ML18317A411

Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club

ML18317A411
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/13/2018
From:	Taylor W Law Offices of Wallace L. Taylor, Sierra Club
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
Pending, RAS 54620, WCS CISF 72-1050-ISFSI
Download: ML18317A411 (98)

Text

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC )

)

(Consolidated Interim Storage ) November 13, 2018 Facility Project) )

PETITION TO INTERVENE AND REQUEST FOR ADJUDICATORY HEARING BY SIERRA CLUB INTRODUCTION Interim Storage Partners LLC (ISP) proposes to construct a consolidated interim storage (CIS) facility in Andrews County, Texas. Pursuant to 10 C.F.R. Part 72, ISP has applied to the Nuclear Regulatory Commission (NRC) for a license to construct and operate the facility. The facility would store highly radioactive spent nuclear fuel, high level waste and greater than Class C waste from nuclear reactors around the country. The nuclear waste would be stored in metal canisters placed on concrete pads at the facility site.

Concurrently with the application for a license, ISP has submitted an environmental report (ER) and a safety analysis report (SAR). Radioactive waste would be transported to the CIS site by rail or truck from various reactor sites around the country. The transportation and 1

storage of the radioactive waste as proposed by ISP creates risks and adverse impacts that form a basis for denying the license to construct and operate the facility.

The storage and disposal of spent radioactive fuel from nuclear reactors is a problem that has no good solution.

Sierra Club believes that all reasonable alternatives must be evaluated given the desirability of avoiding unnecessary dangers and risks associated with CIS. As the United States Court of Appeals for the District of Columbia Circuit observed:

Even though it is no longer useful for nuclear power, SNF [spent nuclear fuel] poses a dangerous, long-term health and environmental risk. It will remain dangerous for time spans seemingly beyond human comprehension.

Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1258 (D.C. Cir. 2004)(per curiam). Determining how to dispose of the growing volume of SNF, which may reach 150,000 metric tons by the year 2050, is a serious problem.

New York v. NRC, 681 F.3d 471, 474 (D.C. Cir. 2012).

Compounding this problem is that, realistically, there is no assurance that a permanent repository for nuclear waste will ever be found. Therefore, an interim storage facility as proposed by ISP may very likely become a permanent repository, without the protections that would be required of a permanent repository.

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Based on the foregoing, Sierra Club requests that the NRC deny the license application submitted by ISP in this proceeding.

STANDING Pursuant to the Atomic Energy Act, the Commission must grant a hearing in a licensing proceeding 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. 42 U.S.C. § 2239(a)(1)(A). To support the request, a petitioner must provide the Commission with information regarding (1) the nature of the petitioners right under the governing statutes to be made a party; (2) the nature of the petitioners property, financial, or other interest in the proceeding; (3) the possible effect of any decision or order on the petitioners interest. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), 60 N.R.C. 548, 552 (2004)(citing 10 C.F.R. § 2.309(d)(1). The NRC generally uses judicial concepts of standing in interpreting this regulation. Entergy Nuclear Vermont Yankee, 60 N.R.C.

at 552. Thus, a petitioner may intervene if it can specify facts showing that (1) it has suffered or will suffer a distinct and palpable harm constituting injury-in-fact 3

within the zone of interests arguably protected by the governing statutes, (2) the injury is fairly traceable to the action being challenged, and (3) the injury will likely be redressed by a favorable determination. Id. at 552-553.

In determining whether a petitioner has met the requirements for establishing standing, the Commission construe[s] the petition in favor of the petitioner. Id. at 553.

Member organizations such as Sierra Club may intervene on behalf of their members if they can demonstrate that the licensing action will affect at least one of [their]

members,... identify that member by name and address, and

... show that [they are] authorized by that member to request a hearing on his or her behalf. In cases involving reactors, members of an organization who live within 50 miles of the reactor have presumptive standing. Although the 50-mile presumption does not necessarily apply to non-reactor cases, a proximity presumption for non-reactor sites does extend to those areas where the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences. Georgia Inst.

of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12, 42 NRC 11, 116-117 (1995). The appropriate distance for proximity standing is decided on a case-by-case 4

basis taking into account the nature of the proposed action and the significance of the radioactive source.

The decision in Shaw Areva MOX Services, LBP-07-14 (2007) is instructive. That case involved a license application for a mixed oxide fuel fabrication facility in South Carolina. The petitioners in that case submitted affidavits from members whose residences were within 20-32 miles from the facility site. The licensing board decision noted that the NRC Staff included residents as far away as 50 miles from the facility in its calculation of potential population doses. The Shaw decision also suggests that a significant proximity radius is justified in cases involving large amounts of spent nuclear fuel, citing Carolina Power &

Light Co. (Shearon Harris Nuclear Power Plant), LBP-99-25, 50 NRC 25 (1999).

In addition, in Pac. Gas & Electric Co. (Diablo Canyon ISFSI), 56 N.R.C. 413 (2002), the ASLB granted standing based on residents living 17 miles from the ISFSI. And in Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (D.C.

Cir. 2004), the Court of Appeals found standing for persons living 18 miles from the proposed Yucca Mountain repository.

Both of these decisions were based on proximity alone.

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Further support for the declarants standing in this case is provided by the Final 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, Volume I, found at www.energy.gov/nepa/

downloads/eis-0250-final-environmental-impact-statement. In that document, 3.1.8, the Department of Energy states that the region of influence for public health and safety is 80 km, or 50 miles. So the health and safety of anyone living within 50 miles of the repository site was at risk. That same assumption applies in this case. And an unprotected storage facility without the protections of a geologic repository should have at least the same presumption of risk within 50 miles.

Likewise, the GEIS for the Continued Storage Rule, NUREG-2157, uses a 50-mile radius to evaluate the cumulative impacts of waste storage. For example, at page 6 6-56:

The geographic area considered in the cumulative accident risk assessment is an 80-km (50-mi) radius from an at-reactor or away-from-reactor storage facility. The cumulative analysis considers risk from potential accidents from other nuclear plants or storage facilities that have the potential to increase risks at any location within 80 km (50 mi) of the shutdown reactor or storage facility.

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The declarations of Rose Gardner, Shirley Henson, Gordon Dyer, Deanna Dyer, and Danielle Dyer, are hereto attached to establish standing for Sierra Club in this proceeding. The declarants live in Lea County, New Mexico.

The ER (Rev. 2) submitted by ISP includes Lea County in the Region of Influence (ROI) when describing the CIS project.

ER, 2-68; Fig. 2.2-1. The radius of the Region of Influence is given as 30 miles. Therefore, any Sierra Club member who is a resident of those counties within 30 miles of the ISP site would have sufficient proximity to the CIS site to confer standing. In fact, Rose Gardner and Shirley Henson live only six miles from the site, and all five declarants live in cities through which the radioactive waste will be transported by rail. Finally, as noted in the Shaw decision, the quantity of radioactive waste is significant. Here, the ultimate plan to store 40,000 tons of radioactive waste is unprecedented. The enormous quantity of radioactive waste proposed to be stored at the ISP facility, by itself, establishes a sufficiently obvious potential for offsite harm, establishing a proximity presumption. Pac. Gas & Elec.

Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation, 56 N.R.C. 413, 427 (2002).

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Sierra Club members have also established standing based on anticipated injuries from transportation of radioactive waste to the ISP facility. This is not standing based just on proximity, but based on facts showing injuries caused by licensing the ISP CIS facility. See, Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 54 N.R.C. 403 (2001); U.S. Dept. of Energy (High-Level Waste Repository), 69 N.R.C. 367 (2009)(the threat posed by transportation of radioactive waste is an injury that is real and concrete.).

The U.S. Supreme Court decision in Massachusetts v.

EPA, 549 U.S. 497, 127 S.Ct. 1438 (2007), presents a further perspective on standing that is relevant here. In Massachusetts the plaintiffs challenged the EPAs failure to address climate change through the Clean Air Act. In finding that the plaintiffs had standing, the court first quoted from Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691 (1962),

that the basis of standing is whether plaintiffs have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination. In Massachusetts the court noted that a party to whom the legislature has granted a 8

procedural right to protect its concrete interests, such as the right to challenge agency action, has standing without meeting all the normal standards for redressability and immediacy.

Three principles are involved in establishing standing based on procedural rights. First, as explained in Massachusetts, Congress can create procedural rights that define injuries and causation and confer standing. In this case, the AEA provides that the Commission must grant a hearing in a licensing proceeding 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.

42 U.S.C. § 2239(a)(1)(A).

Second, pursuant to NEPA, Congress has presumptively determined that the failure to comply with [NEPA] has detrimental consequences for the environment. Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 347 (6th Cir. 2006).

Third, the injury, causation, and redressability requirements are mainly to prevent a court from rendering an advisory opinion, from depriving injured parties from getting their day in court, and from improperly assuming legislative or executive powers. Valley Forge Christian 9

Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752 (1982).

With respect to NEPA cases, the United States Court of Appeals for the Eighth Circuit, in Sierra Club v. Corps of Engineers, 446 F.3d 808 (8th Cir. 2006), explained that the injury-in-fact was not the consequences of the proposed federal action, but rather the increased risk of environmental harm stemming from the agencys allegedly uninformed decision-making.

Based on the foregoing, Sierra Club has established standing in this case.

LEGAL STANDARDS GOVERNING LICENSE APPLICATIONS Consideration of the license application in this proceeding is purportedly governed by 10 C.F.R. Part 72. The application must also comply with the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101 et seq. The problem is that neither Part 72 nor the NWPA authorize a CIS as proposed by ISP. The NWPA authorizes either an independent spent fuel storage installation (ISFSI) only at a reactor site, 42 U.S.C. § 10152, or a monitored retrievable storage facility operated by the Department of Energy (DOE), 42 U.S.C. § 10161.

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10 C.F.R. Part 72 defines an ISFSI as a complex designed and constructed for the interim storage of spent fuel, either at the reactor site or at the site of another facility. So, even if that definition could be stretched to include a CIS as proposed by ISP, it would be contrary to the limits of the authorization set forth in the NWPA. Part 72 defines a monitored retrievable storage (MRS) installation as a complex designed, constructed and operated by DOE. Therefore, the CIS proposed by ISP could not be an MRS facility.

Assuming for the sake of commenting on the ISP application that Part 72 applies in this case, § 72.30 requires an applicant for a license to build and operate an ISFSI to provide reasonable assurance that funds will be available to decommission the ISFSI. The application must also be accompanied by an environmental report that complies with 10 C.F.R. Part 51.

STANDARD FOR ADMISSIBILITY OF CONTENTIONS Pursuant to 10 C.F.R. § 2.309(f), a petitioners contentions must: (1) provide a specific statement of the issue of law or fact to be raised or controverted; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised in the contention is 11

within the scope of the proceeding; (4) 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; (5) provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with reference to specific sources and documents on which the petitioner intends to rely; (6) provide sufficient information to show that a genuine dispute exists with the licensee on a material issue of law or fact.

The NRC has made clear that the burden on a petitioner in stating its contentions is not heavy. In Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349, the NRC described the contention admissibility standards as insist[ing] upon some reasonably specific factual and legal basis for the contention. Id., 54 349,359. The NRC further explained in Millstone that the standards for contention admissibility were meant to prevent contentions based on little more than speculation and intervenors who had negligible knowledge of nuclear power issues and, in fact, no direct case to present. Id. at 358. Rather, petitioners are required only 12

to articulate at the outset the specific issues they wish to litigate. Id. at 359.

The NRC and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner.

The petitioner only needs to com[e] forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The NRC described the threshold burden in stating a contention as requiring a petitioner to raise any specific, germane, substantial, and material factual issues that are relevant to the... request for a license...

and that create a basis for calling on the [licensee] to satisfy the ultimate burden of proof. Id.

