ML18309A360
| ML18309A360 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 11/05/2018 |
| From: | Desai S, Helfrich R, Roma A, Stenger D Hogan Lovells, US, LLP, NAC International |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| HI-STORE Fuel Storage, RAS 54604, Holtec International | |
| Download: ML18309A360 (8) | |
Text
November 5, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOLTEC INTERNATIONAL
)
)
Docket No. 72-1051 (HI-STORE Consolidated Interim Storage
)
Facility for Interim Storage of Spent Nuclear Fuel)
)
_______________________________________________ )
NAC INTERNATIONALS ANSWER TO HOLTEC INTERNATIONALS OCTOBER 26, 2018 MOTION TO STRIKE I.
INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), NAC International Inc. (NAC) provides this answer to Holtec Internationals (Holtecs) October 26, 2018 motion to strike the first five pages of NACs October 16, 2018, reply filing (Motion to Strike the Reply).1 NAC agrees that petitioner replies in NRC adjudicatory proceedings generally must be tailored to address arguments presented in other parties answers.2 This is exactly what NAC did in its Reply. Thus Holtecs Motion to Strike should be denied as to NAC International.
II.
DISCUSSION NACs petition to intervene (the Petition)3 has always challenged Holtecs inappropriate promoting of its Consolidated Interim Storage Facility License Application (Application) as supporting a universal CISF license, as though the universal aspect of the CISF was already a fait accompli. Indeed, we make this clear from the first page of the Petition, where we state:
1 Holtec Internationals Motion to Strike Portions of Replies of Alliance for Environmental Strategies, Dont Waste Michigan et al., NAC International Inc., and Sierra Club (Oct. 26, 2018) (ADAMS Accession No. ML18299A316).
2 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).
3 Petition to Intervene and Request for Hearing of NAC International Inc. (Sept. 14, 2018) (ADAMS Accession No. ML18257A287).
2 Holtecs application states that Holtecs UMAX cask, which is the centerpiece of the HI-STORE CISF, has the ability to accommodate every canister[] type licensed under different 10CFR72 dockets and in use in the United States at this time.4 Our Petition further pointed out that Holtec asserted in its own Application transmittal letter that the CISF is designed, through use of the Holtec UMAX cask, to store the entire complement of canisters currently deployed at [Independent Spent Fuel Storage Installations (ISFSIs)] around the country.5 Indeed, our use of the word universal to describe the Applications impermissibly broad scope is not ours, but Holtecs. Our environmental contention centers on a statement from the heart of Holtecs Environmental Report (ER), which claims that Holtec's proprietary design is the only licensed technology with the universal capability to store all SNF from all commercial reactors.6 The Application must presume a universal CISF specific license is the product of this proceeding (authorizing assimilation of non-Holtec canisters in the HI-STORE CISF) to warrant directly declining evaluation of any other alternatives in the ER.
NAC is not trying to merely play word games using the term universal, but raises a substantive point regarding Holtecs loose use of the term in this proceeding. We acknowledge in the Petition itself that Holtec states at points in its Application that its NRC-approved UMAX Certificate of Compliance (CoC) incorporated by reference into the Application is currently limited to two types of Holtec canisters.7 But we are forced to raise our concerns at this point in the licensing process because these limiting statements are far from clear or sufficient considering Holtecs many other statements in the Application supporting a proposal for a 4 Id. at 1-2 (quoting HI-STORE Licensing Report (SAR), at 3 (May 25, 2018) (ADAMS Accession No. ML18254A413) (emphasis in original)).
5 Id. at 10 (quoting Holtec CISF License Application Submittal Letter (Mar. 30, 2017) (ADAMS Accession No. ML17115A418) (internal quotation marks omitted)).
6 Id. at 14 (quoting Holtec ER § 2.4.1 (ADAMS Accession No. ML18023A904)) (emphasis added).
7 See, e.g., id. at 16 (stating that Holtec is limiting the canisters acceptable for use in the CISF to only those approved in the UMAX CoC and that currently there are only the two canister types permitted in the UMAX CoC (citing to the Holtec CISF SAR Ch. 4)).
