ML18201A187
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Kristine L. Svinicki, Chairman Jeff Baran, Commissioner Stephen G. Bums, Commissioner Annie Caputo, Commissioner David A. Wright, Commissioner U.S. Nuclear Regulatory Commission Mail Stop 0-4FOO Washington, DC 20555-0001 July 19,2018 Via email to Chairman@NRC.gov, CMRBARAN@nrc.gov, CMRBURNS@nrc.gov, CMRCaputo@nrc.gov, CMRWright@nrc.gov Jose Cuadrado, Project Manager Division of Spent Fuel Management Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Via email to jose.cuadrado@nrc.gov Jill Caverly, Environmental Project Manager Via email to Jill. Caverly@nrc.gov
SUBJECT:
Holtec International HI-STORE Consolidated Interim Storage Facility Project Docket No. 72-1051 (Request for additional 90-day extension of scoping comment period and delay of Federal Register announcement of intervention window)
Dear Members of the Commission:
Don't Waste Michigan, Sierra Club, Beyond Nuclear, Citizens for Alternatives to Chemical Contamination, Nuclear Information and Resource Services, Peace Action Wisconsin, Indigenous Rights Center, Hudson River Sloop Clearwater, Inc., TMI-Alert, Public Citizen, Bruce Peninsula Environmental Group, Portsmouth/Piketon Residents for Environmental Safety and Security, Physicians for Social Responsibility, HEAL Utah, SanOnofreSafety.org, Residents Organized For a Safe Environment, Nuclear Watch South, Uranium Watch, Cape Downwinders, Don't Waste Arizona, Multicultural Alliance for a Safe Environment, New England Coalition on Nuclear Pollution, On Behalf of Planet Earth, Rockland Environmental Group, Vermont Yankee Decommissioning Alliance, Citizens Awareness Network, North American Water Office, Nevada Nuclear Waste Task Force, Citizens' Environmental Coalition, Southern Alliance for Clean Energy, Ecological Options Network, Nuclear Energy Information Service, The Council of Canadians, and Catholic Charities of Gallup Diocese each questions and/or opposes the proposed Holtec International (Holtec) consolidated interim storage facility (CISF) for spent nuclear fuel (SNF) being planned for southeastern New Mexico. Many of these organizations are planning to Page 1 of 8
intervene in the forthcoming Nuclear Regulatory Commission (NRC) license proceeding for the Holtec CISF.
We hereby request that the Commission extend the scoping comment period for the CISF proposal to October 30, 2018 from the present terminus of July 30, 2018. We further request a suspension of the just-announced 60-day period for submission of petitions for intervention and a hearing.
We make these requests: (1) to afford the public time to comment upon the anticipated disclosures by the NRC in response to a pending Freedom of Information Act (FOIA) request for some 144 pages, more than one-quarter (25%) of the 543-page Holtec Environmental Report (Rev. 1), which NRC Staff have indicated will occur on or before August 8, 2018; and (2) to remedy public frustrations with recurring technical problems with the NRC's systems for submission of public comments and the conduct of research in the ADAMS system. This gamut of difficulty contrives to block the NRC's receipt of public scoping comments and interrupts or slows complicated priority research activity, respectively. Notably, the FOIAonline portal was down for maintenance for more than a week which included July 5, 2018 when the FOIA request discussed in this letter was submitted, and when the requester followed instructions and submitted it directly to the NRC FOIA office, that office did not acknowledge receipt or otherwise act on the request until prompted to do so by the requester's July 11, 2018 followup correspondence.
- 1. Redaction of 25% of Holtec CISF Environmental Report Limits Public Commenting and Ongoing Preparations To Intervene In Licensing Proceeding Holtec applied to the NRC by letter dated March 30, 2017 for license authorization to construct and operate a HI-STORE CISF for spent nuclear fuel storage on a 960-acre site in Lea County, New Mexico. Holtec intends initially to store 500 canisters (8680 metric tons) of SNF, followed by 19 additional phases, all aimed eventually at storing 10,000 canisters and 120,000 or more metric tons. It may be that more than 170,000 metric tons might end up at Holtec's facility.
Even at 120,000 MT, the Holtec CISF would easily be the world's largest SNF interim site.
In December 2017, Holtec issued its Holtec Environmental Report on the HI-STORE CIS Facility ("CISF"), Rev. 1 ("ER"). In the 543-page ER, Holtec mentions two historic properties that could be directly affected by this project, but the ER does not explain where they are located, what they are, their significance, how they would be affected by the CISF, nor what measures are being considered to mitigate their destruction or alteration as a consequence of building and operating the CISF. Commencing at p. 321 of the ER, "Appendix C: Cultural Resources Communications and Survey Results," all of Appendix C (pp. 321-464) is redacted, and each page is marked "Security-Related Information Withheld under 10 CFR 2.390." It is probable that Appendix C contains the missing cultural resources information. Without it, the public has, at best, only a partial understanding of the possible environmental damage from CISF construction and operation, and further has no idea of proposed or possible mitigation steps.