Courts have found, however, that this threshold burden may not be appropriate where the information was in the hands of the licensee or NRC staff and was not made available to the petitioner. See, e.g., York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975)

(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the burden of going forward on petitioners appears inappropriate.). Also, in Vermont 13

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978), the United States Supreme Court affirmed the NRC in finding that the proper standard to apply required intervenors to simply make a showing sufficient to require reasonable minds to inquire further, a burden the NRC found to be significantly less than that of making a prima facie case.

The ASLB in the Yucca Mountain case observed:

The Commission therefore amended its rules to require that contentions have at least some minimal factual and legal foundation in support. That is all. That is what DOE agreed at oral argument is the standard. As the Commission emphasized in Oconee, the contention requirements were never intended to be turned into a fortress to deny intervention.

U.S. Dept. of Energy (High Level Waste Repository, LBP-09-06 (May 11, 2009).

PETITIONERS CONTENTIONS AND SUPPORTING INFORMATION CONTENTION 1 The NRC has no authority to license the ISP CIS facility under the NWPA nor the AEA. ISP 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 CIS facility.

Basis for Contention The application submitted by ISP assumes that the Department of Energy (DOE) will take ownership of the spent fuel to be stored at the ISP site. License Application at 14

1.1, 1.6.1-1.6.3, 1.7.1. Earlier revisions of the application submitted for this project, filed by Waste Control Specialists (WCS) stated that WCS did not intend to build or operate the CIS facility unless and until the DOE takes ownership of the spent fuel. License Application (Rev. 1), p. 1-6. However, the NWPA does not provide for the DOE to take ownership of spent fuel in interim storage facilities. ISP has now used the phrase the U.S. Department of Energy or other holders of the title to SNF at commercial nuclear reactor facilities. ISP offers no comment, explanation or evidence as to why it now thinks other holders would be willing to retain title to the waste.

It strains credulity to believe that a nuclear plant owner would want to retain title to the waste. The point of a CIS facility is so the plant owner is relieved of responsibility for the waste. In fact, the purpose and need statement, ER, 1.1, states that the nuclear plant owners will be responsible for the expense of the waste stored at the reactor site unless the waste is removed to a CIS facility. Therefore, the purpose of the CIS facility is to relieve the nuclear plant owners from that responsibility.

The intent for DOE, and not the plant owners, to take title was clearly stated in a report of a meeting between 15

WCS and the NRC on June 16, 2015, to discuss the approach WCS would take in preparing the ER and SAR (Accession No. ML15182A322). In that meeting WCS said that DOE would take possession of the fuel at the originating storage site and would retain possession of the fuel after it reached the CIS facility. WCS added that it did not intend to move forward with the project if DOE would not take possession of the fuel. There was no mention, nor even a hint, in that meeting report that the nuclear plant owners might retain title to the waste It is obvious that ISP realized after submitting the earlier version of the application that intervenors would contend that DOE has no legal authority to take title to waste in an interim storage facility. A letter to the NRC from Diane Curran, counsel for Beyond Nuclear, was sent on October 27, 2016 (Accession No. ML16321A372). In that letter, Ms. Curran made it clear that DOE could not legally take title to the waste, as further explained in Beyond Nuclears Motion to Dismiss in this docket. Recognizing that fact, ISP now seeks to cloud the issue by claiming that perhaps the nuclear plant owners will retain title, rather than DOE.

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As a practical matter, therefore, ISP intends for DOE to take title to the waste. Because the intent is for DOE to take title to the waste, the NWPA, not the AEA, controls the NRCs authority to license the proposed CIS facility.

However, the NWPA does not provide for the DOE to take ownership of spent fuel in interim storage facilities.

In fact, the NWPA does not even contemplate an interim storage facility away from the reactor site. 42 U.S.C. § 10151, setting forth the findings and purposes of interim storage, repeatedly refers to storage at the reactor site.

The application does not describe what the agreement with DOE would entail, so it is impossible for Sierra Club, other intervenors, and the public to know to what extent the arrangement will be in violation of the NWPA. It will require intervention and discovery to obtain this information. In fact, the NRC should require that this information be provided.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The NWPA governs the disposal of nuclear waste. Section 111 of the NWPA, 42 U.S.C. § 10131(a)(5), specifically states that the federal government will not take ownership 17

of spent fuel until it is received at a permanent repository. That section says:

The generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the provisions of this Act.

Furthermore, Section 123 of the NWPA, 42 U.S.C. § 10143, provides that [d]elivery, and acceptance by the Secretary

[of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository... shall constitute a transfer to the Secretary of title to such waste or spent fuel. (emphasis added). Also, Section 202 of the NWPA, 42 U.S.C. § 10222(a)(5)(A), requires DOE to take title to spent fuel only following commencement of operation of a repository.

A repository is defined in the NWPA as:

any system licensed by the Commission that is intended to be used for, or may be used for, the permanent deep geologic disposal of high-level radioactive waste and spent nuclear fuel, whether or not, such system is designed to permit the recovery, for a limited period during initial operation, of any materials placed in such system. Such term includes both surface and subsurface areas at which high-level radioactive waste and spent nuclear fuel handling activities are conducted.

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42 U.S.C. § 10101(18). It is clear, therefore, that an interim storage facility as ISP proposes is not a permanent repository and DOE cannot take ownership of the waste.

To further confirm that DOE ownership of the waste does not apply to a CIS as proposed by ISP, the NWPA repeatedly refers to interim storage of nuclear waste as storage at the reactor site. 42 U.S.C. § 10151 et seq. The only exception is that DOE can take not more than 1,900 tons of waste on an emergency basis if space is not available at a reactor. 42 U.S.C. § 10151(a)(3). Since the ISP proposal is to take an initial amount of 5,000 tons of waste and eventually to store 40,000 tons is clearly more than 1,900 tons, DOE cannot take title.

The NWPA also provides for what it calls monitored retrievable storage (MRS). 42 U.S.C. § 10161. It is clear from the language of that section that DOE would be the owner and operator of any MRS facility. That section also states that the generators and owners of the waste would be responsible for the costs of storage at the MRS facility.

The illegality of a CIS facility is further highlighted by the fact that a bill is currently being considered in Congress, H.R. 3053, to amend the NWPA to make CIS legal. If CIS were legal, there would be no need for this legislation.

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Therefore, the NWPA precludes development of the ISP CIS facility and the NRC should not issue a license.

Furthermore, because the ownership of the waste is a significant, or even dispositive, issue in this case, ISPs documentation in support of its application must discuss and analyze all of the issues in terms of both ownership scenarios, DOE or plant owners. If ISP intends for DOE to take title, that would take, as the saying goes, an Act of Congress. On the other hand, if ISP intends for the nuclear plant owners to retain title, the documentation must explain how that financing would occur. 10 C.F.R. § 72.22(e) requires the license application documents to show that the applicant either possesses the necessary funds, or that the applicant has reasonable assurance of obtaining the necessary funds or that by a combination of the two, the applicant will have the necessary funds. ISP has constructed a smokescreen as to whether DOE is expected to own the waste (which is illegal) or if the nuclear plant owners will own it (which is unlikely). The ISP license documentation must analyze both scenarios separately.

Nor does the AEA give the NRC authority to license an ISFI away from the site of a reactor. The licensing provisions of the AEA, 42 U.S.C. § 2133, states:

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The Commission is authorized to issue licenses to persons applying therefor to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import or export under the terms of an agreement for cooperation arranged pursuant to section 123, utilization or production facilities for industrial or commercial purposes.

This section clearly limits the NRCs licensing authority to utilization and production facilities.

42 U.S.C. § 2014 defines production facility as follows:

(1) any equipment or device determined by rule of the Commission to be capable of the production of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or (2) any important component part especially designed for such equipment or device as determined by the commission. Except with respect to the export of a uranium enrichment production facility, such term as used in Chapters 10 and 16 shall not include any equipment or device (or important component part especially designed for such equipment or device) capable of separating the isotopes of uranium or enriching uranium in the isotope 235.

The definition of utilization facility, pursuant to § 2014, is:

(1) any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or (2) any important component part especially 21

designed for such equipment or device as determined by the Commission.

Obviously, neither of these definitions include a nuclear waste storage facility. Therefore, the AEA provides no authority for the NRC to license the ISP project.

Nor does the decision of the Court of Appeals in Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004), address the specific issue in this case. In Bullcreek the State of Utah was opposing the decision of the NRC to license a storage facility for nuclear waste in Utah. Utah argued that the NWPA superseded the NRCs alleged authority to license a storage facility away from a reactor site. Utah assumed that the NRC had the authority under the AEA to license an away-from-reactor storage facility. Utahs position was that, even assuming the NRCs licensing authority under the AEA, the NWPA superseded that assumed authority.

The court in Bullcreek accepted Utahs assumption of licensing authority under the AEA and held that the NWPA did not supersede that alleged authority. The Bullcreek court acknowledged that the AEA does not specifically refer to the storage or disposal of spent nuclear fuel.... Id.

at 538. But the court then made a passing reference to the decision in Pac. Gas & Elec. Co. v. State Energy Res.

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Conservation & Dev. Commn, 461 U.S. 190, 103 S.Ct. 1713 (1983). The NRCs authority to license storage facilities was not the issue in Pac. Gas. In dicta, the court commented that the NRC had authority, vis a vis the states, over certain aspects of nuclear energy. The court specifically cited 42 U.S.C. §§ 2014(e), (z), (aa); 2061-64; 2071-78; 2091-99; and 2111-14. None of those statutes, however, pertain to the storage of spent nuclear fuel.

So, there is no clear legal precedent that the NRC has authority to license an away-from-reactor storage facility.

To the extent that 10 C.F.R. Part 72 purports to exercise NRC licensing authority, Sierra Club is not challenging the rule. Sierra Club is challenging the NRCs jurisdiction to license an away-from-reactor nuclear waste storage facility. So this contention does not violate 10 C.F.R. § 2.335.

CONTENTION 2 The ISP 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.

Basis for the Contention 23

An environmental report (ER) supporting a license application must contain a statement of the purposes of the proposed action. 10 C.F.R. § 51.45(b). In its statement of purpose and need, ISP contends that the CIS proposed by ISP would be safer and more secure than storing the waste at a reactor site. ER 1.1. However, the ER provides absolutely no data or evidence to support that statement of enhanced safety. The NRC cannot blindly accept the unsupported statements of the license applicant.

NRC Guidance, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs, NUREG-1748 (Accession No. ML032450279), states:

The applicant/licensee should explain why the proposed action is needed. This section of the ER 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.

Id. at § 6.1.1.

The statement in the ER that simply makes a conclusory statement that storage at the ISP site would be safer than storage at the reactor site does not comply with the NRC guidance quoted above.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention 24

The purpose and need statement under the National Environmental Policy Act (NEPA) is important because the purpose and need statement necessarily dictates the range of reasonable alternatives. Carmel-by-the-Sea v. U.S.

Dept. of Transp., 123 F.3d 1142 (9th Cir. 1997). The definition of purpose and need must be reasonable. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir.

1991). There is no way to know if the statement of purpose and need is reasonable unless it is supported by data and evidence.

Furthermore, the agency must not accept out of hand the applicants statement of purpose and need. In ELPC v. NRC, 470 F.3d 676, 683 (7th Cir. 2006), quoting Simmons v. Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997), the court said:

We have held that blindly adopting the applicants goals is a losing proposition because it does not allow for the full consideration of alternatives required by NEPA. NEPA requires an agency to exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project and to look at the general goal of the project rather than only those alternatives by which a particular applicant can reach its own specific goals.

And as the court said in Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991):

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[A]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agencys power would accomplish the goals of the agencys action, and the EIS would become a foreordained formality.... Nor may an agency frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish those goals and the project would collapse under the weight of the possibilities.

