ML18282A567

NRC Staff Consolidated Response to Petitions to Intervene and Requests for Hearing

ML18282A567
Person / Time
Site:	HI-STORE
Issue date:	10/09/2018
From:	Joe Gillespie, Hair C, Alana Wase NRC/OGC
To:
SECY RAS
References
HI-STORE Fuel Storage, RAS 54552, Holtec International
Download: ML18282A567 (127)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE T HE COM M ISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (Consolidated Interim Storage Facility)

NRC STAFFS CONSOLIDATED RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING FILED BY:

ALLIANCE FOR ENVIRONMENTAL STRATEGIES, BEYOND NUCLEAR, INC.,

DONT WASTE MICHIGAN, ET AL.,

NAC INTERNATIONAL INC., AND THE SIERRA CLUB Christopher C. Hair Alana M. Wase Joe I. Gillespie III Counsel for NRC Staff October 9, 2018 i

TABLE OF CONT ENT S Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 2 Discussion ....................................................................................................................................... 4 I. Standing to Intervene .............................................................................................................. 4 A. Applicable Legal Requirements ........................................................................................... 4

1. Traditional Standing Principles ........................................................................................ 5

2. Proximity-Plus Standing ................................................................................................... 6

3. Organizational and Representational Standing ............................................................... 7 B. The Petitioners Standing to Intervene ................................................................................ 7

1. Beyond Nuclear and the Sierra Club ............................................................................... 8

2. Alliance for Environmental Strategies .............................................................................. 9

3. NAC International Inc. .................................................................................................... 12

4. Joint Petitioners (Dont Waste Michigan et al.) .............................................................. 14 II. Admissibility of the Petitioners Proffered Contentions ......................................................... 18 A. Legal Requirements for Contentions ................................................................................. 18 B. Analysis of the Petitioners Proposed Contentions ........................................................... 21

1. Alliance for Environmental Strategies ............................................................................ 21 AFES Contention 1 ............................................................................................................ 21 AFES Contention 2 ............................................................................................................ 24 AFES Contention 3 ............................................................................................................ 26

2. Dont Waste Michigan, et al. .......................................................................................... 29 Dont Waste Michigan Contention 1 .................................................................................. 29 Dont Waste Michigan Contention 2 .................................................................................. 31 Dont Waste Michigan Contention 3 .................................................................................. 33 Dont Waste Michigan Contention 4 .................................................................................. 36 Dont Waste Michigan Contention 5 .................................................................................. 39 Dont Waste Michigan Contention 6 .................................................................................. 44 Dont Waste Michigan Contention 7 .................................................................................. 47 Dont Waste Michigan Contention 8 .................................................................................. 50 Dont Waste Michigan Contention 9 .................................................................................. 51 Dont Waste Michigan Contention 10 ................................................................................ 53 Dont Waste Michigan Contention 11 ................................................................................ 55 Dont Waste Michigan Contention 12 ................................................................................ 59 ii

Dont Waste Michigan Contention 13 ................................................................................ 62

3. NAC International Inc. .................................................................................................... 63 NAC Contentions 1 and 2 .................................................................................................. 63 NAC Contention 3 .............................................................................................................. 64

4. The Sierra Club and Beyond Nuclear, Inc. .................................................................... 65 Sierra Club Contention 1 & Beyond Nuclear Contention 1 ............................................... 65 Sierra Club Contention 2 ................................................................................................... 67 Sierra Club Contention 3 ................................................................................................... 70 Sierra Club Contention 4 ................................................................................................... 72 Sierra Club Contention 5 ................................................................................................... 74 Sierra Club Contention 6 ................................................................................................... 75 Sierra Club Contention 7 ................................................................................................... 78 Sierra Club Contention 8 ................................................................................................... 79 Sierra Club Contention 9 ................................................................................................... 79 Sierra Club Contention 10 ................................................................................................. 82 Sierra Club Contention 11.................................................................................................. 83 Sierra Club Contention 12 ................................................................................................. 88 Sierra Club Contention 13 ................................................................................................. 90 Sierra Club Contention 14 ................................................................................................. 92 Sierra Club Contention 15 ................................................................................................. 95 Sierra Club Contention 16 ................................................................................................. 98 Sierra Club Contention 17 ............................................................................................... 100 Sierra Club Contention 18 ............................................................................................... 102 Sierra Club Contention 19 ............................................................................................... 105 Sierra Club Contention 20 ............................................................................................... 107 Sierra Club Contention 21 ................................................................................................112 Sierra Club Contention 22 ................................................................................................115 Sierra Club Contention 23 ................................................................................................117 Sierra Club Contention 24 ............................................................................................... 120 Sierra Club Contention 25 ............................................................................................... 122 Conclusion .................................................................................................................................. 123 iii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE T HE COM M ISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (Consolidated Interim Storage Facility)

NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed By Alliance For Environmental Strategies, Beyond Nuclear, Inc.,

Dont Waste Michigan, et al., NAC International Inc., and The Sierra Club Introduction Pursuant to 10 C.F.R. § 2.309(i)(1), the U.S. Nuclear Regulatory Commission Staff hereby submits its consolidated response to the requests for hearing and petitions to intervene submitted by: Beyond Nuclear; 1 the Sierra Club; 2 the Alliance for Environmental Strategies (AFES); 3 NAC International, Inc. (NAC); 4 and a consortium consisting of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Nuclear Issues Study Group San Luis Obispo Mothers for Peace, and Public Citizen (collectively referred to as the Joint Petitioners). 5 These petitions relate to a notice of opportunity to request a hearing and to petition for leave to intervene published in the 1 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018).

2 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sierra Club Petition)

(Sept. 14, 2018).

3 Petition to Intervene and Request for Hearing (AFES Petition) (Sept. 12, 2018).

4 Petition to Intervene and Request for Hearing of NAC International Inc. (NAC Petition) (Sept. 14, 2018).

5 Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace and Nuclear Issues Study Group to Intervene and Request for an Adjudicatory Hearing, (Joint Petition) (Sept. 14, 2018).

1

Federal Register regarding Holtec Internationals (Holtec or Applicant) HI-STORE license application to construct a consolidated interim storage facility (CISF) to store spent nuclear fuel in Lea County, New Mexico pursuant to the NRCs regulations in 10 C.F.R. Part 72. 6 The NRC Staff respectfully submits that the Commission (or an Atomic Safety and Licensing Board, as appropriate) should grant, in part, the petitions of Beyond Nuclear and the Sierra Club. 7 As discussed below, both of these organizations have established standing to intervene in this proceeding and have proffered at least one admissible contention. However, the Commission should deny the petitions of AFES, NAC, and Dont Waste Michigan because none of these groups has demonstrated standing and proposed at least one admissible contention.

Background

On March 30, 2017, Holtec submitted an application, including a Safety Analysis Report (SAR) and Environmental Report (ER), requesting that the NRC grant a license to Holtec for the construction and operation of a CISF for spent nuclear fuel (SNF). 8 The proposed CISF would be located in Lea County, New Mexico on land owned by an entity designated as the Eddy-Lea Energy Alliance (ELEA), a public body created through a joint powers agreement between the 6 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

7 As required by 10 C.F.R. § 2.310, a presiding officer or Board granting a petition to intervene will determine and identify the specific procedures to be used for the proceeding pursuant to 10 C.F.R. § 2.310 (a)-(h). Those regulations provide that proceedings for the . . . grant . . . of licenses subject to

[10 C.F.R. Part 72] may be conducted under the procedures of subpart L. 10 C.F.R. § 2.310(a). In the absence of any specific requests regarding the selection of hearing procedures from the petitioners, the NRC Staff respectfully submits that any hearing granted with respect to these petitions should be governed by the procedures of Subpart L.

8 Holtecs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/holtec-international.html, also available at https://go.usa.gov/xP9ry. Unless otherwise specified, all of the NRC Staffs citations to the ER are to Revision 1 (ADAMS Accession No. ML18023A904) and all citations to the SAR are to Revision 0 (ADAMS Accession No. ML17116A106). Specific references to SAR Revision 0A are designated as such (ADAMS Accession Nos. ML17310A221 and ML17310A221).

2

the counties of Eddy and Lea and the cities of Carlsbad and Hobbs located in Southeast, New Mexico. Holtec intends to purchase the land from ELEA prior to construction.

In its license application, Holtec requests authorization in the initial phase of the project to store 5,000 metric tons of uranium (MTUs) in approximately 500 canisters for a license period of 40 years. However, because the capacity of individual canisters can vary, the 500 canisters proposed in the Holtec license application have the potential to hold up to 8,680 MTUs. The NRCs review of Holtecs application consists of a safety review and an environmental review to support a final licensing decision. The NRC Staffs Safety Evaluation Report (SER) will document the NRCs evaluation of potential radiological consequences of Holtecs proposed action to determine whether the construction and operation of the CISF can be accomplished safely and securely and in accordance with the Atomic Energy Act of 1954, as amended, (AEA) and the NRCs regulations in, inter alia,10 C.F.R. Part 72. In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), the NRCs Environmental Impact Statement (EIS) will document the NRCs evaluation of the significance of the potential environmental impacts of the proposed action and reasonable alternatives to the proposed action.

On March 19, 2018, the NRC published a notice in the Federal Register regarding the acceptance and docketing of Holtec CISF license application. 9 The NRC subsequently published a notice of opportunity to request a hearing and to petition for leave to intervene in the Federal Register. 10 In response, the NRC received several petitions filed by local governmental bodies seeking to participate in the proceeding. 11 The NRC also received two motions to 9 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018).

10 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018).

11 See Petition by the Eddy-Lea Energy Alliance to Participate as an Interested Local Governmental Body (Aug. 30, 2018); Petition by Eddy County to Participate As An Interest Local Governmental Body (Sept. 13, 2018); Petition by the Board of Commissioners for Lea County, New Mexico to 3

dismiss the proceeding based on a legal challenges under the Nuclear Waste Policy Act (NWPA) related to the NRCs ability to review the Holtec CISF license application. 12 Finally, the NRC received five petitions to intervene and requests for hearing regarding the Holtec CISF license application. The NRC Staff responds to each of these five petitions below.

Discussion In order for a petition to intervene and hearing request to be granted, a petitioner must demonstrate that it has standing to intervene in the proceeding and submit at least one admissible contention. 10 C.F.R. § 2.309(a).

I. Standing to Intervene A. Applicable Legal Requirements In accordance with the Atomic Energy Act (AEA), the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. 13 The Commission will grant a request for hearing if the petitioner meets the standing requirements of 10 C.F.R. § 2.309(d) and submits at least one admissible contention pursuant to 10 C.F.R. § 2.309(f). 14 The petitioners hearing request must contain:

Participate as an Interested Local Governmental Body (Sept. 11, 2018); Petition by the City of Carlsbad, New Mexico to Participate as an Interested Local Governmental Body (Aug. 28, 2018). In general, if a hearing is granted, the NRC Staff does not object to the participation of any of these governmental bodies pursuant to 10 C.F.R. § 2.315(c).

12 Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for HI-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14, 2018); 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 (Sept. 14, 2018). For the NRC Staffs response in opposition to these motions, see NRC Staffs Response to Motions to Dismiss Licensing Proceedings (Sept. 24, 2018).

13 42 U.S.C. § 2239(a)(1)(A).

14 See 10 C.F.R. § 2.309(a).

4

(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest. 15

1. Traditional Standing Principles In addition to fulfilling the general standing requirements of 10 C.F.R. § 2.309(d)(1), a petitioner must demonstrate that it has an interest that may be affected by the proceeding. 16 The Commission applies contemporaneous judicial concepts of standing to evaluate whether the petitioner has demonstrated the requisite interest. 17 To this end, a petitioner must (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. 18 The injury claimed by the petitioner must be actual or threatened and both concrete and particularized. 19 Further, the injury alleged must be to an interest arguably within the zone of interests protected by the governing statutehere, the AEA or NEPA. 20 The causation element of standing requires a petitioner to show that the injury is 15 10 C.F.R. § 2.309(d).

16 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

17 See id. at 394; see also Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).

18 Turk ey Point, CLI-15-25, 82 NRC at 394; Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71 (1994); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

19 International Uranium (USA) Corporation (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 250 (2001); see also Sequoyah Fuels Corp., CLI-94-12, 40 NRC at 71 (stating that standing has been denied when the threat of injury is too speculative).

20 Calvert Cliffs, CLI-09-20, 70 NRC at 915 (citing Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993) (internal quotations omitted)).

5

fairly traceable to the proposed action. 21 The redressability element of standing requires the intervenor to show that its actual or threatened injuries can be cured by some action of the tribunal. 22 The petitioner has the burden to demonstrate standing requirements are met. 23 However, a licensing board will construe the [intervention] petition in favor of the petitioner when making a standing determination. 24

2. Proximity-Plus Standing In cases involving reactor facilities, the Commission will apply a standing presumption based on proximity to the site. 25 No such automatic presumption exists for nuclear materials proceedings. 26 In such cases, to obtain standing based on geographic proximity to a facility, a petitioner must demonstrate that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences. 27 This proximity-plus standard is applied on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source. 28 If there is no obvious potential for radiological harm at a particular distance frequented by the petitioner, it becomes the petitioners burden to show a specific and plausible means of how the challenged action may harm him or 21 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

22 Sequoyah Fuels Corporation and General Atomics (Gore, Oklahoma Site Decommissioning), CLI 02, 53 NRC 9, 15 (2001).

23 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000).

24 Turk ey Point, CLI-15-25, 82 NRC at 394 (quoting Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995) (internal quotations omitted)).

25 See Florida Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989).

26 See Nuclear Fuel Servs., Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244, 248 (2004).

27 Georgia Tech Research Reactor, CLI-95-12, 42 NRC at 116.

28 Id. at 116-17.

6

her. 29 [C]onclusory allegations about potential radiological harm are insufficient for this showing. 30 Where a petitioner is unable to demonstrate proximity-plus standing to intervene, traditional standing principles will apply. 31

3. Organizational and Representational Standing When an organization requests a hearing, it must demonstrate either organizational or representational standing. To demonstrate organizational standing, the petitioner must show an injury-in-fact to the interests of the organization itself. 32 Where an organization seeks to establish representational standing, it must demonstrate that at least one of its members would be affected by the proceeding and identify any such members by name and address. Also, the organization must show that the identified members would have standing to intervene in their own right, and that these members have authorized the organization to request a hearing on their behalf. 33 In addition, the interests that the representative organization seeks to protect must be germane to its own purpose, and neither the asserted claim nor the required relief must require an individual member to participate in the organization's legal action. 34 B. The Petitioners Standing to Intervene Based on the specific allegations contained in each petition to intervene and request for 29 USEC Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 311-12 (2005) (quoting Nuclear Fuel Servs, CLI-04-13, 59 NRC 244 (internal quotations omitted)).

30 Nuclear Fuel Servs., CLI-04-13, 59 NRC at 248.

31 See U.S. Army Installation Command, CLI-10-20, 72 NRC at 188.

32 Energysolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613, 621 (2011).

33 See Fermi, CLI-10-3, 71 NRC at 51-52; see also Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI- 94-12, 40 NRC 64, 72 (1994) (citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979)) (An organization seeking representational standing on behalf of its members may meet the injury-in-fact requirement by demonstrating that at least one of its members, who has authorized the organization to represent his or her interest, will be injured by the possible outcome of the proceeding).

34 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007).

7

hearing, Beyond Nuclear and the Sierra Club have made a sufficient showing to establish standing to intervene based on the NRCs requirements. On the other hand, AFES, NAC, and the Joint Petitioners (i.e., Dont Waste Michigan et al.) have failed to make a sufficient showing.

1. Beyond Nuclear and the Sierra Club The NRC Staff does not oppose Beyond Nuclear and the Sierra Clubs demonstration of standing in this proceeding. In additional to their other arguments regarding traditional standing, both organizations seek representational standing on the basis of declarations submitted by their members. Also, both organizations allege that the proximity of their members to the proposed Holtec facility is sufficient to grant them standing in this proceeding. In support, Beyond Nuclear proffers a declaration from a member residing within a mile of the Holtec facility. 35 Similarly, the Sierra Club proffers a declaration from a member residing within 10 miles of the facility who also owns and operates a ranch within 3 miles of the facility. 36 These members frequent areas within ranges previously determined by Atomic Safety and Licensing Boards to be sufficient to establish standing under the proximity presumption for similar proceedings. 37 Accordingly, as both organizations have proposed at least one admissible contention, the NRC Staff does oppose the standing of either Beyond Nuclear or the Sierra Club here.

35 See Declaration of Keli Hatley, ¶ 3.

36 See Declaration of Danny Berry, ¶ 1. Notably, both Sierra Club and Beyond Nuclear rely on similar declarations from Mr. Berry to establish representational standing. But both parties should not be permitted to rely in the same individual to demonstrate standing. See Consumers Energy Co. (Big Rock Point ISFSI), CLI 65 NRC 423, 426 (2007) (noting that multiple representation might lead to confusion).

37 See Pacific Gas & Electric Co. (Diablo Canyon ISFSI), LBP-02-23, 56 NRC 413, 428 (2002) (finding 17 miles sufficient and noting other agency rulings approving standing for petitioners located within 10 miles of facility for spent fuel pool expansion proceedings); see also Vermont Yank ee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163-64 (2000) (6 miles sufficient for standing in license transfer proceeding).

8

2. Alliance for Environmental Strategies The NRC Staff opposes the standing of AFES in this proceeding. AFES seeks representational standing based on alleged injuries to its members and that its members live within 50 miles of the proposed Holtec facility. 38 As an initial matter, the proximity-plus standing presumption should not extend to AFESs members in this case. AFES alleges that all of its members live within 50 miles within the proposed facility, the closest of which resides 37 miles from the facility. 39 The Commission has declined to extend presumption of standing at such distances for similar facilities, especially because an ISFSI is essentially a passive structure rather than an operating facility, and there therefore is less chance of widespread radioactive release. 40 Further, AFESs members reside far further than any other previously-approved distance, including the 17 miles supporting the petitioners standing in the Diablo Canyon proceeding involving an ISFSI. 41 The Turkey Point case cited by AFES in support of its proximity standinga case involving the license renewal of an operating nuclear power reactoris inapposite. 42 Therefore, AFES has failed to establish standing as a matter of proximity.

Where a petitioner is unable to demonstrate proximity-plus standing to intervene, traditional standing principles will apply. 43 In support of its allegations of injuries to its members, AFES submits four substantially similar affidavits from its members that share virtually identical language regarding each affiants allegation of harm. Therefore, the NRC Staff evaluates these allegations together below.

38 See AFES Petition at 10.

39 See Affidavit of Rose Gardner ¶ 5.

40 Consumers Energy Co. (Big Rock Point ISFSI), CLI-07-19, 65 NRC 423, 426 (2007); see also Detroit Edison Co. (Fermi Power Plant ISFSI), LBP-09-20, 70 NRC 565 (2009).

41 See Pacific Gas & Electric Co. (Diablo Canyon ISFSI), LBP-02-23, 56 NRC 413, 428 (2002) (finding 17 miles sufficient for standing related to an ISFSI license amendment).

42 See AFES Petition at (citing Florida Power and Light (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138 (2001)).

43 See U.S. Army Installation Command, CLI-10-20, 72 NRC at 188.

9

Here, AFES and its members have failed to allege any concrete and particularized injury-in-fact that is fairly traceable to the proposed Holtec facility. AFES alleges that its members will suffer the ill effects of the impact of the cumulative location of industrial sites in Lea County and Eddy County, including the future Holtec site and [the U.S. Department of Energys] Waste Isolation Pilot Project. 44 In support, AFES alleges that the WIPP site . . . has already been damaging to property values and general social welfare. In addition, AFES alleges that its members will or reasonably may be injured by the spread of any fire sparked at the site and/or the release of toxic matter into the air, land, or water. 45 AFES also alleges that the disparate impact of discriminatory site selection, based on race and ethnicity, will have an ill effect on its membersas well as their family and friendsin terms of self-esteem and self-worth. 46 AFES alleges that its members will use the highway adjacent to the Holtec facility anywhere from an occasional basis 47 to several times a day. 48 Finally, AFES alleges that its members never received notice of any public meeting by local officials to address whether to express the communitys wish to be the site of another industrial waste site. 49 In this case, AFESs allegations of harm are too generalized to establish standing. For example, AFESs members generally allege ill effects from the siting of the Holtec CISF nearby the WIPP facility and other unnamed industrial sites. However, to establish standing based on an economic loss, a petitioner must show that the purported economic loss has some objective fundament, rather than being based solely on the petitioners (or affiants) perception of the 44 See, e.g., Affidavit of Rose Gardner ¶ 10.

45 Id. ¶ 15.

46 Id. ¶ 13, 47 Id. ¶ 9.

48 See Affidavit of Lorraine Villegas ¶ 7.

49 See, e.g., Declaration of Rose Gardner ¶ 18.

10

economic loss in light of the proposed licensing action. 50 Further, AFESs general allegation of ill effects is conclusory. 51 A petitioner cannot simply rely on conclusory allegations about potential radiological harm, but must show how these various harms might result from the

[proposed action]. 52 AFESs remaining allegations fare no better. AFESs allegation of harm resulting from the spread of any fire sparked at the site speculates that a fire could occur at the site without any additional support or reference to the application to explain the plausibility of such a scenario. Further, AFESs does not specifically allege any harm resulting from its members using the highway adjacent to the facility. These general allegations regarding fires and transportation are inadequate given the passive nature of the CISF as opposed to a reactor. 53 Indeed, it is well-settled that a petitioner must allege that he or she will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agencys action. 54 Finally, AFES fails to establish that the alleged lack of notice to its members regarding any public meeting by local officials to address their concerns falls within the zone of interests of either the AEA or NEPA. While NEPA undoubtedly contains a public participation requirement for an agency preparing an EIS (arising 50 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 432 (2002) (generic, unsubstantiated claims regarding health, safety, and property devaluation impacts are insufficient to establish standing), aff'd, CLI-03-1, 57 NRC 1 (2003).

51 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 191-93 (1999) (conclusory allegations about potential radiological harm insufficient basis for standing); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (injury to others not a basis for standing).

52 Detroit Edison Co. (Fermi Power Plant ISFSI), LBP-09-20, 70 NRC 565 (2009), citing Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4,49 NRC 185, 192 (1999) (emphasis added).

53 But see Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 117 (1995) (driving by a nuclear reactor daily sufficient for standing).

54 Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244, 248 (2004), citing United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89 (1973).

11

from the informational role of the EIS), 55 AFES does not explain how the statutes requirements inherently apply to actions taken by local officials prior to the filing of the license application.

In light of the above, and because (as discussed below) AFES has failed to propose an admissible contention, the Commission should dismiss the AFES Petition.

3. NAC International Inc.

The NRC Staff opposes NACs standing in this proceeding. NAC has failed to allege a concrete and particularized injury that is fairly traceable to the proposed Holtec facility. Further, any harm alleged by NAC would not be redressable by a favorable decision here. As explained below, this is because the Holtec CISFas currently proposedwould not authorize storage of NAC canisters.

In support of its standing, NAC alleges that [m]uch of NACs design information for its canisters is proprietary to NAC. 56 NAC has not licensed or otherwise authorized anyone to furnish its proprietary design information to Holtec. 57 In NACs view, the company would be harmed if the NRC grants Holtecs license application because NACs proprietary canister designs, loaded with nuclear materials and SNF under contracts with NACs customers, would be subsumed into and subject to Holtecs CISF design and its operation. 58 Specifically, because Holtec would be unable to adequately evaluate or respond to normal operating situations and Design Basis Events (or other potential events) that affect NAC canisters stored at the CISF, NAC would suffer financial, reputational, and informational harm. 59 In essence, 55 See Robertson v. Mathow Valley Citizens Council, 490 U.S. 332, 349 (1989) (quoting Baltimore Gas &

Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 97 (1983).

56 NAC Petition at 4.

57 Id.

58 Id. at 5.

59 Id.

12

NAC argues that its company will be put on the hook for the faults in the Holtec CISF design and operating approach if the application goes through as proposed, even though NAC has no control over the manner in which Holtec handles the canisters stored at the CISF. 60 In this case, the Holtec CISF license application proposes the exclusive use of HI-STORM UMAX canister storage system, which the NRC previously approved via a Certificate of Compliance (CoC) issued pursuant to 10 C.F.R. Part 72. 61 As NAC concedes, the CoC for Holtecs HI-STORM UMAX cask only permits storage of two types of canisters in the caski.e.,

the MPC-37 and MPC-89both of which are Holtec canisters. 62 Therefore, the Holtec license application currently does not include the potential use of NAC canisters. Further, Holtec is not currently seeking to amend the HI-STORM UMAX CoC to include NAC canisters. 63 Even if it were, the future incorporation of any additional CoC amendment in the CISF would require an amendment to the Holtec license application (or to the license, if one were already issued).

Therefore, NAC has failed to allege any injury based on the current license application. Nor has NAC demonstrated how its discretionary intervention would assist in developing a sound record, per 10 C.F.R. § 2.309(e)(1)(i), given the use of NAC canisters is not encompassed by the Holtec CISF license application. Therefore, the Commission should dismiss the NAC Petition. 64 60 Id.

61 See 10 C.F.R. § 72.214 (Certificate Number 1040).

62 NAC Petition at 14-15.

63 Holtec is currently is seeking an amendment to the HI-STORM UMAX CoC to include one type of Orano cask (i.e., the NUHOMS 24PT1-DSC canister). See Request for Amendment 3 of Holtec UMAX CoC No. 1040 (Aug. 30, 2016) (ADAMS Accession No. ML16250A393).

64 To the extent NAC would seek to intervene solely based on its status as a competitor to Holtec, the Commission has squarely rejected this avenue. See International Uranium (USA) Corp. (Receipt of Material from Tonawanda, New York), CLI-98-23, 48 NRC 259 (1998) (competitor standing arguments do not fall within the zone of interests of either the AEA or NEPA); Quivira Mining Co.

(Ambrosia Lake Facility), CLI-98-11, 48 NRC 1, 10 (1998) (a mere claim of competitor injury, unlinked to a claim of radiological injury, is not among those interests arguably protected or regulated under the Atomic Energy Act).

13

4. Joint Petitioners (Dont Waste Michigan et al.)

Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Nuclear Issues Study Group, Public Citizen, Inc., and San Luis Obispo Mothers for Peace, have submitted declarations of their members in an attempt to demonstrate the organizations representational standing in this proceeding. However, these declarations do not demonstrate that any of the organizations members will suffer a concrete and particularized injury-in-fact that is fairly traceable to the proposed construction and operation of the Holtec CISF. Therefore, these organizations have not demonstrated representational standing and, as a result, their Joint Petition should be dismissed.

The majority of the submitted declarations use substantively identical language, i.e., they appear to be form letters with the only differences between them being the declarants name, address, organization affiliation, and distance to an alleged transportation route. The declarations all argue that the construction and operation of the CISF will require delivery over hundreds or thousands of miles of at least 10,000 shipments of SNF-filled casks and GTCC wastes . . . by truck, barge and/or rail . . . over 20 years . . . from nuclear plant fuel pool locations . . . . 65 They all state that the declarant has studied Department of Energy maps of rail and highway transportation routes and assert that a transportation route is within a specified number of miles of the declarants home and/or work and that the transportation route will likely be used to transport several thousand, or more, cargoes of SNF and/or GTCC wastes . . . . 66 They state that the declarant is concerned for his/her personal safety and that of others in his/her household, as well as for his/her property value, from radiation exposure in the event of a serious transportation accident, vandalism or a terrorist attack that breaches a cask.

