ML18271A239
| ML18271A239 | |
| Person / Time | |
|---|---|
| Site: | |
| Issue date: | 09/28/2018 |
| From: | Eye R Fasken Land & Minerals, Ltd, Permian Basin Land and Royalty Owners, Robert V. Eye Law Office |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| HI-STORE Fuel Storage, RAS 54514, Holtec International | |
| Download: ML18271A239 (8) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
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Holtec International
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Docket No. 72-1051
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(HI-STORE Consolidated Interim Storage Facility
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In the Matter of:
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Interim Storage Partners
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Docket No. 72-1050
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(WCS Consolidated Interim Storage Facility)
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Reply of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners to Holtec Internationals Response to Motion to Dismiss Movants Fasken Land and Minerals, Ltd. (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) hereby offer for the Commissions consideration their Reply to Holtec Internationals Response to to the Motion to Dismiss Holtec International (Holtec) opposes the Movants Motion to Dismiss its application for a Consolidated Interim Storage Facility (CISF). Holtecs arguments center on whether Movants have standing and that the arguments regarding jurisdiction should be raised in the context of proceedings under 10 C.F.R. Pt. 2.1 1 NRC Staff does not raise standing issues in their response to Movants Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility. Response of NRC Staff to Fasken Land and Minerals and Permian Basin Land and Royalty Owners for Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 24, 2018).
2 Movants have Met Standing Requirements The Supreme Court has stated, in order to meet the cases and controversies jurisdictional requirement of Article III of the United States Constitution, the party invoking federal jurisdiction bears the burden of establishing, at a minimum, the following elements: (1) the plaintiff must have personally suffered a concrete injury in fact to a legally protected interest, or that such an injury is imminent or certainly impending; (2) the injury must be fairly traceable to the challenged action; and (3) it must be likely, as opposed to merely speculative, that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). A plaintiff must also establish a fourth element where it challenges agency action under the Administrative Procedure Act (APA)parties seeking review under [the APA] must establish that the injury he or she complains of falls within the zone of interest sought to be protected by the statutory provision whose violation forms the basis [of the]
complaint. Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 3186 (1990).
Although this zone of interests requirement will be denied if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute, Thompson v. North American Stainless, LP, 562 U.S. 170, 178, 131 S.Ct. 863 (2011), the requirement is not meant to be especially demanding, Soler v. Scott, 942 F.2d 597, 605 (9th Cir. 1991), vacated on other grounds, 506 U.S. 969, 113 S.Ct. 454 (1992), and the interest a plaintiff seeks to vindicate need only have a plausible relationship to the policies underlying the statute. Clarke v. Securities Indus. Assn, 479 U.S. 388, 403, 107 S.Ct. 750, 757 (1987).
Under NRC case law, a party may be presumed to have fulfilled the judicial standards for standing based on geographic proximity to a facility or a source of radiation. In the Matter of Consumers Energy Co. (Big Rock Points ISFSI), 65 N.R.C. 423, 426 (Apr. 26, 2007). In operating license or construction permit proceedings the Commission adopted a proximity presumption that allows an individual or group living, having frequent contacts, or having a significant property interest within 50 miles of a nuclear power reactor to establish standing without the need to make an individualized showing
3 of injury, causation or redressability. In the Matter of Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), 86 N.R.C. 59, 74-75 (Oct. 6, 2017). This presumption rests on the Commissions finding that persons living within the roughly 50-mile radius of the facility face a realistic threat of harm if a release from the facility of radioactive material were to occur. Id. at 75.
The NRC has held that the proximity presumption is sufficient to confer standing on an individual or group in proceedings under 10 C.F.R. Part 50 for significant license amendments as well. Florida Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 N.R.C. 325, 329 (1989). One such example of proximity standing based on a significant licensing amendment comes from In the Matter of Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), 9 N.R.C. 54, 56 (1979). The Commission held that proximity standing was presumed given the petitioners proximity being a stones throw away from the facility in an amendment proceeding where the licensee sought permission to expand the capacity of its facilitys spent fuel pool. Id. Furthermore, the Commission stated that the Licensing Board should not consider whether the petitioners stated concerns were justified until it reached the merits of the controversy. Id.
