed in Attachment A are admissible.
- 5. The contentions listed in Attachment B are inadmissible.
- 6. TSOs March 5, 2009 motion for leave to file an amended petition is granted.
- 7. TSOs March 17, 2009 motion for leave to file an answer to TIMs reply is denied as moot.
- 8. TIMs March 11, 2009 motion for LSN certification out of time is denied.
- 9. The unopposed requests from Eureka and Lincoln to participate as interested governmental bodies, pursuant to 10 C.F.R. § 2.315(c), are granted.
- 10. Eurekas February 24, 2009 motion for leave to file a reply to the oppositions filed by DOE and the NRC Staff is denied.
- 11. Nevadas January 16, 2009 motion to amend its petition to intervene as a full party is denied.
- 12. NEIs February 13, 2009 motion to strike Nevadas answer to NEI is denied as moot.
- 142 -
In accordance with 10 C.F.R. § 2.1015(b), any appeal to the Commission from this Memorandum and Order:
must be filed with the Commission no later than ten (10) days after service of the order. A supporting brief must accompany the notice of appeal. Any other party, interested governmental participant, or potential party may file a brief in opposition to the appeal no later than ten (10) days after the service of the appeal.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARDS CAB-01 CAB-02 CAB-03
/RA/
/RA/
/RA/
William J. Froehlich, Chairman Michael M. Gibson, Chairman Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE
/RA/
/RA/
/RA/
Thomas S. Moore Alan S. Rosenthal Michael C. Farrar ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE
/RA/
/RA/
/RA/
Richard E. Wardwell Nicholas G. Trikouros Mark O. Barnett ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE ADMINISTRATIVE JUDGE Rockville, Maryland May 11, 2009
ATTACHMENT A (Admissible Contentions)
CAB-01 NEV-SAFETY-001 DOE Integrity NEV-SAFETY-002 DOE Management NEV-SAFETY-003 Quality Assurance Implementation NEV-SAFETY-004 Content of Quality Assurance Program NEV-SAFETY-005 Emergency Plan NEV-SAFETY-006 Part 21 Compliance NEV-SAFETY-007 Retrieval Plans and QA NEV-SAFETY-008 ALARA and the Aging Facility NEV-SAFETY-009 Increasing CO2 Levels on Future Climate Projections NEV-SAFETY-010 Consideration of Forcing Functions on Future Climate Projections NEV-SAFETY-011 Human-Induced Climate Changes on Prediction of the Next Glacial Period NEV-SAFETY-012 Projections of Future Wetter Climate Conditions NEV-SAFETY-013 Future Climate Projections Need to Include Extreme Precipitation Events NEV-SAFETY-014 Precipitation Model NEV-SAFETY-015 Alternative Precipitation Models and Weather Variables NEV-SAFETY-016 Qualification of Climate and Infiltration Models NEV-SAFETY-017 Calibration and Simulation of Precipitation Model NEV-SAFETY-018 Use of Climate Data from the Analog Sites NEV-SAFETY-019 Future Infiltration Projections Need to Include Reduced Vegetation Cover NEV-SAFETY-020 Net Infiltration Alternative Conceptual Model NEV-SAFETY-021 Infiltration Model and Changes in Soil and Rock Properties NEV-SAFETY-022 Net Infiltration Model Water Balance NEV-SAFETY-023 Evaluation of Alternative Net Infiltration Models NEV-SAFETY-024 Precipitation Data in Net Infiltration Model NEV-SAFETY-025 Site-Specific Data in Net Infiltration Model NEV-SAFETY-026 Soil Properties Data in Net Infiltration Model NEV-SAFETY-027 Rock Properties Data in Net Infiltration Model NEV-SAFETY-028 Net Infiltration Model Rock Properties Uncertainty Analysis NEV-SAFETY-029 Spatial Variability of Soils and Vegetation in Net Infiltration Model NEV-SAFETY-030 Temporal Variability in Precipitation in Net Infiltration Model NEV-SAFETY-031 Calibration of Net Infiltration Model NEV-SAFETY-032 Use of Initial Conditions in Net Infiltration Model NEV-SAFETY-033 Approach to Estimating Percolation NEV-SAFETY-034 Representation of Storm Duration for Net Infiltration Modeling NEV-SAFETY-035 Episodic Nature of Infiltration Fluxes in Net Infiltration Analysis NEV-SAFETY-036 Corroboration of Model Results in Post-Model Validation of Net Infiltration Simulations NEV-SAFETY-037 Net Infiltration Model Methodology NEV-SAFETY-038 Parameter Correlations in Net Infiltration Model NEV-SAFETY-039 Temperature Lapse Rate Verification NEV-SAFETY-040 Parameter Uncertainty Treatment in Net Infiltration Model NEV-SAFETY-041 Erosion FEP Screening NEV-SAFETY-042 Validation of Unsaturated Zone Flow Model by Simulation of Natural Chloride Distribution in Pore Waters NEV-SAFETY-043 Validation of Unsaturated Zone Flow Model by Carbon-14 Contents, Strontium Isotope Compositions and Calcite Mineral Precipitate Abundances