65 See, e.g., Declaration of Chambre V. Beauvais at 1.

66 Id.

14

They challenge the ERs rosy projections of perfect transport . . . . 67 They fault the ER for not including a public health impact assessment of the effects of 20 years of transports of SNF and GTCC waste and for only providing a superficial analysis of the risks from unbreached casks in transport. 68 They assert that, if a cask is received at the CISF with a radiation leakage problem, it will be returned to the point of origin and, thus, actively-leaking casks will travel close to the declarants home, place of employment and/or places of recreation and that the risks of a radiation accident will be increased during such shipments. 69 They state that the ER does not evaluate the scenario of a breached cask. 70 They discuss the possibilities of, in the vicinity of where the declarant lives or works or recreates, a cask being stranding for days or longer or a cask having to be transferred from one truck to another. 71 They state that [t]he thought of being stuck in traffic at a rail crossing or on a parallel highway near a cask containing SNF or GTCC causes me concern for my health and safety and that the declarant is concerned with cumulative exposure from transports. 72 The declaration of Charles L. Bowman includes the additional statements that, in New York State, most of the radioactive material will be traveling along CSX-owned tracks, that there were 13,870 trains per year along CSX-owned tracks, and that there were 38 rail accidents along CSX-owned tracks in 2017; therefore, Mr. Bowman concludes that there will be 1 67 Id.

68 Id.

69 Id.

70 Id. at 2.

71 Id.

72 Id. The declarations include a scanned copy of a Declaration of Linda DeStefano. Separate from this declaration is the statement that Linda DeStefano sent a declaration by email. She says that she and her husband travel on Amtrak several times a year and passenger and freight travels on the same rail.

She expresses concern about exposure. Email communique from Linda DeStefano to Barbara Warren. Because this statement is not a part of Ms. DeStefanos signed declaration and because it does not describe why the concern is a plausible basis for harm traceable to the instant proceeding, it is not a valid basis for Ms. DeStefanos standing argument.

15

accident for every 365 trains traveling along CSX tracks. 73 Mr. Bowman also states that, in 2014, the nationwide derailment rate was 1.63 derailments per million miles and that, taking into consideration the number of shipments by rail and the distance of the shipments, [t]he chance of a derailment for each rail shipment of spent nuclear fuel is approximately 1 in 409. 74 Mr. Bowman also posits an accident between a train carrying nuclear fuel and a train carrying explosive Bakken crude oil. 75 Mr. Bowman states that, [e]ach day roughly 38 trains travel through the Amtrak Station in Depew NY, which is within 8.6 miles of my home in Getzville NY. 76 The statements in these declarations do not satisfy contemporaneous judicial concepts of standing because they do not demonstrate that the declarants themselves will suffer a concrete and particularized injury-in-fact that is fairly traceable to the proposed construction and operation of the Holtec CISF. Specifically, the declarations do not provide sufficient support for their assertions that the portions of the transportation routes to which the declarants claim proximity will be used to transport SNF or GTCC waste to the Holtec facility. The speculative assertion that a rail trackage/highway transport route or barge shipment is within the proximity of a declarants home or work is not sufficient. Without a reasoned basis for claiming that SNF or GTCC waste will be transported to the Holtec CISF along the specifically identified segment of railway or roadway or waterway, the alleged injuries to the declarants are not fairly traceable to the proposed construction and operation of the Holtec CISF. In this regard, a generalized 73 Bowman Declaration at 3.

74 Id.

75 Id. at 4.

76 Id. at 3.

16

grievance shared in substantially equal measure by all or a large class of citizens is not sufficient to support standing. 77 Northern States Power Co. (Pathfinder Atomic Plant, Byproduct Material License No.

22-08799-02), LBP-90-3, 31 NRC 40 (1990) is illustrative of this point. In that case, the petitioner relied specifically on an extract from the [licensees] decommissioning plan for its assertion that truck shipments of waste would move via a route within a mile of the residence of the individual that the petitioner was representing. 78 The Board determined that this provided a reasonable likelihood that the truck shipments of waste will move within the proximity of the individuals residence. 79 The Board contrasted this with Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518 (1977), in which the petitioner did not establish[] the expected route of movement of the waste. 80 In the instant proceeding, unlike in Pathfinder and like in Exxon, Joint Petitioners have not established that SNF and GTCC waste will actually move along the portions of the railways or roadways or waterways, the proximity to which their members rely upon for their claims of standing. The declarants state that they have studied Department of Energy maps of rail and highway transportation routes; however, unlike in Pathfinder, there is no indication that these maps are specific to shipments to the Holtec facility. Instead, the declarants only provide the conclusory statement that the transportation route against which they measure their proximity will likely be used to transport several thousand, or more, cargoes of SNF and/or GTCC wastes 77 Envirocare of Utah, Inc. (Byproduct Material Waste Disposal License), LBP-92-8, 35 NRC 167, 174 (1992).

78 Pathfinder, LBP-90-3, 31 NRC at 42.

79 Id. at 43.

80 Id.

17

. . . . 81 Therefore, the Joint Petitioners have not demonstrated representational standing and their hearing requests should be denied.

II. Admissibility of the Petitioners Proffered Contentions A. Legal Requirements for Contentions 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 82 Pursuant to that section, a contention must:

(i) provide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents, that support the petitioner's position and upon which the petitioner intends to rely at hearing; and (vi) provide information sufficient to show that a genuine dispute with the applicant/licensee exists in regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case of an application that is asserted to be deficient, the identification of such deficiencies and supporting reasons for this belief. 83 The failure to comply with any one of the 10 C.F.R. § 2.309(f)(1) requirements is grounds for the dismissal of a contention. 84 81 See, e.g., Declaration of Chambre V. Beauvais at 1 (emphasis added).

82 Entergy Nuclear Vermont Yank ee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 571-72 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-437 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

83 See 10 C.F.R. § 2.309(f)(1).

84 Private Fuel Storage, L.L.C. (Independent Irradiated Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

18

The contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 85 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing as indicated by a proffered contention that satisfies all of the 10 C.F.R. § 2.309(f)(1) requirements. 86 The Commission has emphasized that the 10 C.F.R.

§ 2.309(f)(1) requirements are strict by design. 87 Attempting to satisfy these requirements by

[m]ere notice pleading does not suffice. 88 A contention must be rejected where, rather than raising an issue that is concrete or litigable, it reflects nothing more than a generalization regarding the petitioners view of what the applicable policies ought to be. 89 Pursuant to 10 C.F.R. § 2.309(f)(1)(iii), a proposed contention must be rejected if it raises issues beyond the scope of the proceeding as dictated by the Commissions hearing notice. 90 Thus, a proposed contention that challenges a license amendment must confine itself to health, safety or environmental issues fairly raised by [the license amendment]. 91 The adequacy of the Staffs review, as opposed to the adequacy of the application, cannot be 85 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

86 Id.

87 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).

88 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006) (quoting Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 808 (2005)).

89 Private Fuel Storage, L.L.C. (Independent Irradiated Fuel Storage Installation), CLI-04-22, 60 NRC 125, 129 (2004) (citing Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13, 20-21 (1974)).

90 See Pub. Serv. Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).

91 Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981).

19

challenged. 92 Also, to show that a dispute is material pursuant to 10 C.F.R. § 2.309(f)(1)(iv) a petitioner must show that its resolution would make a difference in the outcome of the proceeding. 93 Further, pursuant to 10 C.F.R. § 2.309(f)(1)(v), a proposed contention must be rejected if it does not provide a concise statement of the facts or expert opinions that support the proposed contention together with references to specific sources and documents. Neither mere speculation nor bare or conclusory assertions, even by an expert, suffices to allow the admission of a proposed contention. 94 While a Board may view a petitioners supporting information in a light favorable to the petitioner, if a petitioner neglects to provide the requisite support for its contentions, it is not within the Boards power to make assumptions or draw inferences that favor the petitioner, nor may the Board supply the information that a contention is lacking. 95 Additionally, simply attaching material or documents as a basis for a contention, without setting forth an explanation of that information's significance, is inadequate to support the admission of the contention. 96 The Board is not expected to sift through attached material and documents in search of factual support. 97 Finally, pursuant to 10 C.F.R. § 2.309(f)(1)(vi), a proposed contention must be rejected if it does not present a genuine dispute with the applicant on a material issue of law or fact.

92 See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 493 n.56 (2010) ("The contention . . . inappropriately focused on the Staffs [sic] review of the application rather than upon the errors and omissions of the application itself. Such challenges are not permitted in our adjudications.); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 123 n.39 (2009); 69 Fed. Reg. at 2202.

93 See Duk e Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3) CLI-99-11, 49 NRC 328, 333-34 (1999).

94 See USEC, CLI-06-10, 63 NRC at 472; Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

95 See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553-54 (2009);

Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI 91-12, 34 NRC 149, 155 (1991).

96 See Fansteel, CLI-03-13, 58 NRC at 204-05.

97 NextEra Energy Seabrook , LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012).

20

The Commission has emphasized that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. 98 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 99 B. Analysis of the Petitioners Proposed Contentions As discussed below, the petitions filed by Beyond Nuclear, the Sierra Club, and NAC all propose at least one admissible contention. By contrast, the AFES Petition and the Joint Petition do not propose any admissible contentions. Therefore, the AFES Petition and Joint Petition should be dismissed. Also, the NAC Petition should still be dismissed because NAC has not demonstrated standing.

1. Alliance for Environmental Strategies AFES Contention 1 As a Matter of Law, The Applicant Has Not Performed a Sufficient Investigation and Has Not Done a Sufficient Analysis to Support that the Holtec Site Will Not Have a Disparate Impact on the Minority and Low Income Population of Lea and Eddy County AFES claims that Holtecs site selection process was legally inadequate, requiring the preparation of a new ER that addresses alternative sites, why they were rejected, and the impact on minority and low income local populations. 100 The NRC Staff does not dispute that Holtec must evaluate alternatives to the proposed action (as the ER does in Chapter 2) and must also identify and quantify any impacts on low-income and minority populations (as the ER does in Chapters 3 and 4). However, with respect to an applicants environmental justice 98 Id. (quoting Duk e Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 335 (1999)).

99 Id. (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

100 AFES Petition at 11.

21

analysis, the Petitioner fails to show how the inadequacy it asserts is contrary to any particular site selection investigation or process required by the NRC. Therefore, Contention 1 fails to demonstrate any material issue regarding the NRC Staffs review and should be dismissed. 101 In addition to environmental impacts, NEPA requires the NRC to consider ancillary social and economic impacts. 102 Accordingly, the NRC considers environmental justice in its environmental reviews. 103 The term environmental justice refers to the federal policy established in 1994 by Executive Order 12,898, which directed federal agencies to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations. 104 The NRCs NEPA reviews incorporate these principles and evaluate any significant impacts that might fall disproportionately on minority and low-income communities. 105 The NRC Staffs guidance in Section 6.4.11 of NUREG-1748 provides that the ER should include a discussion of the methods used to identify and quantify impacts on low-income and minority populations, the location and significance of any environmental impacts during construction on populations that are particularly sensitive, and any additional information pertaining to mitigation. 106 Finally, Appendix C of NUREG-1748 provides that [i]f the percentage in the block groups significantly 101 10 C.F.R. § 2.309(f)(1)(iv).

102 Louisiana Enrichment Services, (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 101 (1998).

103 NRC Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52040 (Aug. 24, 2004).

104 Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations, Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994) (E.O. 12898).

105 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040, 52,040-41, 52,048 (Aug. 24, 2004)

(Environmental Justice Policy Statement).

106 NUREG 1748 at 6-25.

22

exceed that of the state or county percentage for either minority or low-income population, environmental justice will have to be considered in greater detail. 107 Section 3.8.5 of the ER discusses environmental justice populations located within the counties encompassing a 50-mile radius around the proposed site. 108 The ER subsequently evaluates the impacts on these populations in Section 4.8.4. For the impact assessment, the ER used block groups for minority populations and census tracts for low-income populations. 109 In Table 3.8.13, the ER presents the site-specific thresholds in New Mexico and Texas for minority and low-income populations. 110 AFES bases its environmental justice challenge primarily on the site-selection process employed by Holtec, claiming it is facially invalid because ELEA prepared the report 12 years ago for a different purpose (i.e., DOEs solicitation of interest for suitable sites for activities under the Global Nuclear Energy Partnership (GNEP)). AFES concedes that environmental justice was an express consideration during the site-selection process. 111 But AFES offers no legal authority as to why an applicants evaluation of environmental justice impacts requires any more specific form of investigation or community outreach concerning site selection. Indeed, the Commission has held that NEPA requires an examination of a proposed projects impacts on minority and disadvantaged communitiesnot an investigation into possible racial bias. 112 107 Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, Final Report (NUREG-1748) (ADAMS Accession No. ML032450279) at C-4 (As a general matter (and where appropriate), staff may consider differences greater than 20 percentage points to be significant.

Additionally, if either the minority or low-income population percentage exceeds 50 percent, environmental justice will have to be considered in greater detail.).

108 The ERs figures are consistent with the guidance in Appendix C of NUREG-1748 at C-4 (If the facility is located outside the city limits or in a rural area, a radius of approximately 4 miles (50 square miles) should be used.)

109 ER at 3-86.

110 ER at 3-100.

111 AFES Petition at 19.

112 Louisiana Enrichment Services, CLI-98-3, 47 NRC at 101 (reversing the Boards requirement of an NRC Staff investigation into racial discrimination in LBP-97-8, 45 NRC 367 (1997)); see also Private 23

AFES also avers that the ERs alleged failure to compare the population of Eddy and Lea County with the population of the United States is directly contrary to the Environmental Protection Agencys recommendations regarding using a Meaningfully Greater analysis and a larger scale reference community. 113 The EPAs approach provides that a minority population may be present if the minority population percentage of the affected area is meaningfully greater than the minority population percentage in the general population or other appropriate unit of geographic analysis. 114 First, AFES offers no support for why the appropriate larger scale geographic area would be the entire United States. And, as noted above, NRC Staff guidance includes criteria similar to the EPAs regarding the identification of minority communities in areas where the minority or low-income population percentage exceeds 50 percent. As shown in Table 3.8.13, the ER apparently adopts the NRCs guidance. 115 In light of the above, Contention 1 fails to demonstrate any legal requirement for a specific site-selection process or otherwise identify how the contentions allegations regarding the ERs disparate impacts analysis by significant to the outcome of the NRC Staffs review.

Therefore, Contention 1 should be dismissed. 116 AFES Contention 2 As a Matter of Fact and Expert Opinion, the Siting Process Will Have a Disparate Impact on the Minority and Low Income Population of Lee and Eddy County Contention 2, building from Contention 1, directly asserts that the Holtec site will have a disparate impact on the minority and low income population of Lee and Eddy County. 117 In Fuel Storage, L.L.C. (Independent Irradiated Fuel Storage Installation) LBP-98-7, 47 NRC 142, 203 (1998) (ruling inadmissible a contention seeking to litigate discrimination in site selection process).

113 AFES Petition at 20.

114 See https://www.epa.gov/sites/production/files/2015-04/documents/ej-guidance-nepa-compliance-analyses.pdf, also available at https://go.usa.gov/xP9re, at Section 2.1.1.

115 ER at 3-100.

116 10 C.F.R. § 2.309(f)(1)(iv).

117 AFES Petition at 22.

24

support, AFES proffers a report from Professor Myrriah Gomez, Ph.D. 118 But Dr. Gomezs report does not demonstrate why the information it contains would be material to the NRC Staffs evaluation of whether the Holtec site will have a disparate impact on minority and low income communities. Therefore, Contention 2 is inadmissible. 119 As previously discussed in the NRC Staffs response to AFES Contention 1, the ER contains a site-specific analysis regarding environmental justice in Section 4.8.4. Dr. Gomezs report disputes this analysis, beginning with a general discussion of New Mexicos history with the nuclear industry. 120 The report then concludes that the Holtec CISF facility is an example of environmental racism based heavily on the racial and socioeconomic disparities in the proposed-facilitys location in southeastern New Mexico. 121 In support, Dr. Gomez cites New Mexicos nuclear history and the lack of representation of people of color throughout all stages of decision making. 122 Next, Dr. Gomez concludes that the ERs evaluation of secondary environmental impacts caused by economic growth presents a biased lens with which Holtec is examining socioeconomic environmental justice impacts. 123 However, Dr. Gomezs report consists of either conclusory statements or factual assertions that Petitioner fails to show are material to the Staffs review or represent a genuine dispute with the application. [A]n expert opinion that merely states a conclusion without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of that opinion. 124 Similar 118 Id. at Exhibit 7.

119 10 C.F.R. §§ 2.309(f)(1)(iv), (v).

120 See AFES Petition, Exhibit 7 at 1-2.

121 Id. at 4.

122 Id.

123 AFES Petition, Exhibit 7 at 7-8.

124 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 328 (2015)

(citing USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006)).

25

to the legal arguments advanced by AFES in Contention 1, Dr. Gomez appears to conclude that, because the proposed CISF would be located in an area with a significant minority population, the facility would per se have a disparate impact on that population. But as previously noted, Table 3.8.13 of the ER addresses the site-specific thresholds for the identification of minority communities in areas where the minority or low-income population percentage exceeds 50 percent. And Dr. Gomez does not dispute Holtecs methodology in selecting these thresholds.

Nor does Dr. Gomez specifically explain how the impacts to the populations described in her report would differif at allwith Holtecs environmental justice analysis. 125 Dr. Gomez similarly fails to demonstrate the legal significance of the ethnicity of ELEAs members or why any investigation into racial discrimination is a legal prerequisite to the NRCs environmental justice analysis. As previously noted, the Commission has held that NEPA requires an examination of a proposed projects impacts on minority and disadvantaged communitiesnot an investigation into possible racial bias. 126 In sum, Contention 2 relies on conclusory statements by Dr. Gomez that ultimately do not demonstrate that the issues raised are material to the NRC Staffs environmental justice review or contradict the analysis and conclusions in the ER. 127 Therefore, Contention 2 is inadmissible.

AFES Contention 3 There Is No Factual Support for Holtec's Primary Site Selection Criterion, which Is Community Support 125 AFES Petition, Exhibit 7 at 5-6.

126 Louisiana Enrichment Services, CLI-98-3, 47 NRC at 101.

127 10 C.F.R. §§ 2.309(f)(1)(v), (vi).

26

AFES Contention 3 challenges Holtecs statements of community support in the ER. 128 Similar to Contentions 1 and 2, this contention is inadmissible. First, as AFES appears to concede, community support is immaterial to the NRCs evaluation under NEPA as to whether the Holtec site will have a disparate impact on minority and low income communities. 129 Nonetheless, AFES claims that Holtec has effectively relied on community support during the site selection process to account for any environmental justice concerns. But Section 4.8.4 of the ER, which contains a site-specific environmental justice analysis, simply does not discuss community support (or any lack thereof). Rather, the ERs environmental justice analysis is structured around the categories of information described in the NRC Staff guidance in NUREG-1748, Appendix C. Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Contention 3 fails to identify any specific disagreement with the ERs environmental justice analysis, let alone show that it relies on a representation about the extent community support.

In addition, AFES disputes Holtecs control of the land for the proposed site, which Holtec plans to purchase from ELEA via a purchase agreement. 130 However, the issue of control is also conspicuously absent from the ERs environmental justice analysis. In any event, this challenge appears to stem solely from an AFES members belief that such an agreement is invalid because the ELEA meeting authorizing the purchase agreement was allegedly held without compliance with New Mexicos Open Meetings Act. 131 AFES fails to explain the legal relevance of this claim and similarly fails to dispute whether ELEA currently controls the land or, indeed, whether ELEA intends to convey the property to Holtec. Therefore, Contention 3 has failed to present a genuine dispute with the application on a material issue of law or fact. 132 128 AFES Petition at 23 (community support per se is not material to the findings the NRC must make to issue a license).

129 Id.

130 ER at 1-4.

131 AFES Petition at 24 (citing Affidavit of Nicholas R. Maxwell, Exhibit 5, at ¶¶ 14-22).

132 10 C.F.R. § 2.309(f)(1)(vi).

27

For the reasons provided above, AFES has not demonstrated at least one admissible contention and soindependent from the determination on AFESs standingthe AFES Petition should be denied.

28

2. Dont Waste Michigan, et al.

Dont Waste Michigan Contention 1 The redaction of some 144 pages from Appendix C of the Holtec Environmental Report violates the National Environmental Policy Act and National Historic Preservation Act.

Contention 1 avers that Holtec has violated Section 106 of the National Historic Preservation Act by redacting Appendix C of the ER, which contains Holtecs Cultural Resources Communications and Survey Results. This contention is inadmissible, as it fails to demonstrate a genuine dispute on a material issue of law or fact. In fact, the NRC Staff (not Holtec) has temporarily withheld this information, consistent with the process and criteria of Section 304 of the NHPA. 133 Section 304 provides the following:

The head of a Federal agency . . . after consultation with the Secretary, shall withhold from disclosure to the public information about the location, character, or ownership of a historic property if the Secretary and the agency determine that disclosure may--

(1) cause a significant invasion of privacy; (2) risk harm to the historic property; or (3) impede the use of a traditional religious site by practitioners. 134 Advisory Council on Historic Preservation (ACHP) guidance provides that [a]n official may propose to temporarily withhold information about properties that are currently undergoing eligibility determinations by the Keeper, with the final decision whether to disclose such information dependent on the outcome of that determination. 135 For Section 304 purposes, the Keeper of the National Register within the National Park Service serves as the representative for the Secretary of the Interior. 136 NRC Staff guidance is consistent with the ACHP, stating that 133 54 U.S.C. § 307103(a) 134 Id.

135 See Frequently Asked Questions on Protecting Sensitive Information About Historic Properties Under Section 304 of the NHPA, https://www.achp.gov/digital-library-section-106-landing/ frequently-asked-questions-protecting-sensitive-information, also available at https://go.usa.gov/xP9ru (last visited October 8, 2017).

136 Id.

29

[i]f an applicant for a license or permit submits a report containing maps or other [sensitive cultural] information of this type then the information may need to be considered sensitive, and distribution should be restricted appropriately. 137 Consistent with the process outlined above, the NRC Staff will use Holtecs survey information during its environmental review to determine whether any cultural resources will be impacted by the proposed action, and to determine (in consultation with the Keeper) whether any of the resources are eligible for listing on the National Register of Historic Places. On August 28, 2018, the Staff initiated consultation with the Keeper of the National Register regarding the public availability of the properties identified in Holtecs cultural resource survey report. 138 In doing so, the Staff made a preliminary conclusion that the public disclosure of this information may risk harm to a potential cultural resource by invasion of privacy or risk of harm to the potential historic resource. 139 Upon the completion of the Staffs consultation with the Keeper and a final determination of eligibility, the Staff will make available to the public any information that would not harm any potential historic properties.

In this case, the currently withheld cultural and historic resources information in Appendix C falls squarely within the NRCs policy on sensitive unclassified non-safeguards information, or SUNSI. 140 Specifically, the information is within the SUNSI category of Federal-,

137 Staff Guidance for Withholding Sensitive Information About National Historic Resources in Accordance With the National Historic Preservation Act, June 7, 2011 (ADAMS Accession No. ML111080735).

138 Consultation Regarding An Application For Holtec Internationals Proposed HI-STORE Consolidated Interim Storage Facility For Spent Nuclear Fuel, In Lea County, New Mexico (Docket Number: 72-1051), Aug. 28, 2018 (ADAMS Accession No. ML18240A207).

139 Id.

140 See NRC Policy for Handling, Marking, and Protecting Sensitive Unclassified Non-Safeguards Information (ADAMS Accession No. ML18193B170).

30

State-, foreign government-, and international agency-controlled information. 141 Therefore, the Staff has not made this information publicly available.

Further, the Commission has provided two distinct opportunities for potential intervenors to request access to SUNSI. 142 Indeed, after requesting additional time to intervene in order to allow, among other things, the Joint Petitioners related Freedom of Information Act (FOIA) request for Appendix C information to be completed, the Commission provided the second opportunity to request such access as part of the adjudication. 143 But the Joint Petitioners offer no explanation as to why they did not request access to SUNSI per the Commissions instructions prior to their filing their petition to intervene. Therefore, to the extent the Joint Petitioners now challenge Appendix C of the ER based on that very lack of access, they have provided insufficient information to show that a genuine dispute exists with the applicant. 144 Dont Waste Michigan Contention 2 Holtec cannot provide reasonable assurances that it can obtain the necessary funds to cover the costs of construction, operation maintenance and decommissioning of the CISF.

Contention 2 is inadmissible in that it fails to establish a genuine dispute with the applicant on a material issue of fact or law, contrary to 10 C.F.R. § 2.309(f)(1)(vi), and fails to raise an issue within the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

141 Id. at 1. The Joint Petitioners correctly note that this information had been inadvertently mislabeled as Security-Related Information in an earlier version of the ER. The ER was updated to correct this error on September 20, 2018 (ADAMS Accession No. ML18255A266).

142 See Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation, 83 Fed. Reg. 32919, 32922 (July 6, 2018);

Order of the Secretary, (Aug. 20, 2018) (extending deadlines for access to SUNSI).

143 See Letter from the Joint Petitioners et al. to the NRC, 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), (July 19, 2018) (ADAMS Accession No. ML18208A465) at 2.

144 10 C.F.R. § 2.309(f)(1)(vi).

31

The Joint Petitioners allege that the applicant intends to enter into a contract with the U.S. Department of Energy (DOE) wherein DOE would take title to the nuclear waste and be responsible for transporting it to the CISF. 145 The Joint Petitioners rely on this premise to assert that Holtec thus will not construct the CISF without financial guarantees from the U.S.

Department of Energy. 146 But the same key portions of the application that the Joint Petitioners quote make clear, to the contrary, that the Applicant may instead enter into contracts with nuclear plant owners, not necessarily with DOE. 147 For example, Joint Petitioners excerpt a statement that provides:

Additionally, as a matter of financial prudence, Holtec will require the necessary user agreements in place (from the DOE and/or the nuclear plant owners) that will justify the required capital expenditures by the Company. 148 The Joint Petitioners likewise quote a draft license condition proposed by the Applicant, which contains the same option: In accordance with 10 C.F.R. 72.22, the construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner) at HI-STORE CIS has been established. 149 In short, the Joint Petitioners contention relies entirely on reading out of the application the acknowledgement that the Applicant may obtain its funding by enter into contracts with utilities rather than with DOE. A petitioners misreading of a document cannot form the basis for an admissible contention. 150 Here, the Joint Petitioners own 145 Joint Petition at 32-33.

146 Id. at 34.

147 Id. at 32-33.

148 Id. at 32 (quoting HI-STORE CIS Facility Financial Assurance & Project Life Cycle Cost Estimates, (ADAMS Accession No. ML18058A608) at 3 (emphasis added)).

149 Joint Petition at 33 (quoting License Condition No. 17 of Holtecs proposed draft license (ADAMS Accession No. ML17310A223) (emphasis added)).

150 Georgia Institute of Technology (Georgia Tech Research Reactor), LBP-95-6, 41 NRC 281, 300 (1995).

32

references to the application simply contradict their claim that the application relies exclusively on DOE funding for financing facility construction.

The Joint Petitioners also rely on various public statements that the Applicant has made reflecting its future plans to attempt to enter into a contract with DOE. 151 However, because the potential future plans of the applicant do not present a genuine dispute regarding the actual content of the current application, it is inadmissible. 152 Since the Joint Petitioners have failed to demonstrate any genuine dispute with the applicant regarding financial dependence on DOE, the contention is inadmissible. 153 Since the Joint Petitioners have failed to demonstrate a genuine dispute with the applicant, contrary to 10 C.F.R. § 2.309(f)(1)(vi), this contention should be dismissed.

