ML18324A886

Interim Storage Partners LLCs Answer Opposing Faskens and Pblros Motion to Dismiss as Referred to the ASLBP for Consideration Under 10 CFR 2.309

ML18324A886
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	11/20/2018
From:	Burdick S, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 54648, WCS CISF 72-1050-ISFSI
Download: ML18324A886 (44)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050 November 20, 2018 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS MOTION TO DISMISS AS REFERRED TO THE ASLBP FOR CONSIDERATION UNDER 10 C.F.R. § 2.309 Timothy P. Matthews, Esq.

Stephen J. Burdick, Esq.

Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP Counsel for Interim Storage Partners LLC

TABLE OF CONTENTS I.

INTRODUCTION.............................................................................................................. 1 II.

WCS CISF PROCEDURAL HISTORY............................................................................ 4 III.

NEITHER FASKEN NOR PBLRO HAS DEMONSTRATED STANDING................... 6 A. Legal Standards for Standing............................................................................................... 6 Proximity-Plus Standing.................................................................................................. 7 Traditional Standing......................................................................................................... 8 B. Movants Standing Claims Are Fundamentally Flawed and Insufficient to Demonstrate Standing................................................................................................................................ 9 C. Movants Have Not Demonstrated Proximity-Plus Standing.............................................. 12 Movants Have Not Demonstrated an Obvious Potential for Offsite Consequences...... 12 Movants Have Not Identified Any Interests Within the Radius of Obvious Potential for Offsite Consequences..................................................................................................... 15 D. Movants Have Not Demonstrated Traditional Standing.................................................... 18 Movants Alleged Transportation Safety-Related Harms Lie Outside the Scope of This Proceeding...................................................................................................................... 19 Movants Allegations of Potential Exposure to Minute Doses of Radiation and Geographic Proximity to Transportation Routes Are Insufficient to Establish Standing

........................................................................................................................................ 20 Movants Claims of Economic Injury Are Speculative and Not Supported by Any Objective Fundament................................................................................................. 23 IV.

MOVANTS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION............... 26 A. Legal Standards for Contention Admissibility................................................................... 26 B. Overview of the Proposed Contention............................................................................... 29 C. Movants Challenge Is Not Admissible as a Proposed Contention Because It Raises Issues That Are Neither Within the Scope of This Proceeding, Nor Material to the NRC Staffs Findings on the ISP Application........................................................................................ 30 D. Movants Challenge Is Not Admissible as a Proposed Contention Because It Also Lacks Adequate Factual or Legal Support and Fails to Establish a Genuine Dispute with ISP on a Material Issue of Law or Fact............................................................................................. 32 Movants Challenge Incorrectly Claims that ISP Assumes in Its Application That DOE Necessarily Will Hold Title to the Spent Fuel Stored at the Proposed CISF................ 32 The NRC Has the Legal Authority to License the Proposed CISF, Irrespective of Alleged NWPA Constraints on the Timing of DOEs Ability to Use the Facility........ 37 V.

CONCLUSION................................................................................................................. 40

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050 November 20, 2018 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS MOTION TO DISMISS AS REFERRED TO THE ASLBP FOR CONSIDERATION UNDER 10 C.F.R. § 2.309 I.

INTRODUCTION Pursuant to the Atomic Safety and Licensing Board Panels (ASLBP) November 9, 2018 Order,1 Interim Storage Partners LLC (ISP) submits this Answer opposing the document filed with the U.S. Nuclear Regulatory Commission (NRC) on the above-captioned docket on September 28, 2018, by Fasken Land and Minerals (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) (collectively, Movants), styled as a Motion to Dismiss Licensing Proceeding[] for... WCS Consolidated Interim Storage Facility, as referred to the ASLBP by Order of the Secretary on October 29, 2018 (Referral Order), for consideration under 10 C.F.R. § 2.309 (Filing).2 The Filing concerns ISPs pending application for a specific license under 10 C.F.R. Part 72 to build and operate a Consolidated Interim Storage Facility

1 ASLBP Order (Granting Joint Motion to Establish Briefing Schedule) at 1 (Nov. 9, 2018) (unpublished)

(ML18313A119); see also Joint Motion to Establish Briefing Schedule for Faskens and PBLROs Motion to Dismiss as Referred to the ASLBP for Consideration Under 10 C.F.R. § 2.309 (Nov. 7, 2018)

(ML18311A267).

2 Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 28, 2018) (ML18271A244); Office of the Secretary of the Commission, Order at 2-3 (Oct.

29, 2018) (unpublished) (ML18302A329).

2 (CISF) in Andrews County, Texas, referred to as the WCS CISF (the Application).3 As explained below, the Atomic Safety and Licensing Board (Board) should deny the Filing (evaluated as a hearing request under 10 C.F.R. § 2.309, per the Referral Order) because Movants have failed to satisfy their affirmative burden to demonstrate standing, and also because they have failed to submit an admissible contention.

Movants assert standing on both proximity-based and traditional standing grounds.

However, neither entity fulfills its affirmative burden to demonstrate standing on either basis.

For example, Fasken claims organizational standing in its own right, but identifies only organizational interests purportedly harmed by the Holtec proceeding. Similarly, PBLRO claims representational standing to represent Fasken (which lacks standing in its own right) and D.K.

Boyd, both of whom are already represented in this proceeding (Fasken by itself, and D.K. Boyd by Beyond Nuclear). Moreover, PBLRO failed to submit any affidavit authorizing it to act as a representative of anyone (which, alone, is dispositive).4 As a threshold matter, the Filing is deficient of bases demonstrating standing. Furthermore, Movants have not demonstrated any obvious potential for offsite consequences from the WCS CISFa precondition to establishing proximity-based standing in this proceeding. Indeed, the Commission has generically determined that such consequences are not merely improbable, but also implausible, due to the lack of any significant offsite dispersal mechanism. Movants cite none. Accordingly, proximity-based standing is unavailable to Movants here. Likewise, Movants also have failed to demonstrate standing on traditional grounds, as explained further below. Accordingly, the Filing must be rejected for failure to demonstrate standing.

3 ISP, WCS CISF License Application, Rev. 2 (July 19, 2018) (ML18206A595) (including the Safety Analysis Report (SAR) and Environmental Report (ER)).

4 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant) et al., CLI-08-19, 68 NRC 251, 258-59 (2008).