NEV-SAFETY-044 Flow in the Unsaturated Zone from Episodic Infiltration NEV-SAFETY-045 Effects of Episodic Flow NEV-SAFETY-046 Extreme Events Undefined NEV-SAFETY-047 Physical Basis of Site Scale Unsaturated Zone Flow NEV-SAFETY-048 Multi-Scale Thermal-Hydrologic Model NEV-SAFETY-049 Models of Fluid Movement in the Unsaturated Zone NEV-SAFETY-050 Alternative Discrete Fracture Flow Models NEV-SAFETY-051 Potential Convective Self Organization of 2-Phase Flow NEV-SAFETY-052 EBS and Near-Field Modeling Approach NEV-SAFETY-053 Application of the Fracture Matrix Dual Continuum Model to All Unsaturated Zone Flow Processes NEV-SAFETY-054 Constitutive Relationships in the Yucca Mountain Infiltration, Thermo-Hydrologic, and TSPA Models NEV-SAFETY-055 Data for the Chemistry of Pore Waters in the Topopah Springs (TSw)
Formation NEV-SAFETY-056 Geochemical Interactions and Evolution in the Unsaturated Zone, Including Thermo-Chemical Alteration of TSw Host Rock NEV-SAFETY-057 Data for Near-Field Chemistry Models NEV-SAFETY-058 Groundwater Samples in the Unsaturated Zone Sorption Tests NEV-SAFETY-059 Groundwater Compositions Assumed NEV-SAFETY-060 Empirical Site-Specific Data and the Near-Field Chemistry Model NEV-SAFETY-061 Ambient Seepage into Emplacement Drifts NEV-SAFETY-062 Thermal Seepage into Emplacement Drifts NEV-SAFETY-063 Effect of Rock Bolts on Ambient Seepage NEV-SAFETY-064 Effect of Rock Bolts on Thermal Seepage NEV-SAFETY-065 Structural Control of Seepage in the Emplacement Drift NEV-SAFETY-066 Attenuation of Seepage into Naturally Fractured Drift Walls NEV-SAFETY-067 Evaluation of Uncertainties in Estimated Chemical Properties, Especially pH Values, of Evaporated Drift Brines NEV-NEPA-001 Transportation Sabotage Scenarios NEV-NEPA-002 Transportation Sabotage Cleanup Costs NEV-NEPA-003 Transportation Accident Cleanup Costs NEV-NEPA-004 Shared Use Option NEV-NEPA-005 Radiological Regions of Influence for Transportation NEV-NEPA-006 Caliente Rail Alignment Plan and Profile Information NEV-NEPA-007 Overweight Trucks NEV-NEPA-008 Impacts on Aesthetic Resources NEV-MISC-002 Alternate Waste Storage Plans CLK-SAFETY-002 The DOEs Failure to Analyze Missile Testing CLK-SAFETY-003 The DOE Miscalculates Basaltic Magma Melting Depth CLK-SAFETY-004 The DOE Ignores the Time Span of Basaltic Volcanism CLK-SAFETY-005 The DOE Improperly Focuses on Upper Crustal Extension Patterns CLK-SAFETY-006 The DOE Improperly Excludes the Death Valley Volcanic Field and Greenwater Range from Volcanism Calculations CLK-SAFETY-007 The DOE Improperly Estimates Igneous Event Probability for 10,000 Years and 1,000,000 Years CLK-SAFETY-008 The DOE Ignores 11-Million Year Volcanism Data and Instead Relies on Only 5-Million Year Volcanism Data CLK-SAFETY-009 The DOE Fails to Consider Alternative Igneous Event Conceptual Models
CLK-SAFETY-010 The DOE Ignores Igneous Event Data Evaluated Since 1996 in the Total System Performance Analysis CLK-SAFETY-011 The DOE Lacks Sufficient Geophysical Data to Support Its Volcanic Model CLK-NEPA-001 The DOE Ignores Impacts on Emergency Management and Public Safety CLK-NEPA-002 The DOE Fails to Analyze Known and Feasible Rail Corridor Alternatives CLK-NEPA-003 The DOE Ignores Socio-Economic Impacts NYE-SAFETY-001 Failure to include activities in the performance confirmation program sufficient to assess the adequacy of information used to evaluate the capability of the upper natural barrier (UNB)following repository closure NYE-SAFETY-002 Failure to include activities in the performance confirmation program sufficient to assess the adequacy of information used to evaluate the capability of the lower natural barrier (LNB) following repository closure NYE-SAFETY-003 Failure to include activities in the performance confirmation program sufficient to assess the adequacy of information used as the basis for the site-scale model relied upon to evaluate the capability of the saturated zone (SZ) feature of the lower natural barrier (LNB) following repository closure.
