ML18281A012
| ML18281A012 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 10/08/2018 |
| From: | Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| Pending, RAS 54540, WCS CISF 72-1050-ISFSI | |
| Download: ML18281A012 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 October 8, 2018 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING REQUEST FOR EXTENSION OF INTERVENTION DEADLINE I.
INTRODUCTION On October 3, 2018, a group of organizations and individuals (Joint Requesters)1 filed a letter on the above-captioned adjudicatory docket, seeking various extensions and actions related to the pending Interim Storage Partners LLC (ISP) Application for a Consolidated Interim Storage Facility (CISF) in Texas (Request).2 Relevant to this proceeding, the Request asks that the [U.S. Nuclear Regulatory Commission (NRC)] and the applicant provide the application and related documents especially the public notices and fact sheets in Spanish, and that the current deadline to submit hearing requests in this proceeding be extended, pursuant to 10 C.F.R. § 2.307, until 180 days after such documents become publicly available.3 Pursuant to 10 C.F.R. §§ 2.323(c) and 2.307, ISP submits this Answer opposing the Request for multiple independent reasons.4 As explained below, the NRC already has taken
1 Beyond Nuclear has since excluded itself from this group. See Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene at 1 n.1 (Oct. 3, 2018) (ML18276A242).
2 Request for Extension on Deadline for Intervention (dated October 2, 2018; filed on the ISP docket on October 3, 2018) (ML18276A066).
3 Id. at 1.
4 This Answer does not address Joint Requesters additional requests (e.g., extend the EIS scoping comment period and hold additional EIS scoping meetings) because such requests appear to be directed to NRC Staff and, in any event, fall outside the limited scope of this adjudicatory proceeding. See generally Interim
2 reasonable Spanish language outreach measures and made certain documents describing the project and its associated environmental and safety review processes available in Spanish; NRCs regulations do not require ISP to translate documents into another language; and Joint Requesters fail to establish good cause for an extension to the hearing request deadline.5 Indeed, the CISF Application has been publicly available for two-and-a-half years with only limited subsequent changes. Joint Requesters attempt to delay the proceeding must be rejected.
II.
THE REQUEST MUST BE REJECTED A.
The NRC Has Made Documents About the Project Available in Spanish and NRC Regulations Do Not Require the Application to Be Translated The Request seeks extension of the opportunity to request a hearing until 180 days from the date the application and related documents especially the public notices and facts sheets are translated into Spanish and made publicly available and announced publicly.6 As a preliminary matter, the NRC long ago made fact sheets and other materials publicly available in Spanish related to the project and public participation.7
Storage Partners Waste Control Specialists Consolidated Interim Storage Facility; Revised License Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene; Order Imposing Procedures, 83 Fed. Reg. 44,070 (Aug. 29, 2018) (Notice of Hearing Opportunity).
5 The Request also fails to comply with multiple procedural requirements in 10 C.F.R. Part 2. Joint Requesters were required to make a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion pursuant to 10 C.F.R. § 2.323(b). We are aware of no such effort by Joint Requesters, who include many experienced NRC intervenor organizations. Section 2.323(b) mandates that a motion must be rejected if this is not done. The Request also ignores a litany of other NRC procedural requirements, including: 10 C.F.R. §§ 2.305(c)(4) (requiring each filed document to be accompanied by a certificate of service); and 2.314(b) (requiring [a]ny person appearing in a representative capacity to file with the Commission a written notice of appearance containing specified information).
6 Request at 1.
7 WCS EIS Public Scoping Meeting Presentation Docket 72-1050 with Spanish Versions (Feb. 23, 2017)
(ML17069A300) (including public meeting slides, Proceso de Determinación del Alcance Ambiental y Reunión Pública (ML17058A030), public scoping information, Proceso de Determinación de Alcance del EIS (ML17069A305), and a fact sheet, Introducción sobre la Solicitud de Licencia de Waste Control Specialists LLC para la Construcción y Operación de una Instalación para Almacenar Residuo Radioactivo de Alta Actividad en el Condado de Andrews, Tejas (ML17069A306)). Indeed, certain of the Joint Requesters were directly advised by the NRC of the availability of these materials during a public meeting.