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The National Environmental Policy Act (NEPA) requires that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated. Com-munities, Inc. v. Busey, 956 F.2d 619, 625-26 (6th Cir.), cert. denied, 113 S.Ct. 408, 121 L.Ed.2d 332 (1992). Council on Environmental Quality regulations at 40 C.F.R. § l 502.14(f) require an Environmental Impact Statement to "[i]nclude appropriate mitigation measures not already included in the proposed action or alternatives."
Don't Waste Michigan (DWM) filed its FOIA request on July 5, 2018, seeking the cultural resources information as part of its investigation of certain aspects of the Holtec radioactive waste facility application, because DWM intends to comment on the plan and to formally intervene in the forthcoming NRC licensing proceeding. The requested information may possibly directly aid DWM in formulating contentions in support of its intervention petition.
By letter dated July 11, 2018, the NRC FOIA officer denied DWM's request for expedited processing and stated that the request would be answered "on or before August 8, 2018."
On July 16, 2018, the NRC published a notice in the Federal Register which formally opens the licensing case and simultaneously commences the 60-day clock for filing of intervention petitions. The unavailability of 25% of the Environmental Report at present curtails scrutiny for public comments and investigatory review during the coming three weeks, and possibly beyond (depending on the NRC FOIA office response). It infringes upon the public's right to know the complete picture and to decide how to best oppose the Holtec license. Potential intervenors and the public are likely to be put at a serious disadvantage in the licensing case, such as being forced to litigate FOIA requests during the same period of time they have to file contentions in the licensing case based upon the missing information.
- 2. Serial Unavailability of Regulations.gov and ADAMS The Regulations.gov website, to which the NRC refers the public for online filing of scoping comments, approaches a third month of dysfunctionality and periodic unavailability.
Despite formal complaint on June 13, 2018 by Beyond Nuclear of the site's nonfunctioning circumstances that Regulations.gov had been inaccessible for comment filing for most of the preceding six weeks, the portal is not reliably operating even at present. Since the NRC touts the site as its preferred means of receiving comments, it is possible that members of the public who are blocked by repeated error notices and are either frustrated or unaware of the less-advertised direct email and snail mail submission options, then abandon the attempt to file comments.
Moreover, technical problems also keep cropping up in the NRC's ADAMS online library. On July 11, 2018, ADAMS was completely and unexpectedly nonfunctioning for several hours. For over a month, ADAMS system ML hotlinks and full URL linkages inconsistently do not copy, which forces mechanical extra formatting in order for researchers to share documents with members of legal teams and interested members of the public. This includes Holtec CISF-related items, which are time-prioritized. Each day the public is hindered from providing electronic comments to NRC through these methods is a period of time that the scoping process, in fairness, must be extended.
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- 3. The NRC Is Legally Obligated to Restore Fairness To the Scoping Stage of This Licensing Proceeding Scoping is the initial phase of the overall EIS process under NEPA. Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022 (10th Cir.2002). Scoping is "an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action." 40 C.F.R. § 1501.7; Citizens' Comm. to Save Our Canyons, 297 F.3d at 1022 (goal of scoping is to "identify [ ] specific issues to be addressed and studied" during the EIS process (citing 40 C.F.R. § 1501.7)).
The scoping period serves "to notify those who may be affected... that the relevant entity is beginning the EIS process; this notice requirement ensures that interested parties are aware of and therefore are able to participate meaningfully in the entire EIS process, from start to finish." Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1116 (9th Cir. 2002), citing Northwest Coalition for Alternatives to Pesticides (NCAP) v. Lyng, 844 F.2d 588, 594-95 (9th Cir. 1988).
Once it has formally initiated the scoping process, the NRC "may... [s]et time limits" for the scoping process and "[h]old an early scoping meeting or meetings." 40 C.F.R. § 1501.7(b)(2), (4) (emphasis added). Those time limits must comply with 40 C.F.R. § 1501.8. Id.,
§ 1501.7(b)(l). Section 1501.8 does not "prescribe [] universal time limits for the entire NEPA process," but instead authorizes agencies to set time limits, including limits on the scoping process that are "appropriate to individual actions" and "are consistent with the purposes of NEPA and other essential considerations of national policy." Id. § 1501.8.