NYE-SAFETY-004 Failure to fully consider possible air quality and radiological changes due to pre-closure construction and operational activity NYE-JOINT-The LA lacks any justification or basis for excluding potential aircraft SAFETY-006 crashes as a category 2 event sequence NYE-NEPA-001 Failure to adequately consider cumulative impacts to the environment over time, from releases of radiological and other contaminants to groundwater and from surface water discharges WHI-NEPA-001 Failure of Environmental Impact Statements to Fully Disclose Consequences of Radiation Contaminated Tephra Deposition in Areas Other Than That Directly Applicable to the Reasonably Maximally Exposed Individual WHI-NEPA-002 Failure of Environmental Impact Statements to Fully Disclose the Consequences of Atmospheric Transport of Radionuclides in Volcanic Gases WHI-NEPA-003 Failure of Environmental Impact Statements to Discuss Means to Mitigate Adverse Impacts of Radiation Contaminated Tephra Deposition in Areas Other Than That Directly Applicable to the Reasonably Maximally Exposed Individual WHI-NEPA-004 Failure of Environmental Impact Statements to Discuss Means to Mitigate diverse Impacts of Atmospheric Transport of Radionuclides in Volcanic Gases
CAB-02 NEV-SAFETY-068 In-Drift Condensation on Mineral Dust NEV-SAFETY-069 Coupled Seepage and Dust Deliquescence NEV-SAFETY-070 THC Evolution of Near-Field Pre-Seepage Unsaturated Zone Water NEV-SAFETY-071 Microbially Induced Water Chemistry Changes in the Incubator Zone NEV-SAFETY-072 Characterization of Dust Sources NEV-SAFETY-073 In-Drift Organic Contribution by Ventilation or Unsaturated Zone Water NEV-SAFETY-074 Impact of Microbial Activity NEV-SAFETY-075 Microbially Influenced Corrosion Model NEV-SAFETY-076 Microbial Denitrification NEV-SAFETY-077 Corrosion from Rock Bolt Seepage NEV-SAFETY-078 Static Corrosion Tests on Alloy 22 NEV-SAFETY-079 Static General Corrosion Test Solutions NEV-SAFETY-080 Localized Corrosion, Chloride Bearing Mineral Deposits and Hot Wall Effects NEV-SAFETY-081 Hydrogen Uptake Resulting From General Corrosion NEV-SAFETY-082 Corrosion of Thermally Oxidized Titanium NEV-SAFETY-083 Adequacy of Methods of General and Localized Corrosion Testing of the Drip Shield NEV-SAFETY-084 Use of Differential Weight Loss to Estimate Very Low Corrosion Rates NEV-SAFETY-085 Declining Corrosion Rate over Time NEV-SAFETY-086 Role of Rock Dust on Canister Surfaces in Localized Corrosion NEV-SAFETY-087 Intergranular SCC Corrosion During Dry-Wet Cycle NEV-SAFETY-088 Thermodynamics of Complex Deliquescent Salt Reactions During C-22 Corrosion NEV-SAFETY-089 Inhibition of C-22 Corrosion by High Nitrate to Chloride Ratio NEV-SAFETY-090 Effects of Rock Bolt on C-22 and Ti-7 Corrosion Reactions NEV-SAFETY-091 Representativeness of C-22 and Ti-7 Corrosion Testing Methods NEV-SAFETY-092 Impacts of Fluoride Due to Breach of HLW Containers NEV-SAFETY-093 Natural Lead Reactions on C-22 NEV-SAFETY-094 Significance of Mineral Crusts in C-22 Corrosion NEV-SAFETY-095 Peak Thermal Period Seepage and Corrosion NEV-SAFETY-096 Salt Production and C-22 Corrosion Due to Heat-Pipe Conditions NEV-SAFETY-097 Crevice Corrosion on C-22 Due to Drip Shield Corrosion Debris NEV-SAFETY-098 Rate of Drip Shield Interconnection Corrosion NEV-SAFETY-099 Boric Acid Production from HLW Dissolution NEV-SAFETY-100 Ground Support Components and In-Drift Modeling NEV-SAFETY-101 Sulfur Accumulation at the Metal-Passive Film Interface NEV-SAFETY-102 Sulfur Accumulation and Localized Corrosion NEV-SAFETY-103 Sulfur Accumulation and Stress Corrosion Initiation NEV-SAFETY-104 Sulfur Accumulation and Stress Corrosion Propagation NEV-SAFETY-105 Drip Shield Corrosion Environment NEV-SAFETY-106 Waste Container Corrosion Environment NEV-SAFETY-107 Electrochemical Reduction of Nitrate NEV-SAFETY-108 Molten Salt Corrosion of the Canister NEV-SAFETY-109 Molten Salt Corrosion of the Drip Shield NEV-SAFETY-110 Rock Bolt Corrosion NEV-SAFETY-111 HLW Waste Glass Dissolution NEV-SAFETY-112 HLW Waste Glass Degradation NEV-SAFETY-113 Competitive Sorption in the Unsaturated Zone
NEV-SAFETY-114 Applicability of Sorption Data NEV-SAFETY-115 Matrix Diffusion NEV-SAFETY-116 Saturated Zone Redox Conditions NEV-SAFETY-117 Radionuclide Sorption in the Saturated Zone NEV-SAFETY-118 Estimation of Uncertainties in Soil-To-Plant Transfer Factors NEV-SAFETY-119 Estimation of Uncertainties in Animal Product Transfer Coefficients NEV-SAFETY-120 RMEI Diet NEV-SAFETY-121 Host Rock Geomechanical Properties NEV-SAFETY-122 Screening of Drift Degradation FEPs NEV-SAFETY-123 Durability of Ground Support NEV-SAFETY-124 Welding of Alpha Beta Titanium Alloy to Unalloyed Titanium NEV-SAFETY-125 Effectiveness of Stress Relief to Eliminate SCC or Hydrogen Effects NEV-SAFETY-126 Properties of Dissimilar Metal Weld Joints between Grade 29 and Grade 7 Titanium NEV-SAFETY-127 Hydrogen and Erti-28 Filler Metal for Welded Joints Between Grade 29 and Grade 7 Titanium NEV-SAFETY-128 Nuclear Code and Fabrication Quality Assurance Standards NEV-SAFETY-129 Early Failure Mechanisms Associated with Titanium Fabrication NEV-SAFETY-130 Drip Shield Emplacement Plan, Equipment, and Schedule