3 In addition to their failure to establish standing, Movants alleged concerns do not amount to an admissible contention. Movants sole challenge, if viewed as a contention, incorporate[s] by reference the arguments and authorities5 in a substantially similar6 motion filed by another entityBeyond Nuclear (BN)in the above-captioned proceeding (BN Motion to Dismiss).7 There, BN asserted that the NRC must dismiss ISPs Application and terminate this proceeding because the Application violates the Nuclear Waste Policy Act of 1982, as amended (NWPA).8 The BN Motion to Dismiss claimed that the Applications alleged central premisethat the U.S. Department of Energy (DOE) will take title to any spent fuel to be stored at ISPs proposed CISFcontravenes NWPA provisions that preclude DOE from taking title to spent fuel unless and until a permanent repository has opened.9 As demonstrated below, this argument is inadmissible as a proposed contention under 10 C.F.R. §§ 2.309(f)(1)(iii)-(vi). The BN Motion to Dismiss, by explicit admission, states that the issues raised therein lie outside the scope of the pending licensing proceeding[] and are immaterial to the NRC Staffs findings on the Application.10 More importantly, it lacks either factual or legal basis. The Application states unequivocally that either the owners of the nuclear plants from which the spent nuclear fuel (SNF) originated (i.e., the SNF Title Holders) or DOE will be the customer(s) for the proposed CISF.11 Contrary to BNs unsupported claimswhich

5 Filing at 7.

6 Referral Order at 2 n.3.

7 See Beyond Nuclear, Inc.s Corrected Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept. 14, 2018) (ML18257A312) (errata filed on Sept. 18, 2018 (ML18261A110)) (BN Motion to Dismiss).

8 See, e.g., id. at 22.

9 Id. at 1.

10 Id. at 2 (noting its challenge can be answered without consideration of the AEA and NEPA).

11 See, e.g., Application at 1-1 to 1-2.

4 Movants adopt without supplementISP does not presume that DOE will necessarily hold title to any SNF destined for storage at the CISF. Their argument that the NRCs issuance of the license to ISP would contravene NWPA and Administrative Procedure Act (APA) requirements is legally erroneous as well. As discussed below, both the Commission and the U.S. Court of Appeals have held that the Atomic Energy Act of 1954, as amended (AEA) gives the NRC authority to license away-from-reactor spent fuel storage facilities, and that the NWPA does not limit that authority or otherwise preclude the NRC from issuing licenses for such facilities.12 II.

WCS CISF PROCEDURAL HISTORY On April 28, 2016, Waste Control Specialists LLC (WCS) submitted to the NRC an Application for a specific license pursuant to 10 C.F.R. Part 72 for a CISF on its site located in western Andrews County, Texas. WCS currently operates Low-Level Waste and Mixed Waste facilities on this site.

On January 30, 2017, the NRC published a notice in the Federal Register announcing its acceptance of the WCS CISF Application and an opportunity to request a hearing and petition for leave to intervene.13 On April 18, 2017, WCS requested that the NRC temporarily suspend all review activities associated with its Application.14 Approximately 14 months later, by letters

12 Whether the DOE may make use of a private commercial CISF, if licensed by the NRC, is a separate legal question not presented by the Application. BNs Motion to Dismiss (adopted by Movants) appears to presume, without benefit of either law or fact, that this question must be (or even could be) addressed as a prerequisite to consideration of the ISP Application.

13 See License Application; Docketing and Opportunity to Request a Hearing and to Petition for Leave to Intervene, 82 Fed. Reg. 8773 (Jan. 30, 2017) (Original Notice of Hearing Opportunity). On April 4, 2017, and in a corrected notice dated April 10, 2017, the NRC published in the Federal Register (82 Fed.

Reg. 16,435; 82 Fed. Reg. 17,297) an order granting all petitioners an extension of time until May 31, 2017, to file hearing requests on WCSs Application.

14 Letter from R. Baltzer, WCS, to NRC Document Control Desk (Apr. 18, 2017) (ML17110A206). On April 19, 2017, WCS and the NRC Staff jointly requested that the Original Notice of Hearing Opportunity be withdrawn, pending possible future resumption of the Application review. Joint Request to Withdraw the Federal Register Notice Providing an Opportunity to Submit Hearing Requests (Apr. 19, 2017)

5 dated June 8, 2018, and July 19, 2018, ISP (a joint venture between WCS and Orano CIS, LLC) submitted a request to the NRC to resume review of the Application for the WCS CISF, and submitted an updated version of the Application (to revise the name of the applicant and make a few other changes).15 On August 29, 2018, the NRC published a notice in the Federal Register announcing its decision to continue reviewing the Application and providing a new opportunity to request a hearing and petition for leave to intervene.16 On September 28, 2018, Movants submitted the Filingstyled as a Motionseeking the establishment of a separate proceeding to contest the NRCs jurisdiction to consider the Application.17 Movants explained that their arguments had nothing to do with whether the [A]pplication[] conform[s] to applicable requirements of the Atomic Energy Act (AEA), the National Environmental Policy Act (NEPA) and pertinent NRC regulations, and therefore explicitly requested that the Filing not be considered under the above-captioned adjudicatory docket.18 On October 5, 2018, ISP submitted its opposition to the Filing, analyzing Movants standing and substantive arguments in the context of their request for a separate proceeding (i.e., to evaluate NRC jurisdiction, as opposed to the instant proceeding to adjudicate the Application).19

(ML17109A480). On June 22, 2017, the Commission granted that request. Waste Control Specialists LLC (Consolidated Interim Storage Facility), CLI-17-10, 85 NRC 221, 222-23 (2017).

15 Although ISP is the new applicant name, the proposed facility name remains the WCS CISF.

16 See Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility; Revised License Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene; Order Imposing Procedures, 83 Fed. Reg. 44,070 (Aug. 29, 2018) (Notice of Hearing Opportunity).

17 Filing at 2.

18 Id. (requesting the Filing be resolved outside [the] pending CISF licensing proceeding[]).

19 Interim Storage Partners LLCs Response Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Unauthorized September 28, 2018 Filing (Oct. 5, 2018) (ML18278A253)

(incorporating by reference Interim Storage Partners LLCs Response Opposing Beyond Nuclear, Inc.s Unauthorized September 14, 2018 Filing (Sept. 24, 2018) (ML18267A299)).

6 On October 29, 2018, the Secretary of the Commission denied the Filing on procedural grounds, anddespite Movants request to the contraryreferred it to the ASLBP for consideration under § 2.309 in the above-captioned proceeding.20 ISP submits this Answer opposing the Filing in the context of 10 C.F.R. § 2.309.21 III.

NEITHER FASKEN NOR PBLRO HAS DEMONSTRATED STANDING A.

Legal Standards for Standing The AEA allows individuals whose interest may be affected to intervene in NRC licensing proceedings.22 The Commission has long applied judicial concepts of standing to determine whether a petitioners interest provides a sufficient basis for intervention.23 Essential to establishing standing are findings of (1) injury, (2) causation, and (3) redressability.24 Both individuals and organizations may assert standing. An organization may assert standing in its own right (i.e., organizational standing), or may assert a right to represent the interests of its members (i.e., representational standing), which requires a showing that: (1) its members would otherwise have standing in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an

20 Referral Order at 2-3 (I am referring the motion from Fasken Land and Minerals and Permian Basin Land and Royalty Owners to the ASLBP for consideration under § 2.309). On November 8, 2018, the Secretary of the Commission confirmed the referral of the Filing to the ASLBP. See Memorandum from A. Vietti-Cook to E. Hawkens, Requests for Hearing Submitted with Respect to License Application of Interim Storage Partners LLC for the WCS Consolidated Interim Storage Facility (Docket No. 72-1050-ISFSI)

(Nov. 8, 2018) (ML18312A298).