Dont Waste Michigan Contention 3 The Environmental Report contains a gross underestimation of the volume of low-level radioactive waste (LLRW) that will be generated by the use of concrete and other materials for bunkering of the SNF canisters, and by replacement of the canisters themselves during the operational life of the CISF.

Besides providing a distorted view of the waste management obligations the project will create, the financial burdens arising from creation, oversight and disposition of millions of additional tons of LLRW causes a seriously inaccurate picture of the true costs of constructing, operating and decommissioning the Holtec CISF.

In Proposed Contention 3, the Joint Petitioners assert that the Environmental Report underestimates the volume of low level radioactive waste that will be produced at the facility.

Specifically, the Joint Petitioners assert that the concrete used in the facility, in addition to some surrounding soil, may over the life of the facility become low level radioactive waste. 154 The Joint 151 Joint Petition at 34.

152 See e.g. Duk e Energy Corp. (McGuire Nuclear Station Units 1 and 2 Catawba Nuclear Station Units 1

& 2,) CLI-02-14, 55 NRC 278, 294 (contentions that are based on projected changes to a license, not currently before the NRC in any proceeding or application, are not sufficient to support admission of a contention).

153 See 10 C.F.R. § 2.309(f)(1)(vi).

154 Joint Petition at 38.

33

Petitioners further question the ability of the Applicant to decontaminate storage casks and canisters after operation. 155 Contention 3 is inadmissible, because the Joint Petitioners fundamental claim regarding the amount of material that may become low level waste is unsupported by sufficient facts or expert opinions, contrary to 10 C.F.R. § 2.309(f)(1)(v), and the Joint Petitioners fail to show that a genuine dispute has been presented with the application, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

Even assuming some material such as concrete or soil becomes contaminated as the contention posits, the Joint Petitioners have not provided facts or expert testimony to support its broad assertion that the Environmental Report grossly underestimates the amount of waste.

Petitioners assert that most or all of the 8,000,000 tons of concrete and other subgrade fill materials used for waste containment will become LLRW 156 and that discarded canisters instantly become LLRW. 157 But the Joint Petitioners provide no supporting evidence or expert opinion that would explain how all material used in the ISFSI structures, or even a significant amount of material at the site, would become activated, nor do the Joint Petitioner explain why it is unreasonable to assume that the empty casks cannot be decontaminated as described in Environmental Report Section 4.11.5. 158 Even so, mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention. 159 155 Joint Petition at 36-43.

156 Joint Petition at 38.

157 Joint Petition at 42.

158 ER at 4-44.

159 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station Unit 1), LBP-12-27, 76 NRC 583, 595 (2012) (citing Fansteel, CLI-03-13, 58 NRC at 204-05 (2003)).

34

Furthermore, throughout the contention the Joint Petitioners inconsistently refer to the systems and processes they are criticizing in the application, such as the distinction between waste canisters and the casks in which they would be stored. For example, one portion of the contention discusses waste from contaminated concrete and canisters, but later, on the same page, the petition refers to the waste generated at such time as the [spent nuclear fuel] casks are withdrawn from their burial pits to be transported elsewhere. 160 On the subsequent page, after highlighting the Environmental Reports discussion of cask decontamination, the contention challenges the applicants confidence in decontamination of canisters. 161 Additionally, the contention asserts the creation of low level radioactive waste when the obligatory step of repackaging SNF at Holtec is performed, despite the fact that the application itself does not propose or contemplate repackaging operations as part of the license. 162 The Joint Petitioners further speculate that issues with transfer activity will not only occur, but the resulting scratching and gouging of the walls of the casks will lead to accelerated corrosion of the canisters. 163 The precise event, type of damage, and corrosion pathway that the Joint Petitioners posit is unclear to the Staff.

These inconsistencies, and the Joint Petitioners apparent confusion regarding the design and processes defined in the application, underscore the speculative nature of the claims. And the imprecision of the concerns in turn fails to clearly explain the nature of the Joint Petitioners dispute with the application, let alone establish its materiality. 164 Absent some form 160 Joint Petition at 38. The Staff notes that in the proposed design, a canister, not a concrete cask, would be withdrawn from the cavity enclosure container. See SAR, Figure 3.1.1, Pages 3 3-15.

161 Joint Petition at 39.

162 Joint Petition at 41-43. See SAR, Section 10.3, at 10 10-22, for a discussion of expected operations, which the Joint Petition neither cites nor disputes.

163 Joint Petition at 43.

164 10 C.F.R. 2.309(f)(1)(v), (vi). See Private Fuel Storage, CLI-04-22, 60 NRC at 139 (noting that although a petitioner is not expected to prove its contention at the admissibility stage, [the Commission] do[es] require that it show a genuine dispute warranting a hearing).

35

of supporting facts or expert opinion, the Joint Petitioners bare claims that millions of tons of material will be activated and become LLW, or that the ability of Holtec to decontaminate concrete storage casks is scientifically-unsupported, do not constitute admissible grounds for the contention. In sum, because the Joint Petitioners have neither provided sufficient facts or expert opinion for its assertions, nor in turn explained how the speculative concerns about LLW volume materially contradict the designs, procedures, and analyses in the application, the contention is inadmissible.

Dont Waste Michigan Contention 4 Holtec has defined a site-specific spent nuclear fuel storage facility that does not qualify for the exclusions from NEPA scrutiny conferred by the Waste Storage GEIS. Consequently, severe accident mitigation during transportation to and from the Holtec CISF and at the CISF, and SNF and GTCC storage and management operations at the CISF site, may not be treated as generic issues and excused from consideration within the EIS.

Contention 4 avers that the generic impact findings of the NRCs Continued Storage Rule do not apply to the Holtec facility and that Holtec must conduct a site-specific environmental analysis of certain environmental impacts. 165 To the extent the Joint Petitioners are asserting that the Holtec ER is required to provide a site-specific analysis for impacts during the term of the proposed CISF license, they are correct. But the application contains such a site-specific analysis, and the NRCs Continued Storage Rule does not require otherwise. Therefore, The Joint Petitioners also assert that additional waste may be created in the event of delivery of defectiveor otherwise contaminated casks or containers. Joint Petition at 37-38. Such an assertion relies on the assumption that licensees will fail to comply with the Commissions rules in Part 71 and the [Department of Transportation] regulations, but the Joint Petition has provided no facts that would demonstrate the likelihood of such a scenario. Given the presumption that licensees will comply with applicable regulations, mere speculation as to such a scenario is insufficient to support an admissible contention. Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 400 (1995).

165 See Joint Petition at 46. The Joint Petitioners initial statement of the contention specifically requests site-specific analysis of severe accident mitigation during transportation as well as waste storage and management operations at the site. Because the Joint Petitioners fail to even mention these two specific topics again in Contention 4, let alone provide supporting bases, the Commission must likewise find these claims inadmissible. See 10 C.F.R. § 2.309(f)(1)(ii) & (v).

36

Contention 4 fails to demonstrate a genuine dispute with the application on a material issue of law or fact. 166 The NRCs Continued Storage Rule (i.e., 10 C.F.R. § 51.23) permits an applicants ER to omit from discussion the environmental impacts of spent nuclear fuel storage in . . . an ISFSI for the period following the term of the . . . ISFSI license. 167 In the NRCs Generic Environmental Impact Statement (GEIS) in support of the Continued Storage Rule, the NRC generically evaluated the impacts of continued storage of spent nuclear fuel beyond the licensed life for operation of a reactor. 168 The impact determinations in the GEIS are deemed incorporated in any relevant EIS authored by the NRC Staff. 169 Importantly, the Continued Storage Rule provides that it does not alter any requirements to consider the environmental impacts of spent fuel storage during the term of . . . a license for an ISFSI in a licensing proceeding. 170 The Joint Petitioners claim that the Holtec CISFs storage capacity and policy of returning damaged canisters to the reactor facility are both inconsistent with the Continued Storage GEIS. Although the Joint Petitioners do not appear to directly challenge the conclusions in the Continued Storage and GEIS (an effort that would be inadmissible as a collateral challenge to an NRC regulation), 171 Contention 4 nonetheless misunderstand the application of the Continued Storage Rule to Holtecs ER. The GEIS evaluated the environmental impacts of 166 See 10 C.F.R. § 2.309(f)(1)(vi).

167 10 C.F.R. § 51.23(b).

168 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report, NUREG-2157 Vol. 1 (ADAMS Accession No. ML14196A105) (Continued Storage GEIS); see 10 C.F.R. § 51.23(a).

169 10 C.F.R. § 51.23(b).

170 10 C.F.R. § 51.23(c).

171 See 10 C.F.R. § 2.335(a) (no rule or regulation of the Commission, or any provision thereof . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding without a petition for a waiver in subparagraphs (b), (c), and (d)).

37

away-from-reactor storage and made certain assumptions, including that an away-from-reactor ISFSI would have a similar storage capacity to the previously-licensed Private Fuel Storage (PFS) facility and also that the construction of a dry transfer system (DTS) would take place sometime after the ISFSI is built. 172 In explaining these assumptions, the GEIS acknowledged the need for site-specific analysis for impacts occurring during the construction and operation of a specifically licensed storage facility, which are distinct from the timeframe and activities analyzed by the GEIS:

While the NRC assumes that any proposed away-from-reactor ISFSI would likely be similar to the assumed generic facility . . . from the standpoint of the size, operational characteristics, and location of the facility, the NRC would evaluate the site-specific impacts of the construction and operation of any proposed facility as part of that facilitys licensing process. This review would not reanalyze the impacts of continued storage of the spent fuel, but would incorporate the impact determinations of this GEIS, as stated in 10 C.F.R.

51.23(b). 173 Therefore, the ER must (as it does) evaluate the site-specific impacts from the proposed ISFSI. Specifically, the ER evaluates the impacts for storage of 100,000 MTUs of spent fuel (in contrast to the 40,000 MTUs generically evaluated in the GEIS). 174 The Joint Petitioners fail to explain how the ERs site-specific analysis contradicts the GEIS. As for the construction of a DTS, Holtecs plan to return damaged or contaminated fuel during its initial 40-year license term does not contradict the assumption in the GEIS regarding the construction of a DTS. To be sure, the GEIS assumed that a DTS would be built during the long-term storage timeframe (i.e., 160 years after the licensed life for reactor operations) and noted that [a] license would have to request authorization from the NRC to build and operate the DTS, during initial licensing of the ISFSI, or as a later, separate action. 175 As the Joint Petitioners note, Holtec does not seek to 172 Continued Storage GEIS at 5-1, 5-2 (Section 5.0).

173 GEIS at 5-2 (Section 5.0) (emphasis added).

174 ER at 1-1. Note that the Joint Petitioners reference 173,600 MTUs, see Joint Petition at 48, which does not appear in the ER.

175 GEIS at 5-4 & n.2 (Section 5.0).

38

build a DTS during the CISFs initial 40-year license term. Neither the GEIS nor NRC regulations require otherwise.

The Joint Petitioners legal arguments in support of Contention 4 are also inapposite.

Namely, the Joint Petitioners claim that the NWPA does not authorize the proposed CISF, that it is not an ISFSI, and that it is therefore not covered by the Continued Storage GEIS. As discussed in the NRC Staffs response to Contention 2, Joint Petitioners legal argument relies entirely on reading out of the application Holtecs acknowledgement that it may operate the CISF by obtaining funding from utilities rather than with DOE. Further, the Continued Storage GEIS makes no assumptions with respect to the ownership of spent nuclear fuel at an away-from-reactor storage facility. 176 Neither do the NRCs regulations in 10 C.F.R. Part 72, which broadly define an ISFSI as a complex designed and constructed for the interim storage of spent nuclear fuel. 177 In sum, because Contention 4 is premised on Joint Petitioners misapprehension of the application of the NRCs Continued Storage Rule to the Holtec license application (and because it fails to contradict the ERs site-specific impact analysis for the period of Holtecs proposed licensed activity), Contention 4 fails to raise a genuine dispute with the ER on a material issue of law or fact. 178 And to the extent those claims constitute a collateral challenge to the Continued Storage Rule or the adequacy of the impact analysis in the GEIS, they are outside the scope of this proceeding. 179 The Commission should therefore dismiss the contention.

Dont Waste Michigan Contention 5 Horizontal hydraulic fracturing (fracking) is certain to occur underneath the Holtec site.

176 See Continued Storage GEIS at 2-18 (Section 2.1.3).

177 10 C.F.R. § 72.3.

178 10 C.F.R. § 2.309(f)(1)(vi).

179 10 C.F.R. § 2.309(f)(1)(iii).

39

Holtec has acquired mineral rights to a depth of 5,000 feet to part of its site from Intrepid, a potash mining firm. However, within the boundaries of the Holtec site there are mineral leases held by at least half a dozen oil and gas drilling firms and Mosaic Potash, a mining firm. There is no indication in the Environmental Report of any control over present or potential potash mining or oil and gas drilling. And the very area where the concrete bunkers containing SNF casks will be located, fracking activity can be carried on below 5,000 feet. Typical oil and gas wells in the Permian Basin region in which Holtec is located are 8,000 or more feet deep.

The mineral interests are inadequately disclosed, and the realistic prospects for mineral development immediately surrounding and underneath the Holtec site, and their implications for inducing or expediting geological problems and groundwater movement beneath the site, are inadequately disclosed in the ER.

In this contention, the Joint Petitioners assert that the ER inadequately discloses mineral interests at, underneath, and surrounding the Holtec site. The Joint Petitioners rely on a map entitled the Eddy Lea Alliance Site Mineral Conflict Analysis 9-16-15 to support their assertion that at least half a dozen oil and gas drilling firms 180 have mineral interests within the boundaries of the site which are undisclosed in the ER. 181 The Joint Petitioners also assert that the implications of these mineral interests for the site, such as the presence of corrosive groundwater and soils 182 or induced earthquakes from fracking, 183 are inadequately disclosed in the ER. The Joint Petitioners assert that the ER does not comply with 10 C.F.R. §§ 72.103(f),

72.90, and 72.94. 184 This contention is inadmissible as it fails to satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

First, the Joint Petitioners fail to provide support for their assertion that the ER inadequately discloses mineral interests held within the boundaries of the site, as required by 10 180 Joint Petition at 49.

181 Id. at 49-50.

182 Id. at 49, 52.

183 Id. at 49.

184 Id. at 54-55.

40

C.F.R. § 2.309(f)(1)(v). The Joint Petitioners reference the following statement in the ER and allege that it is misleading or suspect 185: With regard to potential future drilling on the Site, Holtec has an agreement with Intrepid Mining LLC (Intrepid) such that Holtec controls the mineral rights on the Site and Intrepid will not conduct any potash mining on the Site.

Additionally, any future oil drilling or fracking beneath the Site would occur at greater than 5,000 feet depth . . . 186 As the basis for their assertion, the Joint Petitioners rely on a map. The Joint Petitioners maintain that the map shows that [w]ithin the boundaries of the Holtec site there are mineral leases held by at least the following firms as of 2015: Yates Petroleum Corporation, Abo Petroleum Corporation, Fasken Land & Minerals Ltd., Devon Energy Production Company, LP, Manzano Energy Partners II LLC, OGC Operating LLC and Mosaic Potash, a mining firm. 187 However, the map does not support the Joint Petitioners contention. Instead, when the Joint Petitioners map is compared against Figure 3.1.2 of the ER, 188 it is clear that the asserted mineral interests of those companies lie outsideand not insidethe boundaries of the CISF site, contrary to the Joint Petitioners claim. A document put forth by an intervenor as the basis for a contention is subject to scrutiny both for what it does and does not show. 189 As the Joint Petitioners offer no other basis for their assertion that there are undisclosed mineral interests in the boundaries of the site, the Joint Petitioners fail to provide support for their assertion and fail to meet the requirements of 10 C.F.R. § 2.309(f)(1)(v).

Second, contrary to 10 C.F.R. § 2.309(f)(1)(vi), the Joint Petitioners fail to raise a genuine dispute with the applicant on a material issue of law or fact. The Joint Petitioners assert 185 Id. at 50.

186 ER at 3-2.

187 Joint Petition at 50.

188 ER at 3-5.

189 Yank ee Atomic Electric Co., (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90 (1996); revd in part on other grounds, CLI-96-7, 43 NRC 235 (1996).

41

that [t]he ER does not faithfully report the true story of land ownership and mineral rights interest nor admit the likelihood that throughout the occupation of the site by Holtec International for purposes of interim SNF storage, fracking and mining will take place, adjacent to and beneath the occupied parts of the Holtec property. 190 However, the Joint Petitioners fail to identify and controvert portions of the ER, which acknowledge oil and gas development near the site. For example, Section 3.1.2 of the ER states, [t]he oil and gas industry is well established in the area surrounding the Site, with producing oil and gas fields, support services, and compressor stations. Nearly all phases of oil and gas activities have occurred in the locality.

These phases include seismic exploration, exploratory drilling, field development (comprised of production and injection wells) and other sundry activities associated with hydrocarbon extraction. 191 Furthermore, the ER acknowledges that oil drilling and fracking will occur beneath the site. It states, any future oil drilling or fracking beneath the Site would occur at greater than 5,000 feet depth, which ensures there would be no subsidence concerns. 192 In sum, the Joint Petitioners fail to identify or controvert the discussion on oil and gas development in the Surrounding Land Use section of the ER and the ERs assertion that oil and gas development will occur 5,000 feet below the site without subsidence concerns. Any contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed. 193 Having failed to controvert the applications discussion on surrounding land use and future oil and gas drilling, this contention fails to raise a genuine dispute with the application on a material issue of law or fact.

190 Joint Petition at 51-52.

191 ER at 3-2.

192 ER at 3-2; see also SAR at 2-54.

193 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 433 (citing Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994)).

42

This contention is also inadmissible as the Joint Petitioners fail to demonstrate that issues raised in the contention are material to the findings the NRC must make, in accordance with 10 C.F.R. § 2.309(f)(1)(iv). Although the Joint Petitioners assert inadequacies with the ER, the Joint Petitioners primary concerns with respect to groundwater appear to be safety related. 194 For example, the Joint Petitioners assert that [t]here is no investigation in the ER into the chemical status of water and soils and their possibly corrosive effects on steel casks, as well as their corrosive effect on the concrete bunkers, and other artificial substrate materials. 195 However, that safety analysis, such as the CISFs ability to resist corrosion, which the Joint Petitioners allege is missing from the ER, is located in the SAR. Contrary to the Joint Petitioners allegation that there only exists a faith-based insistence 196 that the corrosive groundwater and soil will not come into contact with the casks and that the effects of natural and/or human-added corrosives in the soil are not incorporated into any plan for mitigating or halting otherwise inevitable corrosion to the casks themselves, and the engineered support structures surrounding the casks, the applicant in the SAR asserts otherwise. 197 The SAR states that the steel cavity enclosure container which contains the SNF is substantially sequestered from the native soil through two engineered features: . . . [a] thick reinforced concrete Enclosure Wall surrounds the [vertical ventilated modules] array and, along with the Support Foundation pad, provides a physical separation (water intrusion protection) to the CECs[; and] . . . [t]he subgrade in contact with the CECs is either a free flow concrete or an 194 To the extent the Joint Petitioners claim that Holtec has ignored groundwater impacts from pollution, see Joint Petition at 53, the ER discusses these impacts at 4-12 (concluding that [s]urface runoff from the Site . . . would not reach groundwater). Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(vi), this aspect of the contention fails to controvert the application.

195 Joint Petition at 52.

196 Id.

197 Id. at 53.

43

engineered fill selected to provide a non-aggressive environment around the CECs. 198 Without having specifically controverted this analysis in the SAR, the Joint Petitioners claims amount to mere speculation and fail to demonstrate that the issue raised in the contention is material to the findings the NRC must make in the EIS to support the licensing action in accordance with 10 C.F.R. § 2.309(f)(1)(iv).

The same is true for the Joint Petitioners assertions with respect to induced seismicity.

Both the ER and the SAR contain discussions on seismic information. 199 However the Joint Petitioners fail to reference either discussion. Furthermore, both documents contain a discussion of accidents analyzed, including earthquakes, which were evaluated in the SAR for their consequence to the structural, thermal, shielding, criticality, confinement, and radiation protection performance of structures, systems, and components specific to the CISF, and the HI-STORM UMAX system, and the results of those analyses are summarized in the ER. 200 Importantly, the ER states that none of the accident events would result in release of any radioactive material. 201 Because the Joint Petitioners fail to identify and controvert these analyses and explain why, if the Joint Petitioners concerns were considered, the earthquakes analyzed would be non-bounding, the Joint Petitioners assertions amount to speculation and do not raise a genuine dispute with the application on a material issue of law or fact.

In sum, because this contention does not meet the requirements of 10 C.F.R.

§ 2.309(f)(1)(iv) -(vi), this contention is inadmissible.

Dont Waste Michigan Contention 6 The Holtec CISF is a major component of a large plan to aggregate SNF in southeastern New Mexico for purposes of reprocessing. A radioactively dirty 198 SAR at 17-23.

199 See ER at 3 3-14; SAR, Rev. 0A at 2 2-90.

200 SAR 15 15-17; ER at 4 4-56.

201 ER at 4-56.

44

industrial activity, reprocessing has been omitted from analysis and disclosure of cumulative environmental impacts.

In this contention, the Joint Petitioners assert that the Applicants cumulative effects analysis fails to consider plans for a reprocessing facility associated with the Holtec CISF. As evidence of such future reprocessing plans, the Joint Petitioners reference a 2015 slide show given by a Holtec representative to the New Mexico State Legislature; 202 a 2017 newspaper article; 203 and a 2008 Draft Global Nuclear Energy Partnership Programmatic Environmental Impact Statement completed by the Department of Energy. 204 According to the Joint Petitioners, because reprocessing of SNF has been identified by Holtec as an activity associated with the aggregation of SNF in southeastern New Mexico, because members of the Eddy-Lea Energy Alliance (the local governmental entity that owns the Holtec site) advocate for reprocessing, and because there are industrial resources in the region which could be harnessed for reprocessing, reprocessing must be discussed as a cumulative impact in accordance with 40 C.F.R. §§ 1508.7 and 1508.25. 205 This contention is inadmissible because the Joint Petitioners have failed to show that a genuine dispute exists with the applicant on an issue of material fact or law in accordance with 10 C.F.R. § 2.309(f)(1)(vi). Although the Joint Petitioners correctly note that a cumulative impact analysis must include the incremental impact of the action when added to other past, present, 202 Joint Petition at 55 (citing to John Heaton, Chairman ELEA, LLC, A Centralized Interim Storage Facility for Used Nuclear Fuel, https://www.nmlegis.gov/handouts/RHMC% 20080216%20Item% 205% 20Interim%20Storage--Eddy-Lea%20County%20Alliance.pdf, also available at https://bit.ly/2REDT2m) (Holtec Slideshow).

203 Joint Petition at 55-56 (citing Ralph Vartabedian, 1,800 Tons of Radioactive Waste has an Ocean View and Nowhere to Go, LA Times (Jul. 2, 2017, 3:00 AM), http://www.latimes.com/local/california/la-me-stranded-nuclear-waste-20170702-htmlstory.html, also available at https://lat.ms/2t5EfEI (LA Times article).

204 Joint Petition at 56 (citing DOE, Draft Global Nuclear Energy Partnership Programmatic Environmental Impact Statement (GNEP PEIS; DOE/DIS-0396), (Oct. 2008),

https://www.energy.gov/sites/prod/ files/nepapub/nepa_documents/RedDont/EIS -0396-DE IS-2008.pdf, also available at https://go.usa.gov/xP9ry (DOE/EIS-0396).

205 Joint Petition at 57-59.

45

and reasonably foreseeable future actions, 206 this requirement is not without its limits. In Kleppe

v. Sierra Club, the Supreme Court explained that an environmental impact statement need only include other related actions when those actions have been formally proposed and are pending before an agency. 207 Specifically, the Supreme Court stated, NEPA speaks solely in terms of Proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. 208 The Commission has also long recognized this ripeness requirement and held that, consistent with NEPAs rule of reason, projects that are not concrete or reasonably certain, but are instead merely contemplated, do not warrant consideration in the cumulative impact analysis. 209 And the Commission recently reiterated that a possible future action must be in a sufficiently advanced stage to be considered a proposal for action that bring[s] NEPA into play. 210 At best, the evidence proffered by the Joint Petitioners reflects speculation about the potential for (or benefits of) future reprocessing activities. They identify no pending proposal for a reprocessing facility that would meet the Commissions standard for ripeness. The Holtec slide show merely notes that the CISF Provides the most flexibility for recycling, research, and disposal. 211 Additionally, the Draft Global Nuclear Energy Partnership Programmatic Environmental Impact Statement makes clear that it is but a first, important step in deciding 206 40 C.F.R. § 1508.7.

207 427 U.S. 390, 410 (1976).

208 Id. at 410 n. 20. The Supreme Court further explained, Should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects. Id.

209 McGuire, CLI-02-14, 55 NRC at 295.

210 Strata Energy, Inc, (Ross In Situ Recovery Uranium Project), CLI-16-13, 83 NRC 566, 577 (2016)

(quoting McGuire/Catawba, CLI-02-14, 55 NRC at 295).

211 Holtec Slideshow at 4.

46

whether and how to recycle spent nuclear fuel. . . . [And] [a]t this time, DOE is not proposing project-specific or site-specific actions. . . . 212 Lastly, the LA Times article offers no additional detail except to suggest a political appetite for such a project in the area. 213 These expressions of interest fall far short of a pending proposal as required by Sierra Club v. Kleppe and the Commissions application of the Kleppe standard.

For the reasons discussed above, the Joint Petitioners have failed to demonstrate that the applicants cumulative impacts analysis must consider the environmental impacts of a potential reprocessing facility. Because the Joint Petitioners fail to raise a genuine dispute with the ER on an issue of material fact or law in accordance with 10 C.F.R. § 2.309(f)(1)(vi), this contention is inadmissible.

Dont Waste Michigan Contention 7 Holtecs HI-STORE philosophy of Start Clean/Stay Clean, whereby incoming shipments of canisters that are contaminated, leaking or otherwise compromised will be returned to the originating power plant for dispositioning, is illegal under NRC regulations and the Atomic Energy Act. It is unlawful to knowingly ship containers with radiation on exposed or external surfaces. Once delivered to the site, leaky and/or contaminated canisters must remain at Holtec-but Holtec expressly intends to return such canisters to their points of origin. Leaking or otherwise compromised shipping containers would likewise present an immediate danger to the corridor communities through which they would travel back to their nuclear power plant site of origin, likely violating numerous additional NRC and DOT regulations In Proposed Contention 7, the Joint Petitioners raise a concern with Holtecs proposed start clean/stay clean policy. 214 Contention 7 asserts that such a policy is unlawful and that such rejections and shipments constitute a danger that the application has not addressed.

212 DOE/EIS-0396 at S-2.

213 The article quotes the mayor of Hobbs, Sam Cobb, as stating We believe if we have an interim storage site, we will be the center for future nuclear fuel reprocessing.