3 universal UMAX cask CoC and corresponding CISF specific license (which is a facility license).
These include the statements above and noted in our Petition, further interpreted in light of public statements such as those on Holtecs own website claiming that the HI-STORE CIS[F]
will accept a loaded Canister of any provenance [whether it be AREVA/Orano or NAC or others] - they all will be storable in the HI-STORE CIS[F].8 If the Holtec Application can be read to support a universal CISF concept in any way, then NAC is correct to contend that the Application lacks the requisite supporting safety analyses and information described in NACs safety contentions (Contentions 1 and 2).
It is from this vantage point that the Board must look at Holtecs and the NRC Staffs answers to NACs Petition. Both parties claim essentially that the Application never considered a universal CISF system. For example, the NRC Staff states that the Holtec license application currently does not include the potential use of NAC canisters,9 citing to essentially the same statements we noted in our Petition.10 We acknowledge this is a helpful admission11but must respond that given Holtecs improper assertions throughout the Application, neither Holtecs nor the NRC Staffs answers are clear or simple statements of law or fact. Their answers instead are new arguments or assertions on the scope of the Applicationtechnical ones at that as they purport to interpret an unclear and imprecise Applicationwhich we are entitled to respond to in our Reply.
8 See, e.g., id. at 2 n.2 (quoting the Holtec CISF website page). We quote to the same website in the Reply at footnote 14.
9 NRC Staff Answer at 13.
10 Holtec Answer at 16-18; NAC Petition at 16.
11 NAC Reply at 2. As stated in its Petition, NAC has been proactively trying to engage with the NRC staff on such statements in the CISF license application before filing its contentions. See NAC Petition at footnote 27 (citing, e.g.,
Letter by NAC to NRC (Aug. 10, 2017) (ADAMS Accession No. ML17226A036) (raising issues with claims made by Holtec in CISF application as to UMAX cask); NRC Letter to NAC (Oct. 17, 2017) (ADAMS Accession No. ML17269A013) (responding to NACs August 10, 2017 letter)).
4 Our Reply thus appropriately responded that these technical assertions from Holtec and the NRC Staff are inadequate answers to the Petition. The assertions do not resolve the vagueness in the Applications scope or delete the incorrect statements NAC cites to and challenges in the Application itself.12 The bell cannot be so easily unrung. How can Holtec and the NRC Staff claim that there is no potential use of NAC canisters in the Application, or the agency make its requisite safety findings reading the plain language of the Application, when the SAR claims that an essential element of the UMAX cask undergirding the entire CISF (the CoC of which is incorporated by reference into the CISF Application SAR13) has been engineered to store the entire complement of canisters currently deployed at ISFSIs around the country.14 Moreover, the ER claims that [t]he proposed Holtec HI-STORM UMAX Storage System at the CIS Facility would be capable of storing the SNF from all existing SNF storage systems.15 The NAC Reply continues the same logical line of discussion as our Petition, responding to the parties answers with no diversion.
The parties are simply engaging in a back and forth typical of litigation. NAC challenges a Holtec CISF Application that as a whole can be read as supporting a universal CISF license, and which at least contains many statements saying as much. Holtec and the NRC Staff answer that the Application does not support a universal CISF license and thus the Petitions safety contentions are out of scope. We respond that no, the Application does indeed contain important technical assertions supporting a universal CISF license, legitimately amplify[ying] the 12 See NAC Reply at 2-3. These statements are largely found in the Petition. See infra note 17.
13 NACs Petition discusses Holtecs incorporation by reference point at pages 16-17.
14 Supra note 5 (emphasis added). The same quote is restated in the NAC Reply at 2.
15 See NAC Reply at 2-3 (emphasis added) (also pointing out that if 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?).
5 arguments made in the Petition.16 Nowhere does this rather narrowly focused discussion raise new arguments or replace the contentions.