21 On October 29, 2018, Movants filed a separate petition to intervene in the above-captioned proceeding, seeking a hearing and proposing five contentions. See Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018)

(ML18302A412). ISP is responding to that pleading separately.

22 AEA § 189a (codified at 42 U.S.C. § 2239(a)).

23 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30 (1998).

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

7 individual member to participate in the proceeding.25 Furthermore, any organization seeking representational standing must also demonstrate (e.g., via submission of an affidavit) that the member has authorized the organization to represent him or her and to request a hearing on his or her behalf.26 In all cases, the petitioner bears the burden to provide facts sufficient to establish standing.27 Proximity-Plus Standing In cases involving reactor facilities, the Commission will apply a standing presumption based on proximity to the site.28 However, no such automatic presumption exists for nuclear materials proceedings, such as this one.29 To show standing based on geographic proximity to a materials facility, a petitioner bears an affirmative burden to demonstrate that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences.30 As the Commission has made clear, conclusory allegations about potential radiological harm are insufficient to satisfy this burden.31 Assuming the petitioner meets its burden to demonstrate an obvious potential for offsite consequences, the presiding officer then must determine the appropriate presumptive distance.

This distance corresponds to the radius within which persons may face a realistic threat of harm from a release of radioactive material.32 In reactor proceedings, the Commission has

25 PFS, CLI-98-13, 48 NRC at 30-31.

26 Palisades, CLI-08-19, 68 NRC at 258-59.

27 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 139 (2010).

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

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

30 Ga. Inst. of Tech. (Ga. Tech Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995).

31 NFS, CLI-04-13, 59 NRC at 248.

32 Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009) (emphasis added).

8 adopted a 50-mile presumptive distance, corresponding to the emergency planning zone (EPZ) radius codified in 10 C.F.R. Part 50.33 However, the Commission has required far closer proximity in other licensing proceedings.34 The presumptive radius for ISFSI proceedings is particularly small, because an ISFSI is essentially a passive structure rather than an operating facility, and there therefore is less chance of widespread radioactive release.35 Nevertheless, in each materials proceeding, the appropriate distance must be evaluated on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.36 Where a petitioner is unable to demonstrate proximity-plus standing to intervene, traditional standing principles will apply.37 Traditional Standing For traditional standing, a petitioner must establish that: (1) it has suffered or will suffer a distinct and palpable injury that constitutes injury-in-fact within the zones of interests arguably protected by the AEA or NEPA; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.38 To demonstrate a distinct and

33 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 610 n.32 (2012).

34 Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007) (quotation omitted).

35 Id.

36 Ga. Tech, CLI-95-12, 42 NRC at 116-17. See also Big Rock Point ISFSI, CLI-07-19, 65 NRC at 426.

37 See U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 188 (2010); USEC Inc. (American Centrifuge Plant),

CLI-05-11, 61 NRC 309, 311-12 (2005) (quoting NFS, CLI-04-13, 59 NRC at 248) (If there is no obvious potential for radiological harm at a particular distance frequented by the petitioner, it becomes the petitioners burden to show a specific and plausible means of how the challenged action may harm him or her.).

38 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 168 (1998)

(citing Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996)); see also N. States Power Co. (Prairie Island Nuclear Generating Plant Indep. Spent Fuel Storage Installation), LBP-12-24, 76 NRC 503, 507-08 (2012) (citing EnergySolutions, CLI-11-3, 73 NRC at 621). Both the Commissions Notice of Hearing Opportunity for this proceeding and its Rules of Practice require a

9 palpable injury-in-fact sufficient to establish standing, the petitioner must demonstrate that the injury-in-fact is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.39 The mere ability to imagine circumstances where a party could be affected is not enoughthe petitioner must demonstrate that the injury is certainly impending.40 In the NRC licensing context, unsupported general references to radiological consequences are insufficient to establish a basis for injury to establish standing.41 Accordingly, standing will be denied when the threat of injury is too speculative.42 B.

Movants Standing Claims Are Fundamentally Flawed and Insufficient to Demonstrate Standing The Filing suffers from numerous flaws, each of which is fatal to Movants respective assertions of standing in this proceeding, and the Filing should be rejected for failure to satisfy 10 C.F.R. §§ 2.309(a) and (d).

In the Filing, Fasken claims organizational standing in its own right based on purported harms to its economic interests.43 However, it alleges only the existence of oil and gas interests approximately two miles from the proposed Holtec CISF site.44 The Filing says nothing about

petitioner to set forth: (1) the nature of its right under the AEA to be made a party to the proceeding; (2) the nature and extent of its property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceeding on its interest. Notice of Hearing Opportunity, 83 Fed. Reg. at 44,071; 10 C.F.R. § 2.309(d)(1).

39 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994).

40 Nw. Airlines, Inc. v. Fed. Aviation Admin., 795 F.2d 195, 201 (D.C. Cir. 1986) (emphasis in original)

(citing Babbitt v. United Farm Workers Natl Union, 442 U.S. 289, 298 (1979)).

41 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-92-23, 36 NRC 120, 130 (1992).

42 Sequoyah Fuels, CLI-94-12, 40 NRC at 72 (citing Whitmore v. Ark., 495 U.S. 149, 158-59 (1990); L.A. v.

Lyons, 461 U.S. 95, 105 (1983)) (finding an assertion of offsite injury was not too speculative to establish standing where the petitioner submitted expert affidavits directly challenging information in the application regarding groundwater flow paths).

43 Filing at 3.

44 Id. at 6 (emphasis added).

10 alleged economic harms to Fasken in relation to the ISP Application. In fact, the Filing makes only a single reference specific to ISP in its standing discussionand even that reference is in the context of PBLRO, not Fasken.45 Moreover, Faskens asserted injuries are specifically linked to the Holtec application.46 By comparison, the Filing does not cite any portion of the ISP Application in support of its standing claims. Ultimately, Faskens assertions of standing related to the Holtec proceeding are insufficient to demonstrate standing to participate here.47 Accordingly, Fasken has not demonstrated standing in this proceeding.

As to PBLRO, it seeks representational standing on behalf of two named members:

Fasken and D.K. Boyd.48 However, PBLROs arguments also fail to demonstrate such standing on multiple, independent grounds. First, representational standing requires an organization to demonstrate that at least one of its members would otherwise have standing in their own right.49 Because Fasken does not have standing in its own right (having failed to demonstrate an interest affected by this proceeding), and D.K. Boyd does not have standing in his own right (as explained further, below), PBLRO has not satisfied the first prong of the representational standing test, and its assertion of standing fails.