214 Joint Petition at 61.

47

The contention is inadmissible because the Joint Petitioners have not provided a clear basis for their contention, have raised issues outside the scope of the proceeding, and have not provided sufficient factual information or expert testimony to support their claims. 215 As a threshold matter, NRC and Department of Transportation have issued rules in 10 C.F.R. Part 71 and 49 C.F.R. Part 173, Subpart I, addressing the requirements of transportation packages and shipments. Challenges to the acceptability of Part 71 requirements or the ability of shippers to meet these requirements are outside the scope of this proceeding under 10 C.F.R. §§ 2.335(a) and 2.309(f)(1)(iii), 216 and the Joint Petitioners present no factual support for an assumption that either fuel received at the facility or transported from the facility would fail to comply with those requirements. 217 Indeed, as the Commission held in Oyster Creek, this agency has declined to assume that licensees will contravene our regulations. 218 The Joint Petitioners assumption that canisters could be received or transported in violation of Part 71 requirements lacks support and fails to demonstrate a genuine dispute with the application. The portion of the application relied on by the Joint Petitioners states that 215 10 C.F.R. § 2.309(f)(1)(iii), (v).

216 See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 at 32,920 (July 16, 2018) (providing notice that this application is for a specific license pursuant to Part 72); GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207 (2000).

217 Additionally, the Staff notes that the Joint Petitioners appear to conflate the terms cask and canister.

See, e.g. Joint Petition at 62 (discussing the policy of shipping such cask s back to the point of origin).

In the proposed design, as quoted in the Joint Petition, the metallic canisters, not casks, may be returned.

218 51 NRC at 207. The NRC Staff also notes that the Commission has previously found inadmissible a similar contention regarding speculation as to the environmental effects of a similar policy (regarding defective or defectively sealed canisters) proposed by the applicant in Private Fuel Storage. See Private Fuel Storage, CLI-04-22, 60 NRC at 138-139. There, the Commission found that particularly in light of prior generic determinations that transportation accidents causing accidental canister breach were not credible, to show a genuine dispute the petitioner would have to give the Board reason to believe that contamination from a defective canister could find its way outside of the cask. Id. On the facts of that case, the Commission further agreed with the applicant that the applicants associated quality assurance plans would, without allegations to the contrary, make it highly improbable that a seriously contaminated canister or cask would arrive at the site, and that a shipping cask can serve as sufficient containment for the return trip. Id. at 138.

48

canisters exceeding the limits set by site requirements will be returned to the originating power plant for dispositioning. 219 The Joint Petitioners appear to believe that such containers would necessarily fail to meet Part 71 transportation requirements. 220 The proposed license requires that after arrival at the facility gas in the cavity of Transport Cask containing the loaded canister will be tested for Krypton-85 gas and that the concentration shall be less than 10-4 µCi/cc prior to unloading the canister. 221 However, a shipments failure to meet the proposed site requirements would not inherently contravene standards in 10 C.F.R. § 71.47 for radiation levels at the external surface of the package. 222 Accordingly, the Joint Petitioners fail to show that the wording of the application implies a conflict with Part 71 or DOT regulations. Their assumption that such a practice would be implemented in a manner contrary to Part 71 and DOT requirements is simply unsupported speculation and fails to demonstrate a genuine dispute with the applicant on a material issue. 223 Consequently, the Joint Petitioners have not provided support for their assumption that the statement in the application conflicts with existing safety standards for transportation established by regulation. Nor does the petition explain a basis for why such a practice would create any increased risk of the applicant either receiving or shipping canisters and casks in 219 SAR, Section 3.1.4.6 at 3-7.

220 The Joint Petitioners have claimed it is unlawful to ship containers with radiation on exposed or external surfaces. Joint Petition at 61.

221 Proposed TS at 5-5. See also SAR, Section 10.3.3.1, Table 10.3.3.

222 For example, the confinement boundary for the HI-STAR 190 is the overpack, not the boundary of the canister. So long as other conditions of the transportation package certificate are met, material inside the package can be shipped. See HI-STAR 190, Certificate No. 9373, (ADAMS Accession No. ML17222A082) (The overpack is a right circular cylinder featuring a containment vessel formed by a nickel steel shell welded to a nickel steel baseplate and to a nickel steel top forging. . . The overpack provides the containment boundary, the helium retention boundary, gamma and neutron radiation shielding, and heat rejection capability of the package.).

223 See Private Fuel Storage, CLI-04-22, 60 NRC at 138-139. See also Southern Nuclear Operating Co.

(Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 253 (2007) ([N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.) (citing Fansteel, CLI-03-13, 58 NRC at 203).

49

contravention of existing regulatory limits, let alone that it would create a viable mechanism by which significant radioactive materials would migrate off-site. 224 In sum, the proposed contention amounts to unsupported speculation that the applicant (or other licensees responsible for transportation) will not comply with applicable regulations; such conclusory allegations are not suitable for resolution in this proceeding. 225 Consequently, the contention is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi).

Dont Waste Michigan Contention 8 In several places in the ER, Holtec states that Table 4.9.1" provides data tending to show minimal radiation dangers from transporting the casks of spent nuclear fuel. The data is not narratively reproduced in the ER. The missing table undermines Holtecs basis for claiming minimal effects from transporting SNF and GTCC waste.

The Joint Petitioners contend that Holtec omitted Table 4.9.1 from its environmental report (ER) and that the table is not narratively reproduced. 226 Namely, the Joint Petitioners identify three places in Chapter 4 of the ER that reference Table 4.9.1, and they assert that the tables omission from the ER both undermines Holtecs position that the transportation of SNF will cause minimal radiation effects on the public and deprives the public from assessing these effects. 227 Contrary to the Joint Petitioners claim, Table 4.9.1, titled Annual Incident-Free Transportation Impacts, is included in the ER, immediately following the references that Joint Petitioners cite as the basis for the omission. The table shows results of the incident-free analysis of transporting 500 canisters of spent nuclear fuel (SNF) annually. 228 224 Joint Petition at 62.

225 See Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

226 The format in which the information is presented, whether in narrative, table, or another format, is immaterial to the staffs review. Thus, the contention does not satisfy the admissibility standard of 10 C.F.R. § 2.309(f)(1)(iv), which requires the contention be material to the NRCs review.

227 Joint Petition at 64.

228 ER at 4-37.

50

To meet the admissibility standards of 10 C.F.R. § 2.309(f)(1)(vi), a petitioner must make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. 229 Consistent with that threshold, an erroneous assertion of an omission fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi). 230 Therefore, because the Joint Petitioners do not present a genuine dispute over whether Table 4.9.1 is missing from the ER, Contention 8 should be rejected.

Dont Waste Michigan Contention 9 There is only one map published in the Environmental Report that shows any of the routes which will be taken for delivery of SNF and GTCC waste to Holtec, and it only mentions transport of radioactive material from two reactors. The information provided comes nowhere near disclosure of a 20-year transport campaign of an estimated 10,000 cask deliveries.

In the proposed contention, the Joint Petitioners allege a contention of omission that all potential transportation routes must be provided in the Environmental Report, and that currently, the Environmental Report does not include this information. The Joint Petitioners argue that this information is needed for Petitioners to meaningfully participate in the NEPA process, and to understand the scope of the transportation impacts, there must be unconditional disclosure of probabl[e] transportation routes.

The contention is inadmissible because the Joint Petitioners have not demonstrated that the allegedly omitted information represents a genuine dispute with the application on a material issue of law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

229 Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) (citing Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989), quoting Connecticut Bank ers Assn v. Board of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980)).

230 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), LBP-09-8, 69 NRC 736, 743 (2009) (finding that information in an existing design certification rule that is incorporated by reference into the application is not an omission, thus the contention of omission is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi)); see Georgia Institute of Technology (Georgia Tech Research Reactor), LBP-95-6 , 41 NRC 281, 300 (1995) (A petitioners imprecise reading of a reference document cannot serve to generate an issue suitable for litigation).

51

The National Environmental Policy Act, NEPA, requires that agency take a hard look at the environmental consequences before taking a major action. 231 However, in making this hard look and determining the potential effects, an agency must apply a rule of reason in dealing with potential uncertainty. 232 In keeping with this rule of reason, agencies may make reasonable assumptions in its environmental analyses. 233 The Commission has emphasized that for an EIS, the relevant NEPA standard is not whether the assumptions made are the best or whether it will turn out true, but whether the []assumptions of the FEIS were so distorted as to impair fair consideration of those environmental effects. 234 In the Environmental Report Section 4.9.3, the applicant has evaluated three representative routes to determine the likely radiological impacts of transportation. 235 The Joint Petitioners do not assert that an ISFSI applicant is either required to specify from which precise reactor sites fuel may ultimately be received, and an ISFSI licensee is not responsible for definitively determining the transportation routes that will ultimately be used. Accordingly, given those uncertainties, the Joint Petitioners fail to explain why their broad demand for disclosure of apparently unlimited possible routes (unconditional disclosure of probabl[e] routes) rather than the ERs use of representative routes is required by NEPA. Indeed, the NRC has repeatedly used representative routes to evaluate transportation impacts in past Environmental Impact 231 Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983).

232 See National Environmental Policy Act Regulations, 50 Fed. Reg. 32,234 (Aug. 9, 1985) (codified at 40 C.F.R. Part 1502) (CEQ is concerned that the requirement to prepare a worst case analysis in certain circumstances has been the impetus for judicial decisions which require federal agencies to go beyond the rule of reason in their analysis of potentially severe impacts).

233 Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 759, 761 (9th Cir. 1996). See also W. Org. of Res. Councils v. Bureau of Land Mgmt., 591 F. Supp. 2d 1206, 1228 (D. Wyo. 2008), aff'd sub nom. BioDiversity Conservation Alliance v. Bureau of Land Mgmt., 608 F.3d 709 (10th Cir. 2010).

234 Private Fuel Storage, CLI-04-22, 60 NRC at 145 (quoting Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI 98-3, 47 NRC 77, 89 (1998)).

235 ER Rev. 0 at 4 4-34.

52

Statements. 236 The proposed contention asserts that the transportation aspects of Holtec are of high significance to the completion of the project, and it states that the omitted information is needed for the Joint Petitioners to participate in the proceeding and for the public and emergency response officials to even begin to understand the scope of the Holtec projects transportation side[.] 237 But while the Joint Petitioners allude to a wide range of possible transportation modes and routes that could theoretically be analyzed, they fail to state with more specificity why that spectrum renders the applicants approach in the Environmental Report an unreasonable method of analyzing and informing the public of the potential environmental effects of transportation of fuel to the facility.

Accordingly, the proposed contention fails to demonstrate a genuine dispute with the application on a material issue of law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

Dont Waste Michigan Contention 10 The Inconsistent Predicted Lengths of the Period of Operation of the CISF Warrant NEPA Scrutiny of Potential for Operations Exceeding 100 Years.

The Joint Petitioners aver that extended operation of the Holtec CISF beyond the long-term storage period identified in the Continued Storage GEIS must be analyzed as a cumulative impact in the ER. 238 Accordingly, Contention 10 requests an analysis of the Holtec CISF as a 236 See e.g., Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, NUREG-2157, at 5-52; Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah, NUREG-1714, at 5-

39. See also 10 C.F.R. § 51.52, Table S-4 (deriving generic effects of transportation and fuel waste for one power reactor based on survey of then-existing power plants).

237 Joint Petition at 67. Indeed, to the extent that the Joint Petitioners seek to litigate the specific routes that will ultimately be used by shippers, these issues are outside the scope of this proceeding. The Department of Transportation is responsible for overseeing vehicle safety, routing, shipping papers, emergency response, and shipper training. Challenges to DOT regulations and its regulatory scheme are plainly outside the scope of this proceeding. See Duk e Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-82-51, 16 NRC 167, 172 (1982).

238 Joint Petition. at 68.

53

potential permanent repository. 239 This contention raises identical issues as the Joint Petitioners Contention 4, and similarly represent a direct challenge to the NRCs Continued Storage Rule.

Therefore, Contention 10 is inadmissible. 240 Here, the ER has defined Holtecs proposal as seeking an initial 40-year license, which it anticipates would be followed by two 40-year license renewals pursuant to 10 C.F.R. § 72.42.

Contention 10 identifies no internal inconsistency in this description. Accordingly, the ER contains a site-specific analysis of the environmental impacts at the proposed Holtec CISF facility for approximately 120 years (40 years for initial licensing plus 80 years for life extensions). 241 Under NEPA, only the impacts arising from the proposed action must be analyzed. 242 Of course, the NRC generically evaluated the environmental impacts of waste storage beyond licensed operations of a reactor in the Continued Storage GEIS. 243 Contention 10 essentially conflates the long-term timeframe evaluated in the Continued Storage GEIS with Holtecs proposed license term. In the GEIS, the long-term timeframe evaluated the impacts of continued storage for 100 years after short-term storage; the short-term storage evaluation considered the impacts for the first 60 years beyond a reactors licensed life for operations. 244 Per the Continued Storage Rule, these impacts need not be evaluated in the ER and will be deemed incorporated into the Staffs EIS. 245 Therefore, aside from Contention 10s challenge to the Continued Storage Rule, the contention also fails to raise any issues that would be material to the Staffs environmental review. 246 239 Joint Petition at 70.

240 10 C.F.R. § 2.309(f)(1)(iii).

241 ER at 1-1.

242 See Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976).

243 See Continued Storage GEIS, Chapter 5; 10 C.F.R. § 51.23(b) (the impact determinations of the Continued Storage GEIS are deemed incorporated into the NRC Staffs EIS).

244 Continued Storage GEIS at 5-4 (Section 5.0).

245 See 10 C.F.R. § 51.23.

246 10 C.F.R. § 2.309(f)(1)(iv).

54

Dont Waste Michigan Contention 11 NEPA Requires Significant Security Risk Analyses for the Massive Spent Nuclear Fuel and Greater-Than-Class-C Wastes Proposed for Interim Storage And Associated Transportation Component at Holtecs New Mexico Facility Contention 11 presents a disjointed discussion of a variety of issues related to the Holtec CISF application, which appears to rely exclusively on a wide-ranging report by Dr. James Ballard expressing his concerns with the Holtec application. Contention 11 is inadmissible for numerous reasons, most fundamental of which is that the Joint Petitioners have provided neither a specific statement of the issue being raised nor a brief explanation of the basis for the contention, contrary to 10 C.F.R. § 2.309(f)(1)(i) and (ii).

As the Commission noted in its 2014 rule change, the contention admissibility rules exist to focus litigation on concrete issues and result in a clearer and more focused record for decision. 247 Imprecision in a contention will render[] it impermissible pursuant to the specificity requirement in 10 C.F.R. § 2.309(f)(1)(i), 248 and the brief explanation of 10 C.F.R.

§ 2.309(f)(1)(ii) should rarely require more than a sentence or two. 249 Similarly, supporting information for a proposed contention must be specifically identified [and] a petitioner may not simply incorporate massive documents by reference as the basis for or as a statement of his contentions. 250 The Joint Petitioners unwieldy Contention 11, consisting of 18 pages of text interspersed with an unfocused collection of 29 separate sub-contentions that vaguely bring[s]

247 Changes to Adjudicatory Process, 69 Fed. Reg 2182, 2202 (Jan. 14, 2004). See also Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), LBP-15-15, 81 NRC 598, 601.

248 Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 6 and 7), LBP-17-2, 85 NRC 14, 31 (2017).

249 U.S. Department of Energy (High-Level Waste Repository), LBP-08-10, 67 NRC 450, 455 (2008). But see Progress Energy (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 100 (2009) (noting that the brief explanation merely requires an explanation of the rationale or theory of the contention.).

250 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15 (2004), quoting Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

CLI-89-3, 29 NRC 234, 240-41 (1989)).

55

to [ ] notice a 70 page report, fails to meet this standard. 251 On this basis alone, the contention should be found inadmissible. 252

i. NEPA evaluation of impacts of terrorism is outside the scope of the proceeding Moreover, to the extent any common theme is discernible from the multiplicity of claims in the text and the referenced report, it appears to stem from a concern that a terrorist attack must be addressed in the environmental review process. 253 Yet Commission precedent directs that this is an issue outside the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

In particular, although the Petition describes the findings of the U.S. Court of Appeals for the Ninth Circuit in San Luis Obispo Mothers for Peace v. NRC, 254 the Commission has made clear that outside licensing actions in the Ninth Circuit, the NRC is not required to consider terrorism in its NEPA analysis. 255 In Oyster Creek, the Commission reaffirmed its prior holdings that the proximate cause test for a reasonably close causal relationship between federal agency action and the environmental consequences is the appropriate test for the necessity of a NEPA analysis. 256 Specifically, the Commission held that an NRC licensing action is not a proximate cause of a terrorist act, and as a result, NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities. 257 251 Joint Petition at 71.

252 See Crow Butte, CLI-09-12, 69 NRC at 552 (noting that contentions based on little more than guesswork would waste the scarce adjudicatory resources of all involved.).

253 See e.g., Joint Petition at 71 (summarizing Dr. Ballards credentials); Joint Petition at 72-73 (referring to impacts of radiological events whether accidental or caused intentionally by others, and shipments as targets of lone wolf attacks); Joint Petition at 77-79 (discussing San Luis Obispo Mothers for Peace v. NRC holding that required consideration of terrorist attacks).

254 449 F.3d 1016 (9th Cir. 2006).

255 Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007).

256 Id. at 129-130 (citing Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-75 (1983) and Department of Transportation v. Public Citizen, 541 U.S. 752, 767 (2004).

257 Oyster Creek , CLI-07-8, 65 NRC at 129-30.

56

This decision was then affirmed by the U.S. Court of Appeals for the Third Circuit, which, in light of potential hypothetical aircraft attacks of a facility, noted that the NRC controls whether equipment within a facility is suitable for continued operation or could withstand an accident, but it has no authority over the airspace above its facilities. 258 In light of this, the Court held that this lack of control, in combination with the other intervening events that would predicate an attack, makes the causation chain too attenuated to require NEPA review. 259 In its decision in Oyster Creek, the Commission noted that its decision was based on the same reasoning given prior decisions, including the decision made in Private Fuel Storage, CLI-02-25, 56 NRC 340 (2002). In Private Fuel Storage, the Commission held that a license for a specific-license ISFSI does not make a terrorist attack reasonably foreseeable, necessitating a review under NEPA. 260 The Commission has likewise reiterated its intention to follow this approach in new reactor construction projects. 261 For these reasons, and given that the proposed facility is not within the Ninth Circuit, the Joint Petitioners have not demonstrated that environmental analysis of the risk of terrorism is an issue within the scope of findings the NRC must make, and therefore, the contention should be held inadmissible under 10 C.F.R.

§ 2.309(f)(1)(iii).

ii. The contentions other claims and recommendations fail to demonstrate genuine and material disputes with the application Beyond the overarching lack of clarity and the out-of-scope NEPA terrorism concerns described above, which are sufficient reasons to dismiss the contention, the varied sub-258 N.J. Dept. of Envtl. Prot. v. NRC, 561 F.3d 132, 140 (3d Circuit 2009).

259 Id.

260 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002) (the claimed impact is too attenuated to find the proposed federal action to be the proximate cause of that impact.).

261 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-07-10, 65 NRC 144, 146-47 (2007).

57

contentions exhibit similar deficiencies with respect their demonstration that the issues raised are within the scope of the proceeding and constitute genuine disputes with the application on material topics. For example, the Joint Petitioners concern that the Holtec licensing proposal does not address the potential that a permanent repository may never open 262 is a generic challenge to the NRCs Continued Storage Rule at § 51.23 and is accordingly barred by 2.335(a). 263 Most notably, in all of proposed Contention 11, there is only one reference to a specific section of the application, and even then, it consists solely of a general reference to the ERs introduction section. 264 Indeed, the contention alludes to numerous issues in passing without describing the specific position of the applicant or otherwise controverting the application, contrary to the requirements of § 2.309(f)(1)(vi). For example, one subcontention raises concerns over routine radiation exposures the public will face per shipment and over the lifespan of the CISF, 265 but nowhere do the Joint Petitioners cite the Environmental Reports analysis in Section 4.9.3 which addresses this precise issue. The contention includes various other references to transportation issues but likewise neither references nor specifically contradicts any of the portions of the application in which transportation impacts are analyzed. A 262 Joint Petition at 75.

263 As another example, the statement that NRC/Holtec should first define DBEs and DBTs for the whole duration of the transportation campaign appears to raise a generic concern about transportation safety evaluations that should be resolved through rulemaking, rather than an adjudicatory proceeding over the adequacy of a NEPA analysis. Joint Petition at 80. See South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Units 2 and 3), LBP-09-2, 69 NRC 87, 103 (2009)

(finding that challenges to the adequacy of the design basis threat was outside the scope of the proceeding).

264 And in the attached Ballard report, the only apparent references to the application itself are abruptly dismissed, rather than explained and clearly controverted as required by 10 C.F.R. 2.309(f)(1)(vi). For example, endnote 11 to the report summarily lists multiple sections of the ER regarding accidents, but dismisses them with the broad observations that Original analysis of accident potentials as lacking or that other information used in the application either do[es] not substitute for the creation of separate programmatic and site specific EA/EIS for the project as proposed or does not address deliberate attacks. Ballard Report at 54-55.

265 Joint Petition at 82.

58

basic assertion that the application is inadequate or insufficient does not meet the standard of § 2.309(f)(1)(vi), and a contention that does not directly controvert a position taken by the applicant is subject to dismissal. 266 Other subcontentions merely seek to reiterate issues raised in other contentions or summarize the recommendations made by Dr. Ballard in his report. 267 It is the obligation of a petitioner to read the relevant parts of the license application and show where the application is lacking. 268 Read as a whole, the contention amounts instead to a series of observations or recommendations for the environmental review process rather than concrete issues that are appropriate for adjudication.

For the reasons above, the Joint Petitioners have not satisfied its obligation to provide a clear discussion of issues or demonstrated that the concerns raised are appropriate for a hearing. Consequently, Contention 11 is inadmissible.

Dont Waste Michigan Contention 12 Because of the geologic formations and conditions beneath the Holtec site, there are risks inherent in siting and operating the CIS facility as proposed by Holtec.

The ER and SAR in this case do not adequately discuss and evaluate the risks created by these geologic conditions.

In Contention 12, the Joint Petitioners assert that there are risks inherent in siting and operating the Holtec CISF that are inadequately discussed in the ER and the SAR. The Joint Petitioners state that the basis for the contention lies in 10 C.F.R. §§ 51.45 and 72.90 and that the facts supporting the contention are contained in the report of Steven Schafersman, Ph.D. 269 266 Nuclear Mgmt. Co., LLC (Palisades Nuclear Power Plant), LBP-06-10, 63 NRC 314, 340-42 (2006).

267 See Vogtle, LBP-07-3, 65 NRC at 253 ([N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.) (citing Fansteel, CLI-03-13, 58 NRC at 203).

268 Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 156 (1991).

269 Joint Petition at 88. The Staff understands the contention as relying exclusively on the information in the Schafersman report; the summary on page 88 of the Joint Petition itself provides no further context for the underlying rationale.

59

This contention is inadmissible because the Joint Petitioners fail to provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(vi). For contentions alleging inadequacy of the information in the application, 10 C.F.R. § 2.309(f)(1)(vi) plainly states that petitioners must include references to specific portions of the application (including the ER and SAR) that the petitioner disputes and the supporting reasons for each dispute (emphasis added).

Dr. Schafersmans report, which is thirty pages in length, presents a list of reasons for which he asserts the Holtec proposal is inadvisable. And although the Joint Petitioners initial statement of this contention claims to be directed at risks created bygeologic conditions, the issues cited in the report appear to range widely from geologic reasons (including (1) the presence of fresh and saline waters on the areas surface and subsurface; (2) the presence of abundant evaporate karst features in the region; and (3) the presence of petroleum industry activity in the area, including exploration, drilling, fracking and wastewater injection) to scientific, economic, political and anecdotal reasons (including that (1) the proposal involves nuclear waste surface storage; (2) the nuclear waste will not be moved a second time; (3) an externality benefit and cost analysis; (4) a risk analysis; (5) transportation risks; and (6) storage canister failure).

However, because the report contains no specific references to any part of the application (including the SAR and ER), it fails to explain how any of Dr. Schafersmans observations assert a genuine dispute with the application, as required by 10 C.F.R. § 2.309(f)(1)(vi). Although the ER and SAR contains detailed discussions on various facets of the environment at and around the site, including the surface water and groundwater resources 270; the geologic features of the region and soils 271; and the presence of oil and gas activity, 272 the 270 ER at 3 3-41; SAR, Rev. 0A at 2 2-67, 2 2-87.

271 ER 3 3-23; SAR, Rev. 0A 2 2-5, 2 2-89.

272 E.g. ER 3-2; SAR, Rev. 0A at 2 2-12.

60

Schafersman report fails to discuss the ER and note any specific portions of the application with which he disagrees. Similarly, Dr. Schafersman fails to dispute any specific portion of the SAR.

Moreover, even where the report includes figures and diagrams - some of which appear to be excerpted from the application 273 - the report does not specify how Dr. Schafermans observations contradict either those facts or the way in which the application relies on them for its analyses or conclusions. As noted by the Commission, it is simply insufficient for a petitioner to expect the Board on its own to discern what particular issue a petitioner is raising, including what section of the application, if any, is being challenged as deficient and why. 274 In 1989, the Commission amended 10 C.F.R. Part 2 to raise the threshold for admissible contentions 275 such that only intervenors with genuine and particularized concerns participate in NRC proceedings. 276 Noted in that rule and repeated in Commission case law, is the requirement that a petitioner must read the pertinent portions of the license application . . .

[and] state the applicants position and the petitioners opposing view. 277 [A] generalized assertion, without specific ties to NRC regulatory requirements, or to safety in general.do not provide adequate support demonstrating the existence of a genuine dispute of fact or law. 278 Finally, this contention fails to demonstrate that many of the issues raised in Mr.

Schafersmans report are within the scope of the proceeding and material to findings the NRC must make in accordance with 10 C.F.R. § 2.309(f)(1)(iii)-(iv). For example, much of the report 273 See e.g., Schafersman Report at 14.

274 USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

275 See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 51 Fed. Reg. 24,365, 24,366 (July 3, 1986) (proposed rule); 54 Fed. Reg. at 33,170.

276 Duk e Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 NRC 328, 334 (1999).

277 Millstone, CLI-01-24, 54 NRC at 358 (2001) (emphasis added) quoting 54 Fed. Reg. at 33,170; see also Yank ee Atomic Energy Corp. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248-49 (1996) (For a contention to be admissible, a petitioner must refer to the specific portion of the license application being challenged, state the issue of fact or law associated with that portion, and provide a basis of alleged facts or expert opinions . . . .).

278 U.S. Department of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009).

61

focuses on the suitability of the site for storage beyond the licensing period (it is very likely that, when the high-level nuclear waste is buried in its storage canisters, the waste will never be moved a second time as claimed and reach a final and safe storage site deep underground in a remote mountain composed of igneous rock.) 279 As stated previously, the feasibility of a permanent repository (or the analysis of impacts of SNF storage beyond the licensed term, which are governed by the Continued Storage rule) is beyond the scope of this proceeding.

Similarly, the reports discussion on Externality Benefit and Cost Analysis appears to raise generalized policy concerns about possible legislation and the appropriate role of government in regulation of externalities 280, topics which are likewise outside the scope of the proceeding. 281 In sum, the NRC Staff opposes the admission of this contention in that it fails in its entirety to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi) and, additionally, fails to show how various claims in the Schafersman report are either in the scope of the proceeding or material to the findings the NRC must make on the application, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii) and (iv).

Dont Waste Michigan Contention 13 The Joint Petitioners seek to adopt all of the Sierra Clubs contentions. 10 C.F.R.

§ 2.309(f)(3) permits the co-sponsoring of contentions where the petitioners designate a single representative for those contentions with the authority to act with respect to those contentions.