In fact, the ER does not even describe a need for a CIS facility. The ER, 2.1, merely expresses the desire or preference for reactor owners and operators to remove the waste to an off-site storage facility. For example, the ER, 2.1, states that many policymakers and stakeholders in the communities that host shutdown reactors want to have SNF removed to complete decommissioning of the site and to allow for more beneficial uses of the land. (emphasis added).

Referring back to NRC Guidance, NUREG-1748, cited above, the purpose and need statement must describe a need and cannot be merely... a justification of the proposed action.

Furthermore, as Dr. Gordon Thompson states in his declaration, p. 15-16, hereto attached:

In discussing the alleged need for the proposed WCS facility, the WCS Environmental Report says:

At present, 3 [nuclear] power plants have been shut down and 9 nuclear power plants across the U.S. have been decommissioned (referred to henceforth as 12 decommissioned shutdown sites) to levels that would allow for unrestricted release 26

of the site in accordance with the NRCs License Termination Rule (10 CFR 20, Subpart E). Even though the nuclear power plants, including the spent fuel pools, have been dismantled and decommissioned, the SNF remains and continues to be stored in onsite ISFSIs. Many 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.

While decommissioning activities have been completed at 9 locations across the U.S. (except for removing the SNF from dry cask storage), other financial pressures are expected to cause utilities to begin decommissioning at other commercial nuclear reactors. A CISF [consolidated interim storage facility] is needed to ensure that the SNF at these commercial reactor sites can be safely removed so that the remaining lands can be returned to greenfield status. This point is further underscored with the announcement by other electric utilities of their plans to decommission additional commercial reactors located throughout the U.S.

The above-quoted statement does not identify any urgency or compelling need to establish the proposed WCS facility. Instead, it argues that establishment of the facility would allow land occupied by some at-reactor ISFSIs to be reallocated to more beneficial uses.

In order to properly evaluate the safety of on-site storage, the ER and subsequent EIS must examine the relative safety of hardened on-site storage (HOSS) at reactor sites in order to substantiate the purpose and need for the ISP project. HOSS has been described as follows:

An array of vertical-axis dry-storage modules at a center-to-center spacing of perhaps 25 meters. Each 27

module would be on a concrete pad slightly above ground level, and would be surrounded by a concentric tube surmounted by a cap, both being made of steel and concrete. This tube would be backed up by a conical mound made of earth, gravel and rocks. Further structural support would be provided by triangular panels within the mound, buttressing the tube. The various structural components would be tied together with steel rods. Air channels would be provided, to allow cooling of the dry-storage module. These channels would be inclined, to prevent pooling of jet fuel, and would be configured to preclude line-of-sight access to the dry-storage module.

Dr. Gordon Thompson, Robust Storage of Spent Nuclear Fuel: A Neglected Issue of Homeland Security (2003), found at web.archive.org/web/20121020155722/http://www.nirs.org/react orwatch/security/sechossrpt012003.pdf, p. 64. Dr. Thompsons report documents the benefits of HOSS.

In addition, Dr. Thompson explains why an away-from-reactor storage site would be less safe that on-site storage:

However, three factors affect the overall risk of interim storage. First, shipment to an away-from-reactor ISFSI would increase the overall transport risk, because fuel would be shipped twice, first from the reactor site to the ISFSI, and then from the ISFSI to the ultimate repository. Second, an away-from reactor ISFSI would hold a comparatively large inventory of spent fuel, creating a potentially attractive target for an enemy. Third, there is a risk that a large, away-from-reactor ISFSI would become, by default, a permanent repository, despite having no long-term containment capability. These three factors must be considered in minimizing the overall risk of interim storage.

28

Id. at p. 59.

In addition, Dr. Thompsons declaration, p. 16, hereto attached, emphasizes that there is no evidence that a CIS facility is safer and more secure than on-site storage.

At this point, until an environmental impact statement (EIS) is prepared by the NRC, the statement of purpose and need in the ER is inadequate.

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 ISP project.

Basis for the Contention The Continued Storage Rule, 10 C.F.R. § 51.23, incorporates the findings contained in an EIS, NUREG-2157 (Accession No. ML14196A105). In NUREG-2157, the NRC concluded that the environmental impacts of storage of spent fuels at the reactor site for an indefinite period of time were almost uniformly small. If radioactive spent fuel can be stored at a reactor site as concluded by the NRC in NUREG-2157, there is no need to risk the transportation and storage of the waste at a CIS site as proposed by ISP.

29

Therefore, ISP, contrary to NEPA, has not established a purpose and need for the CIS project.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention As discussed in the previous contention, ISP alleges that storage of radioactive waste is safer and more secure at a CIS than at a reactor site. ER 1.1. However, the NRCs Continued Storage Rule, 10 C.F.R. § 51.23, incorporates an EIS, NUREG-2157, that concluded that storage at a reactor site for an indefinite period would generally result in only small environmental impacts. NUREG-2157, p. 4 4-98.

Clearly, if spent fuel can be safely stored at the reactor site indefinitely, there is no purpose and need for the CIS proposed by ISP. Moreover, there are increased risks from the CIS facility due to the risks of transporting the waste to the CIS site and the increased risk of so much waste being stored in one place. By making the unsupported statement that the CIS is safer and more secure than on site storage, when the Continued Storage Rule determined that on site storage was safe, the purpose and need statement unjustifiably prejudices the choice of alternatives.

The NRC has previously concluded, in NUREG-2157, that on-site storage is safe. NUREG-2157, 4.20, states:

30

The impact determinations for at-reactor storage for each resource area for each timeframe are summarized in Table 4-2. For most of the resource areas, the impact determinations for all three timeframes are SMALL.

Continued storage is not expected to adversely affect special species and habitats. For accidents (design basis and severe) and terrorism considerations, the environmental risks of continued storage are SMALL.

However, for a few resource areas, impact determinations are greater than SMALL and varied for the three timeframes. For the long-term storage and indefinite storage timeframes, during which ground-disturbing activities may occur, impacts on historic and cultural resources range from SMALL to LARGE. The impacts from management and disposal of nonradioactive waste would be SMALL for both the short-term and long-term timeframes but SMALL to MODERATE for indefinite storage.

In addition, all of the statements and facts in support of Contention 2 are incorporated in support of this Contention.

Therefore, according to the NRC in its Continued Storage Rule, there is no benefit from or need for a CIS as proposed by ISP.

CONTENTION 4 Operation of the CIS site as proposed by ISP 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.

Basis for the Contention 10 C.F.R. § 72.108 states that a nuclear waste storage facility must be evaluated with respect to the potential 31

impact on the environment of the transportation of the radioactive waste. The containers destined for the ISP CIS facility will be transported from various reactors around the country to the ISP site. There is a risk of radiation being emitted from the containers during shipment. The ER must address the environmental impacts of these risks. The ER, as submitted, does not adequately address the risks and consequences of a transportation accident and sabotage event.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention In November 2010, the American Public Health Association (APHA) called spent fuel transportation a national public health threat that is largely preventable.

American Public Health Association, Intrastate and Interstate Transportation of Spent Nuclear Fuel is a Public Health

Risk, November 9,

2010, found at www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/09/08/12/intrastate-and-interstate-transportation-of-spent-nuclear-fuel-is-a-public-health-risk. APHA advocated for long-term fuel storage at reactors until a permanent repository is developed. In reviewing the APHA report, Amy Hagopian, a professor of 32

global health at the University of Washington said, The potential hazards and risks are huge, so minimizing transport makes sense. It just takes one accident, and then everyone will be pointing fingers and asking how we got to this point. Jennifer Weeks, Managing Nuclear Waste, CQ Researcher, January 28,

2011, found at library.cqpress.com/cqresearcher/document.php?

id=cqresrre2011012800.

A report by Marvin Resnikoff, and Matthew Lamb identified the consequences of a severe rail accident involving shipments of radioactive waste. Marvin Resnikoff and Matthew Lamb, Worst Case Credible Nuclear Transportation Accidents: Analysis for Urban and Rural Nevada (2001), found at www.state.nv.us/nucwaste/trans/rwma0108.pdf. Employing DOEs RADTRAN 5 software developed by Sandia Labs, the study examined DOEs accident analysis for the State of Nevada, as set forth in the report. That report used the results of NUREG/CR-6672, commonly called the Modal Study. It examined Category 6 accidents, using DOEs RADTRAN 5. That analysis disagreed with one aspect of DOEs analysis, the vaporization of Cs-137 found in the cladding gap. DOEs estimates of Cs-137 volatilized was based on 1978 reports by Lorenz. Lorenz et al., Fission Product Source Terms for the 33

Light Water Reactor Loss-of-Coolant Accident, 46 Nuclear Technology 404 (1979),

found at www.osti.gov/servlets/purl/6494228.

Resnikoff et al. used a more recent study, Gray and Wilson, Spent Fuel Dissolution Studies, FY 1994, Pacific Northwest Laboratories (1995),

found at www.osti.gov/servlets/purl/205055. When fuel is heated in reactors, a percentage of volatile radionuclides, such as cesium, will migrate out of the fuel matrix under the influence of temperature gradients and concentrate in the fuel-clad gap. Resnikoff et al. concluded that the studies by Lorenz were not representative of spent fuel.

From the Nevada report the consequences of a transportation accident are shown in Table 1 and Table 2 below.

Table 1 Table ES-1: Comparison of State of Nevada and Yucca Mountain EIS Consequence Assessments : Urban Accidents Urban Truck Accident Urban Rail Accident State of

Nevada, Cat.5a State of

Nevada, Cat.6a YM

DEIS, Cat. 5a YM

DEIS, Cat. 6a State of

Nevada, Cat.5a State of

Nevada, Cat.6a YM

DEIS, Cat. 5a YM DEIS, Cat. 6a Acute (24-hour)

Populat ion Dose (person

-rem)b 846 not calcula ted not calcula ted not calcula ted 26,171 not calcula ted not calcula ted not calculat ed Expecte 0.42-not not not 13-444 not not not 34

d Latent Cancer Fatalit iesc 2.7 calcula ted calcula ted calcula ted calcula ted calcula ted calculat ed 1-year Populat ion Dose (person

-rem)b 29,514 not calcula ted not calcula ted 9,400 915,968 not calcula ted not calcula ted 61,000 Expecte d

Latent Cancer Fatalit iesc 15-94 not calcula ted not calcula ted 5

458-2,931 not calcula ted not calcula ted 31 50-year Populat ion Dose (person

-rem)b 407,024 not calcula ted not calcula ted not calcula ted 12,771, 207 not calcula ted not calcula ted not calculat ed Expecte d

Latent Cancer Fatalit iesc 204-1,306 not calcula ted not calcula ted not calcula ted 6,386-40,868 not calcula ted not calcula ted not calculat ed Dose to Maximal ly Exposed Individ ual (rem)d 3.9 38.5 not calcula ted 4

22.5 224 not calcula ted 26 Area contami nated to greater than 5 rem long-term dose (km2) 11.1 192.2 not calcula ted not calcula ted 104.7 1208.4 not calcula ted not calculat ed Table 2 Table ES-2: Comparison of State of Nevada and Yucca Mountain EIS Consequence Assessments: Rural Accidents 35

Rural Truck Accident Rural Rail Accident State of

Nevada, Cat.5a State of

Nevada, Cat.6a YM

DEIS, Cat. 5a YM

DEIS, Cat. 6a State of

Nevada, Cat.5a State of

Nevada, Cat.6a YM

DEIS, Cat. 5a YM DEIS, Cat. 6a Acute (24-hour)

Populat ion Dose (person

-rem)b 799 not calcula ted not calcula ted not calcula ted 393 not calcula ted not calcula ted not calculat ed Expecte d

Latent Cancer Fatalit iesc 0.4-2.6 not calcula ted not calcula ted not calcula ted 0.2-1.3 not calcula ted not calcula ted not calculat ed 1-year Populat ion Dose (person

-rem)b 27,886 not calcula ted not calcula ted 430 13,760 not calcula ted not calcula ted not calculat ed Expecte d

Latent Cancer Fatalit iesc 14-89 not calcula ted not calcula ted 0.2 7-44 not calcula ted not calcula ted not calculat ed 50-year Populat ion Dose (person

-rem)b 388,326 not calcula ted not calcula ted not calcula ted 191,859 not calcula ted not calcula ted not calculat ed Expecte d

Latent Cancer Fatalit iesc 194-1,243 not calcula ted not calcula ted not calcula ted 96-614 not calcula ted not calcula ted not calculat ed Dose to Maximal ly Exposed Individ ual (rem)d 1.73 17.1 not calcula ted 3.9 26.9 267 not calcula ted not calculat ed Area contami nated to greater than 5 rem long-3.4 33.1 not calcula ted not calcula ted 118.6 1202 not calcula ted not calculat ed 36

term dose (km2)

Resnikoff et al. used the above data and calculated the cost of decontamination after a spent fuel transportation accident in Las Vegas, shown on Table 3.