Second, even if Fasken had demonstrated standing in its own right, it could not also be double-represented in the proceeding through its membership in PBLRO. The Commission has explicitly rejected such multiple representation as detrimental to the process of

45 Id. (making the vague claim that PBLRO member D.K. Boyd has property near the ISP proposed facility).

46 See id. at 4 (citing the Holtec Environmental report twice), 6-7 & n.1 (citing the Holtec Safety Analysis Report twice).

47 AEA § 189a (codified at 42 U.S.C. § 2239(a)).

48 Filing at 3, 6.

49 PFS, CLI-98-13, 48 NRC at 30-31.

11 adjudication.50 Likewise, to the extent PBLRO asserts standing on the claim that its member, D.K. Boyd, has standing in his own right,51 its assertion is likewise improper. Mr. Boyd already has requested to be represented by another entity in this proceeding.52 The Commission has explained that individuals cannot simultaneously authorize multiple organizations to represent their interests because it might lead to confusion as to which entity is speaking for the individual.53 Accordingly, because PBLRO has failed to identify any member it could represent in this proceeding, it has failed to demonstrate representational standing.

Finally, PBLRO has failed to satisfy its affirmative burden to demonstrate authorization to represent anyone in this proceeding. More specifically, the Filing did not include any authorization affidavits.54 As the Commission has explained, [t]his omission is not merely a matter of failing to cross a t or dot an i.55 Rather, representational standing must be denied altogether if a petitioner submitted no authorization affidavits with its petition to intervene.56 Furthermore, PBLRO may not attempt to cure this fatal defect by belatedly submit[ing]

evidence regarding standing at the eleventh-hour by appending an authorization affidavit to

50 Big Rock Point ISFSI, CLI-07-19, 65 NRC at 426-27.

51 See Filing at 6.

52 See Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene, Attach. 03, Declaration of D.K.

Boyd ¶ 16 (Oct. 3, 2018) (ML18276A242) (authoriz[ing] Beyond Nuclear to request a hearing and intervene on [his] behalf).

53 Big Rock Point ISFSI, CLI-07-19, 65 NRC at 426-27.

54 The Filing appears to reference an attachment styled as the Taylor Dec. See Filing at 2-3 & 6. However, no declarations or affidavits were included with the Filing in this proceeding (which was signed by counsel) or otherwise served on ISP. Moreover, none of those references purports to correspond to any assertion that either Fasken or D.K. Boyd has authorized PBLRO to act in their stead as to this Filing.

55 Palisades, CLI-08-19, 68 NRC at 260.

56 Id. at 261.

12 its reply brief.57 The controlling Commission precedent is clear; PBLRO simply has not satisfied the prerequisites for representational standing in this proceeding.

C.

Movants Have Not Demonstrated Proximity-Plus Standing Movants assert that they meet standing requirements under the proximity presumption.58 However, as explained below, they have neither demonstrated an obvious potential for offsite consequences from the WCS CISF, nor demonstrated any interests within the hypothetical radius of potential harm. Accordingly, proximity-plus standing is unavailable here.

Movants Have Not Demonstrated an Obvious Potential for Offsite Consequences Movants claim they are entitled to proximity-based standing on the basis that [t]he potential for offsite consequences from the Holtec CISF is obvious due to the volume of

[anticipated] spent nuclear fuel.59 They further claim that Holtec recognizes at least one plausible scenario that would cause off-site radiological consequences.60 However, these (vague and unsupported) assertions regarding the Holtec proceeding are irrelevant here.

Movants make no corresponding assertions regarding the ISP facility; indeed, the Filing is devoid of any allegations of offsite consequences attributable to the instant proceeding. This omission is dispositive to proximity-plus standing.

Moreover, even had Movants referenced the WCS CISF, no such obvious potential exists. The Application identifies no plausible scenario of offsite radiological consequences from the WCS CISFbecause there is none. Although the WCS CISF would store SNF, the Commission has explained that the mere existence of a source of radiationeven a significant

57 Id. See also id. at 262 (Commission explicitly disavow[ing] any interpretation of its prior case law that might be read to imply that authorization affidavits may be filed with a reply (emphasis added)).

58 Filing at 5.

59 Id. at 6 (emphasis added).

60 Id. at 6-7 (emphasis added).

13 onedoes not, without more, demonstrate an obvious potential for offsite consequences.61 To demonstrate proximity-plus standing, Petitioners bear the further burden of demonstrating a plausible mechanism through which those materials could harm them.62 Movants simply have not done so; and their references to the Holtec proceeding do not otherwise demonstrate standing here.

Additionally, in promulgating its Part 72 emergency planning ruledeclining to impose any offsite emergency planning requirements whatsoever on away-from-reactor ISFSIsthe Commission determined there simply is no plausible possibility of offsite consequences.63 The Commissions determination that only onsite emergency planning is required at away-from-reactor ISFSIs is directly relevant to proximity-based standing because the proximity presumption in reactor proceedings is based on the offsite EPZ.64 As the Commission explained:

To be a potential radiological hazard to the general public, radioactive materials must be released from a facility and dispersed offsite. For this to happen:

The radioactive material must be in a dispersible form, There must be a mechanism available for the release of such materials from the facility, and There must be a mechanism available for offsite dispersion of such released material.

Although the inventory of radioactive material contained in 1000 MTHM of aged spent fuel may be on the order of a billion curies or more, very little is available in a dispersible form; there is no mechanism available for the release of radioactive materials in significant quantities from [the] facility; and the only mechanism

61 Schofield Barracks, CLI-10-20, 72 NRC at 189.

62 Id.

63 See, e.g., Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS); Final rule, 60 Fed. Reg. 32,430, 32,439 (June 22, 1995) (ISFSI EP Rule).

64 Ross ISR, CLI-12-12, 75 NRC at 610 n.32 (explaining the presumptive distance corresponds roughly to the emergency planning zone for ingestion pathways).

14 available for offsite dispersion is atmosphere dispersion.65 Because the Commission generically concluded that: (1) [t]here exists no significant dispersal mechanism for the radioactive material contained within a storage cask;66 and (2) the postulated worst-case accident involving an ISFSI has insignificant consequences to the public health and safety,67 the final rule imposed onsite-only emergency planning requirements on away-from-reactor ISFSI licensees limited to dry storage of aged fuel, such as the WCS CISF.

In other words, the required EPZ limit is the site boundary. Notably, the Commissions conclusion does not rest simply on a finding that the possibility of offsite consequences is improbable (e.g., would require the simultaneous failure of multiple independent safety systems);

rather, it is based on the Commissions well-considered conclusion that there simply is no plausible offsite dispersal mechanism.68 Ultimately, Movants offer nothing to contradict the Commissions generic conclusions in this regard.

Because Movants failed to carry their burden to demonstrate some obvious potential for offsite consequences specific to the ISP proceeding (and because the Commission generically determined such potential does not exist), they have not demonstrated proximity-plus standing.

65 ISFSI EP Rule, 60 Fed. Reg. at 32,431 (citing NUREG-0575, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, Vol. 1 § 4.2.2, Safety and Accident Considerations (Aug. 1979) (ML022550127)) (emphasis added).