279 Schafersman Report at 21. See also id. at 25 (The primary reason the risks are unacceptable is because either (1) the nuclear wastes will be moved twice, thus unavoidably more than doubling the risks of transportation and the costs of a second transport and storage, or (2) the transported waste will ultimately be stored at the surface site in New Mexico permanently, becoming the de facto final repository for the SNF/HLNW.)

280 See, e.g., id. at 22 (Our poorly-regulated American free enterprise systemour vaunted mixed economy or regulated capitalismallows corporation to privatize gains and socialize losses due to weak regulation based on ignoring sound economic theory.), 23-26.

281 It is well established that a petitioner cannot seek to use a specific adjudicatory proceeding to express generalized grievances about NRC policies. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231 (quoting Duk e Energy Corp.

(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 40 NRC 328, 334-35 (1999)); Peach Bottom, ALAB-216, 8 AEC at 21.

62

The Joint Petitioners have not done that here, either individually or jointly with the Sierra Club.

Therefore, the NRC Staff opposes the Joint Petitioners request to adopt the Sierra Clubs contentions until the parties jointly designate a representative.

3. NAC International Inc.

NAC Contentions 1 and 2 The Holtec CISF license application inadequately substantiates its design basis analyses concerning normal, off-normal, and accident events, which are required to demonstrate compliance with 10 C.F.R. Part 72, including Subparts E, F and G (and related acceptance criteria in NUREG 1567), as it lacks required design and safety information on the NAC canisters to be housed in the CISF UMAX casks.

The Holtec CISF license application omits technical information required under NRC regulations, including but not limited to 10 C.F.R. § 72.24, about the design and safety performance of NAC canisters within its UMAX casks.

NACs two safety contentions purport to challenge the Holtec CISF license applications analysis of the interaction between the HI-STORM UMAX cask (previously approved by NRC via a Certificate of Compliance (CoC)) and non-Holtec canisters (specifically, the canisters manufactured by NAC). 282 But NAC fails to demonstrate that these contentions are within the scope of this licensing proceeding. 283 NAC correctly notes that there are two relevant licensing actions at issue: the (1) Holtec CISF license application, and (2) HI-STORM UMAX CoC amendment application. Neither proceeding involves NAC canisters. Therefore, Contentions 1 and 2 are inadmissible. 284 As NAC concedes, the CoC for Holtecs HI-STORM UMAX cask only permits storage of two types of canisters in the caski.e., the MPC-37 and MPC-89both of which are Holtec 282 NAC Petition at 11.

283 10 C.F.R. § 2.309(f)(1)(iii).

284 Id. Further, NRC regulations expressly limit the scope of hearings regarding Part 72 ISFSI licenses from including design of a spent fuel storage cask for which NRC approval . . . has been issued or is being sought. 10 C.F.R. § 72.46(e).

63

canisters. 285 Holtec is currently seeking an amendment to the HI-STORM UMAX CoC to include one type of Orano cask (i.e., the NUHOMS 24PT1-DSC canister). 286 However, this CoC amendment request is not seeking approval to store NAC canisters nor is it within the scope of the instant licensing proceeding. 287 Moreover, because the HI-STORM UMAX cask is the only CoC referenced in the Holtec CISF license application, the later incorporation of any additional CoC amendment would require an amendment to the CISF license application (or to the license, if one were already issued).

Simply put, NACs Contentions 1 and 2 both challenge the Holtec CISFs safety analysis based on the absence of information concerning NAC canisters. Because Holtec does not seek NRC approval to store NAC canisters, such an analysis is not required. Therefore, NACs safety contentions are outside the scope of this licensing proceeding. 288 NAC Contention 3 The Holtec CISF license application incorrectly omits a design alternatives analysis on the speculative grounds that the UMAX cask system is the only such system that is capable of including as contents all non-Holtec canister types.

Contention 3 disputes the ERs statement regarding design alternatives that the HI-STORM UMAX cask is the only licensed technology with the universal capability to store all spent nuclear fuel from all commercial reactors. 289 The ER eliminated from detailed analysis design alternatives to use the AREVA, NAC, and EnergySolutions systems. 290 NAC points out that the HI-STORM UMAX CoC does not necessarily include such universal capability. Indeed, 285 NAC Petition at 14-15.

286 See NAC Petition at 15, n.16; Request for Amendment 3 of Holtec UMAX CoC No. 1040, (Aug. 30, 2016) (ADAMS Accession No. ML16250A393).

287 See 10 C.F.R. § 72.46(e).

288 10 C.F.R. §§ 2.309(f)(1)(iii) & 72.46(e).

289 ER at 2-17.

290 Id.

64

as previously discussed in the NRC Staffs response to NAC Contentions 1 and 2, the HI-STORM UMAX CoC has been approved for only two Holtec canisters to date. Therefore, to the extent that the ERs basis for eliminating these design alternatives from detailed analysis is unclear, the NRC Staff does not oppose the admissibility of Contention 3.

However, notwithstanding NACs proffer of an admissible contention, its petition should not be granted because, as explained above, NAC has not demonstrated standing. 291

4. The Sierra Club and Beyond Nuclear, Inc.

Sierra Club Contention 1 & Beyond Nuclear Contention 1 Beyond Nuclear: The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of Holtecs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities -

violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C.

§§ 10222(a)(5)(A), 10143. 292 Sierra Club: The NRC has no authority to license the Holtec CIS facility under the NWPA nor the AEA. Holtec has said DOE must take title to the waste, but the NWPA does not authorize DOE to take title to spent fuel in an interim storage facility. The AEA has no provision for licensing a CISF. 293 Both the Beyond Nuclear proposed contention and the substantially similar Sierra Club Proposed Contention 1 are admissible in part. The Sierra Club contention is inadmissible to the extent it more broadly challenges Part 72 regulations that allow for any away-from-reactor ISFSIs.

291 10 C.F.R. § 2.309(a).

292 Beyond Nuclear Petition at 20-21.

293 Sierra Club Petition at 10-11.

65

i. To the extent the Petitioners have asserted an inconsistency between the ER and the SAR regarding the extent of the applicants intended reliance on a future contract with DOE, they have identified an admissible contention.

The Petitioners identify several places in the SAR wherein the Applicant states that it may enter into a contract either with DOE or nuclear plant licensees. 294 Notwithstanding the statements in the SAR, the Petitioners correctly note that the ER states in several places that it will enter into a contract with DOE wherein DOE will be responsible for taking title to the waste and for transportation of the waste to the site. 295 To the extent the Petitioners contentions challenge this inconsistency between the ER and SAR, the Staff agrees the contentions are admissible. 296 ii. Petitioner Sierra Clubs broader assertion that interim away-from-reactor waste storage facilities are not permissible under the Atomic Energy Act or the Nuclear Waste Policy Act does not raise an issue within the scope of the proceeding.

The Sierra Club appears to contend broadly that the AEA and the NWPA do not allow away-from-reactor ISFSIs and thus any consolidated interim storage facility application (regardless of who may have title to the stored waste) is illegal. 297 As NRC regulations in Part 294 Beyond Nuclear Motion at 16, n.4.

295 See Beyond Nuclear Motion at 16 (citing the ER at 1-1 and 3-104), Sierra Club Petition at 11 (citing the ER at Section 1.0).

296 Both Petitioners appear to interpret this inconsistency as requiring a conclusion that DOE would be the sole customer for the CISF, as represented in the ER, rather than that either DOE or nuclear plant owners may be the users of the CISF, as stated in the SAR. See, e.g., HI-STORE CIS Facility Financial Assurance & Project Life Cycle Cost Estimates, (ADAMS Accession No. ML18058A608) at

3. While the Staff agrees that the contention is admissible because resolution of the inconsistency is material to the staff review, the Staff considers it premature to take a position on how the applicant will address the inconsistency.

297 See, e.g., Sierra Club Petition at 10, 14, 16-17 (The AEA has no provision for licensing a CISF.; Nor does the AEA give the NRC authority to license an ISFI [sic.] away from the site of a reactor.); 13 (In fact, the NWPA does not even contemplate an interim storage facility away from the reactor site.).

66

72 provide for the licensing of away from reactor ISFSIs, 298 this argument amounts to a generic challenge to NRC regulations that is precluded by 10 C.F.R. § 2.335 and is thus beyond the scope of this proceeding. 299 Moreover, this issue has already been ruled upon by the D.C.

Circuit, which held that the NRC has the authority to license privately owned away-from-reactor spent nuclear fuel storage facilities pursuant to the AEA, and that the NWPA neither repealed nor superseded that licensing authority. 300 Therefore, the Sierra Clubs challenge to the NRCs authority to license all away-from-reactor ISFSIs is outside the scope of the proceeding.

Conclusion To the extent these contentions allege an inconsistency between the ER and the SAR, they are admissible. To the extent the Sierra Club seeks to challenge the legality of all away-from-reactor ISFSIs, its contention is inadmissible as outside the scope of this proceeding.

Sierra Club Contention 2 The Holtec environmental report, in attempting to describe the purpose and need for this project, claims that CIS is safer and more secure than storing the waste at the reactor site. However, the environmental report cites no evidence or data to support this assertion. An agency cannot rely on self-serving statements, especially ones with no supporting data, from the prime beneficiary of the project.

In Contention 2, Sierra Club asserts that the ER contains self-serving statements about the safety and security of CIS that are unsubstantiated. The Petitioner asserts that the agency cannot rely on those statements and argues that the ER and subsequent EIS must examine the 298 See generally 10 C.F.R. Part 72; see also id. §§ 72.32(a) & 72.46(d) (specifically referring to requirements related to ISFSIs not co-located with a power reactor).

299 10 C.F.R. §§ 2.335, 2.309(f)(1)(iii); see Private Fuel Storage, CLI-02-25, 56 NRC at 392 (Congress, in enacting the Atomic Energy Act (AEA), gave the NRC authority to license privately owned, away-from-reactor (AFR) facilities.).

300 See Bullcreek v. NRC, 359 F.3d 536, 543 (D.C. Cir. 2004). The D.C. Circuit observed that although the AEA does not specifically refer to the storage or disposal of spent nuclear fuel, it has long been recognized that the AEA confers on the NRC authority to license and regulate the storage and disposal of such fuel. Id. at 538 (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev Commn, 461 U.S. 190, 207 (1983); Illinois v. Gen. Elec. Co., 683 F.2d 206, 214-215 (7th Cir. 1982); Jersey Cent. Power & Light Co. v. Township of Lacy, 772 F.2d 1103, 1112 (3d Cir. 1985).

67

relative safety of HOSS at reactor sites. 301 In support of its contention, the Sierra Club points to a 2003 report by Dr. Gordon Thompson, Robust Storage of Spent Nuclear Fuel: A Neglected Issue of Homeland Security. The Sierra Club concludes that [a]t this point, until an environmental impact statement (EIS) is prepared by the NRC, the statement of purpose and need in the ER is inadequate. 302 This contention is inadmissible as the Petitioner has failed to provide sufficient information to show that a genuine dispute exists on a material issue of law or fact and have failed to demonstrate that the issue raised is material to the findings the NRC must make in accordance with 10 C.F.R. § 2.309(f)(1)(vi) and (iv), respectively.

An applicant is required to include in its ER, and an agency is required to include in its NEPA analysis, a brief statement on the purpose and need of a proposed action. 303 NUREG 1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, Section 6.1 provides guidance on an ERs purpose and need section. It states that this section describes the underlying need for the proposed action and should not be written merely as a justification of the proposed action, nor to alter the choice of alternatives. . . . Examples of need include a benefit provided if the proposed action is granted or descriptions of the detriment that will be experienced without approval of the proposed action. In short, the need describes what will be accomplished as a result of the proposed action. 304 However, when the Applicants purpose and need section is reviewed in context, the Petitioner fails to show that their disagreement with this sole sentence constitutes a genuine dispute with the application on a material issue of fact or law. The ER notes several purposes 301 Sierra Club Petition at 19.

302 Id. at 20.

303 10 C.F.R. § 51.45(b); 10 C.F.R. Part 51, App. A § 4.

304 NUREG-1748 at 6-1.

68

for the proposed CISF. It explains that [m]any policymakers and stakeholders in the communities that host shutdown reactors want to have the SNF removed to complete decommissioning of the site and to allow for more beneficial uses of the land. . . . so that the remaining lands can be returned to Greenfield status. 305 It states that three nuclear power plants have been shut down and are in the process of being decommissioned and nine nuclear power plants across the U.S. have been decommissioned . . . to levels that would allow for unrestricted release of the site in accordance with the NRCs License Termination Rule. 306 And the ER identifies other potential objectives as well, including alleviating significant costs to surveil, maintain, and provide emergency preparedness and physical security at ISFSIs and alleviating the need to construct new or expanded ISFSIs at operating sites. 307 In short, the ER asserts a range of potential objectives describing what will be accomplished as a result of the proposed action. 308 In that context, the Petitioner fails to show how a disagreement solely with the ERs statement of safer storage renders the purpose and need section deficient as a basis for evaluating a reasonable range of potential benefits or detriments of, and alternatives to, the proposed action. For example, the Petition does not articulate how its posited lack of support for that particular assertion could adversely affect the reasonableness of any of the alternatives actually considered in the application. The contention thus does not demonstrate that the challenge to the cited sentence is ultimately a genuine and material dispute with the totality of the ER's statement of purpose and need.

The contention also asserts that the ER must therefore evaluate the relative safety of implementing HOSS at reactor sites, to substantiate the purpose and need for the project.

305 ER at 1-5.

306 Id.

307 Id.

308 NUREG-1748 at 6-1.

69

However, because the Petitioner has not demonstrated the materiality of its challenge to the purpose and need statement (for the reason stated above), the Petition likewise does not demonstrate that such substantiation via analysis of HOSS is material to the Staffs environmental review or otherwise required by NEPA. 309 For these reasons, the Petitioner has failed to show that a genuine dispute exists on a material issue of law or fact and have failed to demonstrate that the issue raised is material to the findings the NRC must make in accordance with 10 C.F.R. § 2.309(f)(1)(vi) and (iv).

Therefore, the contention is inadmissible.

Sierra Club Contention 3 The statement in the ER that CIS is safer and more secure than storage at a reactor site contradicts the NRCs Continued Storage Rule, which concludes that spent radioactive fuel can be safely stored at a reactor site indefinitely. Therefore, there is no basis for accepting the statement in the ER, and there is no purpose and need for the Holtec project.

In Contention 3, the Sierra Club avers that the ERs Purpose and Need statement contradicts the NRCs Continued Storage Rule and thereby undercuts any purpose or need for the Holtec facility. No such contradiction exists. Even if it did, Holtecs Purpose and Need statementtaken as a wholesets forth several purposes of the proposed Holtec facility.

Accordingly, Contention 3 fails to demonstrate a claim material to the Staffs review and fails to demonstrate a genuine dispute of law or fact with the Applicant. 310 309 And to the extent this aspect of the Petitioners claim could be interpreted as an argument that HOSS must be considered as an alternative to the proposed action, it fails to reference or challenge the discussion of alternatives in Chapters 2, 4 or 9 of the ER and thus would not meet the standards for an admissible challenge. Any contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed, as a failure to raise a genuine dispute with the application on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi). See Millstone, LBP-08-9, 67 NRC at 433 (citing Rancho Seco, LBP-93-23, 38 NRC at 247-48).

310 See 10 C.F.R. § 2.309(f)(1)(vi).

70

NRC regulations require an EIS to include a description of the purpose of, and a discussion of the need for, a proposed action. 311 NRC Staff guidance regarding the preparation of the purpose and need analysis in the ER and the NRC Staffs EIS states that an applicant and Staffs treatment of this subject should explain why the proposed action is needed, going on to indicate that the discussions should describe the underlying need for the proposed action and should not be written merely as a justification of the proposed action, nor to alter the choice of alternatives. 312 In short, an applicant should describe what will be accomplished as a result of the proposed action. 313 Here, the ERs Purpose and Need section states that the Holtec CISF would serve[] a national strategic need by providing for an orderly transfer of SNF from the decommissioned shutdown sites to a safer and more secure centralized storage location. 314 Further, the ER states that the Holtec CISF would permit decommissioning of reactor sites so they can be returned to Greenfield status, reduce costs of operating at-reactor ISFSIs related to surveillance, maintenance, emergency preparedness, and physical security, and alleviate the need to construct new or expanded ISFSIs at operating reactors. 315 Contention 3 challenges a single statement in the ERthat the Holtec CISF would provide a safer and more secure centralized storage location. The sole basis for this contention is the Sierra Clubs alleged contradiction between this statement and the NRCs Continued Storage Rule and GEIS. But the Continued Storage GEIS did not perform any qualitative analysis of the safety benefits of at-reactor vs. away-from-reactor consolidated storage, nor did 311 10 C.F.R. Part 51, App. A. § 4.

312 NUREG-1748 at 5-2 (Section 5.1.1).

313 Id.; see Shaw AREVA Enrichment Services, LLC (Eagle Rock Enrichment Facility), LBP-11-26, 74 NRC 499, 524 (2011).

314 ER at 1-5 (Section 1.2).

315 Id.

71

it endorse any particular storage method. Rather, the GEIS analyzed the environmental effects of the continued storage of spent fuel at both reactor sites and away-from-reactor ISFSIs.

Therefore, the Sierra Club fails to demonstrate how Contention 3s assertion of a contradiction with the GEIS is material to the Staffs environmental review. 316 In addition, the ER reference to the benefits of centralized storage is only one component of the Applicants purpose and need discussion. Contention 3 fails to acknowledge, let alone dispute, the accompanying considerations described by the Applicant as the bases for its purpose and need. Thus, even if Contention 3 had identified a material contradiction in the ER regarding the asserted safety benefits, it fails to demonstrate a genuine and material dispute with the totality of Holtecs purpose and need discussion. 317 Sierra Club Contention 4 Operation of the CIS site as proposed by Holtec would necessitate the transportation of the radioactive waste from reactor sites to the CIS facility.

Transportation from the reactors to the CIS site carries substantial risks. These risks must be evaluated in the ER.

Sierra Club Contention 4 asserts that the Applicants discussion of transportation risks is inaccurate. 318 The Petitioner relies on a 2001 report by Matthew Lamb and Marvin Resnikoff 319 that evaluated the radiological consequences of the 2001 Baltimore Tunnel Fire, had it involved spent nuclear fuel. 320 Dr. Resnikoff, as stated in the Petition, estimates the consequences of a hypothetical accident as approximately 1250 times Holtecs estimate. 321 The Petitioner further 316 10 C.F.R. § 2.309(f)(1)(iv); see Georgia Tech Research Reactor, LBP-95-6 , 41 NRC at 300 (A petitioner's imprecise reading of a reference document cannot serve to generate an issue suitable for litigation).

317 10 C.F.R. § 2.309(f)(1)(vi).

318 Sierra Club Petition at 22.

319 As supplemented by Petitioners claims regarding Dr. Resnikoffs updated conclusions. Sierra Club Petition at 25.

320 Sierra Club Petition at 24-26.

321 Sierra Club Petition at 25.

72

disputes the applicants reliance on three other documents: DOEs 2008 risk estimate 322, NUREG-1714, and NUREG-2157. 323 At the admissibility stage, Petitioner does not have to prove its contention. 324 Accordingly, the Staff does not oppose the admission of Contention 4 to the extent it challenges the adequacy of the applicants environmental analysis of the potential radiological consequences of a hypothetical transportation accident. 325 By contrast, to the extent the contention is intended to raise environmental or safety concerns regarding the threshold likelihood of such a transportation accident, 326 the Petitioner has not proffered sufficient facts or expert opinions to demonstrate a genuine dispute with the applicant. In that regard, the Petition includes only a brief assertion that the 2008 study does not incorporate recent information about rail fires and expanded traffic of oil tanker cars. But the petition does not reference information that would buttress such a claim, nor does it clearly explain how such accidents could actually cause a release of radiological material to the environment. 327 In fact, with respect to the only incident cited by the Petitioner, the 2001 Baltimore Tunnel Fire, the Commission has previously determined that that event is bounded by 322 Sierra Club Petition at 25. Staff presumes this is referring to U.S. Department of Energy Report, DOE/EIS-0250F, Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada (ML081750191 (package)).

323 Sierra Club Petition at 26-27.

324 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

325 See Sierra Club v. Watk ins, 808 F. Supp. 852, 868-69 (D.C. Cir. 1991) (explaining the relationship between the probability and the consequences of an accident under NEPA). But see Private Fuel Storage, CLI-04-22, 60 NRC at 136 (noting, in connection with a contention admissibility determination involving a different waste storage facility, that the Commission has determined generically that accidental canister breach is not a credible scenario.).

326 Sierra Club Petition at 22-23 (These risks must be evaluated in the ER.).

327 See Private Fuel Storage, CLI-04-22, 60 NRC at 136-37 (finding contention inadmissible where the petitioner ha[d] not put forth any previously unconsidered accident scenario that could result in a canister becoming damaged and beginning to leak.).

73

the hypothetical accidents in 10 C.F.R. § 71.73, and the Sierra Club provides only speculation that such fires could actually exceed the Part 71 requirements. 328 Consequently, while the Staff does not oppose the admissibility of the contention to the extent it disputes the Environmental Reports evaluation of the consequences of a hypothetical accident scenario, the Sierra Club has not demonstrated that the contention raises an admissible issue with respect to the likelihood of such an event.

Sierra Club Contention 5 The ER states that waste would be stored at the CIS facility for up to 120 years until a permanent repository is found. The ER and the subsequent EIS must address the purpose and need and the environmental impacts if a permanent repository is not found, and the Holtec facility becomes a de facto permanent repository.

Contention 5 claims that the Holtec ER must address the contingency of the proposed Holtec CISF becoming a de facto repository if a permanent repository is not constructed. 329 The Petitioners rely on the D.C. Circuits decision in New York v. NRC. 330 That decision upheld a challenge to the NRCs Waste Confidence Decision, finding that the NRCs NEPA evaluation was deficient for failing to consider, inter alia, the environmental effects of failing to secure 328 See Compatibility With IAEA Transportation Safety Standards (TS-R-1) and Other Transportation Safety Amendments, 69 Fed. Reg. 3698, 3700 (Jan. 26, 2004) (For example, in response to the Baltimore Tunnel Fire, the NRC Staff has conducted two sets of independent analyses and has determined that the conditions that existed in the fire would not have caused a breach of a current spent fuel transportation cask design had it been located in the tunnel for the duration of the fire.).

See also SECY-03-0002; NUREG/CR-6793; NUREG/CR-6886; NUREG/CR-7209 (providing the Staffs evaluations as to the sufficiency of § 71.73 accidents to bound real world accident scenarios).

Contentions that challenge the adequacy of the NRCs waste transportation regulations are barred under 10 C.F.R. § 2.335(a), absent a waiver.

The NRC Staff further observes that although the discussion in the contention and supporting facts appears to be focused almost exclusively on accidents, the Environmental Reports discussion of the radiological effects of transportation also addresses incident-free transportation impacts (see ER, Section 4.9.3.1 at 4 4-34), an analysis which the Petition does not appear to specifically cite or controvert and which accordingly does not appear to be within the scope of the proposed contention.

329 Sierra Club Petition at 27.

330 Id. (citing New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)).

74

permanent storage of spent nuclear fuel. 331 In response to the ruling, which remanded the matter to the NRC, the agency developed its Continued Storage Rule and GEIS. The Continued Storage Rule expressly states that the ER is not required to discuss the environmental impacts of spent nuclear fuel storage in . . . an ISFSI for the period following the term of the . . . ISFSI license. 10 C.F.R. § 51.23(b). Because this is precisely what Contention 5 asks for (The ER must therefore discuss and analyze the impacts of indefinite storage at the Holtec CIS facility) 332 the contention represents a straightforwardand inadmissiblechallenge to the NRCs Continued Storage Rule. 333 The contention is therefore outside the scope of this proceeding, and must be dismissed. 334 Sierra Club Contention 6 An ER is required to discuss alternatives to the proposed action. Pursuant to NEPA, this includes an examination of the no-action alternative. The discussion of the no-action alternative in the Holtec ER is deficient because it does not discuss safer storage methods at the reactor sites, such as HOSS, nor does it acknowledge the NRCs Continued Storage Rule that concludes that waste can be safely stored at the reactor site indefinitely. Furthermore, the ER states that the no-action alternative is a reasonable alternative that would satisfy the purpose and need for the project.

Contention 6 asserts that the Holtec ERs discussion of the no action alternative is deficient because it does not discuss the NRCs Continued Storage rule or the use of hardened on-site storage (HOSS). The Sierra Club fails to demonstrate why either discussion is material 331 New York v. NRC, 681 F.3d at 471.

332 Sierra Club Petition at 29.

333 See 10 C.F.R. § 2.335(a) (no rule or regulation of the Commission, or any provision thereof . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding without a petition for a waiver as provided for elsewhere in that section). Of note, the U.S. Court of Appeals for the D.C. Circuit upheld the Continued Storage Rule and GEIS. See New York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016).

334 10 C.F.R. § 2.309(f)(1)(iii).

75

to the NRCs environmental review of the no-action alternative and also fails to demonstrate a genuine dispute with the application. 335 An ERs discussion of alternatives must be sufficiently complete to aid the NRC in developing and exploring appropriate alternatives in the EIS and must also be presented in comparative form. 336 The ER should also include consideration of the economic, technical, and other benefits and costs of the proposed action and its alternatives. 337 NRC guidance requests that applicants address the no-action alternative, which is a discussion of the results from a lack of action, to serve as a baseline for comparing alternatives. 338 Here, contrary to the Sierra Clubs assertion that the no-action alternative is blandly dismissed, 339 the ER contains an analysis of the no-action alternative, including a description of the potential environmental impacts of the no-action alternative. 340 And the Sierra Clubs assertion that the ER contains no discussion of the relative benefits and costs likewise fails to demonstrate a genuine dispute with the application, as the ER specifically compares the costs of the no-action alternative with the costs of the proposed action. 341 Specifically, in ER Section 9.2.1, entitled No-Action Alternative Costs, Holtec provides the costs for storage of 5,000 MTUs and 100,000 MTUs respectively. 342 In Tables 9.2.1 through 9.2.5, the ER compares the No-Action Alternatives costs to those of the proposed action, which Holtec summarized in Section 9.2.2. 343 In short, the Sierra Club refers only to Section 2.1 of the ER but does not 335 Id. §§ 2.309(f)(1)(iv), (vi).

336 Id. § 51.45(b)(3).

337 Id. § 51.45(c).

338 NUREG-1748 at 3-9 (Section 3.4.4) and 5-6 (Section 5.2.3).

339 Sierra Club Petition at 31.

340 ER at 2-1, 4-57.

341 Sierra Club Petition at 31.

342 ER at 9-5.

343 ER at 9-6.

76

acknowledge, let alone controvert, the Applicants associated analysis in Chapters 4 and 9. 344 Finally, the Sierra Club incorrectly claims that the Continue Storage Rule concludes that spent fuel can remain at the reactor site indefinitely. The Continued Storage GEIS simply analyzed the environmental impacts of continuing to store spent fuel after the end of the licensed life for operations of a reactor. 345 Further, Contention 6 fails to demonstrate how an analysis of HOSS 346 would be material to the NRC Staffs evaluation of alternatives. A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. 347 The ERs discussion of the no-action alternative must simply evaluate the environmental impacts of the status quoin this case, the proposed facility not being constructed and operated. Because a decision not to license the proposed Holtec CISF would neither require nor foreclose the possibility of at-reactor storage methods such as HOSS, the Sierra Club fails to explain how evaluating HOSS in the ER would be necessary for the analysis of the no-action alternative. Therefore, the Petitioner fails to show why the issues raised in Contention 6 are material to the findings the NRC must make to support its review of the Holtec application. 348 344 See Millstone, CLI-01-24, 54 NRC at 358.