Table 3 Table 23: Decontamination Cost Estimates: Severe Spent Fuel Accidents in Las Vegas Category 5 truck accident Category 6 truck accident Category 5 rail accident Category 6 rail accident Area heavily contaminate d (km2) 0.68 10.6 5.7 102.8 Area moderately contaminate d (km2) 0.8 15.1 8.1 135.1 Area lightly contaminate d (km2) 9.7 166.5 90.9 970.5 Cost/km2, heavy contaminati on*

$394,604,74 8

$394,604,74 8

$394,604,74 8

$394,604,748 Cost/km2, moderate contaminati on*

$182,592,16 5

$182,592,16 5

$182,592,16 5

$182,592,165 Cost/km2, light contaminati

$128,263,60 9

$128,263,60 9

$128,263,60 9

$128,263,609 37

on*

Total Cleanup

Costs, Billions

$1.7 billion

$28.3 billion

$15.4 billion

$189.7 billion The cost estimates in Table 3 were calculated in 2001, and need to be updated for 2018 dollars. The dollar escalation from 2001 to 2018 is 369%. So the estimated total cleanup cost in Table 3 must be multiplied by 3.69.

For a Category 6 accident, the total cleanup cost would be

$189.7 billion X 3.69 = $700 billion.

According to Dr. Resnikoff, one of the authors of the above report, DOEs 2008 risk estimate does not incorporate recent information about rail fires and expanded traffic of oil tanker cars. This increased traffic of crude oil on rails has resulted in numerous derailments and fires. DOE and ISP risk estimates need to take into account this new reality. Transportation casks are required to withstand a half hour fire at 1475°F, but many rail fires have burned hotter for considerably longer time periods.

Revision 2 of the ISP CISF license application, which includes the environmental report, does not discuss the potential cleanup costs in a transportation accident. The ISP environmental report contains radiation doses (Table 4.2-9, Estimated Dose and Dose-Risk for Loss of Shielding 38

Accidents) but the doses are far smaller than those that appear in Table 1 above.

Probabilistic risk calculations must take into account the numerous long duration high temperature rail fires.

Rail fires that have occurred in the past 3 years are the following.

On July 6, 2013, an oil train wrecked in Lac-Megantic, Quebec, resulting in a fire that burned for over 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, killing 47 people and burning down half the town.

On November 8, 2013, an Alabama and Gulf Coast oil train derailed and exploded releasing about 750,000 gallons of oil from 26 rail cars.

On December 30, 2013, a BNSF Railway oil train collided with a derailed grain train near Castleton, North Dakota, igniting thousands of gallons of fuel and forcing the evacuation of more than 2,000 residents.

On January 7, 2014, a Canadian National oil train derailed and exploded near Plasterrock, New Brunswick, forcing the evacuation of 150 people.

On April 30, 2014, a CSX Transportation oil train derailed and exploded near downtown Lynchburg, Virginia, spilling nearly 30,000 gallons of oil into the James River.

On February 14, 2015, another Canadian National oil 39

train derailed in northern Ontario.

Less than two months later, yet another Canadian National oil train derailed and exploded on the same line just 23 miles away near Gogama, Ontario.

On February 16, 2015, a CSX oil train derailed along the Kanawha River, burning a nearby house to the ground.

On March 10, 2015, a BNSF oil train derailed near Galena, Illinois, sparking a fire that lasted for more than two days.

On May 6, 2015, a BNSF oil train derailed near Helmdel, North Dakota, spilling 60,000 gallons of oil.

On July 16, 2015, a BNSF oil train derailed near Culbertson, Montana, spilling 35,000 gallons of fuel.

On November 7, 2015, the derailment of a Canadian Pacific oil train forced the evacuation of dozens of homes in Watertown, Wisconsin.

On June 3, 2016, the Union Pacific oil train derailed and exploded in Mosier, Oregon, filling the scenic Columbia River Gorge with thick black smoke.

Based on all of this experience, it is not hypothetical or speculative that there will be train wrecks involving fires during transportation of radioactive waste. Since lead melts at 330°C (626°F) and hydrocarbon fires burn at 40

1850°F and above, the lead in an MP-187 cask would vaporize in a long duration fire.

In the calculations above, rail casks were assumed to hold 24 PWR fuel assemblies, the same as the NUHOMS MP-187 cask. Resnikoff et al. also employed RADTRAN 5, and the report, NUREG/CR-6672, the same as in the ISP CISF application.

In addition to potential rail accidents involving long duration high temperature fires, the environmental report does not discuss the potential consequences of a sabotage event. In November 2008, Dr. Resnikoff analyzed the potential consequences of a sabotage event, Potential Consequences of a Successful Sabotage Attack on a Spent Fuel Shipping Container, prepared for the State of Nevada, Agency for Nuclear Projects. The ISP ER does not discuss potential sabotage events.

In discussing the radiological impacts of transportation of the radioactive waste to the proposed CIS, the ER at 4.2.6 relies on several NRC documents. One of those documents is the Final Environmental Impact Statement for ISFSI in Tooele County, Utah (NUREG-1714)(Accession No. ML020150217). However, the discussion of the impacts of a transportation accident is irrelevant to the transportation 41

of radioactive material to the ISP CIS. This is because the analysis in NUREG-1714 was based on the use of HI-STORM and HI-STAR cask systems manufactured by Holtec, rather than the NUHOMS and NAC systems that will be used for the ISP project. Based on the use of the Holtec systems, NUREG-1714, 2.1.2.1, assumes that the casks cant leak. There is nothing in the ISP documentation to justify such an assumption in this case.

Another document relied on by ISP regarding the transportation issues is the Spent Fuel Transportation Risk Assessment (NUREG-2125)(Accession No. ML14031A323). The analysis in that document is irrelevant to the transportation risks in this case because the casks chosen for analysis in NUREG-2125, Table 1-1, are not all of the casks that will be used in the ISP facility. ER, Table 1-1.

Specifically, from Table 1-1, the Advanced Standardized NUHOMS System, Standardized NUHOMS System, NAC-MPC, and MAGNASTOR casks will be used at the ISP facility, but were not involved in the NUREG-2125 analysis.

Another document relied on by ISP regarding the transportation issues is the Generic Environmental Impact Statement of Continued Storage of Spent Nuclear Fuel (NUREG-2157). However, there is no indication in NUREG-2157 as to 42

what type of cask system was being evaluated. As can be seen from the discussion above, the specific details of the cask system are important in evaluating the impacts of transporting radioactive waste to the ISP CIS facility.

Another reason ISP cannot rely on NUREG-2157 is that NUREG-2157 does not consider the impact of deteriorating railroad infrastructure on transportation risks. There were recently two train derailments in southeast New Mexico over the weekend of July 21 and 22, 2018. At least one of the derailments was caused by the track giving way.

Dr. Gordon Thompson, in his declaration, p. 18-19, hereto attached, describes the events and impacts that can occur during transport of the waste to the CIS facility. The likely events described by Dr. Thompson that are likely to occur during transport arise from accident, attack, or slow degradation. Dr. Thompson states that these events would result in radiation exposure to members of the public and radioactive contamination of the environment. The ER, 4.2.6, does not adequately address the likely transportation events and impacts discussed by Dr. Thompson.

Pursuant to 10 C.F.R. § 72.108, the ER must discuss the risks and costs of transportation of the radioactive waste to the ISP site.

43

CONTENTION 5 The ER states that waste would be stored at the CIS facility for 60-100 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 ISP facility becomes a de facto permanent repository.

Basis for the Contention The ER states that radioactive waste would be stored at the CIS facility for 60-100 years until a permanent repository is found. ER, 1.2. There is no assurance, however, that a permanent repository will ever be found.

That was the basis for the decision of the Court of Appeals in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). In that case, the court held that the NRC, in preparing an EIS for the storage of spent radioactive fuel, must address the alternative of a permanent repository never being developed.

That same analysis applies to this case. In other words, will the ISP CIS facility become a permanent repository without the protections of a permanent repository?

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The ISP facility is designated as an interim storage facility and is designed as such. It is not designed to be a permanent repository. The DOE, in a Record of Decision approving an EIS for the management of radioactive waste (46 44

FR 26677; May 14, 1981), concluded that a mined geologic repository was necessary to adequately contain the radioactive waste. Therefore, the above-ground, unprotected storage of the containers as proposed for the ISP facility would not satisfy the requirements for a permanent repository.

Pursuant to 10 C.F.R. § 51.45 an ER must discuss, inter alia, the impact of the proposed action and appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. Likewise, an agency must look at both the probabilities of potentially harmful events and the consequences if those events come to pass. New York v. NRC, 681 F.3d 471, 478 (D.C. Cir. 2012).

That requirement was the basis on which the court in New York v. NRC held that the agency had to consider the possibility that a permanent repository would never be found.

The analysis the court used in New York applies equally to this case. The likelihood that a permanent repository will be found is no closer to reality now than it was when New York was decided. The ER must therefore discuss and 45

analyze the impacts of indefinite storage at the ISP CIS facility.

The Continued Storage Rule does not preclude the site-specific review specified by this contention. In upholding the Continued Storage Rule, the court in New York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016)(New York II), stated that because the Rule was not a licensing action, the Rule and the GEIS supporting the Rule did not have to consider alternatives to licensing. The court went on to cite the Rule as follows:

[T]he rule does not authorize the storage of spent fuel at any site [and]... reflects only the generic environmental analysis for the period of spent fuel storage beyond a reactors licensed life for operation and before disposal in a repository.... Because the GEIS is only an input for future site-specific reactor licensing and does not itself impose regulatory requirements on reactors, the NRC need not have considered the alternative of ceasing licensing in the GEIS. The NRC instead analyzes that alternative during site-specific licensing proceedings.

Id. at 1017. The court further explained that at oral argument the NRC stated that the decision to issue a license is site-specific and the agency will consider mitigation measures and alternatives at that time. That is exactly the focus of this contention.

And the GEIS for the Continued Storage Rule, NUREG-2157, makes some assumptions that preclude reliance on the 46

Rule from being used to avoid considering long-term storage in this case. As Dr. Gordon Thompson notes in his declaration, p. 5-6, attached hereto, NUREG-2157, B.3.4, assumes that institutional controls will continue into the indefinite future. Dr. Thompson points out that NRCs argument that few impacts could be reliably forecast for a scenario involving lack of institutional controls is proven false by analysis done by the U.S. Department of Energy (DOE). Dr. Thompson, in his declaration, p. 6, then refers to the EIS prepared for the Yucca Mountain repository.

Section 7.2.2 of the Yucca Mountain EIS provides estimates of adverse impacts arising in No-Action Scenario 2, which would involve continued storage of SNF in the absence of institutional controls. That is precisely the scenario for which NRC argues that few impacts could be reliably forecast.