66 Id. at 32,439.

67 Id. at 32,431 (citing NUREG-1140, A Regulatory Analysis on Emergency Preparedness for Fuel Cycle and Other Radioactive Material Licensees (Jan. 1988) (ML12174A320)).

68 Compare Ga. Tech, CLI-95-12, 42 NRC at 116 (finding a scenario in which three independent redundant safety systems [] fail did not altogether strain[] credibility and thus was enough to invoke the proximity presumption) and CFC Logistics, Inc. (Materials License), LBP-03-20, 58 NRC 311, 320 (2003) (finding that a very strained accident scenario was enough to invoke the proximity presumption because the scenario could result in the dispersion of radioactive material into the air (emphasis added)) with ISFSI EP Rule, 60 Fed. Reg. at 32,439 (noting that design basis events were unlikely, and that [n]o credible dynamic events have been identified that could cause a cask rupture, but declining to impose offsite EPZ requirements on away-from-reactor ISFSIs for the second and additional reason that [t]here exists no significant dispersal mechanism for the radioactive material contained within a storage cask).

15 Movants Have Not Identified Any Interests Within the Radius of Obvious Potential for Offsite Consequences Even assuming arguendo Movants had demonstrated some mechanism giving rise to an obvious potential for offsite consequences specific to the ISP proceeding, they still have failed to identify any interests within the radius of that potential harm. Specifically, Fasken asserts proximity-based standing on its interests situated two miles from the Holtec site; and PBLRO asserts proximity-based standing on its member D.K. Boyds property near the ISP site.69 Then, without specifying any alleged distance from either of those locations to the ISP site, they make the conclusory claim that [t]hese distances meet the proximity test for standing.70 Furthermore, despite their explicit recognition that the presumptive radius must be determined on a case-by-case basis,71 Movants offer no explanation, specific to the WCS CISF, as to why these (unspecified) distances purportedly are within the radius of obvious offsite radiological effects. Although petitioners need not establish a causal link between the proposed action and their specific interests, they still must provide some rational basis for concluding that their interests are within a distance that generally could be affected by the purported obvious potential for offsite consequences. Movants vague claims here simply are not enough to fulfill their burden to demonstrate this requisite element of proximity-plus standing.

Also, Movants references to incompatible legal precedent are unhelpful. For example, Movants note that, in proceedings involving spent fuel pool expansions and at-reactor ISFSIs, presiding officers have used a presumptive distance of 17 miles.72 These proceedings, however,

69 Filing at 6 (emphasis added).

70 Id.

71 Id. (citing Exelon Generation Co. LLC & PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 580-81 (2005)).

72 See, e.g., Filing at 6 (citing Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 428-29 (2002) (adopting a 17-mile presumptive distance for an at-

16 are fundamentally different than away-from-reactor ISFSI proceedings. Spent fuel pools and at-reactor ISFSIs entail wet storage, fresh spent fuel, and cask-loading or fuel-handling operations. These features present distinct radiological hazards not found at away-from-reactor ISFSIs limited to passive storage of dry cooled fuel. The Commission explicitly considered these differences in declining to impose offsite emergency planning requirements on dry away-from-reactor ISFSIs:

In the case of an operating nuclear power plant, the dispersal mechanism for radioactive material in the spent fuel is either derived from the heat produced during the fission process or the decay heat which exists in the short period immediately following shutdown. During these times, the potential exists for an accident that could cause the fuel cladding to fail.... On the other hand, spent fuel stored in an ISFSI is required to be cooled for at least one year.... At this age, spent fuel has a heat generation rate that is too low to cause significant particulate dispersal in the unlikely event of a cask confinement boundary failure.73 Ultimately, neither the presumptive distance determinations in cases involving at-reactor ISFSIs, which entail vastly different potential radiological harms, nor any other case cited by Movants,74 are at all relevant to the case-by-case analysis at issue here.

Rather, the Board should look for guidance to the presumptive zone of harm codified in the relevant emergency planning regulations. By way of example, the 50-mile proximity

reactor ISFSI proceeding and, in turn, citing the 17-mile presumptive distance for a spent fuel pool expansion proceeding in Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-99-25, 50 NRC 25, 29-31 (1999))).

73 See, e.g., ISFSI EP Rule, 60 Fed. Reg. at 32,439.

74 Movants cite two other cases in this regard. Filing at 5-6 (citing PFS, LBP-98-7, 47 NRC 142 and Armed Forces Radiobiology Research Inst. (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 154 (1982)).

Both are inapposite here. In PFS, the Board evaluated standing on traditional grounds, not on the basis of the proximity-plus presumption. Indeed, the decision does not, even once, reference this alternative path to demonstrating standing, or articulate its associated legal standards. Moreover, the decision articulates no basistechnical or otherwisefor its conclusions about the distance at which a plausible harm could accrue offsite (in evaluating injury-in-fact claims), and therefore appears arbitrary to the extent it could be interpreted to establish some presumptive radius of harm. And the AFRRI proceeding involved an operating irradiation facilitywholly dissimilar from the passive structure at issue here. See Big Rock Point ISFSI, CLI-07-19, 65 NRC at 426.

17 presumption in reactor proceedings is based on the 50-mile offsite EPZ for reactors.75 For Part 72 ISFSI licensing actions (based on the important differences in potential radiological harm noted above), the Commission determined that the zone of potential harm from the consequences of worst-case accidents involving an ISFSI located on a reactor site were bounded by the reactor EPZ; but, that no offsite EPZ was necessary for away-from-reactor ISFSIs.76 Thus, even assuming proximity-plus standing exists here, the outermost radius of potential harm nonetheless is limited to the site boundary.

Notably, the Commission explicitly rejected the possibility of even a small, 1-mile offsite EPZ for such licensees, concluding it was unwarranted.77 In other words, the Commission has generically concluded that away-from-reactor ISFSIs do not pose a realistic threat of offsite harm.78 Nevertheless, even assuming some speculative radiological harm (not identified by Movants) could accrue at the site boundary, Movants offer no explanation for how this harm could travel the (unspecified) distance to their interests or members in a form that could cause harm. This omission is particularly conspicuous where the Commission has generically determined that, at facilities such as the WCS CISF, very little [radioactive material] is available in a dispersible form; [and] there is no mechanism available for the release of radioactive materials in significant quantities from the facility. 79 Ultimately, Movants conclusory allegations about potential radiological harm are insufficient to satisfy its affirmative burden to

75 Ross ISR, CLI-12-12, 75 NRC at 610 (explaining the presumptive distance corresponds roughly to the emergency planning zone for ingestion pathways); see also 10 C.F.R. § 50.47(c)(2) (establishing a 50-mile radius as the presumptive offsite EPZ for ingestion pathways). The lack of an offsite EPZ does not per se preclude proximity-plus standing. However, it casts serious doubt on any assertion that (unspecified) offsite radiological consequences are somehow obvious.

