ML18271A243
| ML18271A243 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| 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 | |
| Pending, RAS 54515, WCS CISF 72-1050-ISFSI | |
| Download: ML18271A243 (5) | |
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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Motion of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners for Leave to Reply to NRC Staffs Response and Holtec Internationals Answer and Opposition to Motions to Dismiss Under 10 C.F.R. § 2.323(c) Movants Fasken Land and Minerals, Ltd. (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) respectfully move the Commission for leave to reply to Holtec Internationals Answer Opposing Movants Motion to Dismiss for HI-STORE Consolidated Interim Storage Facility, and NRC Staffs Response to Motions to Dismiss Licensing Proceedings. Movants Fasken and PBLRO brought their motions to dismiss under the Administrative Procedure Act and contend that the 10 C.F.R. Part 2 regulations do not apply to the motions. (Motion to Dismiss, p. 2) But the circumstances underpinning this motion to allow a reply represent the compelling circumstances requirement of 10 C.F.R. § 2.323(c) for granting requests to reply.1 1 Permission [for leave to reply] may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply. 10 C.F.R. 2.323(c)
2 Movants Motion to Dismiss the Holtec and ISP2 Consolidated Interim Storage Facilities (CISF) licensing proceedings are based on the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. § 10101, et seq. (NWPA) and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A) and (C) (APA). Neither Staff nor Holtec directly address the merits of the Motion to Dismiss and focus on the procedural requirements of 10 C.F.R. Part 2. Movants could not have reasonably anticipated arguments based on the 10 C.F.R. Part 2 regulations because their Motions to Dismiss do not rely upon the Atomic Energy Act as a basis for relief. Allowing Movants to reply to Staff and Holtecs arguments that the motions are deficient because such were not raised under 10 C.F.R. Pt. 2 allows a better record upon which to decide the Motions to Dismiss. Staff and Holtecs arguments misinterpret germane Commission decisions. Absent a reply, Movants contend the record will not fairly reflect the state of the law regarding the Motions to Dismiss and lead to Commission decisions on the Motions to Dismiss that conflict with the NWPA and impermissibly allow vitiate the requirement that ownership of and liability for spent nuclear fuel remain with generators until a permanent repository is constructed and licensed for permanent disposal.
Holtecs arguments that Movants do not have standing to advance a motion to dismiss misconstrue the applicable case law. Holtecs arguments, if adopted by the Commission, would establish requirements that would effectively preclude standing for property owners in close proximity to a CISF and its enormous concentration of radioactive materials. Holtecs overly restrictive interpretations of proximity standing requirements could not have been anticipated by Movants that have property interests as little as one and two miles from the proposed CISFs.
2 The Motion to Dismiss of Fasken and PBLRO addresses both the Holtec and ISP CISF applications but was filed in the Holtec docket only. The subject motion to dismiss of Fasken &
PBLRO will be filed in the ISP/WCS docket with this reply.
3 (Declaration of Tommy Taylor in Support of Fasken and PBLROs Motion to Dismiss).
Adopting Holtecs unreasonably narrow position on standing would make public participation in CISF proceedings unrealistic. Standing requirements cannot be so restrictive as to preclude the participation of property or royalty owners within one or two miles of a proposed CISF. But that is what Holtec advocates. (Holtec Response, pp. 5-7.) And much of this argument is based on Holtecs premise that the risks of radiological harm are too small with interim storage facilities to justify proximity standing and for support it cites In re Consumers Energy Co., 65 N.R.C. 423, 2007 (Big Rock Point ISFSI). This is a license transfer case and the proposed intervenor resided within 50 miles of the ISFSI. In dicta the Commission noted that ISFSIs have lower risk for radiological harm. Id. But it is too much to infer from this decision that a property interest within a few miles of the proposed CISFs is too remote to qualify for proximity standing. This is an interpretation of standing that is not justified under Big Rock Point ISFSI and was not reasonably foreseen as a basis to preclude standing of the Movants herein.
Moreover, incorrect decision would unnecessarily burden Movants with the expenses of challenging applications that cannot be approved under the NWPA and unnecessarily diminish the Movants property values in the vicinity of the proposed Holtec and ISP facilities. The Commission should have the benefit of the reply arguments germane to the Motions to Dismiss that a reviewing Court of Appeals will certainly have.
The CISF applications before the Commission raise unique and significant issues that conflict with the NWPA. Nobody wins a licensing proceeding that requires significant outlays of resources only to ultimately find that no legal basis exists to issue a license. Avoidence of this circumstance also justifies allowing Movants proposed reply. See: In the Matter of Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-11 (If in fact NRC has no
4 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.).
Based on the above arguments and authorities the Movants pray the Commission grants leave for them to file replies.
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 Consultation Undersigned certifies that communications to counsel for participants in these dockets regarding their positions regarding the above Motion for Leave to Reply yielded no objection from Beyond Nuclear and Sierra Club. NRC Staff, Holtec and ISP opposed the motion.
/signed electronically by/
Robert V. Eye
5 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