See Transcript of Public Scoping Meeting for the Environmental Impact Statement for Waste Control Specialists LLCs Application for a Consolidated Interim Storage Facility for Spent Nuclear Fuel, Andrews
3 Additionally, the NRC regulations do not require an applicant for a license to translate its application into another language. The CISF Application complies with all applicable NRC requirements regarding application form and content,8 and the Request does not dispute this. But to the extent the Request seeks to impose additional form and content requirements on ISP that do not exist under NRC regulations, its demand is a challenge to those regulations and outside the scope of this adjudicatory proceeding.9 Moreover, the Joint Requesters are generally experienced NRC intervenors and have demonstrated the capability to participate in NRC adjudicatory proceedings in English. To the extent they are seeking a Spanish translation to support intervening in this proceeding, they must bear their own burdens and expenses of participation.10 Accordingly, this portion of the Request is unsupported, contrary to law, and outside the scope of this adjudicatory proceeding.
B.
The Request Fails to Establish Good Cause for an Extension Joint Requesters claim they need an extension because the large, revised application requires more time for public review, technically, culturally, legally, economically and practically.11 But NRC regulations at 10 C.F.R. § 2.307(a) allow extensions only upon
County, Texas at 33, 39 (Apr. 6, 2017) (ML17102B446) (advising Kevin Kamps and Rose Gardner of such availability).
8 See, e.g., 10 C.F.R. §§ 72.16, 72.4.
9 As the NRCs rules of adjudicatory procedure explain, no rule or regulation of the Commission... is subject to attack... in any adjudicatory proceeding. 10 C.F.R. § 2.335(a). This prohibition includes attempts to impose stricter requirements than those codified in agency rules. See Fla. Power & Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159-60, affd, CLI-01-17, 54 NRC 3 (2001).
10 See, e.g., Crow Butte Res., Inc. (North Trend Expansion Project), LBP-09-1, 69 NRC 11, 43-44 (2009)
(NRC appropriations shall not be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings....) (citing Energy and Water Development Appropriations Act of 1993, Pub. L. No. 102-377, Title V, § 502, 106 Stat. 1342 (1992)).
11 Request at 1.
4 demonstration of good cause, which, as the Commission has explained, requires a showing of unavoidable and extreme circumstances.12 As detailed below, no such circumstances are present here; thus, Joint Requesters have not demonstrated good cause.
- 1.
Transportation Safety and Cask Design Issues Are Outside the Scope of This Proceeding First, Joint Requesters assert that the extension request is justified because they need additional time to understand the available technical information and to formulate comments and contentions related to spent fuel transportation (which they argue will bring much more of the US population into closer proximity to high level radioactive waste on a regular basis) and to evaluate the viability of casks and canisters for transport and storage.13 However, the safety of shipment of spent nuclear fuel from the originating commercial nuclear reactors to the CISF is not part of this Application; and fuel can only be transported in casks and canisters that have validly-issued NRC certificates of compliance. Therefore, these topics fall well outside the scope of this Part 72 proceeding and cannot establish good cause for an extension request.14
- 2.
This Proceeding Is Neither Unprecedented Nor Extraordinary Joint Requesters also base their demand for additional time on the false premise that the Application is unprecedented.15 In fact, the Private Fuel Storage proceeding provides extensive precedent for the instant proceeding. Likewise, Joint Requesters point to
12 See Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998) (holding that construction of good cause to require a showing of unavoidable and extreme circumstances constitutes a reasonable means of avoiding undue delay); see also Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (We caution all parties in this case, however, to pay heed to the guidance in our policy statement that ordinarily only unavoidable and extreme circumstances provide sufficient cause to extend filing deadlines); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
13 Request at 1-2.
14 See also 10 C.F.R. § 72.46(e).
15 Request at 2.
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[u]nanswered technical concerns as justification for their Request.16 But the complexity of an application is immaterial to whether good cause exists for such a lengthy extension. Indeed, the issues related to this Part 72 Application are less complex than other applications considered by the NRC and subject to the 60-day hearing request deadline specified in 10 C.F.R. § 2.309(b).
Furthermore, Joint Requesters plead that their 41 national state and local organizations and individuals are overloaded in attempting to participate in two geographically proximate and potentially concurrent CISF proceedings, and are neither funded nor staffed for such technical undertakings.17 However, the claimed inconvenience and time commitment required to voluntarily coordinate challenges to an application is not the type of unavoidable or extreme circumstance that warrants Joint Requesters extraordinary requested delay.18 Moreover, as noted above, the burden of translating documents for the purpose of intervention falls squarely on the group seeking to participate. Costs associated with voluntary participation in adjudicatory proceedings are an unavoidable reality for all involved participants, including the applicant and the NRC; but they do not establish good cause for lengthy extension requests absent some unavoidable or extreme circumstance, which Joint Requesters have not identified.