76 ISFSI EP Rule, 60 Fed. Reg. at 32,439.

77 Id. at 32,435.

78 Cf. Calvert Cliffs, CLI-09-20, 70 NRC at 917.

79 ISFSI EP Rule, 60 Fed. Reg. at 32,431 (citing NUREG-0575, Vol. 1 § 4.2.2) (emphasis added).

18 demonstrate that a zone of potential harm extends beyond the site boundarymuch less, that it extends some unspecified distance to their alleged interests.80 Accordingly, Movants alleged interests or members located at unspecified distances from the WCS CISF are insufficient to demonstrate proximity-plus standing.

D.

Movants Have Not Demonstrated Traditional Standing Movants also assert that they meet traditional standing requirements,81 purporting to identify both radiological and economic injuries. Specifically, Movants allege radiological injury on the basis of some unspecified harm, to their unspecified members, who purportedly live, work and travel on or along certain unspecified transportation routes.82 Ultimately, these vague claims simply are insufficient to meet their burden to demonstrate standing.

As a threshold matter, neither Fasken nor PBLRO has articulated a connection between these alleged injuries and some cognizable organizational or representational interest. Fasken is a commercial entity, and does not appear to have any members; thus, the Filings vague assertions of harm to members are inapplicable to Fasken.83 Further, to the extent Fasken speculates that its employees could suffer some radiological injury from hypothetical chance encounters with minute doses of radiation (likely below background levels),84 it fails to either:

(1) explain how, even if true, this could result in some institutional harm to Fasken, or (2) assert authorization to represent such (unspecified) employee(s)or to demonstrate that a non-

80 NFS, CLI-04-13, 59 NRC at 248.

81 Filing at 3.

82 Id.

83 See also id. (stating Fasken has individual standing, but not claiming representational standing).

84 Id. at 4.

19 membership commercial organization such as Fasken even could act as a representative.85 And PBLRO (which does not allege injury to any organizational interests86) has not identified which of its members purportedly could be harmed by transportation of SNF, or described their proximity to or frequency of traveling on any (unspecified) transportation routes. Its cursory allegations of harm fall far short of demonstrating traditional standing.

Movants Alleged Transportation Safety-Related Harms Lie Outside the Scope of This Proceeding Movants assertions of radiological injury (to unspecified members and employees) purportedly stemming from proximity to routine shipments of spent nuclear fuel,87 amount to concerns regarding transportation safety. However, such concerns are not within the scope of this proceeding, and therefore cannot provide a basis for standing.

ISPs Application seeks a specific-license for an ISFSI under 10 C.F.R. Part 72; it does not request approval of any new transportation package design or approval of any specific transportation route. The safety and security of spent fuel transportation is governed by the standards in 10 C.F.R. Parts 71 and 73 and through regulations issued by the Department of Transportation.88 For example, an entirely separate application and approval process are required for any planned road or rail routes over which spent fuel may be transported.89 The

85 General health and travel interests of individual persons are not remotely germane to Faskens commercial purpose; thus, it fails to satisfy threshold requirements for representational standing. See PFS, CLI-98-13, 48 NRC at 30-31.

86 See Filing at 3 (stating PBLRO is a collective of land and royalty owners formed solely to oppose CISFs, but not pleading any organizational interest (e.g., land or royalties owned by the organization, itself)).

87 Filing at 4.

88 See 10 C.F.R. § 71.0, Purpose and scope. See also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-99-34, 50 NRC 168, 176-77 (1999) (noting that shipment of spent nuclear fuel [is]

governed by Part 71 and do[es] not require a specific license under Part 72).

89 See 10 C.F.R. § 73.37(b)(1)(vi); see also NUREG-0561, Rev. 2, Physical Protection of Shipments of Irradiated Reactor Fuel §§ 2.1, NRC Approval of SNF Shipment Routes, 2.1.1, Route Selection Criteria (Apr. 2013) (ML13120A230).

20 appropriateness of the route selectionincluding whether spent fuel should (or should not) travel along the routes identified in the Filing and accompanying affidavitssimply is not at issue in this proceeding. The Commission has recognized that alleged harms from activities separately authorized and regulated by transportation licensing and regulatory oversight regimes are insufficient to establish AEA-based standing in non-transportation licensing proceedings.90 Ultimately, Movants claims in this regard fail to identify an interest that may be affected by this ISFSI licensing proceeding.

Movants Allegations of Potential Exposure to Minute Doses of Radiation and Geographic Proximity to Transportation Routes Are Insufficient to Establish Standing Nevertheless, even if transportation safety issues outside the scope of this proceeding somehow could provide a basis for standing here, Movants purported threat of injuryde minimis radiological exposures from chance encounters along possible transportation routesis conjectural or hypothetical at best, and certainly is not concrete and particularized.91 Accordingly, these claims are insufficient to establish traditional standing.

As noted above, Movants assert radiological injury on the basis that their unspecified members or employees who live or travel on or near certain unspecified transportation routes could be exposed to unwanted radiation; that there is a risk of radiologic harm from an accident caused by SNF shipments; and that even small exposures of unwanted radiation are

90 Cf., e.g., EnergySolutions, CLI-11-3, 73 NRC at 625 (finding radioactive materials transportation challenges outside the scope of an import/export proceeding); UniTech Services Group, Inc. (Export of Low-Level Waste), CLI-18-2, 87 NRC 78, 81-82 (2018) (finding claims of chance highway encounters and other transportation-related allegations of injury lacked a sufficient nexus to an export license proceeding to establish standing because transportation is separately authorized... by transportation licensing requirements).

91 Sequoyah Fuels, CLI-94-12, 40 NRC at 72.

21 sufficient injury-in-fact to establish standing.92 However, to the extent they assert that mere physical presence or property ownership on or near potential transportation routes establishes standing, their claims are contrary to settled law. For example, in 2004, the Commission explained that mere geographical proximity to potential transportation routes is insufficient to confer standing.93 Moreover, tenuous assumptions that a transportation accident might occur are entirely speculative in nature, and therefore fail to establish standing.94 Likewise,

[t]he mere fact that additional radioactive waste will be transported does not, per se, demonstrate an injury-in-fact vis--vis a higher likelihood of an accident; any asserted injury on this basis is purely speculative and legally insufficient to demonstrate standing.95 Movants nearly identical arguments in this regard also fail for these same reasons.

Moreover, to the extent the Filing could be read to assert facts beyond mere geographic proximity that somehow establish a clear causal nexus to radiological injury, its arguments still miss the mark. Specifically, Movants claim that even minor radiological exposures from proximity to a shipment of spent nuclear fuel constitute a sufficient injury-in-fact to establish standing.96 For this proposition, they cite only an unreviewed standing discussion from a 2001 licensing board decision in the MOX proceeding.97 This proposition is unpersuasive in light of more recentand controllingprecedent to the contrary. In 2011, the Commission

92 Filing at 3-4. Notably, the Filing only cites to the Holtec application as support for its assertions. The Filing does not identify anything in the ISP Application that purportedly supports its allegations of injury.