The second assumption upon which NUREG-2157 relies is the acknowledgment that the radioactive waste could be damaged prior to entry into storage or during storage.

Gordon Thompson declaration, p. 6-7, attached hereto. Dr.

Thompson notes that NUREG-2157 does not identify any available design of a dry transfer system (DTS) or equivalent system that could repackage the waste in the event of damage to the waste and/or the container holding the waste.

47

Dr. Thompsons declaration, p. 18-22, hereto attached, discusses two conclusions that demonstrate why indefinite storage at the ISP facility must be evaluated in the ER. In Conclusion #1, Dr. Thompson notes that the absence of a dry transfer system and the absence in the ISP emergency response plan of preparations for emissions mitigation create the likelihood of adverse impacts to people and the environment. Obviously, the longer the waste is stored at the CIS facility, the greater the likelihood of an accident, attack, and/or slow degradation impacting the safety of the containers containing the radioactive waste.

In Conclusion #2, Dr. Thompson discusses the impacts from neglect. A period of neglect would be a likely outcome of operating the CIS facility because of the potential for the radioactive waste to remain at the site for the indefinite future and the potential for ISP to become unwilling or unable to fulfill its obligations regarding site operations. Again, the likely events leading to adverse impacts would be accident, attack, and/or slow degradation.

Neglect would be especially significant in terms of the slow degradation of the radioactive waste containers.

Clearly, the longer the waste is stored at the ISP facility, the greater the likelihood of an adverse impact.

48

CONTENTION 6 The ER and the subsequent EIS must evaluate the potential for earthquakes at the ISP 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.

Basis for the Contention Earthquakes have been reported in the area around the proposed ISP site in the last few years. The potential for earthquakes would be an aspect of the environment affected and the environmental impacts of the project that must be included in the ER, pursuant to 10 C.F.R. § 51.45. The earthquake analysis must also be in the EIS.

Pursuant to 10 C.F.R § 51.45 the ER must contain a description of the environment affected and the impact of the proposed project on the environment. The ER essentially dismisses the likelihood of earthquakes in the area and does not mention any environmental impacts from earthquakes.

However, several earthquakes with a magnitude of 3 or greater have occurred in the area since 1975.

10 C.F.R. § 72.103(f)(1) requires that the SAR contain an adequate analysis of the earthquake potential of the area in and around the proposed ISP site. The SAR submitted by ISP does not comply with § 103(f)(1).

49

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The ER The ER submitted by ISP does not even discuss the impact of earthquakes. ER Rev. 2, 4.3. As discussed below, earthquakes have been documented in the area in and around the ISP site. Therefore, the ER must evaluate the impacts of earthquakes at the proposed site.

10 C.F.R. § 72.103(b) requires that in areas of known potential seismic activity east of the Rocky Mountain Front, seismicity must be evaluated for a nuclear waste storage facility. Section 72.103 goes on to specify other requirements for evaluating the earthquake potential and impacts for a waste site. Section 72.103(f)(1) states:

The geological, seismological, and engineering characteristics of a site and its environs must be investigated in sufficient scope and detail to permit an adequate evaluation of the proposed site, to provide sufficient information to support evaluations performed to arrive at estimates of the DE [design earthquake ground motion], and to permit adequate engineering solutions to actual or potential geologic and seismic effects at the proposed site.

(2)... The geologic and seismic factors considered for design must include a determination of the DE for the site, the potential for surface tectonic and nontectonic deformations, the design bases for seismically induced floods and water waves, and other 50

design conditions as stated in paragraph (f)(2)(iv) of this section.

(i) Determination of the Design Earthquake Ground Motion (DE).

(ii) Determination of the potential for surface tectonic and nontectonic deformations.

(iii) Determination of design bases for seismically induced floods and water waves.

(iv) Determinations of siting factors for other design conditions.

There is a published study conducted by scientists at the University of Texas and Southern Methodist University showing the increased incidents of earthquakes induced by fossil fuel extraction in the area of the ISP CIS facility.

Frohlich, et al., A Historical Review of Induced Earthquakes in Texas, Seismological Research Letters, V. 87, No. 4, July/August 2016, found at www.jakewalter.net/papers/

Frohlichetal2016.pdf.

Drilling for oil and natural gas has increased significantly in and around the site of ISPs proposed CIS facility in recent years. A map showing the intense drilling in the area is attached as Ex. 1. This drilling activity makes the underground area unstable and induces earthquakes.

A recent study by Stanford University researchers has 51

documented the existence of prior earthquakes in west Texas, and more importantly, the existence of numerous faults in the area in and around the proposed ISP site. The study can be found at scits.stanford.edu/sites/default/

files/3702_tss_lundsnee_v2.pdf.

The ISP ER, 3.3.3-3.3.4, contains a discussion of vibratory ground motion and faulting and concludes that there is essentially no chance of an earthquake in the area.

But the ER makes no mention of induced earthquakes as documented in the above cited studies. The assessment of earthquake potential in the ER is inadequate.

SAR ISP states in Section 2.6.2 of the Safety Analysis Report (SAR) that it conducted a Seismic Hazard Evaluation, which is found in Attachment D of the SAR. However, members of the public, including Sierra Club, cannot address the contents of that evaluation because Attachment D consists of several blank pages with the designation that the information is being withheld pursuant to 10 C.F.R. § 2.390.

The Frohlich et al. references cited above document the occurrence of earthquakes of magnitude 3 or higher in and around the ISP site since 1975. There is no indication in the portion of the SAR available to the public that shows 52

that ISP adequately evaluated the earthquake potential as required by 10 C.F.R. § 72.103(f)(1).

10 C.F.R. § 72.103 requires a discussion and analysis of the seismological characteristics of the proposed CIS site because of the obvious impact earthquakes would have on the safe operation of the facility. The failure of ISP to undertake the required seismological analysis violates this requirement.

CONTENTION 7 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 ISP 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.

Basis for the Contention The ER, and eventually the EIS prepared by NRC, must examine all reasonable alternatives, including the no-action alternative. This requirement is meaningless unless the no-action alternative is thoroughly and objectively evaluated.

Only then can the proposed action be properly evaluated.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The ER discusses the no-action alternative in Section 2.1. That discussion states that if the ISP proposal is not 53

licensed, the spent fuel will be stored at the reactor sites until, if ever, a permanent repository is developed. There is absolutely no discussion about the safety aspects of keeping the waste at the reactor sites. There is absolutely no discussion of HOSS or the NRCs Continued Storage Rule, as discussed in previous contentions.

The importance of an adequate discussion of alternatives is highlighted by the statement in the NEPA regulations that the alternatives analysis is the heart of the environmental impact statement. 40 C.F.R. § 1502.14.

NEPA demands that the environmental review rigorously explore and objectively evaluate all reasonable alternatives. 40 C.F.R. § 14(a).

NEPA regulations require a discussion of a no-action alternative. 40 C.F.R. § 1502.14(d). This discussion would be included in the substantial treatment of each alternative required to be considered in an EIS. 40 C.F.R.

§ 1502.14(b); see also, Southeast Alaska Conservation Council v. FHWA, 649 F.3d 1050 (9th Cir. 2011). In other words, the no-action alternative cannot just be blandly dismissed with unsupported statements. As noted above in support of Contention 2, the agency must not accept out of hand the applicants statement of purpose and need. ELPC v.

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NRC, 470 F.3d 676, 683 (7th Cir. 2006), and then use that statement of purpose and need to summarily reject the no action alternative.

The section of the ER regarding the no-action alternative, 2.1, simply says that no action would mean that the waste would stay at the reactor site, subject to safety regulations. But there is no discussion in section 2.1 of the relative benefits and costs of leaving the waste at the reactor site compared to the benefits and costs of sending waste from many reactors to the ISP site.

Chapter 7 of the ER does discuss costs and benefits.

Section 7.2 claims that the primary economic benefit of the CIS project is the reduction of federal reimbursements to the operators of nuclear plants. These reimbursements are the result of the failure of the federal government to open a permanent repository by 1989, as required by the NWPA. But these payments would still be required, even if the CIS facility is licensed, because there would still not be a permanent repository. So there would be no economic benefit to the CIS facility as compared to the no-action alternative.

The analysis of the no-action alternative must include a discussion of the NRCs Continued Storage Rule that 55

concludes that spent fuel can remain at the reactor site indefinitely and the implementation of HOSS at the reactor site.

Based on the foregoing, the discussion of the no-action alternative in the ER is deficient and must be rejected.

CONTENTION 8 ISP 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 ISP application. ISPs 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.

Basis for the Contention ISP takes the position in its ER Rev. 2, 1.1 and 2.1, that the purpose and need for the CIS project is dictated to a great extent by the BRC report. According to ISP, the BRC report concludes that CIS is the answer to our nuclear waste problem. A close and critical reading of the BRC report, however, does not yield that conclusion. The BRC report is found at energy.gov/sites/prod/files/2013/04/

f0/brc_finalreport_jan2012.pdf.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention 56

The purpose and need section of the ER promotes the ISP CIS with the allegation that the CIS carries out the BRCs purported recommendation for CIS development as the solution to the countrys nuclear waste problem. However, a close reading of the BRC report does not support the unwavering reliance ISP places on it.

The introduction to the BRC report, at page xii, states, [E]xperience shows that storage - either at or away from the sites where the waste was generated - can be implemented safely and cost-effectively. So the BRC was saying that storage at the reactor site is just as safe and cost-effective as a CIS site.

Page xii of the BRC report goes on to raise the concern that:

For consolidated storage to be of greatest value to the waste management system, the current rigid legislative restriction that prevents a storage facility developed under the NWPA from operating significantly earlier than a repository should be eliminated.

In other words, the BRC was acknowledging that the NWPA focuses on the development of a permanent repository and precludes the development of a CIS in the absence of a permanent repository.

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On page xiii of the BRC report the Commission stated,

[I]t is appropriate for the NRC to examine the advantages and disadvantages of options such as hardened onsite storage that have been proposed to enhance security at storage sites. This is hardly the robust support of CIS from the BRC that ISP paints in its ER.

There is also a report by the Panel on Public Affairs of the American Physical Association, published in 2007, that contains the following statement:

The panel concludes that the safety and security risks associated with storage of spent fuel are not appreciably different whether the fuel is stored at plant sites or in one or more consolidated facilities.

The same storage technologies are employed in both cases and the operational, maintenance, and security requirements are identical.

American Physical Society, Consolidated Interim Storage of Commercial Spent Nuclear Fuel: A Technical and Programmatic Assessment, February, 2007, found at www.aps.org/policy/

reports/popa-reports/upload/Energy-2007-Report-InterimStorage.pdf. So, just as the BRC concluded, the American Physical Society determined that storage at the reactor site is no less safe than at a CIS.

The ER also fails to mention that the BRC report emphasized that a CIS facility will not be effective as a 58

way to manage nuclear waste without an effective plan for a permanent repository. As the report states:

The salient point for purposes of this discussion is that the challenge of siting one or more consolidated storage facilities cannot be separated from the status of the disposal program. Many states and communities will be far less willing to be considered for a consolidated storage facility if they fear they will become the de facto hosts of a disposal site. This means that a program to establish consolidated storage will succeed only in the context of a parallel disposal program that is effective, focused, and making discernible progress in the eyes of key stakeholders and the public. A robust repository program, in other words, will be as important to the success of a consolidated storage program as the consolidated storage program will be to the success of a disposal program. Progress on both fronts is needed and must be sought without further delay.

BRC Report, p. 40. So, the BRC made it clear that without a definite strategy and vigorous effort to develop a permanent repository, which we do not have, a CIS facility should not go forward. Otherwise, as Sierra Club has explained in Contention 5, the CIS facility will be a de facto permanent repository.

ISPs 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 9 59

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 ISP CIS facility does not comply with these requirements.

Basis for the Contention The decommissioning plan submitted by ISP does not contain a funding plan that provides reasonable assurance that funds will be available to decommission the CIS site.

Nor does the plan give a detailed cost estimate of the total cost of decommissioning. These are requirements that must be met pursuant to 10 C.F.R. § 72.30.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention 10 C.F.R. § 72.30 requires each application for a license to contain sufficient information to provide reasonable assurance that the decommissioning will provide adequate protection to the health and safety of the public.

The requirement includes a decommissioning funding plan showing reasonable assurance that funds will be available for decommissioning and a detailed cost estimate for decommissioning.

The application must also justify the key assumptions for the decommissioning cost estimate. In addition, there must also be a description of the onsite subsurface material 60

containing residual radioactivity that will require remediation, as well as a certification that financial assurance for decommissioning has been provided in the amount of the cost estimate for decommissioning.

The revised decommissioning plan submitted by ISP has not provided reasonable assurance that adequate funds will be available for decommissioning. According to the decommissioning funding plan submitted by ISP (Application Rev. 2, App. D), ISP claims that it will execute a contract with DOE or other title holders for those entities to take legal title to the radioactive waste and that they will be responsible for all costs associated with decommissioning.

ISP is also requesting an exemption from the NRC from the requirements of 10 C.F.R. § 72.30(e)(Application, Rev. 2, App. D, p. 2-1). ISP says it will provide an alternative method of financial assurance. That alternative method is the mythical contract with DOE.

The problem with ISPs financing scheme is that DOE is prohibited by the NWPA from taking title to the waste until the waste is destined for a permanent repository. Even then, there is no provision in the NWPA for DOE to assume the cost of decommissioning. Furthermore, ISP has presented no 61

evidence that DOE would agree to a contract as described in the application.

Nor is there any assurance that the other title holders, apart from DOE, will agree to pay for decommissioning. The other title holders envisioned by ISP would logically be the reactor owners who want to move the waste away from the reactor site and remove themselves from any liability.

As noted above, ISP states that it intends to request an exemption from the NRC from the requirements of 10 C.F.R.

§ 72.30(e). However, the application does not provide any basis in law or regulation or practice to support the concept that the NRC would or could grant an exemption from the requirements of § 72.30(e). It is clear that § 72.30(e) does not provide for a method of financial assurance that would allow the scheme proposed by ISP. The only funding arrangements allowed by § 72.30(e) are a surety bond, letter of credit, insurance, guarantee by the licensee, or an external sinking fund.

The application estimates that the total decommissioning costs will be $12,643,596 (Application Rev.

2, App. D, Table 3-19)). There is absolutely no assurance 62

that these costs will be funded. ISP has completely failed to comply with 10 C.F.R. § 72.30.

CONTENTION 10 The ISP CIS site sits atop the Ogallala Aquifer. The ER and SAR submitted by ISP appear to claim that the site does not sit atop the aquifer. Therefore, the ER and SAR do not accurately and adequately evaluate and consider the impacts to the aquifer from the CIS facility.

Basis for the Contention The ISP CIS site is above the Ogallala Aquifer. A map of the aquifer is hereto attached (Ex. 2). ISP claims there is no impact on groundwater because the containers in which the radioactive waste is stored will not leak. There is a danger of release of radioactivity from the containers.

Therefore, the ER and SAR must address the impact on groundwater from release of radioactive material.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The ISP ER and SAR both purport to address the impact of the CIS facility on groundwater resources. This is obviously an important issue. The ER, 3.4.14.1, claims that the Ogallala Aquifer does not lie under the CIS site.

However, maps of the aquifer clearly show uniform determination that the aquifer does, in fact, lie under the CIS site (Ex. 2; SAR, Fig. 2-14). Existence of the Ogallala 63

Aquifer is also confirmed by the report of Dr. Patricia Bobeck, professional geologist, hereto attached with her declaration. In addition, a 2012 report from George Rice (Ex. 3), a professional hydrologist, regarding the WCS LLRW site adjacent to the proposed CIS site, confirms that the aquifer extends at least to the northwest corner of the LLRW site. This is exactly in the footprint of the proposed CIS site. The false statement in the ER denying the existence of the aqiuifer renders the rest of the discussion of groundwater impacts in the ER meaningless. This portion of the ER must be rejected for that reason. The SAR at page 2-17, makes the same incorrect claim and must also be rejected.

The ER and SAR make a further claim that is incorrect.

The documents claim that the water saturation point beneath the CIS site is at least 225 feet (SAR, p. 2-17; ER Rev. 1,

p. 3-23). An official map of the area (Ex. 2), however, shows Andrews County to be in an area where the saturated thickness is 50-100 feet and perhaps less than 50 feet. It is important to know how susceptible the groundwater is to contamination from a leak of radioactive material from the CIS facility.

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Dr. Bobeck concludes in her report that the ER does not adequately define the geologic units present at the ISP site nor their properties and extents. The ER does not characterize the relationship between the OAG materials present at the site with the larger Ogallala Formation. The ER does not evaluate the degree to which groundwater present under the ISP site within the OAG or Ogallala Aquifer might be in connection with the greater Ogallala Aquifer. The ER does not adequately discuss the impact of a release on surface water flow and its effect on playa basins.

Overall, Dr. Bobeck concludes that the ER does not provide the basic information necessary to adequately and thoroughly address the impact of cask rupture and discharge of radioactive material to ground and groundwater at the ISP site.

With respect to impact on the groundwater, it must be emphasized that cask rupture is not an impossibility or speculation. This is because of the prevalence of high burnup fuel. Since 1999 the amount of high burnup fuel being used in nuclear reactors has increased substantially. Since 2012 all of the fuel used in reactors has been high burnup fuel. DOE EPRI High Burn-up Dry Storage Cask Research and 65

Development Project (2013), found at www.energy.

gov/sites/prod/files/2014/03/f8/HBUDryStrgeCaskRDfinalDemo TestPlanRev9.pdf.

High burnup fuel significantly increases the radioactivity in spent fuel and takes longer to cool. High burnup fuel causes damage to the cladding and thus reduces the protection from radioactivity. The damage to the cladding likely leads to leakage of radioactive material from the storage containers. Even the NRC admits there is limited data to show that the cladding of spent fuel with burnups greater than 45,000 MWd/MTU will remain undamaged during the licensing period. Standard Review Plan for Spent Fuel Dry Storage Facilities, Final Report, NUREG-1567 (Accession No. ML003686776).

High burnup conditions can cause the zirconium cladding of the fuel rods to become unreliable as a barrier to prevent the escape of radioactivity, especially during long periods of dry storage. High burnup fuel reduces the fuel cladding thickness and a hydrogen-based rust forms on the zirconium metal used for the cladding, which can cause the cladding to become brittle and fail. Also, high burnup fuel increases the pressure between the uranium fuel pellets in a fuel assembly and the inner wall of the cladding that 66

encloses them and causes the cladding to become thin and elongate. In addition, the same research has shown that high burnup fuel temperatures make the used fuel more vulnerable to damage from handling and transport, which can cause cladding to fail when used fuel assemblies are removed from cooling pools, when they are vacuum dried, and when they are placed in storage containers. NRC, Rulemaking Issue, Notation Vote, Memorandum from R.W. Borchardt (2012), found at www.nrc.gov/reading-rm/doc-collections/commission/secys/

2012/2012-0034scy.pdf; IAEA, Impact of High-Burnup Uranium Oxide and Mixed Uranium_Plutonium Oxide Water Reactor Fuel on Spent Fuel Management, (2011), found at www-pub.iaea.org/

MTCD/Publications/PDDF/Pub1490_web.pdf.

Furthermore, as explained in Contention 6, there is a significant potential for earthquakes at the ISP site. Dr.

Bobecks report, p. 2, notes that the ER does not address the effects of seismicity resulting from hydraulic fracturing (fracking) in the area of the ISP site with respect to the impact on groundwater. If the cladding in the storage containers fails as described above, seismic tremors would cause cracking in the containers and thus allow radioactive leakage that, as Dr. Bobeck describes, would find its way into the groundwater.

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CONTENTION 11 Section 2.3.3 of the ER discusses 15 criteria ISP used to evaluate the suitability of the Andrews County site.

These criteria were created by ISP and bear little or no relationship to any criteria in the statutes or regulations.

Even the criteria that are relevant have not been adequately addressed.

Basis for the Contention The purpose of the ER is to discuss and analyze the environmental impacts of various alternatives. 10 C.F.R. § 51.45. Considering the 15 criteria listed by ISP in the ER, only criteria 2, 11, 12 and 13 address the environmental impacts of the CIS project. Even those four criteria are not adequately addressed.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention The 15 criteria allegedly used to determine the suitability of the ISP site are:

1.

Assess whether a county has adequate political support for a CISF, specifically whether the state and county governments had expressed an interest in siting a CISF.

2.

Assess the seismology and geology of the area to ensure that potential sites within each of the four counties were located in areas that were 68

tectonically stable with favorable geologic characteristics.

3.

Assess the availability of rail access.

4.

Assess whether land parcels of adequate size were available in the area.

5.

Assess whether or not the land was owned or required purchase from the current landowners.

6.

Assess the availability of utilities, specifically, electric power, cellular and data towers, and water supply.

7.

Assess variables on construction labor force, specifically, sufficient labor force, competing projects, and large project experience.

8.

Assess variables on operational labor force, specifically, sufficient labor force, multi-task employees, technical school/training, mature nuclear safety culture, radiation worker staff, and health physicist and radiation protection organizations.

9.

Assess variables on transportation routes, specifically, site railhead, highway access, traffic capacity, and efficient access.

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10. Assess variables on amenities for the workforce, specifically, housing, schools, health services, and parks/recreation/culture.

11. Assess variables on environmental protection, specifically, existing site characterization data, documentation of presence/absence of contamination, neighboring plume, future migration, no radioactive contamination, not CERCLA or RCRA, no remediation needed, flood plain, ponding, protected species, archaeological and cultural resources, environmental permits, and environmental justice.

12. Assess variables on discharge routes, specifically, facility discharges and differentiation of discharges from other nuclear facilities.

13. Assess variables on the proximity of hazardous operations, specifically, hazardous chemical sites, gas pipelines, airports, emergency area, and air quality.

14. Assess variables on ease of decommissioning, specifically, ease of decommissioning, and adjacent sites medium/long-term plans.

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15. Assess variables on disposal of low-level waste, specifically, availability of disposal options, and licenses and permits.

Most of these criteria involve manipulation of political or community support for the project. These criteria have nothing to do with the environmental impacts of reasonable alternatives. The only criteria that do relate to the environmental impacts are criteria 2, 11, 12 and 13.

But even those four criteria are not adequately addressed in the ER.

The ER describes the area as tectonically stable and has suitable geological characteristics to site a CISF. ER Rev. 2, 2.3.4. This description completely ignores the earthquake information discussed above in Contention 6.

Criteria 11 clearly addresses environmental issues but does so inadequately (ER Rev. 2, 2.3.4).

a. The ER contends that no contamination of any kind has been detected from the adjacent LLRW site near the proposed CISF site. There is nothing in the ER, however, to substantiate this allegation.

Furthermore, contamination from the LLRW site is essentially irrelevant. What is more important is 71

the radiation that will be released from the CIS site.

b. The ER claims that the CIS site is not in a 500-year floodplain. This is not the standard. 10 C.F.R. § 72.3 defines floodplain as an area subject to a one percent or greater chance of flooding in any given year, i.e., a 100-year floodplain. As a requirement for siting a CIS facility 10 C.F.R. § 72.90(f) states that [t]he facility must be sited so as to avoid to the extent possible the long-term adverse impacts associated with the occupancy and modification of floodplains. So, since the ER only refers to the 500-year floodplain, it does not address the impacts associated with the 100-year floodplain, as required by § 72.90(f). This is important because Executive Order 11,990 requires that if action is proposed in a floodplain, the agency shall consider alternatives to avoid adverse effects and incompatible development in the floodplains.

c. The ER discusses the climate of the area in terms of precipitation, wind direction and speed, and temperature. This is apparently supposed to address 72

the criterion for site characterization data. But the ER makes no effort to explain how any of that information is relevant to the environmental impacts of the CIS site and its operation.

d. The ER discusses the protected species that are in the area of the CIS site. But the discussion of this criterion does not discuss the impacts of the CIS proposal on those protected species.

e. The ER discusses socioeconomic data for the area of the CIS site. This is apparently an attempt to address the issue of environmental justice.

Executive Order 12,898 requires agencies to identify and address any disproportionately high and adverse human health and or environmental effects of its programs, policies, and activities on minority and low-income populations. According to App. A, 1.1.3, of the ER, almost all of the counties in the general area of the proposed CIS site have majority minority populations. Yet, ISP claims that there will be no impact on minority populations and it therefore does not need to comply with Executive Order 12,898. When the affected populations are majority minority, they 73

would bear a disproportionately high and adverse share of operational or construction impacts as a result of the project, as described in Executive Order 12,898.

f. The ER claims that no archaeological resources will be impacted by the CIS project. It appears that this conclusion was based on what is described in the ER as a pedestrian field survey. There is no indication as to what that survey entailed or how it was actually conducted. Certainly, if archaeological items were underground, which most of them are, a simple walk-through of the area would not uncover those items. Further, there is no indication that ISP or its archaeological consultants consulted with Native American people to determine if there might be buried cultural resources in the area. The Texas Historical Commission has promulgated archaeological survey standards to govern archaeological surveys in Texas, found at www.thc.texas.gov/public/upload/

CTAguidelines.pdf. Referring to those standards, there is no showing in the ER, 3.8, that there was any discussion with the Texas Historical Commission 74

since the area surveyed was greater than 200 acres.

Nor is there any indication that a credible assessment for potential deeply buried cultural deposits was conducted. The Council of Texas Archaeologists has also issued guidelines for cultural resource investigations, found at counciloftexasarchaeologists.org/wordpress/

wp-content/uploads/surveystandards.pdf.

Those guidelines also call for a more extensive survey than was apparently conducted in this case.

Based on the foregoing, the alleged citing criteria claimed to be used by ISP in choosing the CIS site (which coincidentally or not is on land owned by WCS adjacent to the current WCS low level waste site) do not comply with NRC regulations.

CONTENTION 12 The minimum cooling time for transportation of fuel from a boiling water reactor (BWR) in a NUHOMS MP-187 cask is greater than calculated by TN Americas, the manufacturer of the cask. This implies that the cladding of BWR fuel will exceed allowable limits and will degrade. Cladding is an issue that must be adequately addressed.

Basis for Contention High long term temperatures will cause the cladding around the fuel in the container to degrade. This makes the 75

storage and transportation of containers loaded with high heat output likely to leak radioactive material into the environment in a transportation accident. Fuel containing gross cladding defects are not acceptable by the DOE in a waste repository. Such fuel is not acceptable in a waste storage facility, either.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention A June, 2013, DOE report states,... cladding performance issues need to be addressed before this fuel can be loaded into dry casks and transportation systems, and burnup rates as low as 30 Gwd/MTU can present performance issues including cladding embrittlement under accident conditions as well as normal operations. A Project Concept for Nuclear Fuels Storage and Transportation (2013), found at www.hsdl.org/?abstract&did=739345.

The attached spreadsheet (Ex. 4), prepared by Dr.

Marvin Resnikoff, shows the calculations for the radionuclide inventory of a BWR 7X7 fuel assembly with burnup of 40 GWD/MTU and 10 year cooling. These calculations are essentially the same as those that appear in Table 4-1 (Ex. 5) of the SAR for the NUHOMS MP-187. In preparing the calculation in Ex. 4, Dr. Resnikoff, as did Ex. 5 in the MP-76

187 SAR, assumed the number of metric tons in a 7X7 BWR assembly is 0.1977 MTU.

Dr. Resnikoff also calculated the heat output of a 7X7 fuel assembly with burnup of 40 GWD/MTU. The maximum allowable decay heat, according to the MP-187 SARs Intact BWR Fuel Assembly Characteristics (Ex. 6), is 260 W per assembly. Ex. 6 lists the minimum cooling time as 15 years.

In Table 1 below Dr. Resnikoff has calculated the heat output with time. The results of Dr. Resnikoffs calculations show that the heat output from the NUHOMS MP-187 will not decline to 260 W per assembly until approximately 32 years, over twice as long as the 15 years claimed in Ex. 6. These results are shown in Table 1 below.

Table 1 W/BWR Assembly 1yr 3yr 4yr 10yr 25yr 50yr 1622 738 575 355 276 221 Therefore, there is a risk that the containers will be shipped to and stored in the ISP CIS facility before adequate cooling is allowed.

The ER, 4.2 and Attachment 4-1, purports to analyze the radiation risks from transportation. But the ER does not 77

address the issues raised by Dr. Resnikoff in this contention.

CONTENTION 13 The ER states that two species of concern, the Texas horned lizard and the dunes sagebrush lizard, have been seen at the ISP site or may be present. But there is no discussion of any studies or surveys to determine if the species are present and the impact of the project on those species. Therefore, the ER is inadequate in describing the affected environment.

Basis for Contention 10 C.F.R. § 51.45 requires that an environmental report must contain a discussion of the environment affected by the proposed project and the environmental impacts of the project. This includes a discussion of the various species present and their habitat. The NRCs Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)(Accession No. ML032450279), 5.3.5, also directs that the ER must discuss the affected environment and the impacts on the environment, including impacts to important species and their habitats.

Two species of concern, the Texas horned lizard and the dunes sagebrush lizard, are in the area of the ISP site. ER, 3.5.2. With no factual support, the ER, 4.5.10, claims that the CIS project will have no impact on the species.

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Facts Upon Which Petitioner Intends to Rely In Support of This Contention The ER, 3.5.2, states that the Texas horned lizard and the dunes sagebrush lizard are present in an area within a 3.1 mile radius of the CIS site. More specifically, the ER, 3.5.4, states that the Texas horned lizard has been reported as being present at the CIS site and the dunes sagebrush lizard might occur there. There does not appear to have been an adequate survey conducted to determine if the species are resident in the CIS area.

The ER, 3.4.16, cites several sources, but the sources are not described well enough to allow members of the public to access the sources. So the public, and the NRC, are left with only unsupported statements in the ER.

CONTENTION 14 The containers in which the waste will be transported to and stored at the ISP site are licensed for a period of 20 years. ISP hopes to renew the license for an additional 40 years, and then apparently hoping for additional relicensing to the projected 100-year life of the CIS facility. However, many of the containers will already have been in service for years prior to being shipped to the ISP CIS facility. Furthermore, the Continued Storage Rule assumes that the spent fuel will be transferred to new containers after 100 years. ISPs proposal may present an unacceptable danger of radioactive release. Therefore, the ER must examine the environmental impact of the containers beyond their 20-year licensing period.

Basis for Contention 79

The most significant factor in the safety of the CIS facility is the safety of the containers that will be transported to and stored at the CIS site. Those containers are obviously the source of any radiation exposure since that is the source of the radioactive waste. The cask systems are licensed for only 20 years. SAR,1.1. The ER, 1.2, states that the life of the CIS facility will be 60-100 years, far longer than the 20-year license period. And as explained in Contention 5, the ER states that the waste will be stored at the CIS facility until a permanent repository is found, but in fact, there may never be a permanent repository, so the cask systems to be used at the ISP facility must be analyzed for the possibility of indefinite storage.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention ISP has identified the types of casks that will be used at its CIS facility. Application, Ch. 2, Table 2-1. These casks are licensed for only 20 years. ISP imagines that the licenses will be renewed for an additional 40 years. SAR, 1.1. That is only a total license period of 60 years, far short of the projected 60-100 year life of the CIS facility.

Furthermore, as explained in Contention 5, a permanent 80

repository may never be found and the ISP facility will become a de facto permanent repository.

ISP proposes to solve this problem by continuous relicensing based on an Aging Management Program. SAR, 1.1.

Neither the ER nor the SAR adequately discuss how the proposed relicensing based on an Aging Management Program can be assured. The ER must consider all potential impacts if the CIS ultimately continues to operate beyond the reasonably assured license period. See, New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). Pursuant to 10 C.F.R. § 72.45(d),

the SAR must analyze and evaluate the design and performance of structures, systems, and components important to safety from operation of the CIS facility.

Nor does the Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, NUREG-2157, provide a basis for saying the containers are safe. NUREG-2157, 5.0, assumes that there will be a dry transfer system (DTS) that would retrieve waste from the casks for inspection and repackaging in new containers. The problem is that the canisters to be used at the ISP facility cannot be inspected, repaired or repackaged.

Furthermore, NRC staff has admitted that once a crack starts in a canister, it can grow through the wall in 16 81

years. Summary of August 5, 2014, Public Meeting With Nuclear Energy Institute, (Accession No. ML14258A081).

NUREG-2157 did not consider any of these facts.

The SAR, 4.4.1, 4.4.1.1, 4.5.1, 4.5.5, states that containers arriving at the CIS facility will be inspected for damage or other possible causes of leaks. But the SAR does not describe what will actually be done with containers that have problems. Neither ISP nor the source of the waste has a plan in place to deal with leaking or cracking containers. Leaking and cracking containers are not approved for transport. 10 C.F.R. § 71.44. There is no plan in place to prevent or stop cracks and leaks, repair cracks, or maintain and monitor the fuel and its containment in order to prevent leaks, explosions or criticalities. Nuclear Waste Technical Review Board, Geologic Repositories: Performance Monitoring and Retrievability of Emplaced High-Level Radioactive Waste and Spent Nuclear Fuel (May 2018), found at www.nwtrb.gov/our-work/reports/geologic-repositories-performance-monitoring-and-retrieveability-of-emplaced-high-level-radioactive-waste-and-spent-nuclear-fuel.

The ER for the ISP facility makes no mention of dealing with damaged or leaking containers or the environmental 82

impacts of such containers. This would be one of the impacts the ER is required to examine pursuant to 10 C.F.R. § 51.45.

CONTENTION 15 The ER for the ISP CIS facility does not adequately investigate or analyze the impact of the CIS facility on minority and low income communities. Executive Order 12898 requires that the NEPA process include a discussion and analysis of the environmental justice impacts of the proposed action.

Basis of Contention Executive Order 12898, 3 C.F.R. § 859, requires the incorporation of environmental justice concerns into all federal agency actions. The NRC has agreed to be bound by that order. In Re: Louisiana Energy Services LP (Claiborne Enrichment Center, 45 NRC 367 (1997). Thus, environmental justice is an integral part of the NEPA process in NRC licensing proceedings.

The two counties most impacted by the ISP project are Andrews County, Texas and Lea County, New Mexico. Those counties are both majority minority populations. ER, Appendix A, p. 1-14. Yet, the ER concludes that the project will have no environmental justice impact. ER, 4.11.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention In In Re: Louisiana Energy Services LP (Claiborne Enrichment Center, 45 NRC 367 (1997), the Atomic Safety and 83

Licensing Board (ASLB) addressed in detail what a licensing applicant must do to ensure that the site selection process for storage of nuclear material does not have a disparate impact on a minority population. The ASLB decision provides important guidance as to the proper analytical framework to decide environmental justice issues that arise in nuclear licensing proceedings, including the need to avoid or mitigate any discriminatory effect of the original site selection process.

The ASLB said:

The Presidents order, titled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, contains a number of provisions but two are most pertinent here. In subsection 1-101 under the heading Agency Responsibilities, the President directs that [t]o the greatest extent practicable and permitted by law...

each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States.

3 C.F.R. at 859. Further, in section 2.2, the President orders that

[e]ach Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the 84

benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.

Id. at 861.

The Presidents memorandum accompanying the order states that the Executive Order is designed to focus Federal attention on the environmental and human health conditions in minority communities and low-income communities with the goal of achieving environmental justice, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities. Id.

at 280.

Although Executive Order 12898 does not create any new rights that the Intervenor may seek to enforce before the agency or upon judicial review of the agencys actions, the Presidents directive is, in effect, a procedural directive to the head of each executive department and agency that, to the greatest extent practicable and permitted by law, it should seek to achieve environmental justice in carrying out its mission by using such tools as the National Environmental Policy Act. Pursuant to the Presidents order, there are two aspects to environmental justice:

first, each agency is required to identify and address disproportionately high and adverse health or environmental effects on minority and low-income populations in its programs, policies, and activities; and second, each agency must ensure that its programs, policies, and activities that substantially affect the human health or the environment do not have the effect of subjecting persons and populations to discrimination because of their race, color, or national origin. Thus, whether the Executive Order is viewed as calling for a more expansive interpretation of NEPA... or as merely clarifying NEPAs longstanding requirement for consideration of the impacts of major federal actions 85

on the human environment..., it is clear the Presidents order directs all agencies in analyzing the environmental effects of a federal action in an EIS required by NEPA to include in the analysis, to the greatest extent practicable, the human health, economic, and social effects on minority and low-income communities.

Id. at 374-376.

By voluntarily agreeing to implement the Presidents environmental justice directive, the Commission has made it fully applicable to the agency and, until that commitment is revoked, the Presidents order, as a practical matter, applies to the NRC to the same extent as if it were an executive agency. The NRC is obligated, therefore, to carry out the Executive Order in good faith in implementing its programs, policies, and activities that substantially affect human health or the environment. Further, because NRC actions are activities that substantially affect human health and the environment, the Executive Order is applicable to licensing [applications].

Thus, in carrying out the additional obligation the Commission has placed upon us in the hearing order (i.e., to ensure that the Staffs environmental review is adequate and in compliance with section 102(2)(A),

(C), and (E) of NEPA), we necessarily also must ensure agency compliance with the Presidents environmental justice directive....

Id. at 376. (emphasis added).

The ER in this case discusses the process ISP allegedly used to determine the ultimate site for the CIS facility.

ER, 2.3. In summary, ISP says it used 11 criteria to evaluate several possible sites. Only two of these criteria are actually relevant to the issue of environmental justice.

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Criterion 1 evaluated community support. Community support was determined by whether state and local governments were willing to host the CIS facility. Criterion 11, the other relevant criterion, dealt with what the ER describes as variables on environmental protection. Environmental justice is only one of 13 issues within the ambit of what the ER calls environmental protection.

With respect to the first criterion, community support, in each of the four counties evaluated, the County Commissioners in each county supported the project being in their county. ER, 2.3.4, 2.3.5, 2.3.6, 2.3.7. But governmental support does not equate to consideration of minority communities. This point was made in the Claiborne case, supra. The reason for considering environmental justice is that minorities have little or no political power or influence. Therefore, support from governing bodies or officials does not equate to consideration of environmental justice issues.

Criterion 11, concerning what purports to be about environmental protection, gives short shrift to environmental justice. For Eddy County, New Mexico, the ER, 2.3.7, admits that within the region of influence the percentage of Hispanics and persons below the poverty level 87

were above the national and state averages for Texas and New Mexico, but the ER then summarily states that the relative isolation of the CIS site should reduce the potential for impacts to these population groups.

Lea County, New Mexico, is treated to similarly summary consideration regarding environmental justice in the ER, 2.3.6. The ER concludes that there is little likelihood of environmental justice impacts because the census tracts that show majority minority populations are more than 30 miles from the CIS site.

The ER, 2.3.5, says nothing about environmental justice regarding Loving County, Texas. One must assume that no effort was made to determine the environmental justice issues in Loving County.

The only arguably adequate discussion of environmental justice concerns Andrews County, Texas. ER, 2.3.4. The discussion begins by saying that the information comes from the socioeconomic impact study in Appendix A of the ER. The discussion further notes that, according to Appendix A, the minority population percentages in Andrews County, Gaines County, Winkler County, Ector County, and Lea County, were 52.1%, 39.4%, 57.5%, 58.9%, and 57%, respectively.

Significantly, Gaines County, Winkler County, and Ector 88

County were not in the site selection process. Conversely, Loving County and Eddy County were in the site selection process, but not in the socioeconomic survey in Appendix A.

So the consideration of environmental justice starts out under questionable circumstances. Then, Appendix A of the ER purports to be the specific analysis of the environmental justice considerations. App. A, 1.1.10, 2.6.1.

Appendix A relies on NUREG-1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs (2003). NUREG-1748, App. C, p. C-4, states that in assessing environmental justice impacts the area to be assessed is within a 4-mile radius of the CIS site. Appendix C goes on to say, These are guidelines; the geographic scale should be commensurate with the potential impact area, and should include a sample of the surrounding population, e.g., at least several block groups. The goal is to evaluate the communities, neighborhoods, or areas that may be disproportionately impacted. It is clear, therefore, that the area of interest in evaluating environmental justice impacts is flexible and depends on individual circumstances.

Appendix A, 1.1.10.2, looks only at the 4-mile radius in determining the level of minority population. The statement is then made that because the minority population 89

within that 4-mile radius is less than 50% minority, there is no environmental justice impact. Appendix A, 2.6.1.

Much of Lea County, New Mexico, however, is within the 30-mile zone of influence designated in the ER, Fig. 2.2-1.

This includes the cities of Hobbs, Eunice, and Jal. They have minority populations of 61.7%, 49.9%, and 50.1%,

respectively. This is a reasonable area for purposes of environmental justice considerations, given that the EIS for Yucca Mountain designated a 50-mile radius as the relevant area to be considered for health and safety. The Yucca Mountain radius is even more appropriate in this case with 40,000 MTU of waste being stored at the ISP site without the protections of a permanent repository.

Another factor to be considered in the consideration of environmental justice impacts is the risks from the transportation of the waste to the CIS facility. The designated transportation route runs through the cities of Hobbs, Eunice, and Jal. ER, Fig. 2.2-5. Anyone who lives in those cities is well within the 4-mile distance from the rail lines for environmental justice analysis. There is absolutely no discussion of the environmental justice impacts from the transportation of the waste through those cities.

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Given the recent history of oil train accidents in North America, legitimate concerns exist as to the environmental and human health consequences should a highway or rail accident result in the release of highly toxic radioactive material in a population center. While the DOE asserts that it is impossible for canisters containing highly radioactive materials to rupture, the recent fire and container breach at the WIPP site suggests otherwise.... The tail end of the nuclear fuel cycle - specifically permanent, safe burial - remains an unsolved technical problem, a deeply controversial political issue, and a significant transgenerational environmental justice concern.

Dean Kyne and Bob Bolin, Emerging Environmental Justice Issues in Nuclear Power and Radioactive Contamination, International Journal of Environmental Research and Public Health, July 12, 2016.

Based on the foregoing, the ER is seriously inadequate in addressing the issue of environmental justice.

CONTENTION 16 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. The SAR, 1.2.4, claims that the cask system to be used for the transportation and storage for the ISP CIS facility will not contain HBF. But the prevalence of HBF requires that the cask systems will need to contain HBF at some point. The SAR and ER must evaluate the risks of HBF.

Basis for Contention High burnup fuel causes the cladding around the fuel to become thinner and more brittle, inducing cracking. This makes the storage and transportation of containers loaded 91

with high burnup fuel more likely to leak radioactive material into the environment. Although the SAR claims that HBF will not be transported or stored in the cask systems used for the ISP CIS facility, the prevalence of HBF means that the ISP facility will have to immediately or in the near future transport and store HBF.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention Since 1999 the amount of high burnup fuel (HBF) being used in nuclear reactors has increased substantially. Since 2012 all of the fuel used in reactors has been HBF, as shown in the graph below.

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HBF is dangerously unpredictable and unstable in storage, even for a short term. HBF is over twice as radioactive and over twice as hot as regular nuclear fuel.

A June 2013 Department of Energy report states, cladding performance issues need to be addressed before this fuel can be loaded into dry casks and transportation systems, and burnup rates as low as 30 Gwd/MTU can present performance issues including cladding embrittlement under accident conditions as well as normal operations. The DOE report is found at www.hsdl.org/?abstract&did=739345.

According to the Nuclear Waste Technical Review Board (NWTRB), the maximum oxide thickness for HBF (60-65 Gwd/MTU) is 100 µm, as seen in the figure below.

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According to the NWTRB, this corresponds to a metal loss of 70 µm, using conservative assumptions. Since ZR cladding is 600 µm, this represents a thinning of the cladding wall of approximately 12%.

During reactor operation, there is friction wear between the cladding and fuel pellets caused by vibrations.

If this wear is severe, a breach can occur. According to the 94

NWTRB, this is the principal cause of cladding failure of reactor fuel rods. Since HBF remains in the reactor longer, the likelihood of cladding defects is increased. NRC, Rulemaking Issue, Notation Vote, Memorandum from R.W.

Borchardt (2012), found at www.nrc.gov/reading-rm/doc-collections/commission/secys/2012/2012-0034scy.pdf; IAEA, Impact of High-Burnup Uranium Oxide and Mixed Uranium_Plutonium Oxide Water Reactor Fuel on Spent Fuel Management, (2011),

found at www-pub.iaea.org/MTCD/Publications/PDDF/Pub1490_web.pdf.

Neither the SAR nor the ER discuss at all the likelihood or the impacts of HBF being transported to and stored at the ISP CIS facility. [A]n agency must look at both the probabilities of potentially harmful events and the consequences if those events come to pass. New York v. NRC, 681 F.3d 471, 478 (D.C. Cir. 2012). It is clear from the SAR and ER in this case that the lessons from the New York case have not been followed here.

The ER and SAR must discuss and evaluate the risks of transporting and storing HBF due to deterioration of the cladding from HBF.

CONTENTION 17 95

Sierra Club adopts all contentions presented by Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, Sustainable Energy and Economic Development (SEED) Coalition, and Leona Morgan, Individually, in their Petition to Intervene in this proceeding.

Basis for Contention Sierra Club and the above-named Intervenors have many of the same issues and concerns regarding the proposed Holtec CIS facility at issue in this proceeding. It would be in the interests of efficiency and fully litigating the issues in this proceeding to allow the parties to adopt each others contentions.

Facts Upon Which Petitioner Intends to Rely In Support of This Contention Pursuant to 10 C.F.R. § 2.309(f)(3), Petitioner moves to adopt all contentions filed by Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, Sustainable Energy and Economic Development (SEED) Coalition, and Leona Morgan, Individually in this proceeding and to re-allege them as their own as if written herein. The parties request the right to argue and present evidence on each others contentions. Petitioner agrees that 96

the above-named Intervenors shall act as the primary representative with respect to their contentions, and Sierra Club reserves the matter of requesting co-sponsorship or joint designation for a later time. Sierra Club designates Terry J. Lodge as Sierra Clubs representative with respect to the Dont Waste Michigan contentions.

In a license transfer proceeding involving Indian Point, two intervenors, the Town of Cortland and Citizens Awareness Network sought to adopt each others contentions.

See Consol. Edison Co. (Indian Point, Units 1 and 2), 54 NRC 109, 131-33 (2001). The Commission held that where both petitioners have independently met the requirements to participate in the proceeding, the Board may provisionally allow petitioners to adopt each others issues early in the proceeding. Id. at 132. That is the nature of Petitioners request, should they be granted standing in this matter, and they so move.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 97

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC )

)

(Consolidated Interim Storage ) November 13, 2018 Facility Project) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Reply to the Answers filed by Holtec International and the NRC Staff were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 98