345 Continued Storage GEIS at 1-1. As explained above in response to Sierra Club Contention 3, the Continued Storage GEIS did not include any qualitative analysis of the safety benefits of at-reactor vs.

away-from-reactor consolidated storage, nor did it endorse any particular storage method. And as explained above in response to Sierra Club Contention 5, to the extent the Sierra Club is again asserting that the ER must contain a discussion of the impacts (or costs and benefits) of storage beyond the licensed life of a facility, that represents a challenge to the rule that is precluded by 10 C.F.R. § 2.335(a) and is outside the scope of this proceeding.

346 Notably, except for a passing reference to a report by Dr. Gordon Thompson in Contention 2, the Sierra Club makes no effort to explain the relevance of HOSS to the Holtec application or provide any legal basis for why Holtec would be required to discuss it in the ER. See 10 C.F.R. §§ 2.309(f)(1)(i),

(v).

347 Duk e Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 333-34 (1999) (citing 54 Fed. Reg. at 33,172).

348 10 C.F.R. § 2.309(f)(1)(iv).

77

Sierra Club Contention 7 Holtec relies heavily on the assertion that the Blue Ribbon Commission on Americas Nuclear Future (BRC) has recommended CIS as the answer to the countrys nuclear waste problem. On the contrary, the BRC report should not be viewed uncritically and does not necessarily deserve blind support in assessing the Holtec application. Holtecs ER therefore mischaracterizes both the BRC reports conclusions and the relative risks of CIS versus onsite storage. The EIS must therefore independently and fully address the relative risks and benefits of both storage options.

Contention 7 claims that the Holtec ER mischaracterizes the Blue Ribbon Commission on Americas Nuclear Future reports conclusions. The ER mentions the Blue Ribbon Commissions report several times, primarily in the History and Background section. 349 However, the ERs sole analysis related to the Blue Ribbon Commission is a statement that the no-action alternative would not be supportive of . . . the recommendations from the Blue Ribbon Commission. 350 Contrary to 10 C.F.R. § 2.309(f)(1)(iv), the Sierra Club does not demonstrate how Holtecs statements regarding the Blue Ribbon Commissions report would be material to the NRC Staffs review or represent a genuine dispute with the application. A dispute is material if its resolution would make a difference in the outcome of the licensing proceeding. 351 As discussed above in response to Contention 6, the Petitioner neither referenced nor controverted the ERs ultimate explanation of the impacts of the no-action alternative or the comparison of alternatives, and thus fails to demonstrate a material dispute with the application.

Having failed to address that analysis and comparison, the Petitioner fails to demonstrate why a more close and critical discussion regarding the Blue Ribbon Commission reports view on safety and security risks of at-reactor and away-from-reactor storage (particularly if, as the Petitioner appears to assert, both approaches are equivalently safe) would alter the analysis 349 See ER at 1-3.

350 ER at 2-1.

351 Oconee, CLI-99-11, 49 NRC at 333-34 (citing 54 Fed. Reg. at 33,172).

78

and conclusions in the ER regarding the environmental impacts of the no-action alternative or otherwise. Therefore, Contention 7 is inadmissible. 352 Sierra Club Contention 8 10 C.F.R. § 72.30 establishes requirements for decommissioning interim storage facilities. An application for licensing a CIS facility must contain a decommissioning plan explaining how the plan will satisfy the requirements in the regulation. The application for the Holtec CIS facility does not comply with these requirements because the amount of funds Holtec says it will collect over the anticipated life of the project fall way short of what Holtec says are necessary for decommissioning.

In Contention 8, the Sierra Club challenges whether Holtecs decommissioning plan provides reasonable assurance that funds will be available to decommission the proposed CISF.

NRC regulations require ISFSI applications to include [i]nformation on how reasonable assurance will be provided that funds will be available to decommission the ISFSI and a detailed cost estimate. 353 Holtecs application states that [a] decommissioning fund will be established by setting aside a fixed dollar amount per MTUs stored at the HI-STORE facility. 354 However, Holtec does not specify the number of MTUs used in its calculation, which could vary depending on the contents of the canisters that the Holtec CISF would receive. 355 Therefore, to the extent that the Petitioner challenges the funding amount necessary for decommissioning under the regulations, the NRC Staff does not oppose the admissibility of Contention 8.

Sierra Club Contention 9 The containers in which the waste will be transported to and stored at the Holtec CIS site are designated for a design life of 60 years and a service life of 100 years and may present an unacceptable danger of radioactive release if they are required to remain after the end of their designated service life. Therefore, the 352 10 C.F.R. § 2.309(f)(1)(iv).

353 10 C.F.R. §§ 72.30(b)(1)-(2).

354 SAR at 13-6.

355 See HI-STORE CIS Facility Financial Assurance & Project Life Cycle Cost Estimates, (ADAMS Accession No. ML18058A608) at p. 5 (Section 2.2).

79

ER must examine the environmental impact of the containers being used beyond their approved service life.

The Sierra Club claims that the ER must discuss the environmental impacts of Holtecs HI-STORM UMAX canister storage systems being used beyond their service life because of the possibility of indefinite storage at the Holtec CISF. 356 The impacts regarding the continued storage of spent fuel beyond the license term of an ISFSI have already been evaluated by the NRC in the Continued Storage GEIS. 357 Moreover, the Continued Storage Rule is clear that the ER is not required to discuss the environmental impacts of spent nuclear fuel storage in . . . an ISFSI for the period following the term of the . . . ISFSI license. 358 The Sierra Club effectively challenges whether the ER needs to include an evaluation of the possibility of indefinite storage of HI-STORE UMAX casks, which is an inadmissible challenge to the Continued Storage Rule. 359 Also, to the extent Contention 9 presents a safety issue, the Sierra Club fails to articulate a factual basis or to state a genuine dispute with the application on a material issue. 360 The NRC certified the Holtec HI-STORM UMAX cask for a period of 20 years. 361 Certificates may be renewed for periods up to 40 years. 362 The Final Safety Analysis Report for the HI-STORM UMAX cask provides that the design life for the cask is 60 years and the service life is 100 years. 363 The Sierra Club points to a statement by Holtecs CEO regarding the ability to repair 356 Sierra Club Petition at 38.

357 See generally Continued Storage GEIS at 5-1 (Section 5.0, Environmental Impacts of Away-From-Reactor Storage).

358 10 C.F.R. § 51.23(b).

359 10 C.F.R. §§ 2.309(f)(1)(iii) & 2.335; see Duk e Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).

360 10 C.F.R. § 2.309(f)(1)(vi).

361 See 10 C.F.R. § 72.214 (Certificate Number 1040).

362 10 C.F.R. § 72.240(a).

363 Final Safety Analysis Report on the HI-STORM UMAX Canister Storage System (ADAMS Accession No. ML16193A339) at 2-80 (Table 2.3.1).

80

canisters. 364 But Contention 9 offers no facts or expert opinion regarding whether the canisters are likely to need repair or whether Holtec must demonstrate the ability to repair damaged canisters. The SAR states that [i]n the unlikely event of significant damage to the ISFSI, possibly from a Beyond-the-Design Basis earthquake, the situation may warrant removal and visual inspection of the canister, and repair or replacement of the damaged ISFSI areas. 365 Further, NRC regulations require SNF to be packaged in a matter that allows handling and retrievability without the release of radioactive materials to the environment. 366 The SAR provides that the HI-STORM UMAX cask will allow the retrieval of the [canisters] under all conditions of storage. 367 In addition, Contention 9 alleges that the NRC staff has admitted that once a crack starts in a canister, it can grow through the wall in 16 years. 368 The public meeting summary referenced by the Sierra Club included a discussion regarding the specific safety concerns of stress corrosion cracking, 369 which the SAR specifically evaluates. 370 Contention 9 makes no attempt to explain how the SARs analysis or conclusions with respect to stress corrosion cracking are deficient. Rather, the Sierra Club concludes, without any basis, that the containers cannot be inspected. To the contrary, the SAR discusses both surveillance activities and routine maintenance of the HI-STORM UMAX casks in order to identify and resolve any issues. 371 364 Sierra Club Petition at 41.

365 SAR at 3-19.

366 10 C.F.R. § 72.122(h)(5); see also 10 C.F.R. § 72.122(l) (requiring storage systems to be designed to allow ready retrieval of fuel for further processing or disposal).

367 SAR at 5-12.

368 Sierra Club Petition at 41.

369 See Summary of August 5, 2014, Public Meeting With Nuclear Energy Institute (ADAMS Accession No. ML14258A081) at 4.

370 See, e.g., SAR at 17-28, 18-10.

371 SAR at 3-19.

81

In sum, Contention 9 all but ignores the SARs discussion of retrievability, as well as inspection and maintenance activities. Therefore, Contention 9 fails to articulate a factual basis or to establish a genuine dispute with the application and warrants dismissal pursuant to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

Sierra Club Contention 10 The proposed Holtec CIS facility will accept Greater Than Class C (GTCC) waste. NRC regulations specify that GTCC waste must be disposed of in a geologic repository licensed by the NRC, unless the Commission approves an alternative land-based disposal. The Holtec facility will not be a geologic repository. The NRC has not established regulations for approving land-based disposal of GTCC waste. The proposed Holtec CIS facility does not comply with the requirement for a geologic repository or land-based disposal for GTCC waste. Therefore, a license cannot be issued for this facility.

Contention 10 asserts that the Holtec CISF proposes to accept GTCC waste but cannot be licensed as a geologic repository. Specifically, Contention 10 alleges that Holtec cannot meet the NRCs regulations in 10 C.F.R. Part 61, Licensing requirements for land disposal of radioactive waste. 372 But the contention is based on an incorrect factual premise. The Holtec CISF application is not seeking to dispose of GTCC wasterather, Holtec is seeking a license to store, on an interim basis, spent nuclear fuel pursuant to the NRCs regulations in 10 C.F.R. Part 72, Licensing requirements for the independent storage of spent nuclear fuel and high-level radioactive waste, and reactor-related greater than Class C waste. These regulations permit the storage of reactor-related GTCC at an ISFSI via a specific license. 373 Simply put, the NRCs regulations in Part 61 are inapplicable here. Therefore, the Sierra Clubs arguments that Holtecs CISF application must address (and cannot comply with) the NRCs Part 61 regulations for disposal of waste are immaterial to the NRC Staffs review of the application. 374 372 Sierra Club Petition at 42-43.

373 See, e.g., 10 C.F.R. § 72.2(a)(1); § 72.6(a).

374 10 C.F.R. § 2.309(f)(1)(iv).

82

Sierra Club Contention 11 The ER and the subsequent EIS must evaluate the potential for earthquakes at the Holtec site and the environmental impact of earthquakes. Likewise, the Safety Analysis Report (SAR) must adequately evaluate the earthquake potential of the proposed site. Both the ER and SAR are inadequate in this respect.

The Sierra Clubs Contention 11 asserts (1) an environmental claim and (2) a safety claim. As explained below, both are inadmissible because, in contravention of 10 C.F.R.

§ 2.309(f)(1)(vi), the Sierra Club does not provide sufficient information to show that any dispute that it may have with the applicant is actually on a material issue of law or fact.

i. Contention 11s Environmental Claim is Inadmissible With respect to its environmental claim, the Sierra Club states that the ER must evaluate the potential for earthquakes at the CIS Facility site as part of its description of the environment affected and its discussion of the environmental impact of the proposed action. 375 The Sierra Club states that the ER essentially dismisses the likelihood of earthquakes in the area and does not mention any environmental impacts from earthquakes 376 and giv[es] the issue fairly short shrift . . . . 377 Specifically, the Sierra Club faults the ER for fail[ing] to consider the impact of fracking. 378 The Sierra Club asserts that drilling associated with fracking induces earthquakes, and it provides [a] map showing the intense drilling in the area, as well as a Stanford University report document[ing] the existence of prior earthquakes in southeast New Mexico, and . . . the existence of numerous faults in the area in and around the proposed Holtec 375 Sierra Club Petition at 44-45.

376 Id. at 45.

The Sierra Clubs statement that the ER must evaluate the environmental impact of earthquakes, Petition at 44, is incorrect; the ER must evaluate the environmental impact of the proposed action. See 42 U.S.C. § 4332(C) (requiring a detailed statement . . . on . . . the environmental impact of the proposed action . . .) (emphasis added); 10 C.F.R. § 51.45(b) (requiring an environmental report to discuss the impact of the proposed action on the environment) (emphasis added).

377 Sierra Club Petition at 47.

378 Id.

83

site. 379 The Sierra Club concludes that, as shown by the increase in oil and gas drilling in the area and the Stanford [University] report, the earthquake potential in the area is significant 380 and, therefore, the ER is deficient because it relies on historical earthquake data that [are]

outdated in light of recent fracking activity that will induce earthquakes in the area. 381 10 C.F.R. § 51.61 requires the submission of an environmental report by an applicant for a license for storage of spent fuel in an ISFSI and states that the environmental report shall contain the information specified in 10 C.F.R. § 51.45 and shall address the siting evaluation factors contained in Subpart E of 10 C.F.R. Part 72. 10 C.F.R. § 51.45 requires an environmental report to contain, among other things, a description of the environment affected and the impacts of the proposed action on the environment. These requirements work together, i.e., the purpose of the description of the environment affected is to set a baseline that can then be used to evaluate the impacts of the proposed action and satisfy NEPA. 382 Further, Subpart E of 10 C.F.R. Part 72 at 10 C.F.R. § 72.100 states that a proposed site must be evaluated with respect to the effects on populations in the region resulting from the release of radioactive materials. Contrary to the Sierra Clubs assertions, the ER does, in fact, describe the environment affected and the impact of the proposed action on this environment with respect to earthquakes and the release of radioactive materials.

In Chapter 3, Affected Environment, the ER states that, according to the U.S.

Geological Survey (USGS) earthquake database, 244 historical earthquakes with magnitude 2.5 or greater, including one with magnitude 5.7 and one with magnitude 6.5, have been 379 Id. at 44-45.

380 Id. at 45.

381 Id. at 47.

382 See Vogtle, 65 NRC at 256 (citing American Rivers v. Federal Energy Regulatory Commission, 201 F.3d 1186, 1195 n.15 (9th Cir. 2000)); 42 U.S.C. § 4332 (all agencies of the Federal Government shall

. . . include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . .

the environmental impact of the proposed action . . . .).

84

documented within a 200-mile radius of the CIS Facility site between 1900 and 2016. 383 The ER also identifies seismic source zones and faults within a 200-mile radius of the site. 384 The ER explicitly discusses seismicity within the vicinity of the site that may potentially be related to fracking activities by stating that [t]he seismicity in west Texas, southeast of the [s]ite, is hypothesized as being a result of fluid pressure build-up from fluid injection, and consequential reduction in effective stress across pre-existing fractures and associated decrease in frictional resistance to sliding and that seismic activity west of the site is suspected to be induced by injection of waste water from natural gas production into deep well or wells . . . . 385 Using the affected environment baseline established in Chapter 3, the ER at Chapter 4, Environmental Impacts, evaluates the environmental impacts of the construction and operation of the CIS Facility, including the environmental impact with respect to earthquakes and the release of radioactive materials. Specifically, the ER states that, due to the relatively shallow depth of excavation, construction would not induce seismic activity or affect subsurface faults resulting in the accidental discharge of radiological materials or other contaminants to surrounding soils during the operational phase. 386 The ER also states that operation would not be expected to be impacted from . . . seismic events due to the sites relatively low seismic hazard and the fact that the CIS Facility would be constructed in accordance with the NRCs requirements that structures, systems, and components important to safety be designed to withstand the effects of natural phenomena such as earthquakes. 387 Further, the CIS Facility would utilize the Holtec International Storage Module Underground MAXimum Capacity (HISTORM UMAX) Storage System, which the ER states, based on the NRCs prior approval of 383 ER at 3-13.

384 Id. at 3 3-14.

385 Id. at 3-13.

386 ER at 4-6.

387 Id. at 4-7.

85

the system, can withstand the effects of the design basis earthquake for the site without any release of radioactive materials. 388 Therefore, the ER concludes that the environmental impact of earthquakes would be small. 389 Given this evaluation in Chapters 3 and 4 of the ER, the Sierra Clubs statements that the ER essentially dismisses the likelihood of earthquakes in the area and does not mention any environmental impacts from earthquakes 390 and contains a very short discussion of seismic information 391 are demonstrably false. The ER discusses the potential for earthquakes in the vicinity of the CIS Facility site and explains the applicants basis for concluding that earthquakes can be withstood by the proposed storage system without any release of radioactive materials and, thus, that the environmental impact of the proposed action with respect to earthquakes would be small.

Additionally, the Contention 11 environmental claim is inadmissible because, contrary to 10 C.F.R. § 2.309(f)(1)(vi), the Sierra Club does not provide sufficient information to show that the alleged omission of information regarding drilling within the vicinity of the CIS Facility site is actually a material issue of law or fact. A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. 392 The Sierra Club merely asserts, however, that, because there is drilling in the vicinity of the CIS Facility site that may cause earthquakes, the earthquake potential in the area is significant. 393 This conclusory statement is not sufficient to satisfy the NRCs strict-by-design pleading requirements. Moreover, 388 Id. at 4-56. See also ER at 6 6-7.

389 Id.

390 Sierra Club Petition at 45.

391 Id. at 47.

392 Oconee, CLI-99-11, 49 NRC at 333-34 (citing Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. at 33,172); see also Nuclear Management Co.,

LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 748-49 (2005) (Materiality requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding.).

393 Sierra Club Petition at 45.

86

even if this statement were supported, the Sierra Club does not explain how such significant earthquake potential would actually make a difference in the outcome of this licensing proceeding in light of the ERs explanation of why earthquakes can be withstood by the proposed storage system without any release of radioactive materials. The Sierra Club has not demonstrated why any earthquakes that may be caused by drilling within the vicinity of the CIS Facility site would contradict this determination (e.g., why such earthquakes would not be bounded by the facilitys design) and thus, in turn, why they would challenge the ERs conclusion that the environmental impact of the proposed action with respect to earthquakes would be small. Therefore, the Contention 11 environmental claim is inadmissible.

ii. Contention 11s Safety Claim is Inadmissible With respect to its safety claim, the Sierra Club states that 10 C.F.R. § 72.103(f) applies to the CIS Facility site and that this regulation requires that the geological, seismological, and engineering characteristics of the site be investigated in sufficient scope and detail to provide sufficient information to support evaluations performed to arrive at estimates of the design earthquake ground motion. 394 The Sierra Club states that the SAR does not comply with this regulation because its evaluation of the earthquake potential at the CIS Facility site is historical and does not take into account the recent increase in drilling for oil and natural gas in the area that creates induced earthquakes. 395 The Sierra Club provides [a] map showing the intense drilling in the area, and a Stanford University report document[ing] the existence of prior earthquakes in southeast New Mexico, and . . . the existence of numerous faults in the area in and around the proposed Holtec site. 396 394 Id. at 45-46.

395 Id. at 44-46.

396 Id. at 44-45.

87

The SAR discusses that the design basis earthquake for the CIS Facility site was set to bound the 10,000 year return earthquake and that, for additional conservatism and to overcome any potential uncertainty or future adjustments to the site seismological data, a design extended condition earthquake was also defined for the site, which is two-thirds greater than the design basis earthquake. 397 As with its environmental claim, Contention 11s safety claim is inadmissible because, contrary to 10 C.F.R. § 2.309(f)(1)(vi), it does not demonstrate why it represents a dispute actually on a material issue of law or fact. Although the Sierra Club argues that earthquakes caused by drilling within the vicinity of the CIS Facility site should have also been evaluated, it does not explain how or why such an additional evaluation would affect, let alone invalidate, the SARs conclusion regarding the design basis earthquake and, thus, make a difference in the outcome of the licensing proceeding. In fact, the Sierra Club does not even reference the SARs discussion of the design basis earthquake. Therefore, the Contention 11 safety claim is inadmissible.

Sierra Club Contention 12 The dunes sagebrush lizard, a/k/a sand dune lizard, is an endangered species pursuant to New Mexico state law and regulation. The lizard has a limited range and is specfically adapted to sand dune areas with shinnery oak. The site of the Holtec project is within the lizards habitat range. The ER submitted by Holtec claims that the lizard is not present in the area of the Holtec site, but that assertion is contrary to the scientific evidence. The ER and the subsequent EIS must evaluate the impact of the Holtec project on the dunes sagebrush lizard and its habitat.

Contention 12 asserts that the dunes sagebrush lizard, also known as the sand dune lizard, is an endangered species pursuant to New Mexico state law whose habitat range includes the Holtec site. 398 The Petitioner relies primarily on two maps provided as Exhibits 8 397 SAR at 4-20, 4-25.

398 Sierra Club Petition at 48.

88

and 9. The Petitioner asserts that the ER in Sections 3.4.3, 4.4.3, and 4.4.4 makes no mention of the impact of the project on the lizard or its habitat in violation of 10 C.F.R. § 51.45 and NUREG-1748.

This contention is inadmissible as the Petitioner fails to provide adequate support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v). Fundamentally, the evidence offered by the Petitioner does not support the contention. Namely, the maps presented in Exhibit 8 and 9, which the Petitioner describes as illustrating the habitat range of the dunes sagebrush lizard, are at such a large scale that it is not possible to determine whether either maps portrayal of the habitat range overlaps with the CISF site. 399 Furthermore, the Staff identified that the map replicated in Exhibit 9 is also available online, 400 and when that version is enlarged it fails to show that suitable habitat for the lizard falls within the Holtec CISF site boundary as the Petitioner claims. Specifically, the site lies just west of the Laguna Gatuna, 401 and when the map from Exhibit 9 is enlarged, it does not show that suitable habitat exists west of Laguna Gatuna in the area of the site. A document put forth by an intervenor as the basis for a contention is subject to scrutiny both for what it does and does not show. 402 Accordingly, notwithstanding the Petitioners claim that its two exhibits show that the Holtec site is within the dunes sagebrush lizards habitat range, neither referenced map constitutes support for petitioners contention. It is the Petitioners obligation to present the factual information and expert opinions necessary to 399 Although the page referenced in Exhibit 8 is also available online at page 10, the webpage does not enable magnification. See Center for Biological Diversity and Defenders of Wildlife, Petition to List the Dunes Sagebrush Lizard as a Threatened or Endangered Species and Designate Critical Habitat, (May 8, 2018), https://ecos.fws.gov/docs/petitions/92210/1040.pdf, also available at https://go.usa.gov/xP9rV.

400 DSL Suitable Habitat; Expanded Area, https://cehmm.maps.arcgis.com/apps/View/index.html?appid=2a395628bd704203b9fbb9648e56b189, also available at https://bit.ly/2PqzPkK (last visited Oct. 8, 2018).

401 See ER at 1-9, Figure 1.3.1 CIS Facility Site Boundaries.

402 Yank ee Nuclear, LBP-96-2, 43 NRC at 90 (1996).

89

support its contention, 403 and as neither map supports its central assertion, the contention fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(v).

The contention also criticizes two surveys referenced in the ER, asserting that the studies are not a credible basis for concluding that the [species] is not present at the Holtec site and that both should be viewed with skepticism. 404 But absent further factual support asserting the presence of the lizard or suitable habitat at the Holtec site, these criticisms amount to speculation that the lizard may be present; accordingly, the contention does not ultimately directly contradict the ERs conclusion and thus falls short of demonstrating that a genuine dispute exists on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi).

For these reasons, Contention 12 is inadmissible.

Sierra Club Contention 13 As shown in previous contentions, the Holtec ER is replete with errors, omissions, and blatantly incorrect statements and information. Further, Chapter 12 of the ER shows that a company called Tetra Tech, was the primary preparer of the ER. The only other preparer listed was a subcontracting company that conducted the cultural resource evaluation. Tetra Tech was accused of engaging in widespread fraud with respect to its contract with the United States Navy to clean up radioactive materials at the Hunters Point Naval Shipyard in San Francisco, California. As such, Tetra Techs credibility is in question and the credibility of the ER prepared by Tetra Tech likewise is in question.

Contention 13 generally challenges the ER based on alleged, unspecified errors, omissions, and incorrect statements, as well as the Sierra Clubs allegation regarding the credibility of the ERs preparer, Tetra Tech, based on past performance under a contract unrelated to Holtecs application. Specifically, the Sierra Club questions Tetra Techs credibility based on the firms past conduct under a contract with the United States Navy to clean up 403 See USEC, CLI-06-10, 63 NRC at 457.

404 Sierra Club Petition at 50 (discussing Eddy Lea Energy Alliance, Final Detailed Siting Report, Eddy-Lea Siting Study, (Apr. 28, 2007) (Accession No. ML102440738) and ER, Appendix B, Ecological Survey Results). For example, it raises concerns about the expertise of the preparer of the 2007 report, as well as the duration and time of year of the 2016 survey.

90

radioactive materials at Hunters Point Naval Shipyard in San Francisco. The Sierra Club asserts that Tetra Techs past work involved fraud and points to a Notice of Violation and Imposition of Civil Penalty the NRC issued to Tetra Tech in July 2016 for deliberately falsifying soil sample surveys at Hunters Point. 405 The Sierra Club also asserts that a Navy official found Tetra Techs soil sampling data at Hunters Point unreliable. 406 Contention 13 is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) because it does not identify a genuine dispute with the application that presents a material issue of law or fact. The Commission puts strict limits on management and character contentions. 407 To admit a contention based on claims of poor character or integrity, the Commission has found that allegations must link directly to the proposed licensing action and not merely to past activities. In Millstone, the Commission expressly stated its expectation that [w]hen character or integrity issues are raised, we expect them to be directly germane to the challenged licensing action. 408 Here, Contention 13 raises character issues with Tetra Tech based on its past work for a different client at a facility entirely unrelated to Holtecs proposed project. Thus, there is no direct link established between Tetra Techs alleged past credibility issues and Holtecs ER to serve as the basis for an admissible contention.

405 Sierra Club Petition at 53-54; Notice of Violation and Proposed Imposition of Civil Penalty, EN 2017, July 24, 2016 (ADAMS Accession No. ML16207A292) (NOV).

406 Sierra Club Petition at 53-54 (describing the declaration, attached as Exhibit 10, of an attorney representing Greenaction for Health and Environmental Justice that filed a petition with the NRC, pursuant to 10 C.F.R. § 2.206, to revoke Tetra Techs materials license because of its work at Hunters Point. The petition is currently under NRC Staff review.).

407 Millstone, CLI-01-24, 54 NRC at 366 (discussing that Petitioners did not establish that past events during an earlier era at the facility raised any current or directly pertinent character concerns).

408 Id. at 366-67; See also Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-12-2, 75 NRC 63, 84 (2012) (finding that issues such as past violations of NRC regulations would indicate a deficiency in an application only if they are directly germane to the licensing action, rather than being of simply historical interest); Georgia Tech Research Reactor, CLI-95-12, 42 NRC at 120 (finding that [a]llegations of management improprieties or poor integrity, of course, must be of more than historical interest: they must relate directly to the proposed licensing action.).

91

Further, no genuine dispute with regard to a material issue of fact or law is raised where an intervenor relies on the existence of past violations, but then fails to present any information indicating that any person or procedure associated with those past violations will be employed at, or involved with, the proposed facility. 409 Here, the Sierra Club does not show that any specific individuals or practices associated with Tetra Techs violations at Hunters Point are associated with Holtecs ER. 410 And Contention 13s broad allegations regarding how Tetra Tech improperly prepared the ER consist entirely of summaries of the Sierra Clubs other contentions raised with respect to the application. Nothing in those contentions specifically raises an issue of credibility, integrity, or wrongdoing with respect to the ER. Thus, pursuant to 10 C.F.R. § 2.309(f)(1)(vi), Contention 13 is inadmissible.