93 U.S. Dept of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004).

94 Exxon Nuclear Co. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518 (1977).

95 Northern States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 NRC 40 (1990).

96 Filing at 3-4.

97 Id. at 3, 5 (citing Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-01-35, 54 NRC 403, 417 (2001), revd on contention admissibility grounds without reviewing standing, CLI-02-24, 56 NRC 335 (2002)).

22 categorically held that [m]ere potential exposure to minute doses of radiation within regulatory limits does not constitute a distinct and palpable injury on which standing can be founded.98 Indeed, the Diablo Canyon case (cited by Movants elsewhere) confirms this standing limitation.99 The Diablo Canyon Board observed that simply showing the potential for any radiological impact, no matter how trivial, is not sufficient to meet the requirement of a showing of a distinct and palpable harm under standing element one.100 The Board concluded that an alleged radiological exposure four or five orders of magnitude below average natural background radiation levels... clearly falls below the level that can be considered substantial enough for standing purposes.101 Here, the injury alleged by Movantsfrom radiologic exposure received during routine shipments of SNF102presents this identical factual scenario. The NRC has generically concluded that the potential radiological exposures to members of the public from routine transportation of spent fuel are approximately four to five orders of magnitude less than the collective background radiation dose.103 Thus, as a matter of law, the hypothetical and minute radiological exposures upon which Movants seek to establish traditional standing fall far short of demonstrating an injury-in-fact.

98 EnergySolutions, CLI-11-3, 73 NRC at 623 (emphasis added).

99 Filing at 3, 6.

100 Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 428.

101 Id. at 429.

102 Filing at 4.

103 NUREG-2125, Spent Fuel Transportation Risk Assessment at xxiv (Jan. 2014) (ML14031A323). See also ER at 4-14 to -15 (All of the NRCs assessments have concluded that the risk from radiation emitted from a transportation cask during routine, incident-free transportation is a small fraction of the radiation dose received from the natural background).

23 Movants Claims of Economic Injury Are Speculative and Not Supported by Any Objective Fundament Finally, Movants allege standing based on speculative assertions of unspecified impacts on property values due to mere proximity to nuclear facilities and transportation routes.104 Neither Fasken nor PBLRO identify any specific property for which its value purportedly would be affected by this proceeding. Nevertheless, all property proximate to the proposed WCS CISF is already proximate to multiple existing nuclear facilities.105 Thus, their assertion in this regard is simply illogical and unsupported. Nevertheless, where a petitioner seeks to base its claim to standing on economic loss, what is necessary is a showing... that the purported economic loss has some objective fundament, rather than being based solely on the petitioners (or affiants) perception of the economic loss in light of the proposed licensing action.106 Movants fail to provide any objective basis, whatsoever, for their speculative concern.

Importantly, the Board need not uncritically accept such contested, untenable, conjectural,

[and] conclusory standing claims.107 Rather, it must weigh those claims and exercise its judgment about whether the standing element at issue has been satisfied.108 In essence, Movants ask the Board to hold that proximity to a nuclear materials facility, per se, results in property devaluation (and thus, demonstrates standing). But such a holding would run headlong into the Commissions prior ruling that a pure proximity presumption is not

104 Filing at 4-5.

105 See, e.g., ER at 3-62.

106 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-12-3, 75 NRC 164, 184 (2012) (citing Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 432 (generic, unsubstantiated claims regarding health, safety, and property devaluation impacts are insufficient to establish standing), affd, CLI-03-1, 57 NRC 1 (2003).

107 Ross ISR, LBP-12-3, 75 NRC at 177.

108 Id.

24 appropriate in materials proceedings.109 Furthermore, the blanket determination requested here is entirely inappropriate given the Commissions recognition in the LES case that the precise opposite effect also is possiblei.e., that property values near a nuclear installation may actually increase.110 For example:

parcels of property near the [facility] may increase in value, as possible sites for new business ventures supporting [the licensee] (e.g., food service and equipment vendors);111 increased demand for homes by migrating employees also may tend to increase the value of property near nuclear facilities;112 and the influx of new tax money,113 may result in improved schools, infrastructure, and other government amenities which, in turn, could boost property values.

The Commissions decision in LES makes clear that some parcels of land near nuclear facilities may increase in value,114 while other areas may decrease in value, and the only way to know the difference is through a fact-specific analysis. Given this explicit acknowledgement, Movants conclusory and speculative claims of economic losswhich are not accompanied by any reasoned explanation whatsoeverare conjectural or hypothetical at best. Without some objective fundament, these baseless assertions certainly cannot demonstrate a concrete and particularized injury capable of demonstrating standing.115

109 Ross ISR, CLI-12-12, 75 NRC at 610 n.32 (we do not see a sound basis for departing from our current practice of basing standing [in materials proceedings] on the circumstances specific to the particular license application).

110 La. Energy Servs., LP (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 108 (1998) (emphasis in original).

111 Id.

112 Id. at 109.

113 Id. at 108.

114 Id. (To be sure, the Board also found that two or three parcels of property near the [facility] may increase in value).

115 Sequoyah Fuels, CLI-94-12, 40 NRC at 72.

25 Additionally, the CISF would be co-located with WCSs existing low-level waste and mixed waste facilities. Movants offer no explanation of how the addition of passive spent fuel storage capabilities to the existing industrial activities in this areaincluding a stone quarry, a hazardous waste and low-level radioactive waste landfill, a large power transmission substation, a county landfill, a uranium enrichment plant, and an aboveground oilfield waste disposal land farm116purportedly would introduce some incremental effect on property values.117 Whereas, in the context of an existing facility, if the likelihood of an alleged injury is just as high with or without the proposed licensing action, there is no injury-in-fact, fairly traceable to the proposed licensing action, that could be remedied therein.118 Here, we simply do not knowbecause Movants provide no benchmark (and do not even identify a specific location or parcel of property) or other objective indicator of potential (positive, negative, or neutral) property value impact.

They could have attempted to make the required nonsubjective showing by:

demonstrating the value of property at a comparable distance from [the proposed]

facility had dropped from what it was prior to the submission of [the] license application [or] actual sales/offers before and after the licensing proposal at issue in the proceeding, or by providing the declaration of a local realtor or property

116 ER at 3-62.

117 Movants cite Kelly v. Selin, 42 F.3d 1501, 1509-10 (6th Cir. 1995), for the proposition that assertions of diminished property values, alone, can demonstrate standing. However, the court in Kelly did not find standing on that basis alone. Rather, the court considered the property value claims in conjunction with a bundle of other claims, including aesthetic interests and physical health, and the potential disruption of enjoyment of [] lakefront property. Id. The court said nothing to suggest that unsubstantiated assertions of property devaluation, alone, would have demonstrated Article III standing. Moreover, that case also is factually distinguishable in that the action proposed was to begin storing waste, for the first time, at a lakefront location; here, ISP/WCS seeks to continue storing waste, albeit of a different type, at an existing nuclear waste facility. By any objective measure, Movants alleged economic harm is far more speculative and attenuated than that in Kelly.

