ML18284A477
| ML18284A477 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 10/11/2018 |
| From: | Eye R Robert V. Eye Law Office |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, Pending, RAS 54554 | |
| Download: ML18284A477 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
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Interim Storage Partners
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Docket No. 72-1050
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(WCS Consolidated Interim Storage Facility)
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Motion of Movants Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners for Leave to Reply to Interim Storage Partner LLCs Answer and Opposition to Movants Motions to Dismiss Under 10 C.F.R. § 2.323(c), Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (hereinafter, simultaneously referred to as Movants) respectfully move the Commission for leave to reply to Interim Storage Partner LLCs (ISP) response1 opposing Movants Motion to Dismiss under the Nuclear Waste Policy Act (NWPA) and Administrative Procedure Act (APA). The circumstances underpinning this motion to allow a reply represent the compelling 1Interim Storage Partners LLCs Response Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Unauthorized September 28, 2018 Filing (Oct. 5, 2018)
(ML18278A253) (ISP Fasken/PBLRO Response).
circumstances requirement of 10 C.F.R. § 2.323(c) for granting requests to reply.
While at this stage of the proceeding there are no compelling circumstances warranting a leave to reply regarding a separate opportunity for hearing under the NWPA and APA,2 there are two compelling circumstances that Movants did not reasonably anticipate regarding ISPs response to Movants standing argument and ISPs narrow description of NRCs authority of review having an effect on Movants risk of exposure to radiological harm.
ISPs Illogical Incorporation of its Response3 to Beyond Nuclears Motion to Dismiss4 Used to Oppose Movants Motion to Dismiss was Unanticipated, and In Fact, Supports Movants Standing Argument Under the authority of 10 C.F.R. § 2.323(c), a moving party has no right to reply to an answer to a motion absent a finding that 2 See generally Waste Control Specialists LLC (Consolidated Interim Storage Facility), CLI 10, 85 NRC 221, 222-23 (2017).
3 Interim Storage Partners LLCs Response Opposing Beyond Nuclear, Inc.s Unauthorized September 14, 2018 Filing (Sept 24, 2018) (ML18267A299) (ISP Response).
4 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) (ML18257A312) (BN Motion to Dismiss). See also Errata to 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. 18, 2018) (ML18261A110).
compelling circumstances exist. Furthermore, the moving party must demonstrate that it could not reasonably have anticipated the arguments to which it seeks leave to reply. Id.
Movants could not have anticipated ISPs unsupported argument regarding Movants alleged failure to meet the proximity presumption of standing. While Movants did incorporate by reference arguments and authorities in sections IV, V and VI of BNs Motion to Dismiss,5 these sections did not encompass Movants separate and distinct argument for standing. ISP argues that [Movants] standing argumentsfail for the same fundamental reasons articulated in the ISP response.6 However, ISP argued in the ISP Response,which through incorporation, ISP intended would apply to Movants as wellthat BN point[ed] to no precedent for granting standing based on the proximity presumption
...[,] and further stated that BN did not affirmatively demonstrate an 5 See 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, pg. 7 (Sept. 28, 2018) (ML18271A244) (Fasken/PBLRO Motion to Dismiss).
6 ISP Fasken/PBLRO Response, pg. 2.
obvious potential for offsite consequences[.]7 Contrary to ISPs allegation that BN did not provide any precedent for standing under the proximity presumption, Movants did indeed cite precedent established by the NRC through their decisions in Tennessee Valley Auth.
(Sequoyah Nuclear plant, Unites 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 3 (2002) and Armed Forces Radiobiology Research Inst. (Combalt-60 Storage Facility), ALAB-682, 16 NRC 150 (1982).8 In Armed Forces, the Armed Forces Radiobiology Research Institute (AFRRI) filed an application with the Commission for renewal of its Part 30 byproduct material license. 16 NRC at 152. The license authorized AFRRI to possess up to 320,000 curies of radioactive combalt-60 in a water-shielded irradiation facility located on the grounds of the National Naval Medical Center in Bethesda, Maryland. Id. The inventory of radioactive cobalt at the time was described in affidavits as being one of the largest in the United States. Id. at 154 (emphasis 7 ISP Response, pg. 17.
8 Fasken/PBLRO Motion to Dismiss, pg. 5.
added). After the NRC granted the license, the Citizens for Nuclear Reactor Safety, Inc. (CNRS) requested a hearing on the renewal of the license for the combalt-60 facility. Id. at 152. In their letter to the Secretary of the Commission, CNRS described an incident involving the storage facility in which the mechanism used to raise the cobalt-60 out of its shielding water jammed, exposing the material with its lethal gamma radiation for a period of time. Id. Furthermore, the letter also stated that its members lived as close as three miles from a substantial source of radioactive material. Id.9 Ultimately, the Commission stated that the proximity to a large source of radioactive material established the petitioners interest which was within the zone of interest of the Atomic Energy Act. Id. at 154.
Similarly here, Movants land and leasing interests are well within the proximity of ISPs proposed site; a site in which half of this nations SNF will be sent to, making it one of the largest SNF storage facilities in 9 Armed Forces also stated that the concept of geographic proximity is not limited [by Parts].
Id. at 153. Therefore, regardless of Armed Forces license falling under Part 30 and ISPs license falling under Part 72, Movants proximity presumptions analysis can be guided by the Armed Forces decision.
the United States.
ISP further attempts to support their argument opposing leave to reply by falsely claiming that Movants made no affirmative demonstration of an obvious potential for off-site consequences.10 As mentioned in Movants motion, [t]he standard for assessing the potential for offsite consequences is whether the consequences are plausible, not whether consequences are probable or likely.11Again, contrary to ISPs arguments, Movants have made a very compelling and obvious argument that other ISFSI facilities, namely Holtec, recognized at least one plausible scenario that would cause off-site radiological consequences.12 As ISP clearly elaborated in their answer opposing Movants motion for leave to reply, participants in an NRC adjudicatory proceeding have an obligation to call attention to facts of record which, at the very least, cast a quite different light on the substance of 10 ISP Fasken/PBLRO Response, pg. 2 (incorporating argument from ISP Response, pg. 17).
11 Id. at 6. (citing Cfc Logistics, Inc., LBP-03-20, 58 NRC 311, 320 (2003); accord Ga. Inst. Of Tech. (Georgia Tech Research Reactor) CLI-95-12, 42 NRC 111 (1995)).
12 Fasken/PBLRO Motion to Dismiss, pg. 6-7 (flooded canister could result in criticality accident).
arguments being advanced.13 ISPs response opposing this leave of reply clearly casts a different light on the substance of the Movants arguments because ISPs argument is unsupported, out of line, and clearly indicates an incomplete evaluation of Movants arguments.
Because Movants could not have anticipated ISPs failure to specifically address and evaluate their arguments, Movants pray the Commission grant leave for them to file reply regarding the proximity presumption.
ISPs Argument Limiting the Issue to NRCs Authority to Review Misconstrues Movants Potential for Radiological Exposure and Harm ISP argues that Movants alleged risk of radiological harm incorrectly assumes such [a separate proceeding under the NWPA and/or APA] could result in the licensing of an independent spent fuel storage installation.14 In their argument, ISP focuses on the potential of a proceeding under the NWPA and/or APA having the limited ability to solely consider the NRCs organic statutory authority to review license 13 See Interim Storage Partners LLCs Answer Opposing Motions for Leave to Reply Submitted by Beyond Nuclear, Fasken, and PBLRO, pg. 5 (Oct. 5, 2018) (ML18278A264) (quoting Pub.
Serv. Co. of Okla. (Black Fox Station, Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978)).
14 ISP Fasken/PBLRO Response, pg. 2 (emphasis added).
applications under 10 C.F.R. Part 72.15 In other words, ISP limits their argument to NRC simply reviewing the application, as opposed to actually approving the application and administering a license.
ISPs narrow framing of the issue makes it seem like Movants would not have standing simply because reviewing a license application would not always result in the NRC issuing a licensebut upon licensing, would increase Movants risk of exposure to radiological harm. However, upon completion of an outside proceeding under the NWPA or APA, there is still a possibility that the proceeding could allow the NRC to review ISPs application, and ultimately issue a license.16 Moreover, the objective of ISPs application is not simply to have it reviewed; the objective is to obtain a license. And adopting ISPs argument would mean that in a license application proceeding no prospective intervenor would qualify for standing because of the possibility that the proceeding would not yield a license.
15 Id. (emphasis added).
16 See 10 C.F.R. § 2.103 (If the Directorfinds that an application for a byproduct, source, special nuclear material, facility, or operator license complies with the requirements of the Act, the Energy Reorganization Act, and this chapter, he will issue a license. (emphasis added)).
Given that reviewing an application is part and parcel to administering a license under 10 C.F.R. et seq., Movants could not have anticipated the need to address ISPs failure to recognize their lapse in simple, procedural foresight. Given that it is the Movants duty to call attention to facts of record which, at the very least, cast a quite different light on the substance of arguments being advanced,17 ISPs failure to admit that reviewing an application could lead to the issuance of a license fulfills Movants duty to do so.
Given these compelling circumstances, Movants pray the Commission grant leave for them to file replies as to the two issues above-mentioned.
Respectfully submitted,
/electronically signed by/
Robert V. Eye, KS S.C. No. 10689 Robert V. Eye Law Office, L.L.C.
4840 Bob Billings Pky., Suite 1010 Lawrence, Kansas 66049 785-234-4040 Phone 785-749-1202 Fax bob@kauffmaneye.com Attorney for Movants October 11, 2018 17 See supra: f.n. 13.
Certificate of Consultation Undersigned certifies that communications to counsel for participants in these dockets regarding their positions regarding the above Motion for Leave to Reply yielded no objection from Beyond Nuclear and Sierra Club. NRC Staff, Holtec and ISP opposed the motion.
/signed electronically by/
Robert V. Eye Certificate of Service Undersigned certifies that a true and correct copy of the above and foregoing was submitted to the NRCs Electronic Information System for filing and service on participants in the above-captioned dockets.
/signed electronically by/
Robert V. Eye