NEV-SAFETY-131 Rock Debris Removal NEV-SAFETY-132 TEV Description NEV-SAFETY-133 Drip Shield Gantry Description NEV-SAFETY-134 Retrieval or Alternate Storage Description NEV-NEPA-009 Transportation Sabotage Risk vs. At-Reactor Storage NEV-NEPA-010 Long-Term Radiation Exposure Following Sabotage NEV-NEPA-011 Sabotage Risk, Pressurized Cask NEV-NEPA-012 Transportation Risk Assumptions NEV-NEPA-013 Grazing Impacts NEV-NEPA-014 Deferred Assessment of Railroad Construction Impacts on Grazing NEV-NEPA-015 TAD Shipment Estimates NEV-NEPA-016 Representative Routes NEV-MISC-003 LA References NEV-MISC-004 Aging Facility Role under NWPA 4NC-SAFETY-001 Insufficient analysis in the License Application and SAR of transportation container usage and correlating impacts on worker safety 4NC-NEPA-001 Insufficient analysis in the Environmental Impact Statement of significant and substantial considerations of the environmental impacts of transportation by truck through the Four Nevada Counties 4NC-NEPA-002 Insufficient analysis in Environmental Impact Statement of significant and substantial considerations related to emergency response capacity within the Four Nevada Counties 4NC-NEPA-003 Insufficient analysis in Environmental Impact Statement of significant
& substantial new considerations related to selection of spent nuclear fuel transportation container, which renders Environmental Impact Statement inadequate
CAL-NEPA-001 DOEs NEPA Documents Impermissibly Segment the Project by Deferring Analysis of the Environmental Impacts of Transportation of Spent Nuclear Fuel and High-Level Waste Through California to Yucca Mountain CAL-NEPA-002 DOEs NEPA Documents Impermissibly Segment the Project as to Route Selection and Route-Specific Impact Analysis CAL-NEPA-003 DOEs NEPA Documents Impermissibly Fail to Analyze and Disclose Different Environmental Impacts from the Mina and Caliente Routes CAL-NEPA-004 DOEs NEPA Documents Fail to Adequately Discuss or Analyze Mitigation in California Adequately CAL-NEPA-005 DOEs NEPA Documents Are Based on an Incomplete and Inaccurate Project Description, Since a Doubling or Tripling of Yucca Mountains Capacity Is Reasonably Foreseeable Due to DOEs Request to Congress to Authorize Such a Capacity Increase CAL-NEPA-007 DOEs NEPA Documents Fail to Adequately Describe Transportation Impacts on Emergency Services in San Bernardino County CAL-NEPA-008 DOEs NEPA Documents Fails to Describe the Maximum Reasonably Foreseeable Accident CAL-NEPA-010 Failure to Analyze Impacts of Intermodal Transfers CAL-NEPA-011 Failure to Evaluate Impacts Within All Radiologic Regions of Influence CAL-NEPA-012 Failure to Discuss and Analyze Collocation Risks CAL-NEPA-013 Failure to Discuss and Analyze Barge Risks CAL-NEPA-014 Failure to Describe and Analyze Waste Acceptance Criteria CAL-NEPA-015 By Using Representative Routes, DOE Has Failed to Analyze Environmental Impacts of Probable Routes Railroads Would Use CAL-NEPA-017 Environmental Impacts from the Use of Heavy Haul Trucks at Local Sites CAL-NEPA-018 Failure to Analyze Impacts from the Use of California State Route CAL-NEPA-019 Failure to Analyze Use of TAD Canisters CAL-NEPA-020 Failure to Adequately Analyze Impacts on Local Emergency Management Responsibilities CAL-NEPA-021 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impact on Groundwater in the Lower Carbonate Aquifer CAL-NEPA-022 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impact on Groundwater in the Volcanic-Alluvial Aquifer CAL-NEPA-023 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impact from Surface Discharge of Groundwater CAL-NEPA-024 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Necessary Mitigation and Remediation Measures for Radionuclides Surfacing at Alkali Flat / Franklin Lake Playa CAL-NEPA-025 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impacts from Groundwater Pumping JTS-NEPA-001 Doses Related To Ingestion Of Particulate Matter JTS-NEPA-003 Repository Thermal Effects JTS-NEPA-004 Saturated Zone Flow Model JTS-NEPA-005 Infiltration Flux JTS-NEPA-006 Economic Analysis JTS-NEPA-007 Mitigation
JTS-NEPA-008 Future Climate JTS-NEPA-009 NEPA Requirements NCA-NEPA-001 NEPA Requirements NCA-MISC-001 Land Ownership and Control
CAB-03 NEV-SAFETY-136 Phased Ground Support Installation NEV-SAFETY-137 Construction of the Emplacement Drifts NEV-SAFETY-138 Description of the Ventilation System for the Repository Options Made in the TSPA-LA Regarding Waste Isolation NEV-SAFETY-139 Description of Reasonable Emergencies NEV-SAFETY-140 Engineered Barrier System Design Basis NEV-SAFETY-141 Ground Support Descriptions NEV-SAFETY-142 Standard Titanium Grades Considered NEV-SAFETY-143 Available Drip Shield Design Information NEV-SAFETY-144 Drip Shield Failure Mechanisms NEV-SAFETY-145 Drip Shield Specifications NEV-SAFETY-146 Reliance on Preliminary or Conceptual Design Information NEV-SAFETY-147 Evaluation of Data Used in Drip Shield Failure Probability NEV-SAFETY-148 Evaluation of Computational Procedure Used in Drip Shield Failure Probability NEV-SAFETY-149 Deviations in Design and Waste Emplacement NEV-SAFETY-150 Basaltic Magma Melting Depth NEV-SAFETY-151 Time Span of Basaltic Volcanism