ML18282A449
| ML18282A449 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 10/09/2018 |
| From: | Leidich A, Silberg J, Walsh T Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| HI-STORE Fuel Storage, RAS 54547, Holtec International | |
| Download: ML18282A449 (4) | |
Text
4814-6665-1768.v2 October 9, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
Docket No. 72-1051 Holtec International
)
)
(HI-STORE Consolidated Interim Storage
)
Facility)
)
Holtec Internationals Answer Opposing Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to Reply to Holtec International and NRC Staff Responses to Motion to Dismiss On September 14, 2018, Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners (collectively Fasken) filed a Motion to Dismiss this proceeding (together with the separate proceeding in Docket No. 72-1050).1 On September 24, 2018, Holtec International (Holtec) filed its Answer opposing the Motion to Dismiss. The Motion to Dismiss was based on the claim that the filing of the applications in both proceedings was prohibited by the Nuclear Waste Policy Act. Holtecs Answer opposed the Motion because (1)
Fasken had not demonstrated that it had standing in this proceeding; (2) the Motion was filed grossly out of time under the rules of the Nuclear Regulatory Commission; and (3) the Commission had ruled on a similar motion filed by Beyond Nuclear, Inc. in Docket No. 72-1050 that this issue should be raised as a contention in the proceeding on that application rather than via a motion to dismiss.
1 Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for HI-STORE Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility, dated Sep. 14, 2018 (Motion to Dismiss).
2 4814-6665-1768.v2 On September 28, 2018, Fasken simultaneously filed (1) a Motion for Leave to Reply to NRC Staffs Response and Holtec Internationals Answer and Opposition to Motions to Dismiss, and (2) its Reply to Holtec Internationals Response to Motion to Dismiss (Reply) (and a separate reply to the NRC Staff response). Holtec respectfully submits this answer opposing the Motion for Leave to Reply because Fasken has not met the threshold requirements for filing a reply to Holtecs September 24 Answer. We therefore oppose Faskens Motion for Leave to Reply and respectfully submit that no reply is needed or appropriate to Holtecs September 24 Answer.
Under NRC rules, Fasken has no right to reply [to Holtecs Answer] except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. 10 C.F.R. § 2.323(c). The regulation also sets the standard for granting permission to file such a reply:
Permission 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.
Id. Fasken has not met this standard.
Much of Faskens Motion for Leave to Reply is based on the argument Holtec has misconstrue[d] the applicable case law as to Faskens standing. Motion for Leave to Reply at
- 2. Since Faskens Motion to Dismiss put forward an argument as to its standing, Fasken can hardly have been surprised that Holtec would challenge that standing. Faskens failure to anticipate such a challenge can hardly be considered compelling circumstances justifying the filing of a reply. It is unimaginable that Fasken would have assumed that its standing (a central part of its Motion to Dismiss) would have gone unchallenged. Its desire for another bite at the standing apple hardly qualifies as compelling circumstances.
3 4814-6665-1768.v2 The second prong of Faskens Motion for Leave to Reply deals with its argument that the NRCs procedural requirements in 10 C.F.R. Part 2 do not apply to its Motion to Dismiss. In Faskens view, it could not reasonably have anticipated a challenge to its claim that NRCs regulations do not apply to a motion that do[es] not rely upon the Atomic Energy Act as a basis for relief. Motion for Leave to File at 2. This claim is particularly farfetched since Fasken filed the Motion to Dismiss on the NRCs docket for the licensing of the Holtec facility, a proceeding clearly governed by NRC regulations. Nowhere does Fasken show that either the Nuclear Waste Policy Act or the Administrative Procedure Act2 provides a mechanism for filing its Motion to Dismiss outside of NRC regulations.
Having failed to show compelling circumstances, Faskens Motion for Leave to Reply should be denied, and its Reply to the Holtec Internationals Response to Motion to Dismiss should not be accepted for filing by the Commission.
Erin E. Connolly Corporate Counsel Holtec International Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 x 3712 e-mail: e.connolly@holtec.com October 9, 2018 Respectfully submitted,
/signed electronically by Jay E. Silberg/
Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8063 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL 2 It has long been the law that the Administrative Procedure Act is not an independent source of jurisdiction.
Califano v. Sanders, 430 U.S. 99, 104-107 (1977).
4814-6665-1768.v2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
Docket No. 72-1051 Holtec International
)
)
HI-STORE Consolidated Interim Storage
)
Facility
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Holtec Internationals Answer Opposing Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to Reply to Holtec International and NRC Staff Responses to Motion to Dismiss has been served through the E-Filing system on the participants in the above-captioned proceeding this 9th day of October, 2018.
/signed electronically by Timothy J. V. Walsh /
Timothy J. V. Walsh