In order to clear up the basis of their holding in Virginia Electric, the Commission explained in a later decision that proximity was presumed in Virginia Electric not just because there was a significant amendment to an operating license expanding the capacity of a spent fuel pool, but rather, because the expansion of the capacity involved was related to the construction or operation of the reactor itself.
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unites 1 and 2) 30 NRC 325, 329-30 (1989). The Commission explained that the construction and operation near the reactor itself would clearly implicate offsite environment which would ultimately lead to the potential for offsite consequences. Id. The Commission further stated that absent situations involving such obvious potential for offsite consequences[--i.e., non-reactor licensing proceedings--]a petitioner must allege some specific injury in fact that will result from the action taken. Id.
4 That being said, the Commission in the earlier case of In the Matter of Armed Forces Radiobiology Research Institute (Combalt-60 Storage Facility) rejected the requirement that a petitioner in a case involving radiation from a non-reactor source needed to prove the traditional elements of standing in addition to showing a causal relationship between injury and the licensing action being sought. 16 N.R.C. 150, 153-154 (Jul. 16, 1982). In Armed Forces, the Armed Forces Radiobiology Research Institute (AFRRI) filed with the Commission an application for renewal of its Part 30 byproduct material license. Id. at 152. The license authorized AFRRI to possess up to 320,000 curies of radioactive cobalt-60 in a water-shielded irradiation facility located on the grounds of the National Naval Medical Center in Bethesda, Maryland, primarily for use in radiobiology research. Id. The inventory of radioactive cobalt at the facility at the time was described in affidavits as being one of the largest in the United States. Id. at 154. After the NRC granted the license, petitioner CNRS, in a letter to the Secretary of the Commission, requested a hearing on the renewal of the license for the cobalt-60 facility. Id. at 152. The letter described an incident involving the storage facility in which the mechanism used to raise the cobalt-60 out of its shielding water jammed, exposing the material with its lethal gamma radiation for a period of time. Id. Furthermore, the letter also stated that its members lived as close as three miles from a substantial source of radioactive material. Id. Ultimately, the Commission stated that the proximity to a large source of radioactive material established the petitioners interest that was arguably within the zone of interest of the Atomic Energy Act. Id. at 154.
As mentioned, the interest a plaintiff seeks to vindicate need only have a plausible relationship to the policies underlying the statute, Clarke, 479 U.S. 403, 107 S.Ct. 757 (1987), which in this case is the Nuclear Waste Policy Act. 42 U.S.C. 10131 et seq.. The Movants relationship to the policies of the NWPA is based on their proximity to the proposed CISF. The Commissions long-standing decision regarding the proximity presumption in Armed Forces follows most closely to the facts of the instant case.
The two proposed spent nuclear fuel storage facilities would be capable of storing large volumes
5 of radioactive material away from nuclear reactors. Faskens properties and leases will be even closer to these facilities than CNRS employees in the Armed Forces case, supra.. Furthermore, given that the Holtec and/or the ISP will be the only CISFs in the country either or both facilities would likely store the largest amount of spent nuclear fuel in the United States. Just as Armed Forces held that CNRS had proximity standing due to AFRRI storing large sources of radioactive material--the largest radioactive cobalt supplies in the United Stateshere, Fasken and PBLRO will be neighbors with the proposed CISFs with their large concentrations of radioactive materials.
While the material projected for storage at Holtec and/or ISP is different from that stored by AFRRI, the holding in Armed Forces focused on the proximity to large sources of radioactive material regardless of what the radioactive material was. Id. at 154 (emphasis added). Just as Armed Forces determined that there was nothing in Virginia Electric suggesting that the basic principles of proximity standing were limited to cases involving Part 50 licenses (i.e. operating licenses or construction permits), the holding in Armed Forces based on AFRRIs Part 30 licenses (i.e. licensing of byproduct material) equally applies to the Faskens proximity standing given the concept of geographic proximity is not limited [by Parts]. Id. at 153. Therefore, regardless of the type of license, the presumption applied in Armed Forces applies to Fasken considering their proximity to the largest proposed concentration of spent nuclear fuel in the United States.