NEV-SAFETY-152 Focus on Upper Crustal Extension Patterns NEV-SAFETY-153 Exclusion of Death Valley from Volcanism Calculations NEV-SAFETY-154 Igneous Event Probability for 10,000 Years and 1,000,000 Years NEV-SAFETY-155 11-Million Year vs. 5-Million Year Volcanism Data NEV-SAFETY-156 Alternative Igneous Event Conceptual Models NEV-SAFETY-157 Igneous Event Data in the TSPA NEV-SAFETY-158 Geophysical Data in DOE's Volcanic Model NEV-SAFETY-159 Propagation of Conceptual and Parametric Uncertainties through the Safety Assessment NEV-SAFETY-160 Probability Density Functions Used in the TSPA NEV-SAFETY-161 Critical Role of Drip Shield NEV-SAFETY-162 Drip Shield Installation Schedule NEV-SAFETY-163 Screening of Near-Field Criticality NEV-SAFETY-164 Aggregation of Probability Distributions NEV-SAFETY-165 Saturated Zone Expert Elicitation NEV-SAFETY-166 Probabilistic Seismic Hazard Analysis Expert Elicitation NEV-SAFETY-167 Probabilistic Volcanic Hazard Analysis Expert Elicitation NEV-SAFETY-168 Retrieval Practicality NEV-SAFETY-169 Deferred Retrieval Plans NEV-SAFETY-170 Conservatisms and the PMA NEV-SAFETY-171 PMA and QA NEV-SAFETY-172 Inspection and Verification of TAD NEV-SAFETY-173 Emplacement Drift Monitoring NEV-SAFETY-174 Controls and Restrictions NEV-SAFETY-175 Controls on Pilot Relief NEV-SAFETY-176 Controls on Pilot Maneuvering NEV-SAFETY-177 Controls on Helicopters NEV-SAFETY-178 Basis for Aircraft Exclusions NEV-SAFETY-179 Controls on Aircraft Operations (Mid-Air)
NEV-SAFETY-180 Crash Frequency of Fixed-Wing Aircraft NEV-SAFETY-181 Basis for Crash Density Calculations NEV-SAFETY-182 Glide Distance NEV-SAFETY-183 Crash Rates
NEV-SAFETY-184 Right-of-Way N-48602 NEV-SAFETY-185 Right-of-Way N-47748 NEV-SAFETY-186 Ranch Boundary Land NEV-SAFETY-187 Public Land Order 7653 NEV-SAFETY-188 Public Land Order 6802/7534 NEV-SAFETY-189 Patent 27-83-002 NEV-SAFETY-190 Unpatented Lode and Placer Mining Claims NEV-SAFETY-191 Nye County Monitoring Wells NEV-SAFETY-192 Land Outside DOE's Rights-Of-Way NEV-SAFETY-193 Land Withdrawal NEV-SAFETY-194 VH-1 Water Rights NEV-SAFETY-196 Description of Security Measures NEV-SAFETY-199 Performance Confirmation and Available Technology NEV-SAFETY-200 Performance Confirmation Program Level of Information NEV-SAFETY-201 Reliance on Preliminary or Conceptual Design Information NEV-NEPA-018 Overlap between NEPA and AEA NEV-NEPA-020 Radionuclide Contamination of Aquifer NEV-NEPA-021 Contaminated Aquifer Discharges NEV-NEPA-022 No-Action Alternative NEV-NEPA-023 Aircraft Crash Scenarios - Aging Facility NEV-MISC-005 Role of Aging Facility INY-SAFETY-001 Failure to Adequately Describe and Analyze the Flow Path in the Lower Carbonate Aquifer through Which Contaminants May Migrate and Adversely Impact Areas Within The County of Inyo INY-SAFETY-002 Failure to Adequately Describe and Analyze the Impact of the Repository in Combination with a Continuation of Existing Levels of Groundwater Pumping on the Potential Migration of Contaminants from the Proposed Repository INY-SAFETY-003 Failure to Adequately Describe and Analyze the Volcanic Field in the Greenwater Range in and Adjacent to Death Valley National Park INY-JOINT-The LA Lacks any Justification or Basis for Excluding Potential SAFETY-005 Aircraft Crashes as a Category 2 Event Sequence INY-NEPA-001 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Direct and Cumulative Impacts on Groundwater in the Lower Carbonate Aquifer INY-NEPA-002 Failure to Adequately Describe and Analyze the Cumulative Impact of the Repository in Combination with a Continuation of Existing Levels of Groundwater Pumping on the Potential Migration of Contaminants from the Proposed Repository INY-NEPA-003 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impact on Groundwater in the Volcanic-Alluvial Aquifer INY-NEPA-004 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Repositorys Cumulative Impact from Surface Discharge of Groundwater
INY-NEPA-005 Failure to Provide a Complete and Adequate Discussion of the Nature and Extent of the Necessary Mitigation and Remediation Measures for Radionuclides Surfacing at Alkali Flat/Franklin Lake Playa INY-NEPA-006 Failure to Adequately Describe and Analyze the Describe and Analyze the Volcanic Field in the Greenwater Range in and Adjacent to Death Valley National Park Thus Failing to Assess the Potential Environmental Impacts Resulting from Igneous Activity that Could Disrupt the Repository INY-NEPA-007 Failure to Address Socioeconomic Impacts in the County of Inyo NEI-SAFETY-001 Spent Nuclear Fuel Direct Disposal in Dual Purpose Canisters NEI-SAFETY-002 Insufficient Number of Non-TAD SNF Shipments to Yucca Mountain NEI-SAFETY-003 Excessive Seismic Design of Aging Facility NEI-SAFETY-004 Low Igneous Event Impact on TSPA NEI-SAFETY-005 Excessive Conservatism in the Postclosure Criticality Analysis NEI-SAFETY-006 Drip Shields Are Not Necessary NEI-NEPA-001 Inadequate NEPA Analysis for 90% TAD Canister Receipt Design
ATTACHMENT B (Inadmissible Contentions)