Council on Environmental Quality (CEQ) regulations do not set minimum time limits for the scoping period and do not require an agency to extend or reopen the scoping period. Congress intended that agency discretion, and not the courts, "be exercised in determining when extra procedural devices should be employed." Phillips Petroleum Co. v. U.S. EPA, 803 F.2d 545, 559 (10th Cir.1986) (emphasis omitted) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def Council, 435 U.S. 519,546 (1978) (internal quotation marks omitted). A reviewing court can overturn an agency decision for failure to provide additional procedure when there are "extremely compelling circumstances." Vermont Yankee, 435 U.S. at 543.
The signers of this letter suggest that there are "extremely compelling circumstances" present here that obligate the NRC to extend the scoping comment period until October 30, 2018, and further compel the delay of commencement of the intervention petition filing period until after interested parties have attained relief under FOIA. Fundamental concerns of fairness, coupled with NEPA's expectation of maximal public participation and the high significance of the Holtec CISF, itself, as a policy determination, all militate in favor of altering the present deadlines.
Accordingly, the public requests the additional time to comment, investigate and prepare for the licensing case. Given the proximity of next steps in this proceeding, we request an Page 4 of 8
expedited decision from the NRC on these requests. Thank you very much.
Sincerely, Isl Terry J Lodge Terry J. Lodge, Esq.
316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 tj lodge5 O@yahoo.com Counsel for Don't Waste Michigan Isl Wallace L. Taylor Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 wtaylor784@aol.com Counsel for Sierra Club Isl Kevin Kamps Kevin Kamps, Radioactive Waste Watchdog Beyond Nuclear 6930 Carroll A venue, Suite 400 Takoma Park, Maryland 20912 kevin@beyondnuclear.org www.beyondnuclear.org Isl Victor McManemy Victor McManemy, Chairperson Citizens for Alternatives to Chemical Contamination (CACC)
P.O. Box 23 Lake Station, Michigan 48632 vrmcmanemy@yahoo.com Isl Tim Judson Tim Judson, Exec. Director Nuclear Information and Resource Services 6930 Carroll Ave, Ste. 340 Takoma Park, MD 20912 timj@nirs.org Isl Pamela Richard Pamela Richard, Director Peace Action Wisconsin 1001 E Keefe Ave.
Milwaukee, WI 53212 (414) 269-9525 peaceactionwi.org Isl Peter Clark Peter Clark, Manager Indigenous Rights Center 202 Harvard Drive, SE #5 Albuquerque, NM 87106 IndigenousRightsCenter.org Isl Manna Jo Greene Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave., Beacon, NY 12508 845-807-1270 (cell) mannajo@clearwater.org www.clearwater.org Isl Eric Epstein Eric Epstein, Chairman TMI-Alert 4100 Hillsdale Road Harrisburg, PA 17112 lechambon @comcast.net Isl Adrian Shelley Adrian Shelley, Director, Texas Office Public Citizen 309 East 11th Street, Suite 2 Austin, TX, 7870 l http://www.citizen.org/texas ashelley@citizen.org Page 5 of 8
Isl Allison Fisher Allison Fisher Outreach Director, Energy Program Public Citizen 215 Pennsylvania A venue SE Washington, D.C. 20003 (202) 546-4996 Isl Siegfried (Ziggy) Kleinau Siegfried (Ziggy) Kleinau Outreach Director Bruce Peninsula Environmental Group P.O. Box 364, Binbrook, ON, LOR lCO Canada ziggyk38@gmail.com Isl Vina Colley Vina Colley, President PRESS (Portsmouth/Piketon Residents for Environmental Safety and Security)
Co-Founder ofNNWJ (National Nuclear Workers for Justice)
P.O. Box 136 Portsmouth, Ohio 45662 740-357-8916 vco J ley@earthlink.net Isl Jeff Carter Jeff Carter, Executive Director Physicians for Social Responsibility 1111 14th St, NW, Suite 700 Washington, DC 20005 (202) 587-5240 I (202) 374-4387 (cell) www.psr.org I jcarter@psr.org I @jeffcrtr Isl Robert M. Gould Robert M. Gould, MD, President San Francisco Bay Area Chapter Physicians for Social Responsibility 870 Market Street, Suite 578 San Francisco, CA 94102 rmgould l@yahoo.com Isl Scott Williams Scott Williams, M.D., M.P.H.