Sierra Club Contention 14 An accurate thermal evaluation of the HI-STORM UMAX system is imperative to ensure that temperatures within the system will not be conducive to corrosion, cladding and other conditions that would adversely impact the safety of the system. The HI-STORM UMAX system is unique, with both air intake and exhaust vents at the top of the containment cask. The SAR for the Holtec CIS facility does not provide adequate information to determine if the thermal parameters for the HI-STORM system at the Holtec CIS facility will provide for adequate safety.

In Contention 14, the Petitioner raises concerns over the thermal evaluation of the HI-STORM UMAX system, stating that the Safety Analysis Report for this application does not provide adequate information to determine if the thermal parameters for the HI-STORM system at the Holtec CIS facility will provide for adequate safety. 411 In support of its proposed 409 USEC, Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585, 618-19 (2005) (discussing intervenors failure to show that management personnel allegedly involved in past violations were involved in the activities being contested).

410 The NRC issued a violation to a Tetra Tech radiation task supervisor, but Petitioner provides no information that this Tetra Tech employee worked on the Holtec ER, nor is the employee mentioned in the ER. See NOV at 1 (ADAMS Accession No. ML16207A292).

411 Sierra Club Petition at 56.

92

contention, Petitioner states that Chapter 6 of the SAR does not address the UMAX design where air intake and exhaust vents are located at the top of the cask. 412 However, Contention 14 is inadmissible because it raises issues that are outside the scope of the proceeding and does not raise a genuine dispute with the application in question. 413 Most significantly, while the Contention makes reference to the Safety Analysis Report Chapter 6 as a whole, it makes no distinction as to whether the claimed issue is related to the site specific design of the HI-STORE facility or the design of the previously certified HI-STORM UMAX design. 414 The Safety Analysis Report for the HI-STORE Consolidated Interim Storage Facility extensively incorporates by reference the design and analyses from the HI-STORM UMAX design, 415 and each chapter of the SAR identifies which portions of the HI-STORM UMAX design are incorporated by reference. 416 The SAR identifies that the design of the vertical ventilated modules are identical to the UMAX design Option C, with two exceptions. 417 The HI-STORM UMAX design has been certified by the NRC, and is identified in 10 C.F.R. § 72.214 as an approved storage cask under Certificate Number 1040. 418 10 C.F.R.

§ 72.46(e) specifically states that for specific licenses under 10 C.F.R. Part 72, the scope of any public hearing will not include any cask design issues for casks approved under 10 C.F.R. Part 412 Sierra Club Petition at 57-58.

413 10 C.F.R. §§ 2.309(f)(1)(iii), (vi).

414 Sierra Club Petition at 57-60.

415 SAR, Table 1.0.3.

416 See e.g., SAR, Table 6.0.1.

417 See e.g., SAR, Subsection 6.4.1.

418 10 C.F.R. § 72.214 (Certificate Number 1040).

93

72, Subpart L. 419 Additionally, 10 C.F.R. § 2.335(a) prohibits challenges to rules promulgated by the Commission absent a waiver. 420 Despite this prohibition, the issues raised in this contention are most directly related to either the cask design approved by rule or to activities beyond those being requested in this application. 421 For example:

• On Petition page 57, the Petition references Chapter 6 of the safety analysis report but then raises concerns over the design of the UMAX cask itself.

• On Petition pages 59-60, the Petitioner raises a concern about the use of high burnup fuel at the facility, without any reference to the applications incorporation of the UMAX, MPC-37, and MPC-89 designs which form the basis for the acceptable material at the facility. 422

• On Page 60, the Petition raises concerns over potential processes to relocate spent fuel from reactor pools into a UMAX canister after a 2.5 year waiting period. Potential future applications for cask designs and activities that would take place at other licensee facilities are clearly outside the scope of this proceeding and would be subject to other review processes.

419 10 C.F.R. § 72.46(e).

420 10 C.F.R. § 2.335(a); Tennessee Valley Authority (Watts Bar, Unit 2), CLI-15-19, 82 NRC 151, 157 (2015) (Section 2.335(a) of our regulations prohibits challenges to our rules and regulations in the context of adjudicatory proceedings.)

421 See, e.g., Sierra Club Petition at 57 (stating the SAR There is no assurance that the design of the UMAX system accomplishes these goals.); Sierra Club Petition at 58 (the UMAX cask is unique . . .

This is different than the HI-STORM F/W and the HI-STORM 100); Sierra Club Petition at 59 (What is not known . . . is the ability of the UMAX cask to dissipate this heat output.); Sierra Club Petition at 59 (The minimum values of these variables should be conditions of the Certificate of Compliance).

422 See, e.g., SAR Table 4.0.1, Page 4-3 (noting that the spent fuel and MPCs stored at the site are defined primarily by the UMAX FSAR); Proposed TS Section 2.1 (extensively incorporating limitations from the referenced designs). See Crow Butte, CLI-09-12, 69 NRC at 552 (contentions based on little more than guesswork would waste the scarce adjudicatory resources of all involved).

94

Consequently, the issues that Petitioner has raised are either issues that are outside the scope of the proceeding, or, where the Petitioner has, in its stated contention alleged deficiencies that are within scope of the proceeding, it has failed to clearly identify what specific concerns are in dispute, as required by 2.309(f)(1)(vi).

Finally, the Petition mentions the need for access to proprietary information as a basis for intervention. 423 The Petitioner was afforded the opportunity to request access to this proprietary information through procedures established by the Commission, but declined to do so. 424 Accordingly, Contention 14 should be found inadmissible because it does not raise a genuine dispute with the application and raises issues outside the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(vi) and (iii).

Sierra Club Contention 15 The ER fails to adequately determine whether shallow groundwater exists at the site of the proposed CIS facility. It is important to make this determination in order to assess the impact of a radioactive leak from the CIS facility on groundwater.

In Contention 15, the Petitioner asserts that the ER fails to adequately determine whether shallow groundwater exists at the site, which the Petitioner asserts is necessary to assess the impact of a radioactive leak from the CISF facility. According to the Petitioner, [t]he Applicant claims there is probably no shallow groundwater at the site. 425 However, the Petitioner asserts that Holtec has not done the field investigations necessary to make this 423 Sierra Club Petition at 58-59 (It will obviously be necessary for Sierra Club to be allowed to intervene and conduct discovery in order to obtain this information.).

424 83 FR 32,919, 32,922 (July 16, 2018). In addition to the period initially allowed in the Federal Register notice for such requests, the Secretary of the Commission subsequently extending the timeframe for such requests until August 30th, 2018. Holtec International (Consolidated Interim Storage Facility),

Order of the Secretary (Aug. 20, 2018) (ML18232A577).

425 Sierra Club Petition at 60.

95

determination. 426 As support for the contention, the Petitioner relies on the declaration of George Rice, a groundwater hydrologist. 427 This contention is inadmissible because the Petitioner fails to provide adequate support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v), and fails to raise a genuine dispute with the Applicant, as required by 10 C.F.R. § 2.309(f)(1)(vi). The Petitioners asserted concern regarding shallow groundwater rests on the following premise: If contaminants leak from the facility, they could be transported by shallow groundwater underlying the site. 428 However, Mr.

Rice has not provided any information to explain the basis for the threshold assumption that contaminants might leak from the facility in the first place, contrary to 10 C.F.R. § 2.309(f)(1)(v).

[N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention. 429 Lacking that explanation, the contention fails to articulate a factual basis for the Petitioners concern with shallow groundwater as a contamination pathway.

Indeed, with respect to that threshold assumption, the Petitioner fails to identify, let alone controvert, portions of the ER in which the Applicant asserts that a contaminant leak from the canister is not credible. In discussing potential pathways to radiation, the ER notes, There is no air pathway because the casks are sealed by being welded shut. There is no potential for a liquid pathway because the SNF contains no liquid component and the casks are sealed to prevent any liquids from contacting the SNF assemblies. 430 It further explains, The lid of the canister is double sealed, and consists of a closure lid to shell weld (lid-to-shell) and a closure ring to shell weld (ring-to-shell). In order for a leak to the environment to occur, both the primary 426 Id.

427 Expert Declarations, George Rice (Sept. 10, 2018) (Rice Declaration).

428 Sierra Club Petition at 60; Rice Declaration at 1.

429 Vogtle, LBP-07-3, 65 NRC at 253 (citing Fansteel, CLI-03-13, 58 NRC at 203).

430 ER at 1-7 (emphasis added).

96

and secondary welds must be leaking. Because the confinement boundary is welded and the temperature and pressure of the canister are within the design limits, no discernible leakage is credible. 431 Likewise, the Petitioner fails to controvert Section 4.13 of the ER, which considers the impacts of off-normal events 432 and accidents 433 and their potential consequences to the proposed CISF. Such events are evaluated in the SAR for their consequence to the structural, thermal, shielding, criticality, confinement, and radiation protection performance of structures, systems, and components specific to the CISF, and the HI-STORM UMAX system, and the results of those analyses are summarized in the ER. 434 Importantly, the ER states that none of the off-normal events 435 or accident events would result in release of any radioactive material. 436 In determining contention admissibility, [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed. 437 Having failed to controvert the applications analysis regarding radioactive releases, this contention fails to raise a genuine dispute with the application on a material issue of law or fact.

431 Id. at 4-47.

432 Off-normal events evaluated include off-normal pressure, off-normal environmental temperature, leakage of one seal, partial blockage of the air inlet plenum, and hypothetical non-quiescent wind. Id.

at 4-55.

433 Accidents analyzed include a fire accident, partial blockage of MPC basket vent holes in long-term storage, a tornado, flood, earthquake, 100 percent fuel rod rupture, confinement boundary leakage, an explosion, lightning, 100 percent blockage of air inlets, burial under debris, extreme environmental temperature, and a HI-TRAC VW transfer cask handling accident. Id. at 4 4-56.

434 SAR at 15 15-17; ER at 4 4-56.

435 ER at 4-55.

436 Id. at 4-56.

437 See Millstone, LBP-08-9, 67 NRC at 433 (citing Rancho Seco, LBP-93-23, 38 NRC at 247-48.

97

In sum, because this contention does not meet the requirements of 10 C.F.R.

§ 2.309(f)(1)(v) and (vi), this contention is inadmissible.

Sierra Club Contention 16 The ER does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site.

In Contention 16, the Petitioner asserts that the ER does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site. The Petitioner states that two brine disposal facilities once operated in the northeast portion of the Holtec site and that a 2007 water sample south of the Holtec site contained brine. 438 The Petition states that the subsurface movement of brine is important because brine could cause corrosion of the containers holding the radioactive waste and cause leaks in the containers. 439 The Petitioner relies on the declaration of Mr. Rice, 440 who states that the applicant has not addressed basic questions such as do the springs/seeps that were flowing in 2007 continue to flow? Is brine moving along perched zones in the alluvial materials, or along the alluvium/Dockum interface?

Could the brine come into contact with the canisters? 441 The Petitioner also asserts that because Holtec envisions the CISF operating for at least 120 years, beyond the period for which the containers are certified, there is no evaluation for the corrosion potential of the containers from brine in the groundwater after the period for which the containers are certified. 442 This contention is inadmissible because the Petitioner fails to provide adequate support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v), and fails to raise a genuine dispute with the applicant, as required by 10 C.F.R. § 2.309(f)(1)(vi). The Petitioners asserted concern 438 Sierra Club Petition at 62 (citing ER § 3.5.2.1).

439 Id. at 62.

440 Id. at 63.

441 George Rice Declaration at 29.

442 Sierra Club Petition at 63.

98

regarding shallow groundwater rests on the premise that brine could cause corrosion of the containers holding the radioactive waste and cause leaks in the containers. 443 However, contrary to 10 C.F.R. § 2.309(f)(1)(v), the Petition provides no information to support the assumption that brine could come into contact with the canister and cause corrosion, let alone to an extent that could cause leaks. Notably, Mr. Rices declaration, on which the contention exclusively relies, does not even refer to corrosion. [N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention. 444 Lacking that explanation, the contention fails to articulate a factual basis for the Petitioners concern with brine detection.

Moreover, the Petitioner fails to acknowledge, let alone dispute, portions of the SAR in which the applicant asserts that that there is no pathway for groundwater intrusion in the installation, contrary to 10 C.F.R. § 2.309(f)(1)(vi). The SAR explains that spent nuclear fuel is contained in a steel canister which resides within a steel cavity enclosure container (CEC). 445 Notably, the SAR states, the CEC is a close-bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has no path for intrusion into the interior space of the CEC. 446 Furthermore, the array of vertical ventilated modules is surrounded by a thick reinforced concrete Enclosure Wall, which along with the support foundation pad, provides a physical separation (water intrusion protection) to the CECs. 447 Because the Petitioner fails to controvert portions of the SAR in which the applicant asserts that groundwater has no path for intrusion, this contention is inadmissible. As stated previously, 443 Id. at 62.

444 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-03, 65 NRC 237, 253 (2007) (citing Fansteel, CLI-03-13, 58 NRC at 203).

445 See SAR at 1-11; see also Figure 1.2.2(a) at 1-24.

446 SAR at 1-14.

447 Id. at 17-24.

99

[a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed, 448 as a failure to raise a genuine dispute with the application on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi).

In sum, Contention 16s reliance on Mr. Rices declaration fails to identify factual or expert support for the Petitioners claim, and fails to constitute a genuine dispute with the applicant, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

Sierra Club Contention 17 The ER and SAR do not discuss the presence and implications of fractured rock beneath the Holtec site. These fractures could allow radioactive leaks from the CIS facility to enter groundwater or for the brine described in Contention 16 to corrode the containers contained the radioactive material.

In Contention 17, the Petitioner notes that geologic boring logs have identified fractured rock beneath the area of the Holtec site. The Petitioner alleges that fractures could allow radioactive leaks from the CIS facility to rapidly enter groundwater or provide a means for the brine described in Contention 16 to corrode the containers. 449 The Petitioner asserts that neither the ER nor the SAR discuss the fractured rock under the site which the Petitioner alleges must be discussed in accordance with 10 C.F.R. §§ 51.45 and 72.103. 450 In support of the contention, the Petitioner relies solely on a declaration from Mr. Rice. 451 For the same reasons discussed above in the Staffs response to Contentions 15 and 16, Contention 17 is inadmissible. 452 Specifically, this contention is inadmissible because the Petitioner fails to provide adequate support for its claims, as required by 10 C.F.R. 448 See Millstone, LBP-08-9, 67 NRC at 433 (citing Rancho Seco, LBP-93-23, 38 NRC at 247-48 (1993).

449 Sierra Club Petition at 63-64.

450 Id. at 64-65.

451 Id. at 64.

452 See supra Staff Response at 95-102.

100

§ 2.309(f)(1)(v), and fails to raise a genuine dispute with the Applicant, as required by 10 C.F.R.

§ 2.309(f)(1)(vi). The Petitioner asserts that fractures could rapidly convey contaminants to underlying groundwater. 453 However, the Petitioners contention again rests upon a threshold premise that contaminants may leak from the facility, a premise for which Mr. Rice has provided no support, contrary to 10 C.F.R. § 2.309(f)(1)(v). Although Mr. Rice explains the basis for his claim that fractured rock exists on the site, 454 he fails to explain how contaminants may leak in the first place and thus why his concerns regarding transport through fractures would represent a material deficiency in the application. It is the petitioner's responsibility to provide the necessary information to satisfy the basis requirement for the admission of its contentions and demonstrate that a genuine dispute exists within the scope of th[e] proceeding. 455 Here, the ER and the SAR assert that a contaminant leak from the canister is not credible and a pathway for groundwater intrusion does not exist. For example, the ER states that The lid of the canister is double sealed, and consists of a closure lid to shell weld (lid-to-shell) and a closure ring to shell weld (ring-to-shell). In order for a leak to the environment to occur, both the primary and secondary welds must be leaking. Because the confinement boundary is welded and the temperature and pressure of the canister are within the design limits, no discernible leakage is credible. 456 Further, the SAR asserts that the proposed CISF will have zero effluent release. 457 Although the Petitioner criticizes as insufficient two sections 453 Rice Declaration at 6.

454 Rice Declaration at 6 n. 34-36.

455 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998).

456 ER at 4-47.

457 SAR at 1-12; see also SAR at 1-14 ([T]he CEC is a closed-bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has no path for intrusion into the interior space of the CEC.); SAR at 17-23 (A thick reinforced concrete Enclosure Wall surrounds the

[vertical ventilated modules] array and, along with the Support Foundation pad, provides a physical separation (water intrusion protection) to the CECs.

101

of the SAR that discuss geologic characteristics (Section 2.6.1 and 2.6.4), 458 Mr. Rice neither mentions nor disputes the SARs analyses and conclusions with respect to the potential for contaminant leaks and groundwater intrusion. As previously noted, [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed. 459 Accordingly, having failed to controvert the applications analysis regarding radioactive releases and thus the predicate for Contention 17s asserted concerns regarding transport of contaminants through fractures, the Petitioner has failed to establish a genuine dispute with the application on a material issue in accordance with 10 C.F.R. § 2.309(f)(1)(vi).

Sierra Club Contention 18 The Santa Rosa Formation is an important aquifer in the area of the Holtec site.

It is used for domestic water supply, stock watering and irrigation. The Holtec ER has not adequately determined and discussed the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation.

In its Contention 18, the Sierra Club states that the ER has not adequately determined and discussed the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation, which is an important aquifer in the area of the [CIS Facility] site . . . used for domestic water supply, stock watering and irrigation. 460 The Petitioner bases the contention on the statements that it is based on the declaration of George Rice and that the ER mentions the Santa Rosa Formation, but contains no discussion of it nor any of the points raised in Mr.

Rices report. 461 The Declaration of Mr. Rice, in turn, only adds that, at the CIS Facility site, the top of the Santa Rosa is approximately 215 feet below land surface, [m]onitor well B101 is 458 Sierra Club Petition at 64-65 (referring to SAR Section 2.6.4s statement that conditions at the Site are not conducive to karst development).

459 See Millstone, LBP-08-9, 67 NRC at 433 (citing Rancho Seco, LBP-93-23, 38 NRC at 247-48).

460 Sierra Club Petition at 65.

461 Id. at 65-66.

102

completed in the Santa Rosa, and the depth of water in the well is about 250 feet, and [t]he quality of this water has not been determined. 462 The ER discusses the affected environment with respect to groundwater in Section 3.5.2. The ER, in apparent agreement with the Sierra Club, states that groundwater in the region (southern Lea County) is an essential resource . . . used for drinking, irrigation, and industrial processes and that aquifers within the vicinity of the CIS Facility site include those in the Santa Rosa Sandstone and are important sources of groundwater . . . . 463 The SAR states that [n]o potable groundwater is known to exist in the immediate vicinity of the [s]ite. 464 The ER also states that near surface [g]roundwater encountered on the east side of the [s]ite is brackish and that [n]o groundwater has been encountered on the west side of the [s]ite. 465 The ER then discusses the environmental impacts of the proposed action of the construction and operation of the CIS Facility to groundwater in Section 4.5. This discussion includes the determination that [i]mpacts to groundwater would not be expected, due to the depth of groundwater (300 to 400 feet) and the fact that the CIS Facility would not release pollutants, including radionuclides, during normal operations because the storage system design and construction, along with environmental monitoring of the ISFSI Pad combine to make the potential for contaminant release from the CIS Facility extremely low. 466 The ER also states that the CIS Facility would not release any radioactive material even when subjected to the effects of all credible and hypothetical accident conditions and natural phenomena . . . . 467 462 Declaration of Mr. Rice at 7.

463 ER at 3-39.

464 SAR at 2-83.

465 ER at 3-39.

466 Id. at 4 4-13.

467 Id. at 4-56.

103

Furthermore, in discussing potential pathways to radiation, the ER notes, There is no air pathway because the casks are sealed by being welded shut. There is no potential for a liquid pathway because the SNF contains no liquid component and the casks are sealed to prevent any liquids from contacting the SNF assemblies. 468 It further explains, The lid of the canister is double sealed, and consists of a closure lid to shell weld (lid-to-shell) and a closure ring to shell weld (ring-to-shell). In order for a leak to the environment to occur, both the primary and secondary welds must be leaking. Because the confinement boundary is welded and the temperature and pressure of the canister are within the design limits, no discernible leakage is credible. 469 Contention 18 is inadmissible because, contrary to 10 C.F.R. § 2.309(f)(1)(vi), the Sierra Club does not provide sufficient information to show that any dispute that it may have with the applicant is actually on a material issue of law or fact. A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. 470 The ERs finding that the proposed action of constructing and operating the CIS facility would not be expected to impact groundwater is based on two, independent determinations, i.e., (1) the depth of groundwater and (2) that the CIS Facility would not release radioactive material under either normal or accident conditions. 471 Contention 18 appears to address only the former of these independent bases by raising the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation 472 and by relying on Mr. Rices statement regarding the depth to water in a monitor well within the Santa Rosa Formation. 473 468 Id. at 1-7 (emphasis added).

469 Id. at 4-47.

470 Oconee, CLI-99-11, 49 NRC at 333-34 (citing 54 Fed. Reg. at 33,172).

471 ER at 4-13, 4-56.

472 Sierra Club Petition at 65.

473 Rice Declaration at 7.

104

Contention 18 does not, however, challenge the ERs other independent basis that the CIS Facility would not release radioactive material during normal or accident conditions. As with Contentions 15-17, contrary to 10 C.F.R. § 2.309(f)(1)(v), the Sierra Club thus fails to articulate factual support for the threshold premise of Contention 18, that contamination may be released from the facility. 474 And without having either acknowledged or challenged the applicants determination that the CIS Facility would not release radioactive material during normal or accident conditions, the Sierra Club fails to show that its assertion that the Santa Rosa Formation . . . must be evaluated with respect to whether waste-contaminated groundwater could impact the Santa Rosa aquifer and Mr. Rices assertion that the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation cannot be dismissed constitute a genuine dispute with the applicant on a material issue of law or fact.

In conclusion, because Contention 18 does not meet the requirements of 10 C.F.R.

§ 2.309(f)(1)(v) and (vi), it is inadmissible.

Sierra Club Contention 19 Holtec performed two sets of packer tests in the Santa Rosa Formation to estimate the hydraulic conductivity (permeability) of the formation. These tests were conducted in conjunction with the preparation of the ER. It does not appear from the report of Holtecs consultant that these tests were conducted properly.

Therefore, the ER has not presented an adequate evaluation of the affected environment.

In its Contention 19, the Sierra Club states that Holtec performed two sets of packer tests in the Santa Rosa Formation to estimate the hydraulic conductivity (permeability) of the formation and that [i]t does not appear from the report of Holtecs consultant that these tests were conducted properly. 475 This argument is based on the declaration of George Rice, 476 474 See supra Staff Response at 95-102.

475 Sierra Club Petition at 66.

476 Id. at 67.

105

who states three reasons why he believes that the tests were not conducted properly. 477 The Rice Declaration asserts that the applicant does not appear to have followed several of the recommendations in the [U.S. Bureau of Reclamations Field Manual]. 478 The Sierra Club concludes that the results of the packer tests are unreliable 479 and that, therefore, the ER has not presented an adequate evaluation of the affected environment. 480 Contention 19 is inadmissible because it does not demonstrate why its assertion of improperly conducted packer tests in the Santa Rosa Formation is ultimately a dispute on a material issue of law or fact. A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. 481 In apparent agreement with the Sierra Club, the ER states that, with respect to the CIS Facility site, [t]here are numerous low permeability layers between the surface and the expected groundwater level. 482 Contention 19, however, does not explain how this information is used in the ER, nor why further refinement of this information as calculated by packer tests would be significant to the outcome of the licensing proceeding. Indeed, Mr. Rice observes that [i]t should be noted that even when the tests are done properly, the values obtained are only semi-quantitative - within an order of magnitude of the actual value. 483 The Sierra Club in turn merely states, without support, that

[t]he permeability of the site is certainly important to assessing whether the site is appropriate for the proposed CIS [F]acility. 484 Without an explanation of how the asserted departures from the recommendations in the [field] manual 485 would ultimately have significance for any 477 Rice Declaration at 8.

478 Id.

479 Sierra Club Petition at 67.

480 Id. at 66.

481 Oconee, CLI-99-11, 49 NRC at 333-34 (citing 54 Fed. Reg. at 33,172).

482 ER at 3-39.

483 Rice Declaration at 8.

484 Sierra Club Petition at 66.

485 Rice Declaration at 8.

106

analysis or conclusion in the ER, the Sierra Club has not demonstrated that the issue constitutes a material dispute, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

In conclusion, because the Sierra Club has not demonstrated that Contention 19 is, in fact, disputing the ER or, even if it were, that its dispute would be material to this proceeding, it is inadmissible.

Sierra Club Contention 20 Since the 1990s almost all spent nuclear fuel being generated is high burnup fuel (HBF). HBF causes the cladding to become thinner, creating a higher risk of release of radioactive material. The cladding also becomes more brittle, with additional cracks. This situation causes risks for short-term and long-term dry storage. This issue is not adequately addressed in the SAR and high burnup fuel does not appear to be addressed in the ER at all. Cladding failure due to high burnup fuel is an issue that must be adequately addressed.

In Contention 20, the Petitioner broadly asserts that the application does not specifically address the transportation and storage risks of high burnup fuel. 486 The Petitioner claims that the issue is not adequately addressed in the Safety Analysis Report and does not appear to be addressed in the [Environmental Report] at all. 487 In support of its contention, Petitioner claims that high burnup fuel increases the likelihood of radiological impacts, citing two different reports by the Department of Energy and the Nuclear Waste Technical Review Board, and that the

[Environmental Report] and [Safety Analysis Report] must discuss and evaluate the risks of transporting and storing [high burnup fuel] due to deterioration of the cladding from [high burnup fuel]. 488 Contention 20 is inadmissible because the Petitioner has not, under either safety or environmental standards, demonstrated a genuine dispute with the application on a material 486 Sierra Club Petition at 67.

487 Sierra Club Petition at 67.

488 Sierra Club Petition at 68-70.

107

issue of fact or law or shown that the issues raised are within the scope of the proceeding, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(vi) and (iii).

Most notably, although the Petition asserts various concerns related to high burnup fuel, it fails to specify what portions of the application the Petitioners deem insufficient, as required by 10 C.F.R. § 2.309(f)(1)(vi). 489 The general topic the contention is concerned with, notably the safety of storage and the potential environmental impacts of transportation, are in fact discussed in SARs analysis of its thermal evaluation 490 and the Environmental Reports discussion of transportation impacts in Subsection 4.9.3. The contention fails to explain how the arguments in the contention would contradict or undermine any specific aspect of the applicants analysis.

Accordingly, the contention does not provide the parties sufficient notice as to the scope of the contention or how the issue can be resolved through the adjudicatory process, rendering it inadmissible.

i. Transportation and Storage Safety Claims In regard to transportation safety, the application in question is for a specific-license ISFSI licensed under 10 C.F.R. Part 72. 491 The application does not request approval of a new transportation package design. 492 The safety of fuel transportation is governed by the standards 489 See Palo Verde, CLI-91-12, 34 NRC at 156 (petitioners must read the relevant parts of the license application and show where the application is lacking.); Crow Butte, CLI-09-12, 69 NRC at 552 (contentions based on little more than guesswork would waste the scarce adjudicatory resources of all involved).