CAB-01 NEV-MISC-001 Erosion And Geologic Disposal CLK-SAFETY-001 The DOEs Inadequate Treatment of Uncertainty CLK-SAFETY-012 The DOEs Lack of Integrity Poses a Significant Public Safety Concern NYE-JOINT-Failure to include the requirements of the National Incident SAFETY-005 Management System (NIMS), dated March 1, 2008, and Related Documentation in Section 5.7 Emergency Planning of the Yucca Mountain Repository Safety Analysis Report (SAR)
CAB-02 CAL-NEPA-009 DOE Failed to Comply with NEPAs Procedural Requirements for Full Public Review and Opportunity for Comments in California CAL-NEPA-016 DOE Has Ignored the NAS Recommendation of Independent Examination of the Security of Shipments JTS-NEPA-002 Analysis of Alternatives to the Proposed Action NCA-MISC-002 Water Rights CAB-03 NEV-SAFETY-135 The Ventilation Doors at the Entry to the Emplacement Drifts NEV-SAFETY-195 9/11 Terrorist Attack NEV-SAFETY-197 Physical Protection Standard NEV-SAFETY-198 Material Control and Accounting Plan NEV-NEPA-017 NRC Staffs NEPA Review NEV-NEPA-019 Peak Dose Identification INY-JOINT-Failure to Include the Requirements of the National Incident SAFETY-004 Management System (NIMS), Dated March 1, 2004, and Related Documentation in Section 5.7 Emergency Planning of the Yucca Mountain Repository Safety Analysis Report (SAR)
NEI-NEPA-002 Overestimate of Number of Truck Shipments NEI-NEPA-003 Over-Conservatism in Sabotage Analysis
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
U.S. DEPARTMENT OF ENERGY
)
Docket No. 63-001-HLW
)
(High-Level Waste Repository)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS) (LBP-09-06), dated May 11, 2009, have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board (ASLBP)
Mail Stop T-3F23 Washington, DC 20555-0001 CAB 01 William J. Froehlich, Chair Administrative Judge wjf1@nrc.gov Thomas S. Moore Administrative Judge tsm2@nrc.gov Richard E. Wardwell Administrative Judge rew@nrc.gov CAB 02 Michael M. Gibson, Chair Administrative Judge mmg3@nrc.gov Alan S. Rosenthal Administrative Judge axr@nrc.gov or rsnthl@verizon.net Nicholas G. Trikouros Administrative Judge ngt@nrc.gov CAB 03 Paul S. Ryerson, Chair Administrative Judge psr1@nrc.gov Michael C. Farrar Administrative Judge mcf@nrc.gov Mark O. Barnett Administrative Judge mob1@nrc.gov or mark.barnett@nrc.gov ASLBP (continued)
Anthony C. Eitreim, Esq., Chief Counsel ace1@nrc.gov Daniel J. Graser, LSN Administrator djg2@nrc.gov Lauren Bregman, Law Clerk lrb1@nrc.gov Zachary Kahn, Law Clerk zxk1@nrc.gov Emily Krause, Law Clerk eik1@nrc.gov Erica LaPlante, Law Clerk eal1@nrc.gov Matthew Rotman, Law Clerk matthew.rotman@nrc.gov Joseph Deucher jhd@nrc.gov Andrew Welkie axw5@nrc.gov Jack Whetstine jgw@nrc.gov Patricia Harich patricia.harich@nrc.gov Sara Culler sara.culler@nrc.gov
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 2 U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 Hearing Docket hearingdocket@nrc.gov U.S. Department of Energy Office of General Counsel 1000 Independence Avenue S.W.
Washington, DC 20585 Martha S. Crosland, Esq.
martha.crosland@hq.doe.gov Nicholas P. DiNunzio, Esq.
nick.dinunzio@rw.doe.gov James Bennett McRae ben.mcrae@hq.doe.gov Cyrus Nezhad, Esq.
cyrus.nezhad@hq.doe.gov Christina C. Pak, Esq.
christina.pak@hq.doe.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop O-16C1 Washington, DC 20555-0001 OCAA Mail Center ocaamail@nrc.gov For U.S. Department of Energy Office of Counsel, Naval Sea Systems Command Nuclear Propulsion Program 1333 Isaac Hull Avenue, SE Washington Navy Yard, Building 197 Washington, DC 20376 Frank A. Putzu, Esq.
frank.putzu@navy.mil U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Marian L. Zobler, Esq.
mlz@nrc.gov Mitzi A. Young, Esq.
may@nrc.gov Margaret J. Bupp, Esq.
mjb5@nrc.gov Karin Francis, Paralegal kxf4@nrc.gov Daniel H. Fruchter, Esq.
daniel.fruchter@nrc.gov Adam Gendelman, Esq.
adam.gendelman@nrc.gov Joseph S. Gilman, Paralegal jsg1@nrc.gov Daniel W. Lenehan, Esq.
dwl2@nrc.gov Kevin C. Roach, Esq.
kevin.roach@nrc.gov Andrea L. Silvia, Esq.
alc1@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov U.S. Department of Energy Office of General Counsel 1551 Hillshire Drive Las Vegas, NV 89134-6321 George W. Hellstrom, Esq.
george.hellstrom@ymp.gov Jocelyn M. Gutierrez, Esq.
jocelyn.gutierrez@ymp.gov Josephine L. Sommer, Paralegal josephine.sommer@ymp.gov
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 3 For U.S. Department of Energy USA-Repository Services Yucca Mountain Project Licensing Group 1160 N. Town Center Drive, Suite 240 Las Vegas, NV 89144 Jeffrey Kriner, Regulatory Programs jeffrey_kriner@ymp.gov Stephen J. Cereghino, Licensing/Nucl Safety stephen_cereghino@ymp.gov For U.S. Department of Energy USA-Repository Services Yucca Mountain Project Licensing Group 6000 Executive Boulevard, Suite 608 North Bethesda, MD 20852 Edward Borella, Sr Staff, Licensing/Nuclear Safety edward_borella@ymp.gov Danny R. Howard, Sr. Licensing Engineer danny_howard@ymp.gov For U.S. Department of Energy Talisman International, LLC 1000 Potomac St., NW, Suite 300 Washington, DC 20007 Patricia Larimore, Senior Paralegal plarimore@talisman-intl.com Counsel for U.S. Department of Energy Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Clifford W. Cooper, Paralegal ccooper@morganlewis.com Lewis M. Csedrik, Associate lcsedrik@morganlewis.com Jay M. Gutierrez, Esq.