Executive Director HEAL Utah 824 South 400 West, Suite B-111 Salt Lake City, Utah 84101 scott@healutah.org Isl Donna Gilmore Donna Gilmore, Founder SanOnofreSafety.org 205 La Salle, San Clemente, CA 92672 donnagilmore@gmail.com Isl Gene Stone Gene Stone Residents Organized For a Safe Environment (ROSE)
San Onofre, CA 949-233-7724 http:// residentsorganizedforasafeenvi ronment. wordpress.com/
http://partofthearth.blogspot. com/
Isl Glenn Carroll Glenn Carroll, Coordinator Nuclear Watch Smith P.O. Box 8574 Atlanta, Ga 31106 404-378-4263 atom.girl@nonukesyall.org Isl Sarah Fields Sarah Fields, Program Director Uranium Watch P.O. Box 1306 Monticello, Utah 84532 435-260-8384 sarah@uraniumwatch.org Page 6 of 8
Isl Diane Turco Diane Turco, Director Cape Downwinders PO Box 303 South Harwich, MA 02661 www.capedownwindersinfo@gmail.com/
tturco@comcast.net Isl Stephen Brittle Stephen Brittle, President Don't Waste Arizona 2934 West North view A venue Phoenix, AZ 85051 dwaz@fastq.com Isl Susan Gordon Susan Gordon, Coordinator Multicultural Alliance for a Safe Environment PO Box 4524 Albuquerque NM 87196 sgordon@swuraniumimpacts.org Isl Schuyler Gould Schuyler Gould, President New England Coalition on Nuclear Pollution PO Box 545 Brattleboro, VT 05302 skygvt@aol.com www.NewEnglandCoalition.org Office - 802-257-0366 Cell - 802-479-7227 Isl Sheila Parks Sheila Parks, Ed.D., Founder On Behalf of Planet Earth Massachusetts 617-744-6020 sheilaruthparks@comcast.net http://www.madownwinders.org/on-behalf-of-planet-earth/
Isl Susan H. Shapiro Susan H. Shapiro, Esq.
Rockland Environmental Group 7 5 N. Middletown Road Nanuet, New York 10954 susan@hitoshapirolaw.com Isl Debra Stoleroff Debra Stoleroff, Convener Vermont Yankee Decommissioning Alliance c/o 158 New Hamburger Rd.
Plainfield, Vermont 05667 debrastoleroff@protonmail.com Isl Deb Katz Deb Katz, Convenor Citizens Awareness Network Box 83 Shelburne Falls, MA 01370 deb@nukebusters.org Isl George Crocker George Crocker, Executive Director North American Water Office PO Box 174 Lake Elmo, MN 55042 nawo.org gwillc@nawo.org Isl Judv Treichel Judy Treichel, Executive Director Nevada Nuclear Waste Task Force 4587 Ermine Court Las Vegas, NV 89147 judynwtf@aol.com Isl Barbara Warren Barbara Warren, Executive Director Citizens' Environmental Coalition 33 Central Ave, 3rd Floor Albany, NY 12210 warrenba@msn.com Page 7 of 8
Isl Sara Barczak Sara Barczak, Regional Advocacy Director Southern Alliance for Clean Energy P.O. Box 1842 Knoxville, TN 37901 sara@cleanenergy.org Isl Mary Beth Brangan Mary Beth Brangan, Executive Director Ecological Options Network P.O. Box 1047 Bolinas, CA 94924 mbbrangan@gmail.com Isl David A. Kraft David A. Kraft, Director Nuclear Energy Information Service 3411 W. Diversey #13 Chicago, IL 60647 neis@neis.org Isl Michael J Keegan Michael J. Keegan Don't Waste Michigan P.O. Box 463 Monroe, MI48161 mkeeganj@comcast.net (734) 770-1441 Isl Kathryn Barnes Kathryn Barnes Don't Waste Michigan Sherwood Chapter Sherwood,MI49089 greenwoodsart@msn.com Isl Mark Calzavara Mark Calzavara Regional Organizer Ontario-Quebec-Nunavut The Council of Canadians 300-251 Bank St.
Ottawa Ontario K2P 1X3 mark@canadians.org Isl Rose Marie Cecchini Rose Marie Cecchini, MM Director Office of Peace, Justice & Creation Catholic Charities of Gallup Diocese Gallup, NM 87301 rcecchinimm@centurylink.net Page 8 of 8
CHAIRMAN Resource From:
Sent:
To:
Cc:
Subject:
Attachments:
Dear Commissioners:
Terry Lodge <tj1odge50@yahoo.com>
Thursday, July 19, 2018 2:37 PM CHAIRMAN Resource; CMRBARAN Resource; CMRBurns Resource; CMRCaputo Resource; CMRWright Resource Cuadrado-Caraballo, Jose; Cuadrado-Caraballo, Jose; Kevin Kamps; Keegan/Michael
[External_Sender] Holtec International CISF Project, Docket No. 72-1051 (Request for comment extension)
Scoping extension request July 2018.pdf Please review and respond to the attached letter requesting a public comment extension, and suspension of the 60-day intervention window pending response to pending FOIA requests.
Thank you.
Respectfu I ly, Terry J. Lodge, Esq.
(419) 205-7084 1