Given Armed Forces, Fasken and PBLRO have satisfied the burden of the proximity presumption. Holtecs argument that Fasken and PBLRO lack standing because of vague claimsinsufficient to establish a distinct and palpable injury-in-fact, Motion at 9, is moot given the Commissions directions not to consider whether the petitioners stated concerns are justified until it reaches the merits of the controversy. Virgina Electric, 9 N.R.C. 56.2
6 Fasken has met the burden of standing required by the APA based on the proximity presumption established in being in close proximity to a large source of radioactive material-in this case, spent nuclear wastewhich is an interest within the zone of interests of the Atomic Energy Act. Armed Forces, 16 N.R.C. 154.
Accordingly, the Commission should reject Holtecs arguments that Movants lack standing to advance their Motion to Dismiss.
CLI-17-10 is not Dispositive Regarding the Means by which a Motion to Dismiss may be Raised in this Matter.
Holtec argues that the Commissions decision in CLI-17-10 requires that the Movants raise their jurisdictional arguments in a 10 C.F.R. Pt. 2 contention rather than a motion to dismiss. (Holtec Response, pp.11-12). In CLI-17-10 the Commission recognized that legal issues regarding the proposed Consolidated Interim Storage Facilities (CISF) should be anticipated. The Commissions decision did not require that such be raised only through a contention under 10 C.F.R. Pt. 2.3 The Commissions decision to state that a jurisdictional issue may be raised by a contention rather than shall or must be so raised leaves open the means Movants invoke, i.e., a motion to dismiss based on the APA4. Because Movants have questioned the jurisdiction of the Commission to consider CISF applications raising the matter under the APA is proper.
3 The Commission decision states [T]his argument [regarding predicate legal requirements of the NWPA] may be raised in an intervention petition after the hearing opportunity is re-noticed; 10 C.F.R. § 2.309(f)(1) specifically permits petitioners to present contentions that raise issues of law.(Emphasis added).
4 5 U.S.C. 558(b) states A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.
7 In CLI-02-11 the Commission recognized jurisdictional issues under the NWPA that question the authority to issue a CISF license require resolution before expenditure of resources necessary in a licensing proceeding. The Commission rejected the Staff and applicants arguments based on timeliness in order to address the threshold questions regarding jurisdiction.
The issue presented here raises a fundamental issue going to the very heart of this proceeding. If in fact NRC has no authority to issue PFS a license, completion of the licensing process would be a waste of resources for all parties as well as the Commission.5 This Commission decision also extended an invitation to interested parties to file amicus curie briefs and did not specify that these parties participate through the 10 C.F.R. Pt. 2 process.6 CLI-02-11 implicitly recognizes that the procedural means to resolve a jurisdictional issue that goes to the very heart of whether a CISF license may issue is secondary to the substance of the issue. Otherwise, the Commission would not have extended an invitation for amici briefs; rather; it would have specified that the threshold jurisdictional issues must be raised as contentions under 10 C.F.R. Pt. 2.
The Commission should adopt the wisdom of the decision in CLI-02-11 in resolving the motions to dismiss. The compelling necessity to resolve fundamental questions regarding the Commissions jurisdiction to issue CISF licenses to avoid unnecessary expenditures of resources should weigh in favor of resolution of the motions to dismiss before adjudication of contentions under 10 C.F.R. Pt. 2.
Accordingly, Movants respectfully pray that their Motions to Dismiss be accepted by the Commission for adjudication.
5 67 FR 18254 6 Id.
8 Respectfully submitted,
/electronically signed by/
Robert V. Eye, KS S.C. No. 10689 Robert V. Eye Law Office, L.L.C.
4840 Bob Billings Pky., Suite 1010 Lawrence, Kansas 66049 785-234-4040 Phone 785-749-1202 Fax bob@kauffmaneye.com Attorney for Movants September 28, 2018 Certificate of Service Undersigned certifies that a true and correct copy of the above and foregoing was submitted to the NRCs Electronic Information System for filing and service on participants in the above-captioned dockets.
/signed electronically by/
Robert V. Eye