jgutierrez@morganlewis.com Charles B. Moldenhauer, Associate cmoldenhauer@morganlewis.com Brian P. Oldham, Associate boldham@morganlewis.com Thomas D. Poindexter, Esq.
tpoindexter@morganlewis.com Alex S. Polonsky, Esq.
apolonsky@morganlewis.com Thomas A. Schmutz, Esq.
tschmutz@morganlewis.com Donald J. Silverman, Esq.
dsilverman@morganlewis.com Shannon Staton, Legal Secretary sstaton@morganlewis.com Annette M. White, Associate Annette.white@morganlewis.com Paul J. Zaffuts, Esq.
pzaffuts@morganlewis.com Counsel for U.S. Department of Energy Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219 Kelly L. Faglioni, Esq.
kfaglioni@hunton.com Donald P. Irwin, Esq.
dirwin@hunton.com Michael R. Shebelskie, Esq.
mshebelskie@hunton.com Stephanie Meharg, Paralegal smeharg@hunton.com Belinda A. Wright, Sr. Professional Assistant bwright@hunton.com
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 4 Counsel for State of Nevada Egan, Fitzpatrick & Malsch, PLLC 1750 K Street, NW, Suite 350 Washington, DC 20006 Martin G. Malsch, Esq.
mmalsch@nuclearlawyer.com Susan Montesi:
smontesi@nuclearlawyer.com Counsel for State of Nevada Egan, Fitzpatrick & Malsch, PLLC 12500 San Pedro Avenue, Suite 555 San Antonio, TX 78216 Charles J. Fitzpatrick, Esq.
cfitzpatrick@nuclearlawyer.com John W. Lawrence, Esq.
jlawrence@nuclearlawyer.com Laurie Borski, Paralegal lborski@nuclearlawyer.com Nevada Agency for Nuclear Projects Nuclear Waste Project Office 1761 East College Parkway, Suite 118 Carson City, NV 89706 Steve Frishman, Tech. Policy Coordinator steve.frishman@gmail.com Susan Lynch, Administrator of Technical Prgms szeee@nuc.state.nv.us Bureau of Government Affairs Nevada Attorney General 100 N. Carson Street Carson City, NV 89701 Marta Adams, Chief Deputy Attorney General madams@ag.nv.gov Counsel for Lincoln County, Nevada 1100 S. Tenth Street Las Vegas, NV 89017 Bret Whipple, Esq.
bretwhipple@nomademail.com Annie Bailey, Legal Assistant baileys@lcturbonet.com Lincoln County District Attorney P. O. Box 60 Pioche, NV 89403 Gregory Barlow, Esq.
lcda@lcturbonet.com Lincoln County Nuclear Oversight Program P.O. Box 1068 Caliente, NV 89008 Connie Simkins, Coordinator jcciac@co.lincoln.nv.us For Lincoln County, Nevada Intertech Services Corporation PO Box 2008 Carson City, NV 89702 Mike Baughman, Consultant bigboff@aol.com Counsel for Nye County, Nevada Ackerman Senterfitt 801 Pennsylvania Avenue, NW, #600 Washington, DC 20004 Robert Andersen, Esq.
robert.andersen@akerman.com Counsel for Nye County, Nevada 530 Farrington Court Las Vegas, NV 89123 Jeffrey VanNiel, Esq.
nbrjdvn@gmail.com
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 5 Nye County Regulatory/Licensing Advisor 18160 Cottonwood Rd. #265 Sunriver, OR 97707 Malachy Murphy, Esq.
mrmurphy@chamberscable.com Nye County Nuclear Waste Repository Project Office (NWRPO) 1210 E. Basin Road, #6 Pahrump, NV 89060 Sherry Dudley, Admin. Technical Coordinator sdudley@co.nye.nv.us Zoie Choate, Secretary zchoate@co.nye.nv.us Clark County, Nevada 500 S. Grand Central Parkway Las Vegas, NV 98155 Elizabeth A. Vibert, Deputy District Attorney Elizabeth.Vibert@ccdanv.com Phil Klevorick, Sr. Mgmt Analyst klevorick@co.clark.nv.us Counsel for Clark County, Nevada Jennings, Strouss & Salmon 8330 W. Sahara Avenue, #290 Las Vegas, NV 89117 Bryce Loveland, Esq.
bloveland@jsslaw.com Counsel for Clark County, Nevada Jennings, Strouss & Salmon 1700 Pennsylvania Avenue, NW, Suite 500 Washington, DC 20006-4725 Elene Belte, Legal Secretary ebelete@jsslaw.com Alan I. Robbins, Esq.
arobbins@jsslaw.com Debra D. Roby, Esq.
droby@jsslaw.com Eureka County, Nevada Office of the District Attorney 701 S. Main Street, Box 190 Eureka, NV 89316-0190 Theodore Beutel, District Attorney tbeutel.ecda@eurekanv.org Counsel for Eureka County, Nevada Harmon, Curran, Speilberg & Eisenberg, LLP 1726 M. Street N.W., Suite 600 Washington, DC 20036 Diane Curran, Esq.
dcurran@harmoncurran.com Matthew Fraser, Law Clerk mfraser@harmoncurran.com Eureka County Public Works PO Box 714 Eureka, NV 89316 Ronald Damele, Director rdamele@eurekanv.org Nuclear Waste Advisory for Eureka County, Nevada 1983 Maison Way Carson City, NV 89703 Abigail Johnson, Consultant eurekanrc@gmail.com For Eureka County, Nevada NWOP Consulting, Inc.