To make clear, we are not trying to remedy the language of the safety contentions. To the extent the language of the Holtec CISF application supports in any way a universal CISF concept, it does so lacking the requisite safety analyses and technical content described in Contentions 1 and 2 to justify such claims. And we do not raise any new information. Our Reply cites entirely to the same documents raised in the Petition (particularly the Application itself), if not restating almost all the same exact sentences.17 NAC did not insert any entirely new information in the Reply, nor modify its affidavit, but simply responded to factual assertions raised in the answers.18 Taking a step back, NACs warning in its Reply is particularly apt when looking at Holtecs Motion to Strike.19 It was Holtec which filed an Application stating throughoutfrom the transmittal letter to the SAR to the ER to its own websitethat it was for a universal CISF designed to store the entire complement of canisters currently deployed at ISFSIs around the 16 N. States Power Co. (Formerly Nuclear Mgmt. Co., LLC) (Prairie Island Nuclear Generating Plant, Units 1 & 2),
LBP-08-26, 68 NRC 905, 919 (2008). A licensing board has further explained that new statements [that] are within the scope of the initial contention and directly flow from and are focused on the issues and arguments raised in the Answers are permissible. Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (ADAMS Accession No. ML111870344).
17 For example, three of the five sentences from the Holtec Application and transmittal letter, provided in bullets in the NAC Reply on page 2, are all stated in the Petition (at pages 1-2, 10, and 14). The remaining sentences come from nearby parts of the same documents.
18 Holtec did not assert in its Motion to Strike that NAC inserted new information in its Reply. See Holtec Motion to Strike at 9-10. Nonetheless, as Holtec notes, the NRCs regulations prohibit the citing of new documents in the Reply, which we have not done here. Holtec Motion to Strike at 4. Different sentences from the same documents already presented in the Petition, which simply amplify points already presented in the Petition, do not constitute impermissible entirely new information. See supra note 16; Exelon Generation Co., LLC (Limerick Generating Station, Units 1 & 2), LBP-12-8, 75 NRC 539, 570 (2012).
19 NAC Reply at 4-5 (explaining that the Commission must be wary of contradictory statements from license applicants that can mischaracterize the scope of license applications or other regulatory filings).
6 country.20 NAC had no choice but to file contentions now to challenge such bald assertions, which were not inserted accidentally.21 Now Holtec finds itself in a bind. It faces the consequences of trying to have its cake (an Application with statements throughout supporting a universal CISF cask and system concept) and eat it too (a narrowly limited proceeding that denies review of those same statements and their implications if left within the licensing basis). Unfortunately, instead of taking the appropriate path and simply remedying its own clearly inaccurate statements in the Application, Holtec has decided instead to try to, in effect, double down on its assertions and broadly strike an entire portion of NACs Reply while continuing to claim a universal CISF in the Application and public domain. The Board should consider why Holtec is taking this approach.
And if Holtec will not clean up the Application and clarify its scope directly therein, the Board must permit a hearing on NACs safety contentionsto fully air whether the CISF Application as written provides adequate support for the universal CISF concept it claims, and to redress any findings from that hearing with appropriate license conditions or other relevant actions.
20 NAC Petition at 2 n.2, 10; NAC Reply at 2.
21 As presented in its Petition, NAC has been voicing its concerns with Holtecs claims about its unclear advertising of a universal spent fuel storage capability for some time. See Petition at footnote 27.
7 III.
CONCLUSION For the above-stated reasons, Holtecs Motion to Strike pertaining to NACs Reply should be denied.
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.
November 5, 2018
November 5, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOLTEC INTERNATIONAL
)
)
Docket No. 72-1051 (HI-STORE Consolidated Interim Storage
)
Facility for Interim Storage of Spent Nuclear Fuel)
)
_______________________________________________ )
CERTIFICATE OF SERVICE I hereby certify that on November 5, 2018 copies of the above NAC Internationals Answer to Holtec Internationals October 26, 2018 Motion to Strike, have 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.
November 5, 2018