490 See SAR, Chapter 6.

491 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 at 32,920 (July 16, 2018) (By this application, Holtec is requesting authorization to construct and operate the HI-STORE Consolidated Interim Storage (CIS) Facility, in Lea County, New Mexico. If the NRC approves the application and issues a license to Holtec, Holtec intends to store up to 8,680 metric tons of uranium (MTU) of commercial spent nuclear fuel in the HI-STORM UMAX Canister Storage System for a 40-year license term.).

492 Id.

108

in 10 C.F.R. Part 71 and through regulations issued by the Department of Transportation. 493 Consequently, to the extent the contention seeks to litigate generic safety concerns regarding offsite transportation of spent fuel (whether encompassing HBF or otherwise), such claims are outside the scope of this proceeding. 494 With respect to the safety of storage of high-burnup fuel, the Holtec HI-STORE CISF application relies heavily on the design of the HI-STORM UMAX system, which is incorporated by reference into the Safety Analysis Report. 495 10 C.F.R. § 72.46(e) specifically permits an application to incorporate by reference information on the design of a spent fuel storage cask that has been approved under 10 C.F.R. Part 72, Subpart L, and that if such a design is incorporated into the application, the scope of any public hearing will not include any cask design issues. 496 Here, the petitioner has not clearly identified how the concerns raised are within the scope of the license application and have not been previously generically addressed by regulation. Given the existing regulations governing both transportation safety and cask certification, the petitions generalized assertions of concern about HBF do not demonstrate that the concerns are suitable for resolution in the context of a license-specific adjudication, rather than constituting an impermissible challenge to a rule.

493 See 10 C.F.R. § 71.0, Purpose and scope. See also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-34, 50 NRC 168, 176-177 (1999) (noting that shipment of spent nuclear fuel [is] governed by Part 71 and do[es] not require a specific license under Part 72).

494 See id. at 176-177; State of New Jersey (Department of Law and Public Safetys Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 294 (1993); Trustees of Columbia University in the City of New York , ALAB-50, 4 AEC 849, 863 (1972) (noting that DOT regulations govern the safety of radioactive material transportation).

495 SAR, Table 1.0.3, Page 1-7. See also SAR at Page 1-11 (The centerpiece of the HI-STORE CIS facility is the HI-STORM UMAX canister storage system certified in NRC docket # 72-1040.). See, e.g., SAR, Table 6.0.1, Page 6-3 (identifying which specific portions of the HI-STORM UMAX design are incorporated into Chapter 6).

496 10 C.F.R. § 72.46(e); § 2.335(a). See also Turk ey Point, LBP-01-6, 53 NRC at 158-60, affd, CLI 17, 54 NRC 3 (2001) (finding contentions out of scope when they impermissibly challenged the Commissions regulations).

109

Additionally, for both the safety of transportation and storage of high burnup fuel, Petitioner has not raised a genuine dispute of material fact with the application. 497 A bare assertion that an application is insufficient or inadequate is insufficient to meet this standard; a Petitioner must read the application, state both the applicant and petitioners views, and explain the disagreement. 498 Here, the Petition states only that the issue is not adequately addressed in the SAR and that the SAR must discuss and evaluate the risks of transporting and storing

[high burnup fuel]. 499 This falls well short of the specificity needed to demonstrate a genuine material dispute.

ii. Transportation and Storage Environmental Claims With respect to the environmental claims, Petitioner has provided a contention of omission, stating that the concern does not appear to be addressed in the ER at all. 500 If a petitioner proposes a contention of omission, and the allegedly missing information is included in the license application, the proposed contention will have failed to raise a genuine dispute. 501 Even assuming that the potential environmental impacts of high burnup fuel are within the scope of the environmental review, the Petition fails to raise a genuine dispute of material fact because potential impacts of transportation and storage are described in the Applicants Environmental Report and the Petition fails to specify how its claims regarding high burnup fuel actually contradict the ER.

First, with respect to transportation, as stated earlier, general requirements that govern transportation of spent fuel are established in the Commissions regulations in 10 C.F.R. Part 71 and regulations promulgated by the Department of Transportation. According to the 497 10 C.F.R. § 2.309(f)(1)(vi).

498 Millstone, CLI-01-24, 54 NRC at 358; Palisades, LBP-06-10, 63 NRC at 340-42.

499 See Sierra Club Petition at 67, 70.

500 Sierra Club Petition at 67.

501 See Millstone, LBP-04-15, 60 NRC at 95.

110

Environmental Report, the analysis Holtec performed on the consequences of incident-free transportation is based upon the maximum dose rate permitted for exclusive use shipments. 502 The Petition fails to articulate a dispute with the applicants approach this analysis. And to the extent the Petition contends that doses from shipments that comply with these transportation regulations are inadequately protective, such a challenge would fall outside the scope of this hearing as an impermissible collateral attack on the rule itself and the associated NEPA review. 503 Moreover, the Petitioner has not acknowledged, let alone contradicted, the analysis of the radiological impact of accidents provided in the Environmental Report. Section 4.9.3.2 of the ER discusses the potential radiological consequences of transportation accidents and appears to be derived from the EIS prepared by the Department of Energy in support of the application for a repository at Yucca Mountain. 504 This FSEIS, in Section 6.1.8, makes clear that the analysis of environmental impact from accidents was based on 60,000 MWd/MTHM (megawatt-day per metric ton of heavy metal) for PWR fuel and 50,000 MWd/MTHM for BWR spent fuel, placing it within the range of high burnup fuel established by the Petitioner. 505 The Petitioners failure to specify a dispute with the contents of the application thus lacks the necessary support for a contention of omission with respect to the environmental impacts of transportation or storage of spent fuel.

Finally, with respect to the environmental impacts of high burnup fuel storage, the Petitioner, in alleging an omission, has not demonstrated a genuine dispute with the application.

502 10 C.F.R. § 71.47; ER at 4-32 (RADTRAN assumes the maximum dose rate allowed for exclusive use shipments under NRC regulations (10 C.F.R. § 71.47 (b) (3)) and estimates the potential impacts to the populations located within one-half mile along either side of the transportation routes.).

503 10 C.F.R. § 2.335.

504 ER at 4-34; DOE/EIS-0250F, Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada (ML081750191 (package))) (Yucca FSEIS).

505 Yucca FSEIS, Section 6.1.8; Sierra Club Petition at 67.

111

Storage of high burnup fuel is subject to the same standards as other forms of spent fuel, and Section 4.12 and 4.13 of the Environmental Report discusses the impacts to public and occupational health from facility operation and accidents. In making its determination that the radiological impacts are small, the applicant relies on the safety analyses performed in support of the HI-STORM UMAX system for both normal operation and accident analyses. 506 The HI-STORM UMAX system and the MPC-37 and MPC 89 canisters allow for the storage of high-burnup fuel and have been found to meet the requirements of Part 72. 507 The Petitioner has not provided a basis as to why the Applicants reliance on such analyses are improper.

In short, the Petitioner fails to articulate specific HBF-related deficiencies in the ERs existing description of the UMAX system and its analysis of radiological impacts from storage and transportation, and instead only summarily asserts that concerns with HBF must be discuss[ed] and evaluate[d] in the ER. Such an issue does not present a concrete, focused issue for litigation, and therefore, the Petitioner has not put forward an admissible contention. 508 Consequently, because Contention 20 either raises issues that are not within the scope of the hearing or fails to provide sufficient information to demonstrate a genuine dispute with the application, it must be found inadmissible.

Sierra Club Contention 21 There is no experimental support for the safe transportation and storage of HBF.

Holtec must show that safety is assured not only for hypothetical accident conditions, but also for real life accident conditions. Holtec has not done that in this case.

506 ER, Sections 4.12 and 4.13.

507 See also § 72.214; Proposed TS Section 2.1; UMAX FSAR Revision 3, Section 4.4.8 (ADAMS Accession No. ML16193A339).

508 Peach Bottom, ALAB-216, 8 AEC at 20-21.

112

In Contention 21, the Petitioner contends that for both transportation and storage 509 of high burnup fuel, Holtec must show that safety is assured not only for hypothetical accident conditions, but also for real life accident conditions, and that Holtec has not done so in its application. 510 The Petition appears to base this claim on statements in Interim Staff Guidance 11, Revision 3, which, in addition to providing guidance on Part 72, noted that at that time, the staff was developing guidance for transportation of high burnup fuel. 511 Contention 21 is inadmissible, as it raises issues outside the scope of the proceeding (including impermissible challenges to NRC regulations), fails to explain how the issue is material to the findings the staff must make on the application, and fails to raise a genuine dispute with the application on a material issue of fact, contrary to 10 C.F.R. § 2.309(f)(1)(iii),

(iv), and (vi), respectively.

As a threshold matter, the Petition focuses on portions of a staff guidance document that concern how to meet regulations in 10 C.F.R. Part 71 regarding the licensing of transportation packages. The Holtec CISF application is for a specifically licensed independent spent fuel storage installation; it is not an application for a certificate of compliance for a transportation package. 512 Accordingly, to the extent the Petition is challenging the safety of activities that would not be granted by the license being sought, it is outside the scope of this proceeding. 513 509 The Staff notes that while storage is mentioned in the proposed contention, the discussion in the basis and supporting facts is only directed toward transportation. Without more information, the Petitioner has not provided sufficient information to meet the 2.309(f)(1) standards with respect to storage.

510 Sierra Club Petition at 70.

511 Sierra Club Petition at 70-72; ISG-11 Revision 3 at 1-2 (ML033230244).

512 See Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018) (By this application, Holtec is requesting authorization to construct and operate the HI-STORE Consolidated Interim Storage (CIS) Facility, in Lea County, New Mexico.). The application does include a small amount of transportation from the time the shipment is received on-site to the cask transfer building. See also SAR, Section 10.3.3.1.

513 38 Fed. Reg. 32,920 (July 16, 2018) (. . . Holtec is requesting authorization to construct and operate the HI-STORE Consolidated Interim Storage (CIS) Facility, in Lea County, New Mexico.); Duk e Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985) (noting that the scope of the proceeding is defined by the Commission in its initial hearing notice).

113

Similarly, to the extent the contentions statements that transportation of HBF must consider real life accident conditions 514 and that [high burnup fuel] should not be transported until Holtec can assure that it is safe are suggesting that existing 10 C.F.R. Part 71 regulations are inadequate, challenges to the regulatory scheme of transportation packages constitutes an impermissible rule under 10 C.F.R. § 2.335(a) and should be rejected absent a waiver. 515 In any event, Part 71 requires that transportation packages meet certain standards including various hypothetical accident conditions identified in 10 C.F.R. § 71.73 which were chosen specifically to appropriately encompass the conditions of real world accidents. 516 For similar reasons, the Petitioners have failed to explain why the concern in Contention 21 is material to the findings the staff must make on the Holtec application. The Petition quotes ISG-11 as stating that until further guidance is developed, the transportation of high burnup commercial spent fuel will be handled on a case-by-case basis and the Petition asserts that Holtec has not met this test. 517 But as noted above, the Petition does not articulate why the quoted portions of the guidance document regarding transportation packages concern regulations that are relevant to the instant licensing action, and in any event, staff guidance documents do not create legal requirements, but define a permissible means of meeting a regulation. 518 514 Sierra Club Petition at 70.

515 10 C.F.R. § 2.335(a); Watts Bar, CLI-15-19, 82 NRC at 157 (Section 2.335(a) of our regulations prohibits challenges to our rules and regulations in the context of adjudicatory proceedings.).

516 Compatibility With IAEA Transportation Safety Standards (TS-R-1) and Other Transportation Safety Amendments, 69 Fed. Reg. 3698, 3700 (Jan. 26, 2004) (The [hypothetical] conditions bound (or are more severe than) those conditions that would be expected in the vast majority of real world accidents and therefore provide protection for the cask designs.)

517 Sierra Club Petition at 72.

518 See ISG-11, Revision 3, at 3-4 (ADAMS Accession No. ML033230244) (noting that while the guidance in the ISG provides guidance on meeting the requirements of Part 72, applications that differ may require additional justifications by the applicant.).

114

Finally, the Petition fails to demonstrate a genuine dispute with the application. Indeed, the Petition does not clearly state whether the issues raised are environmental or safety in nature; the initial statement of the contention claims that Holtec must show safety is assured, but the subsequent discussion and conclusion alludes to what must be addressed in the Environmental Report. 519 Notably, it contains no reference to any portion of the application; it makes only a passing reference to the Environmental Report and includes no discussion of what analysis was presented in the application, let alone what real life accident is supposedly left unaddressed. 520 As discussed earlier in the response to Contention 20, the Environmental Report, in evaluating the radiological impacts of incident-free transportation, assumes the maximum dose rate permitted by NRC regulations. 521 Contention 21 does not acknowledge that evaluation, let alone explain a disagreement with it. Therefore, whether the contention is construed as one of omission or adequacy, the Petitioner has not raised a genuine dispute with the contents of the application. 522 Consequently, Contention 21 should not be admitted because it raises issues outside the scope of the hearing, fails to explain how the issue is material to the findings the staff must make, and does not raise a genuine dispute with the application.

Sierra Club Contention 22 With high burnup fuel hydrogen absorption into the Zircaloy metal can lead to hydrogen embrittlement (loss of cladding ductility) of the cladding. Vibrations during transport will lead to further degradation of the cladding. Nothing in the Holtec documentation shows that Holtec has addressed this issue in this case.

519 Sierra Club Petition at 70, 72.

520 Sierra Club Petition at 72.

521 ER at 4-32 (RADTRAN assumes the maximum dose rate allowed for exclusive use shipments under NRC regulations (10 C.F.R. § 71.47 (b) (3)) and estimates the potential impacts to the populations located within one-half mile along either side of the transportation routes.)

522 Millstone, LBP-04-15, 60 NRC at 89-90. (Any contention that fails directly to controvert the application, or mistakenly asserts the application does not address a relevant issue, can be dismissed.).

115

In Contention 22, the Petition claims vibrations during transportation can cause cladding degradation in high burnup fuel and that the Holtec application does not address this concern. 523 In support of the contention, Petitioner states that the Environmental Report has not adequately represented this failure mode in its potential impacts. 524 This Contention should be found inadmissible because it raises a concern that is outside the scope of the hearing and does not allege sufficient facts demonstrating a genuine dispute with the application. 525 The contention raises concerns about the potential for degradation of cladding material strength as a result of vibration during transportation of spent fuel. 526 The application in question is for a specifically licensed ISFSI, not for a transportation package certificate of compliance. 527 While the regulations in 10 C.F.R. 72.108 do require consideration of transportation impacts in the environmental review, it does not require that the environmental report prove the safety of transportation packages. 528 10 C.F.R. 71.71(c)(1)(5) requires that applications for transportation package designs must consider and evaluate the effects of [v]ibration normally incident to transportation, and 10 C.F.R. 71.73 requires applicants to demonstrate that the package can adequately address a variety of hypothetical accident conditions. 529 To the extent that the petition is disputing the adequacy of this rule to address these conditions, such a challenge is impermissible under 10 C.F.R. § 2.335(a). 530 523 Sierra Club Petition at 72.

524 Sierra Club Petition at 72-73.

525 10 C.F.R. § 2.309(f)(1)(iii), (vi).

526 Sierra Club Petition at 72.

527 83 Fed. Reg. 32,919, 32,920 (July 16, 2018) (The NRC received an application from Holtec for a specific license pursuant to part 72 of title 10. . .).

528 10 C.F.R. Part 71.

529 See 10 C.F.R. § 71.51(a). It is unclear, aside from vibrations during transportation, exactly what real life accident conditions Petitioner refers to on Page 73.

530 Additionally, if the petition is attempting to assert that fuel will be transported which will not meet NRC or DOT regulations, the Commission has made clear that without allegations to the contrary, a Board 116

Beyond that, the Petition does not proffer sufficient information to demonstrate a genuine dispute with the application. Aside from stating that the Environmental Report has not adequately evaluated an increased likelihood of radiological impacts, the Petition provides no reference to what was provided by the applicant in the Environmental Report or why what the applicant presented is insufficient. 531 The Environmental Report has provided a discussion on the radiological impacts of incident-free transportation that takes into account the maximum dose rate allowed for exclusive use shipments, 532 and the Environmental Reports discussion on the consequences of accidents reference to studies that do take into account the transportation of higher burnup fuel. 533 Without at least some citation to the Environmental Report and what the asserted omission or deficiency is, the Petitioner has not supplied sufficient information to meet the standards of 2.309(f)(1)(vi).

Consequently, Contention 22 is inadmissible because it raises issues outside the scope of the proceeding and fails to articulate a genuine dispute with the application.

Sierra Club Contention 23 Spent fuel cladding must be protected during storage against degradation that leads to gross ruptures in the fuel or the fuel must be otherwise confined such that the degradation of the fuel during storage will not pose operational safety problems with respect to its removal from storage. It is the responsibility of the licensee to ensure that fuel placed in dry storage meets the design-basis conditions. If HBF develops gross cladding defects during transportation, Holtec has not described how such defects could be detected. If HBF develops gross cladding defects and the fuel cannot be accepted at a waste repository, the fuel will remain at the proposed CIS facility indefinitely.

should decline to assume licensees will contravene regulations. See Oyster Creek , CLI-00-6, 51 NRC at 207.

531 Sierra Club Petition at 73. See Millstone, CLI-01-24, 54 NRC at 358.

532 ER at 4-32 (RADTRAN assumes the maximum dose rate allowed for exclusive use shipments under NRC regulations (10 C.F.R. § 71.47 (b) (3)) and estimates the potential impacts to the populations located within one-half mile along either side of the transportation routes.)

533 ER at 4-34. See also supra Staff Response at 106-112.

117

In Contention 23, the Sierra Club raises a concern that Holtec would be unable to detect defects that occur as a result of damage during transportation, and that as a result, the damaged fuel would never be able to leave the HI-STORE facility. 534 This Commission should find Contention 23 inadmissible because it does not articulate a genuine dispute with the application and it raises issues that are outside the scope of the proceeding.

Most notably, while the Petition portrays 10 C.F.R. § 72.122(h)(1) as the basis for this contention, it fails to acknowledge, let alone dispute, the portion of the application that specifically discusses the applicants receipt inspection process and how it intends to meet 10 C.F.R. § 72.122(h)(1). 535 Section 9.2 of the Safety Analysis Report describes Holtecs proposed process by which canisters containing spent fuel are received and maintained when they arrive at the facility. 536 When canisters arrive on site, the applicant states the canister must not have been subjected to any incident beyond what the canister was qualified for and that the canister will be leak tested. 537 Section 17.14 of the Safety Analysis Report also specifically states that the regulatory requirements of 10 C.F.R. § 72.122(h)(1) are met by maintaining the cladding within the ISG-11, Revision 3, temperature limits through the design of the storage system and the selection of materials. 538 534 Sierra Club Petition at 73-74.

535 SAR, Sections 9.2, 17.14.

536 SAR, Section 9.2, Pages 9 9-7.

537 SAR at 9 9-6.

538 SAR, Section 17.14, Page 17-32. Interim Staff Guidance 11 (ISG-11) Revision 3 was issued in 2003 and provides more specific criteria for evaluating compliance with 72.122(h)(1). ISG-11 specifically identifies maximum temperature limits as one permissible method of meeting this regulation, even for high fuel burnups. ISG-11 at Pages 2-3 (ML033230244) (e.g., For all fuel burnups (low and high), the maximum calculated fuel cladding temperature should not exceed 400°C. . .).

118

The Petition does not address the safety analysis report but simply asserts that Holtec has not described how such defects could be detected. 539 Moreover, while the contention also appears to imply that fuel will be removed from canisters at the facility, 540 the application makes clear that spent fuel will at all times be kept in the original canister. 541 In sum, having failed to acknowledge pertinent portions of the application and specify how its assertions about cladding defects represents a deficiency in the analysis, the contention fails to demonstrate a genuine dispute with the application, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

Additionally, the petition makes no clear distinction as to what aspect of the application or facility feature it takes issue with. 542 To the extent the contention seeks to require the applicant to oversee the activities of other licensees who may handle initial fuel transfer from a reactor, transportation to the facility, and later transportation and storage at a repository - as distinct from a CISF licensees responsibility under 10 C.F.R. § 72.122(h)(1) for protection during storage - it is outside the scope of the hearing, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

Likewise, as stated in 10 C.F.R. § 72.46(e), generic challenges to already approved spent storage cask designs are outside the scope of this hearing. 543 539 Sierra Club Petition at 74. The contention appears to largely just repeat a definition of Gross Cladding Defect from NUREG-1536, Revision 0, Standard Review Plan for Dry Cask Storage Systems.

(January 2007). Revision 1 to this SRP was issued in 2010 and this definition is no longer in the latest revision. The latest revision of NUREG-1536, Revision 1, indicates in Section 4.1 that the primary method of preventing gross rupture is by adequately maintain temperature limits. Regardless, this application is primarily being reviewed pursuant to NUREG-1567, the Standard Review Plan for Dry Storage Facilities.

540 Sierra Club Petition at 75 (from selection and inspection of the fuel before loading until the fuel is unloaded form the cask).

541 See SAR, Section 13.2 (Canisters are already welded shut and sealed to prevent leaks at the generator facility.); ER at 1-7 (There is no air pathway because the casks are sealed by being welded shut. There is no potential for a liquid pathway because the SNF contains no liquid component and the casks are sealed to prevent any liquids from contacting the SNF assemblies.).

542 Sierra Club Petition at 74-75. (It is the responsibility of the licensee to ensure that fuel placed in dry storage meets the design-basis conditions and When HBF within a Holtec canister is transported a repository and the canister is unloaded. . . Holtec has not specified how such fuel would be managed.)

543 10 C.F.R. § 72.46(e).

119

Consequently, Contention 23 should be found inadmissible for failure to meet 10 C.F.R.

§ 2.309(f)(1)(iii) and (vi).

Sierra Club Contention 24 Because of the high heat output of fuel within MPC-37 canisters, there is a long decay time before shipments to the Holtec CIS facility can occur. The loading of the MPC-37 is quite complicated. It is unclear when reactors will be allowed to ship the MPC-37 to the Holtec facility. There is a serious risk of radioactive contamination if the radioactive waste is shipped too soon. Information that would inform the public and analysts has been withheld as being proprietary information. Neither the Holtec ER or SAR contain sufficient information to assess the risk of shipping the MPC-37 canisters.

Contention 24 raises concerns over the timing and feasibility of shipments of MPC-37 canisters to Holtec, and it contends there is an unassessed risk to the public regarding the likelihood of contamination. Additionally, the Petition raises concerns regarding the unavailability to the public of more detailed cask information.

The contention must be found inadmissible because the petition has not demonstrated that the issues raised are material to the proceeding or has not raised a genuine dispute with the application.

First, the contention appears to be premised primarily on concerns about the ability of licensees other than the applicant to comply with their licenses and regulations, issues which are not material to the decision in this case. 544 The Commission has held that there is a presumption of compliance with the Commissions regulations, stating that in the absence of evidence that an applicant is likely to violate a regulation, this agency has declined to assume that licensees will contravene our regulations. 545 In contrast, Contention 24 relies on multiple speculative assumptions that different licensees will not comply with applicable requirements, including that due to the complicated loading requirements for the MPC-37, reactor licensees 544 Sierra Club Petition at 76-78.

545 See Oyster Creek , CLI-00-6, 51 NRC at 207.

120

may not comply with the canisters loading parameters, 546 and that other licensees will load and ship canisters before they can meet the decay heat load requirements of the MPC-37. 547 Finally, while the Petitioner does not reference any details of the HI-STORE application, the contention implies that canisters that may be stored at the facility will not meet the proposed license and technical specifications and associated specific requirements on contents, configurations, and heat limits for those canisters. 548 Given the presumption of compliance with applicable requirements, unsupported speculation that this licensee and other licensees will not comply with applicable rules cannot support an admissible contention. 549 In any event, the contention does not specify any aspect of the analysis in the ER or SAR with which the Petitioner disagrees. Absent an articulated disagreement with the application, the contentions speculation regarding implementation of cask loading procedures or when canisters could be shipped to a Holtec facility fails to demonstrate either that the issue is material to the staffs review or that there is a genuine dispute with the application. 550 Lastly, the Petitioner also mentions multiple times that the cask information it believes would inform this contention has been withheld as proprietary and is not publicly available. 551 Petitioner was afforded the opportunity to request access to such information through 546 Sierra Club Petition at 76 (The loading for the MPC-37 is quite complicated, so it may be an issue whether utilities can follow the prescriptions outlined by Holtec).

547 Sierra Club Petition at 78 (this raises the issue of when the reactors will be allowed to ship the MPC-37 canisters to the Holtec CIS facility.).

548 See Proposed TS Section 2.1, Table 2-1, Table 2-2. (Pages 2 2-3) (requiring the spent nuclear fuel . . . stored in canisters . . . shall meet the following requirements, including fuel burnup and decay heat limits).

549 See Oyster Creek , CLI-00-6, 51 NRC at 207; Crow Butte Resources, CLI-09-12, 69 NRC at 552 (contentions based on little more than guesswork would waste the scarce adjudicatory resources of all involved). See also Private Fuel Storage, CLI-04-22, 60 NRC at 138-39 (finding that a petitioner did not demonstrate a material dispute when it failed to acknowledge in its proposed contention the applicants quality assurance measures).

550 10 C.F.R. § 2.309(f)(1)(iv), (v).

551 Sierra Club Petition at 76, 80-82.

121

procedures established in the Federal Register Notice providing the opportunity to request a hearing and petition to intervene. 552 The Petitioner declined to do so. 553 Accordingly, the proposed contention should not be admitted under 10 C.F.R. § 2.309(f)(1)(iv) and (vi).

Sierra Club Contention 25 The Sierra Club seeks to adopt all of the contentions in the Joint Petition.

10 C.F.R. § 2.309(f)(3) permits the co-sponsoring of contentions where the petitioners designate a single representative for those contentions with the authority to act with respect to those contentions. The Sierra Club has not done that here, either individually or jointly with the Joint Petitioners. Therefore, the NRC Staff opposes the Sierra Clubs request to adopt the Joint Petitioners contentions until the parties jointly designate a representative.

552 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,922 (July 16, 2018).

553 Indeed, in addition to the period initially allowed in the Federal Register notice for such requests, the Secretary of the Commission subsequently extending the timeframe for such requests until August 30th, 2018. Holtec International (Consolidated Interim Storage Facility), Order of the Secretary (Aug.

20, 2018) (ML18232A577).

122

Conclusion For the foregoing reasons, the NRC Staff respectfully requests the Commission to grant, in part, the petitions filed by Beyond Nuclear and the Sierra Club, and to dismiss the petitions filed by NAC, AFES, and the Joint Petitioners.

Respectfully submitted,

/Signed (electronically) by/

Christopher C. Hair Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9152 E-mail: Christopher.Hair@nrc.gov Signed October 9, 2018 Executed in Accord with 10 CFR 2.304(d)

Alana M. Wase Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Signed October 9, 2018 Executed in Accord with 10 CFR 2.304(d)

Joe I. Gillespie III Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Signed October 9, 2018 123

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE T HE COM M ISSION In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (Consolidated Interim Storage Facility)

CERT IFICAT E OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed By Alliance For Environmental Strategies, Beyond Nuclear, Inc., Dont Waste Michigan, et al.,

NAC International Inc., and The Sierra Club, dated October 9, 2018, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 9th day of October, 2018.

Respectfully submitted,

/Signed (electronically) by/

Christopher C. Hair Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9152 E-mail: Christopher.Hair@nrc.gov Dated in Rockville, MD this 9th day of October 2018