1705 Wildcat Lane Ogden, UT 84403 Loreen Pitchford, Consultant lpitchford@comcast.net
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 6 Counsel for Churchill, Esmeralda, Lander, and Mineral Counties, Nevada Armstrong Teasdale, LLP 1975 Village Center Circle, Suite 140 Las Vegas, NV 89134-6237 Robert F. List, Esq.
rlist@armstrongteasdale.com Jennifer A. Gores, Esq.
jgores@armstrongteasdale.com Esmeralda County Repository Oversight Program-Yucca Mountain Project PO Box 490 Goldfield, NV 89013 Edwin Mueller, Director muellered@msn.com Mineral County Nuclear Projects Office P.O. Box 1600 Hawthorne, NV 89415 Linda Mathias, Director yuccainfo@mineralcountynv.org For City of Caliente, Lincoln County, and White Pine County, Nevada P.O. Box 126 Caliente, NV 89008 Jason Pitts, LSN Administrator jayson@idtservices.com White Pine County, Nevada Office of the District Attorney 801 Clark Street, #3 Ely, NV 89301 Richard Sears, District Attorney rwsears@wpcda.org White Pine County Nuclear Waste Project Office 959 Campton Street Ely, NV 89301 Mike Simon, Director wpnucwst1@mwpower.net For White Pine County, Nevada Intertech Services Corporation PO Box 2008 Carson City, NV 89702 Mike Baughman, Consultant bigboff@aol.com Counsel for Caliente Hot Springs Resort LLC John H. Huston, Attorney at Law 6772 Running Colors Avenue Las Vegas, NV 89131 John H. Huston, Esq.
johnhhuston@gmail.com Counsel for Inyo County, California Greg James, Attorney at Law 710 Autumn Leaves Circle Bishop, CA 93514 Greg James, Esq.
E-Mail: gljames@earthlink.net Inyo County Yucca Mountain Repository Assessment Office P. O. Box 367 Independence, CA 93526-0367 Alisa M. Lembke, Project Analyst alembke@inyocounty.us California Department of Justice Office of the Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550 Susan Durbin, Deputy Attorney General susan.durbin@doj.ca.gov Michele Mercado, Analyst michele.Mercado@doj.ca.gov California Department of Justice Office of the Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Timothy E. Sullivan, Deputy Attorney General timothy.Sullivan@doj.ca.gov
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 7 California Department of Justice 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 Brian Hembacher, Deputy Attorney General brian.hembacher@doj.ca.gov California Energy Commission 1516 Ninth Street Sacramento, CA 95814 Kevin, W. Bell, Senior Staff Counsel kwbell@energy.state.ca.us Nuclear Energy Institute Office of the General Counsel 1776 I Street, NW Suite 400 Washington, DC 20006-3708 Ellen C. Ginsberg, General Counsel ecg@nei.org Michael A. Bauser, Deputy General Counsel mab@nei.org Anne W. Cottingham, Esq.
awc@nei.org Counsel for Nuclear Energy Institute Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W.
Washington, DC 20037-1122 Jay E. Silberg, Esq.
jay.silberg@pillsburylaw.com Timothy J.V. Walsh, Esq.
timothy.walsh@pillsburylaw.com Maria D. Webb, Senior Energy Legal Analyst maria.webb@pillsburylaw.com Counsel for Nuclear Energy Institute Winston & Strawn LLP 1700 K Street, N.W.
Washington, DC 20006-3817 David A. Repka, Esq.
drepka@winston.com William A. Horin, Esq.
whorin@winston.com Rachel Miras-Wilson rwilson@winston.com Carlos L. Sisco, Senior Paralegal csisco@winston.com Native Community Action Council P.O. Box 140 Baker, NV 89311 Ian Zabarte, Member of Board of Directors mrizabarte@gmail.com Counsel for Native Community Action Council Alexander, Berkey, Williams & Weathers LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Curtis G. Berkey, Esq.
cberkey@abwwlaw.com Rovianne A. Leigh, Esq.
rleigh@abwwlaw.com Scott W. Williams, Esq.
swilliams@abwwlaw.com
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW MEMORANDUM AND ORDER (IDENTIFYING PARTICIPANTS AND ADMITTED CONTENTIONS)(LBP-09-06) 8 For Joint Timbisha Shoshone Tribal Group 3560 Savoy Boulevard Pahrump, NV 89601 Joe Kennedy, Executive Director joekennedy08@live.com Tameka Vazquez, Bookkeeper purpose_driven12@yahoo.com Counsel for Joint Timbisha Shoshone Tribal Group Fredericks, Peebles, & Morgan LLP 1001 Second St.
Sacramento, CA 95814 Darcie L. Houck, Esq.
dhouck@ndnlaw.com John M. Peebles, Esq.
jpeebles@ndnlaw.com Counsel for Joint Timbisha Shoshone Tribal Group Godfrey & Kahn, S.C.
One East Main Street, Suite 500 P. O. Box 2719 Madison, WI 53701-2719 Steven A. Heinzen, Esq.
sheinzen@gklaw.com Douglas M. Poland, Esq.
dpoland@gklaw.com Hannah L. Renfro, Esq.
hrenfro@gklaw.com Jacqueline Schwartz, Paralegal jschwartz@gklaw.com Julie Dobie, Legal Secretary jdobie@gklaw.com Counsel for Joint Timbisha Shoshone Tribal Group Godfrey & Kahn, S.C.
780 N. Water Street Milwaukee, WI 53202 Arthur J. Harrington, Esq.
aharrington@gklaw.com
[ Original Signed by Linda D. Lewis
]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 11th day of May 2009