16 Id.
17 Id.
18 See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400 (2001) (noting that the cost and inconvenience of litigation is not relevant to consideration of a motion to suspend a proceeding); see also Consolidated Edison Co. of NY (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001) ([I]t is true... that multiple simultaneous proceedings place burdens on the parties. But litigation inevitably results in the parties loss of both time and money. We cannot postpone cases for many weeks or months simply because going forward will prove difficult for litigants or their lawyers.).
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- 3.
Joint Requesters Have Enjoyed an Extraordinary Period of Time to Evaluate and/or Translate the Application The October 29, 2018 deadline for hearing requests remains weeks away.19 Waste Control Specialists LLC (WCS) initially submitted the CISF Application to the NRC in April 2016, and it has been publicly-available for two-and-a-half years. Joint Requesters make no claim that they have been entirely unable, due to some unavoidable or extreme circumstance, to access, evaluate, or translate the Application in that lengthy time period. Nor do they claim that the name change (from WCS to ISP) and other limited changes in the most recent revision of the Application were so significant as to present an insurmountable challenge to formulating comments and contentions by the existing deadline. The subsequent changesavailable since at least the beginning of Augustdo not justify delay. Joint Requesters fail to articulate any good cause to extend the hearing request deadline.
- 4.
Joint Requesters Will Have Ample Time to Evaluate and/or Translate Any Future Revisions to the Application Additionally, Joint Requesters incorrectly complain that the Application is changing significantly because the applicant has not completed its responses to NRC requests for additional information (RAIs).20 They provide no basis for their claim that the applicant plans to submit revisions to numerous chapters of the license application21; in fact, the NRC
19 See Notice of Hearing Opportunity, 83 Fed. Reg. at 44,070-071. Joint Requesters also claim that there was a bit of confusion and correction in the federal register postings. Request at 3. With respect to the hearing request deadline, a typographical error in the original Federal Register notice was obvious (it stated the deadline was the same day as the notice) and the correct deadline of 60 days from the notice was stated in two other places in the notice. Additionally, the NRC corrected the error only two days later (83 Fed.
Reg. 44,680) on August 31, 2018. This does not provide good cause for any extension.
20 Request at 2.
21 Id.
7 Staff has not even issued RAIs yet for the Application, and it plans to issue initial RAIs starting in November 2018.22 Far from being some extreme circumstance, the RAI process is a standard feature of the NRCs license application review process. Unquestionably, the routine RAI process does not provide a basis for a lengthy extension of the submission deadline. The Commission has explained that [t]he mere fact that the Staff is asking for more information does not make an application incomplete. If the Petitioners believe the Application is incomplete in some way, they may file a contention to that effect.23 Furthermore, the existing adjudicatory framework explicitly provides a mechanism to address new information that becomes available during an ongoing proceeding.24 Thus, the possibility of a future revision of the Application also cannot justify granting the Request.
Ultimately, Joint Requesters simply have not identified good cause for the requested extension of the intervention deadline.
22 Letter from C. Nguyen, NRC, to J. Isakson, ISP, Resumption of the U.S. Nuclear Regulatory Commission Staff Review of a License Application to Construct and Operate the Waste Control Specialist Consolidated Interim Storage Facility, Andrews County, Texas, Docket No. 72-1050 (Aug. 21, 2018) (ML18225A281).
23 See, e.g., Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-08-15, 68 NRC 1, 3 (2008) (citations omitted); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 242 (2008) (The mere issuance of RAIs does not mean an application is incomplete for docketing).
24 See 10 C.F.R. § 2.309(c).
8 III.
CONCLUSION The Request fails to establish good cause for an extension of the deadline to file hearing requests, and must be rejected for its noncompliance with NRC regulations. Accordingly, for the reasons discussed above, the Request should be denied in its entirety.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Stephen J. Burdick, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5059 E-mail: timothy.matthews@morganlewis.com E-mail: stephen.burdick@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.
this 8th day of October 2018
DB1/ 100033635 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 October 8, 2018 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing Request for Extension of Intervention Deadline was filed through the E-Filing system.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC