ML18289A930
| ML18289A930 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 10/16/2018 |
| From: | Desai S, Helfrich R, Roma A, Stenger D Hogan Lovells, US, LLP, NAC International |
| To: | NRC/SECY |
| SECY RAS | |
| References | |
| HI-STORE Fuel Storage, RAS 54563, Holtec International | |
| Download: ML18289A930 (13) | |
Text
October 16, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of
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HOLTEC INTERNATIONAL
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Docket No. 72-1051 (HI-STORE Consolidated Interim Storage
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Facility for Interim Storage of Spent Nuclear Fuel)
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_______________________________________________ )
REPLY IN SUPPORT OF PETITION TO INTERVENE AND REQUEST FOR HEARING OF NAC INTERNATIONAL INC.
I.
INTRODUCTION In accordance with 10 C.F.R. § 2.309(i)(2), NAC International Inc. (NAC)1 provides this reply in support of its petition to intervene and request for a hearing in the above-captioned licensing proceeding. The reply rebuts Holtec Internationals (Holtecs) and the Nuclear Regulatory Commission (NRC or the Commission) Staffs Answers2 as to admissibility of NACs safety contentions, and as to standing.
II.
NACS SAFETY CONTENTIONS ARE ADMISSIBLE A. The Holtec CISF Application As Written Improperly Seeks a Preemptive Universal CISF License Holtec and the NRC Staff focus almost the entirety of their Answers on the argument that the Holtec HI-STORE Consolidated Interim Storage Facility for Spent Nuclear Fuel (CISF) 1 NAC at this time wants to provide an erratum to its petition to intervene. Its address is 3930 East Jones Bridge Road, Norcross, Georgia 30092. The petition to intervene stated 3920 as the street number. See Petition to Intervene and Request for Hearing of NAC International Inc. (NAC Petition), at 3 (Sept. 14, 2018)
(ML18257A287).
2 See Holtec Internationals Answer Opposing NAC International Inc.s Petition to Intervene and Request for Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Holtec Answer to NAC) (Oct. 9, 2018) (ADAMS Accession No. ML18282A455); 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 (NRC Staff Answer) (Oct. 9, 2018)
(ADAMS Accession No. ML18282A567).
2 license application does not support a universal Holtec HI-STORM UMAX cask (UMAX cask) program in any way. They further claim that the application does not even consider the potential use of NAC canisters (emphasis added).3 This is a welcome admission but it contradicts the prior foundational statements made by Holtec to the NRC in its own license application. For example:
Transmittal Letter for Holtec CISF License Application: As stated in its FSAR, the HI-STORM UMAX Canister storage system has been engineered to store the entire complement of canisters currently deployed at ISFSIs around the country.4 Holtec SAR, CISF System Overview: The storage cavity of HI-STORM UMAX is sufficiently large to accommodate every canister type licensed under different 10CFR72 dockets and in use in the United States at this time.5 This is listed as an essential characteristic of the UMAX cask.6 Holtec SAR, UMAX Design Characteristics for CISF: Type [UMAX cask] SL cavity is sized to permit storage of all BWR fuel bearing canisters and PWR canisters that are shorter than the reference BWR canister.7 Holtec ER, Storage Systems
Description:
The proposed Holtec HI-STORM UMAX Storage System at the CIS Facility would be capable of storing the SNF from all existing SNF storage systems, and would be the only licensed technology with this universal capability.8 Holtec ER, Alternatives Analysis: Holtec's proprietary design is the only licensed technology with the universal capability to store all SNF from all commercial reactors.9 Statements such as has been engineered to store, permit storage, would be capable, universal capability, are significant technical assertions in a license application. For example, saying that a cask is sufficiently large is not just about being a big enough cavitybeing too 3 NRC Staff Answer at 13; Holtec Answer to NAC at 17-18.
4 See Holtec CISF License Application Submittal Letter (Mar. 30, 2017) (ADAMS Accession No. ML17115A418)
(emphasis added).
5 Holtec Licensing Report/Safety Analysis Report (SAR) at 1-12 (May 2018) (ADAMS Accession No. ML18254A413) (first emphasis added).
6 Id. at 1-11.
7 Id. at 1-16 (emphasis added).
8 Holtec CISF Environmental Report (ER), at 2-5 (Rev. 1) (Dec. 2017) (ADAMS Accession No. ML18023A904)
(emphasis added).
9 Id. at 2-17 (emphasis added).
3 large may be a bad thing in certain seismic scenarios. As NAC noted in its petition, a proper seismic analysis is needed to support any such statement in the Holtec CISF license application.10 One also has to askif Holtec never envisioned that the CISF license application was to support a universal cask, then how could it claim in the license application transmittal letter itself that the UMAX cask has been engineered to do just that? Stepping back, it appears therefore that the licensing of the Holtec CISF is fundamentally intertwined with the universal cask approach.11 As a result, NAC disagrees in its Petition that the UMAX canister storage system has been engineered, designed or sized to fulfill the technical assertions stated above, as supported in the NAC Petition and expert testimony.12 Such assertions would, at the least, require access to proprietary design information regarding NAC canisters that Holtec does not possess and has no rights to.13 NAC therefore raises genuine disputes with these material statements in the license application including the SAR.
NAC would welcome a Holtec CISF license application that is truly free of considering or laying the foundation for use of NAC canisters. But that is not the case here unfortunately, as seen above and from what Holtec has told the public time and time again.14 While the currently proposed license has a condition limiting it to just the current UMAX CoC (as NAC notes in its 10 See Affidavit of George C. Carver in Support of Petition to Intervene and Request for Hearing of NAC International Inc. (Carver Affidavit) at 7 (appended to the NAC Petition).
11 As another example, the ER evaluates a facility of 100,000 MTU although the license application only seeks permission to store 5,000 MTU (the expansion size would be designed to permit storage of non-Holtec canisters).
ER at 1-1.
12 See NAC Petition at 11-13, 16-18; Carver Affidavit at 5-11.
13 Carver Affidavit at 6-7.
14 See, e.g., HI-STORE CISF Description, Holtec Website, https://holtecinternational.com/productsandservices/hi-store-cis/ (HI-STORE CIS is intended to be a universal storage facility, meaning it will store any US-origin commercial nuclear fuel currently packaged in dry storage canisters, or stored in the nations fuel pools.); Press Release, HI-STORE CIS in Southeastern New Mexico Edges Closer to Regulatory Approval (Mar. 2, 2018),
https://holtecinternational.com/2018/03/02/hi-store-cis-in-southeastern-new-mexico-edges-closer-to-regulatory-approval/ (HI-STORE CIS is envisioned to unify the storage of all different storage canisters (both vertically and horizontally stored) in one standardized HI-STORM UMAX cavity....).
4 own Petition15), the statements above make material technical assertionsthat if not rectified by action by the Commission to clean up and clarify the license application, will lay the foundation for Holtecs future amendments, and can be referenced in the later license amendment proceedings to incorporate other canisters. In other words, Holtec is essentially incorporating material parts of future license amendments for a universal cask system now instead of at the proper future time. And since these technical assertions cannot be challenged later on (such challenges risk being viewed as untimely), they thus need to be challenged now.16 NACs petition raises a genuine dispute with these material aspects of the current Holtec CISF license application as written, which improperly preempt and lay the foundation for Holtecs universal cask approach sought for the New Mexico CISF in the long-term, yet without the type of technical analyses described in NACs contentions and supported by the Carver Affidavit.
The Commission must see the irony with an application and public campaign that advertises the current Holtec CISF license application as for a universal CISF, in light of Holtecs and the NRC Staffs current statements that the CISF license application is not intended for such a universal purpose at all. It is actions like this that put companies like NAC, whose work products Holtec wants to assimilate into its CISF, in a bind. Looking at Holtecs application in the best light, the types of statements described above mischaracterize the license application and capabilities of the Holtec cask system and force NAC to bring a contention at this time simply to preserve its rights to a hearing on those statements, and to make clear those statements do not support a universal CISF application. In another light, however, Holtecs approach and accompanying verbiage as mentioned above risks fooling interested parties into ignoring and accidentally conceding important technical statements made in the current license 15 NAC Petition at 16.
16 To add, these statements in the SAR will become part of the licensing basis for the facility. See infra note 26.
5 application that actually concern and support future license amendmentsand this confusion is something the Commission must be wary of and work to clarify.
B. Holtec and the NRC Staff Admit that a CoC Review is Insufficient for Permitting a Universal Cask at the Holtec CISF It is important to recognize that the assertions made by Holtec above about the universal capability of the Holtec CISF system cannot be cured by reference to the generic CoC amendment process (something Holtec advertises to the public),17 but are instead intricately tied to the CISF license. It bears reemphasizing that satisfying the requirements necessary to obtain a 10 CFR Part 72 Certificate of Compliance (CoC) for the UMAX cask is insufficient for demonstrating that the same cask can be placed and loaded at a site-specific CISF separately licensed under Part 72. Said another way, two things need to happen for Holtecs universal cask/canister approach to be adopted at the Holtec CISF to house an NAC canister:
- 1) Holtec needs to address the generic requirements of 10 CFR § 72.236 to amend its UMAX cask CoC.
- 2) Holtec needs to then address the additional requirements located in Part 72 and the guidance of NUREG-1567 for applying the cask design to a site-specific ISFSI or CISF license.
Indeed, Holtec and the NRC Staff confirm this in their Answers. Both state that Holtec would be required to attain a license amendment to add any new CoC amendment incorporating NAC canisters.18 And in apparent contradiction of the above-noted Holtec technical assertions (written as if such required analyses have already been performed), Holtec concedes that in such license amendment proceeding for the Holtec CISF, Holtec would need to perform the analyses required to demonstrate the safety of such use of the UMAX system in the unique conditions of 17 Holtec Notice of Intent to License the ELEA Interim Storage Facility, at 2 (Aug. 3, 2015) (ADAMS Accession No. ML15215A92) (The ELEA site specific licensing application will invoke the HI-STORM UMAX FSAR by reference (emphasis added)); Slides from Pre-Application Meeting, Holtec International - Central Interim Storage Facility for Spent Fuel and HLW (HI-STORE), at 20 (Dec. 9, 2015) (ADAMS Accession No. ML16033A151)
(same).
18 See Holtec Answer to NAC at 17-18; NRC Staff Answer at 13.
6 the Holtec CISF as a prerequisite to such licensing authorization.19 License amendments by their definition require additional safety analyses, in order to justify permitting the licensee greater operating authority.20 Therefore, it is clear that the Holtec CISF license application and requisite analyses are critical path prerequisites to deploying a UMAX cask with NAC canisters at the Holtec CISF, now or in the future. And there is no question that NACs contentions challenging Holtecs ability to do such analyses, or provide sufficient design and safety performance information to meet NRC regulatory requirements, would raise a genuine dispute with any such license amendment application.21 Additionally, NACs expert affidavit support for the merits of NACs Contentions 1 and 2 has gone totally unrefuted.22 C. A License Amendment Proceeding in the Future Will Not Offer Hearing Rights Equal to the Current Proceeding Both Holtec and the NRC Staff are quick to note that a license amendment will accompany any future effort to incorporate an amended Holtec CoC into the Holtec CISF license. But they refrain from acknowledging clearly that the same pre-amendment hearing opportunity would be availableonly that Petitioner could seek participation before the NRC in some fashion.23 There is nothing to prevent the NRC Staff from later amending the Holtec CISF license to incorporate an amended UMAX CoC as an administrative matterand thus at best permit a hearing only post-amendment, with potentially fewer hearing rights.24 Keep in 19 Holtec Answer to NAC at 18.
20 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-15-27, 82 NRC 184, 191 (2015),
affd, CLI-16-9, 83 NRC 472 (2016).
21 To make clear, as NACs safety contentions challenge issues outside of the CoC proceeding itself, and the parties admit that a license amendment is needed even with a CoC amendment, the NRC Staffs reference to 10 CFR
§ 72.46(e) is inapplicable. See NRC Staff Answer at 63 n.284.
22 Neither the NRC Staff nor Holtec Answers even mention any of the substance of the Carver Affidavit. See NAC Petition at 11-13, 16-18; Carver Affidavit at 5-11.
23 See Holtec Answer to NAC at 18; NRC Staff Answer at 64.
24 See 10 CFR § 74.46(b)(2) (allowing the Director of the Office Nuclear Material Safety and Safeguards to dispense with notice and an opportunity for a hearing on a proposed amendment based upon his or her determination that the
7 mind that Holtecs intent behind its licensing path for the Holtec CISF is to have just one hearing opportunity for its facility, and to incorporate updates to the UMAX cask CoC later on by reference.25 Such an approach could allow Holtec to amend its CISF license effectively through the CoC amendment process, thereby evading the prescribed hearing process with respect to amending the Part 72 CISF specific license. Keep in mind as well that once a canister is placed in a storage cask, there are significant regulatory and practical hurdles to removing and transferring that same canister should that become necessary. A CISF license amendment proceeding with post-amendment hearing rights only could thus risk mooting any hearing if the casks are already loaded by the time of the hearing and decision.
Just as importantly, if NAC were to wait to bring its arguments, it would run the risk that at a later time, when Holtec seeks an amendment to the CISF specific license, Holtec will be able to reference parts of its current license application and SAR (which would be part of the approved current licensing basis26 for the Holtec facility) to support its later license amendment process. NAC thus could be rendered unable to challenge such references or analyses as such challenges would be seen as untimely. This would improperly limit the scope of any future license amendment hearing as the foundation for it would have been addressed already here as part of the initial proceedingbut without a right to a full hearing on the merits to address NACs concerns.
Nonetheless, NAC is not here to gum up the works, and simply wants an efficient forum to air its safety concerns about a specific Holtec approach to storing spent nuclear fuel that amendment does not present a genuine issue as to whether the public and safety will be significantly affected).
Upon that determination the only potential for a hearing would be post-amendment.
25 See supra note 17.
26 The term is broadly defined in 10 CFR § 54.3. Although 10 CFR Part 54 discusses license renewals, the definition of current licensing basis used there has been adopted by the agency in many other contexts that would appear appropriately analogous here.
8 Holtec itself has characterized as a first-of-a-kind approach. NAC first exhausted multiple other options before seeking a hearing.27 To this end, NAC is willing to discuss tabling its safety contentions to a future point at which time certain synergies may be leveraged in adjudication (e.g., waiting to a point at which the license application or license is to be amended to incorporate a Holtec UMAX CoC amendment to permit storing NAC canisters). Therefore, all of Holtecs technical assertions supporting such an amendmentmade both here and in any such future amendment proceedingcan be addressed at one time. Any such deferral should ensure prior notification to NAC of any proposed license amendment action related to NACs canisters, provide appropriate pre-amendment hearing rights similar to what is available now, and set aside challenges to NACs standing.28 III.
STANDING A. NAC Has Standing Under Traditional Judicial Principles The crux of Holtecs and the NRC Staffs argument against standing is the same as the argument against admission of the safety contentionsthat the Holtec CISF license application would not authorize use of a universal cask storage system. NACs response to that argument is provided above.
There is no alternative argument against NACs standing. The NRC Staff answer does not even attempt to raise any alternative. But one thing NAC wants to make clear is that it is not seeking standing as a competitor. NAC acknowledged that expressly in its petition.29 Instead, NAC is asserting the risk of radiological and environmental harm with respect to Holtecs 27 Indeed, NACs basic concerns, as noted in NACs Petition at 18, n.27, were responsibly and publicly raised in NACs letters to the NRC in May 19, 2017 and August 10, 2017.
28 Although NAC is amenable to discussion on potentially deferring its safety contentions, it believes this approach should not apply to its environmental contention. This contention is clearly admissible, and the NRC Staff agrees.
NRC Staff Answer at 64. The environmental contention raises a genuine dispute with a material aspect of the NEPA analysis which would need to be cured early as part of this license proceeding.
29 NAC Petition at 6 n.6.
9 planned assimilation of NACs NRC-certified canisters into the CISF as grounds for standing i.e., a failure at the Holtec CISF facility, even if small, would cause harm to those NAC canisters subsumed into the Holtec facility.30 It is a near certainty that NACs interests would be harmed in the case of an event involving its canisters at the Holtec CISF, and NAC could face claims of financial responsibility, for example of a contract warranty nature, to repair or replace canisters damaged during any event (including if the damage with or without a release were simply a result of improper or questionable handling, maintenance or operation by Holtec, its partners or contractors, including lifting and moving of NACs canister as a heavy load).31 Such NAC concerns could also include near miss incidents32 at the CISF resulting in increased regulatory scrutiny and potential reputation damage Holtec also raises the objection that economic arguments are not grounds for standing.
NAC is not raising indirect, vague economic concerns. Harms to core business interests and NAC-supplied canisters resulting from an event at the CISF causing radiological or environmental releases are grounds for standing.33 NACs canisters are a core part of its businessthey are not just a steel box but instead a technically sophisticated compilation of IP, safety analyses, regulatory assets, and performance and support agreements.34 Essentially, subsuming these canisters into the Holtec CISF is akin to placing NACs valuable IP, reputation, regulatory approvals, and risk of claims within the CISF.35 NACs fundamental interests are directly at risk of radiological and environmental harm if Holtecs CISF is licensed with the 30 See NAC Petition at 5; Carver Affidavit at 2-4.
31 See Carver Affidavit at 3.
32 See id. at 10.
33 See NAC Petition at 5; U.S. Dep't of Energy (High-Level Waste Repository), LBP-09-6, 69 NRC 367, 431-32 (explaining that when economic harms are linked to radiological matters, those economic harms are grounds for standing), affd in part and revd in part on other grounds, CLI-09-14, Nuclear Reg. Rep. P 31594 (2009). This decision also explained that economic issues can also be grounds for standing in other circumstances.
34 NAC Petition at 5-6; Carver Affidavit at 2-4.
35 Holtec even refers to them directly as Petitioners canisters in its answer, acknowledging the interest NAC has in these products. Holtec Answer to NAC at 12.
10 language currently in the SAR and ER supporting a universal cask approach. These are exactly the type of particularized real-world interests that warrant standing under the NRCs framework.36 The judicial concepts of standing as adopted by the NRC in this regard are not strict by design.37 Lastly, we want to make clear that most certainly we are not asserting a risk or imagining the specter that the Holtec CISF could experience some type of major nuclear incident.38 We are talking about bread and butter issueswhether the CISF license application as sought, debuting a first-of-a-kind universal cask approach to spent fuel storage, complies with well-understood fundamental regulatory requirements, from 10 CFR § 71.222 to NUREG-1567. We are talking about sufficiency of analyses to ensure adequate performance in the case of normal, off-normal events or design basis events, and the provision of sufficient design basis information to comply with regulations such as 10 CFR § 72.24.39 We are talking about qualification of CISF personnel to safely handle canisters where the licensee is not the canister-OEM (original equipment manufacturer) and may not possess sufficient knowledge to safely operate the systems.40 We do not suggest that the Holtec CISF, or any CISF, is at risk of causing 36 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1) & Ne. Nuclear Energy Co. (Millstone Station, Unit 3), CLI-99-27, 50 NRC 257, 262 (1999).
37 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), LBP-17-8, 86 NRC 138, 148 (2017)
(the licensing board looking to judicial concepts of standing, and also acknowledging that the petition is to be construed in favor of the petitioner for the purposes of standing), affd in part, revd in part on other grounds, CLI-18-05, 2018 WL 2095478 (2018); see also Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1279 (D.C. Cir. 2004) (explaining that in general, concepts of prudential standing such as zone of interest analyses are not meant to be especially demanding (citations omitted)).
38 Holtec Answer to NAC Petition at 5.
39 Holtecs approach to licensing the CISF and UMAX cask here is akin to a nuclear power plant operating without access to its design basis informationsomething the NRC has long refused to permit in the power reactor space.
See Regulatory Guide 1.186, at 2-3 (Dec. 2000) (ADAMS Accession No. ML003754825) (explaining Commission action in the 1990s to ensure that power reactor licensees maintain their design basis documentation, in response to deficiencies identified by licensees that could have affected the operability of required equipment, [or] raised unreviewed safety questions).
40 See Carver Affidavit at 9.
11 a major nuclear incident or expressly violating the terms of its license, and such an astounding occurrence is not required for NAC to attain standing.
B. NAC Meets the Requirements for Discretionary Standing NAC also reaffirms its request for discretionary intervention under 10 CFR § 2.309(e).41 Like when discretionary standing was awarded to the Nuclear Energy Institute in the Yucca Mountain proceeding, NAC has:
Filed contentions of its ownat least one of which the NRC staff has acknowledged is admissible.
Demonstrated unique and compelling interests that will be affectedas described above, NACs assets and work product are being assimilated into the Holtec CISF.
Demonstrated that no other entity in the proceeding can represent those interests NAC is one of three major canister and cask developers (the others being Holtec and Orano), and it will be its canisters that will be directly affected by licensing of the Holtec CISF under a universal cask approach.
Put forward experts well-versed in the mattersas demonstrated by the Carver Affidavit.42 The Board in that proceeding also found discretionary intervention warranted when a petitioner has extensive participation in similar proceedings, to help develop a sound record.43 Indeed, developing a sound record on safety and environmental issues is seen as a key factor, and is something NAC demonstrates particularly well.44 As shown in the Carver Affidavit, NAC has unique and helpful experience in developing casks and canisters over decades, and in particular how they interact. NAC and its staff are involved in developing another consolidated interim storage facility 39 miles awaywhich puts forward an alternative to the Holtec approach, allowing broader participation in the facility without mixing casks and canisters between 41 NAC sought discretionary standing in its original petition. See NAC Petition at 8-10; Carver Affidavit at 2-4.
42 U.S. Dep't of Energy, LBP-09-6, 69 NRC at 438.
43 Id. at 437.
44 See Andrew Siemaszko, CLI-06-16, 63 NRC 708, 716 (2006); Tenn. Valley Auth. (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1422 (1977).
12 vendors.45 NAC will thus be able to contribute in a unique and vital way to the record to support technical issues with the universal cask approach, and analysis of a key alternativekeeping casks and canisters aligned between vendors within a facility.
IV.
CONCLUSION NAC respectfully requests that its Petition be granted and that its contentions proposed herein be admitted for hearing.
Respectfully Submitted,
/S/ Signed (electronically) by Sachin Desai Sachin Desai Daniel F. Stenger Amy C. Roma Hogan Lovells US LLP 555 13th Street NW, Washington D.C. 20004 202-637-3671 Sachin.desai@hoganlovells.com Counsel for NAC International Inc.
Robert E. Helfrich, General Counsel NAC International Inc.
October 16, 2018 45 See Carver Affidavit at 6-7.
October 16, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY In the Matter of
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HOLTEC INTERNATIONAL
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Docket No. 72-1051 (HI-STORE Consolidated Interim Storage
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Facility for Interim Storage of Spent Nuclear Fuel)
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_______________________________________________ )
CERTIFICATE OF SERVICE I hereby certify that on October 16, 2018 copies of the above Reply in Support of Petition to Intervene and Request for a Hearing of NAC International Inc., has been served through the U.S. Nuclear Regulatory Commission E-Filing system on the participants of the above-captioned proceeding.
Respectfully Submitted,
/S/ Signed (electronically) by Sachin Desai Hogan Lovells US LLP 555 13th Street NW, Washington D.C. 20004 202-637-3671 Sachin.desai@hoganlovells.com Counsel for NAC International Inc.
October 16, 2018