118 Tenn. Valley Auth. (Sequoyah Nuclear Plant, Units 1 & 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 27 (2002).

26 appraiser who furnishes an independent assessment of the propertys value before and after the licensing action was proposed before the agency.119 Nevertheless, Movants failed to do so here. More importantly, they failed to provide any objective basis for their speculativeand quite likely wrongclaim. Given that the petitioner bears the burden to provide facts sufficient to establish standing,120 and they have not done so here, these claims are insufficient to demonstrate traditional standing.

In summary, Movants have failed to demonstrate either organizational or representative standing, under either proximity-plus or traditional standing theories. Accordingly, the Filing must be denied.

IV.

MOVANTS HAVE NOT SUBMITTED AN ADMISSIBLE CONTENTION A.

Legal Standards for Contention Admissibility Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. In addition, Section 2.309(f)(1) states that each contention must:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised is within the scope of the proceeding; (iv)

Demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and

119 Id.

120 Bell Bend, CLI-10-7, 71 NRC at 139.

27 (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.121 Failure to comply with any one of these six admissibility requirements is grounds for rejecting a proposed contention.122 These requirements are strict by design.123 The rules were toughened... in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.124 The purpose of the six criteria is to focus litigation on concrete issues and result in a clearer and more focused record for decision.125 The Commission has explained that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.126 The petitioner alone bears the burden to meet the standards of contention admissibility.127 Thus, where a petitioner neglects to provide the requisite support for its contentions, the presiding officer may not cure the deficiency by supplying the information that is lacking or making factual assumptions that favor the petitioner to fill the gap.128 A contention that merely

121 10 C.F.R. §§ 2.309(f)(1)(i)-(vi). See also Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-17-4, 85 NRC 59, 74 (2017) (reciting the six Section 2.309(f)(1) admissibility factors).

122 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); see also Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

123 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

124 Id. (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

125 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202; see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 61 (2008).

126 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.

127 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)

([I]t is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission); DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) ([T]he Board may not substitute its own support for a contention.).

128 See Palisades, CLI-15-23, 82 NRC at 329; Fermi, CLI-15-18, 82 NRC at 149; Ariz. Pub. Serv. Co. (Palo Verde Nuclear Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155 (1991).

28 states a conclusion, without reasonably explaining why the application is inadequate, cannot provide a basis for the contention.129 A material issue is one that would make a difference in the outcome of the licensing proceeding.130 The petitioner must demonstrate that the subject matter of the contention would impact the grant or denial of a pending license application.131 A contention that challenges an NRC rule is outside the scope of the proceeding because, absent a waiver, no rule or regulation of the Commission... is subject to attack... in any adjudicatory proceeding.132 This includes contentions that advocate stricter requirements than agency rules impose or that otherwise seek to litigate a generic determination established by a Commission rulemaking.133 Similarly, any contention that collaterally attacks applicable statutory requirements or the basic structure of the NRC regulatory process must be rejected as outside the scope of the proceeding.134 Accordingly, a contention that simply states the petitioners views about regulatory policyor takes issue with the nature of existing regulationsdoes not present a litigable issue.135 Equally important, the Commission has stated further that the petitioner must read the pertinent portions of the license application... state the applicants position and the petitioners

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

130 Oconee, CLI-99-11, 49 NRC at 333-34.

131 See Indian Point, LBP-08-13, 68 NRC at 62.

132 10 C.F.R. § 2.335(a).

133 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159-60, affd, CLI-01-17, 54 NRC 3 (2001) (rejecting the petitioners contention that a license renewal applicant was required to prepare a probabilistic risk assessment, where NRC regulations did not require such an analysis).

134 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007) (stating that a contention that attacks applicable statutory requirements must be rejected by a licensing board as outside the scope of the proceeding) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 20 (1974)).

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

29 opposing view, and explain why it disagrees with the applicant.136 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.137 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.138 For example, if a petitioner submits a contention of omission, but the allegedly missing information is indeed in the license application, then the contention does not raise a genuine dispute.139 B.

Overview of the Proposed Contention Movants sole substantive argument, viewed through the prism of a contention, incorporate[s] by reference the arguments and authorities140 in the BN Motion to Dismiss, which, in turn, asserts that the NRC must dismiss ISPs Application and terminate this proceeding because the Application violates the NWPA.141 Specifically, Movants, via the incorporated BN Motion to Dismiss, claim that the Applications central premise is that DOE will take title to the spent fuel that would be stored at the CISF before a permanent repository for the spent fuel has opened,142 and that this premise contravenes various NWPA provisions that

136 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process; Final Rule, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.

137 Procedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170; see also Palo Verde, CLI-91-12, 34 NRC at 156.

138 See S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, 71 NRC 1, 21-22 (2010); Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).

139 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 NRC 81, 95 (2004); see also Summer, CLI-10-1, 71 NRC at 21-22.

140 Filing at 7.

141 BN Motion to Dismiss at 22.

142 See, e.g., id. at 1.

30 preclude DOE from taking title to spent fuel unless and until a permanent repository has opened.143 In short, the incorporated BN Motion to Dismiss argues that NWPA Section 111 provides that the federal government will not take title to spent fuel until it has opened a permanent repository,144 and the APA prohibits federal agency action that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.145 The incorporated BN Motion to Dismiss acknowledges that both ISPs Application and ER refer to DOE or other SNF Title Holders.146 However, it claims that ISPs references to private ownership of spent fuel are pro forma references that serve as nothing more than fig leaves over [its] essential premise... that [the facility] will be built only if DOE owns the waste.147 C.

Movants Challenge Is Not Admissible as a Proposed Contention Because It Raises Issues That Are Neither Within the Scope of This Proceeding, Nor Material to the NRC Staffs Findings on the ISP Application Significantly, the incorporated BN Motion to Dismiss, which substantive arguments are adopted without supplement by Movants, concedes that its challenge is not admissible under 10 C.F.R. §§ 2.309(f)(1)(iii) and (iv). Specifically, it states that its challenge lie[s] outside the scope of the pending licensing proceeding[], and admits that this question is not material to the instant proceeding because it can be resolved without consideration of the AEA and NEPA.148 ISP agrees. As defined by the Notice of Hearing Opportunity, the scope of this proceeding concerns ISPs request for a specific license under 10 C.F.R. Part 72 to construct and

143 Id.

144 Id. at 12 (citing 42 U.S.C. § 10131(a)(5)).

145 Id. (quoting 5 U.S.C. §§ 706(2)(A), (C)).

146 See id. at 17-19 (quoting Application at 1-1 to 1-2, 1-7, 1-9; ER at 3-5, 7-15).

147 Id. at 18-19.

148 Id. at 2 (citing 10 C.F.R. §§ 72.40, 51.101).

31 operate a CISF.149 The NRC therefore must make the findings required by the Atomic Energy Act of 1954, as amended (AEA), and the NRCs regulations.150 Accordingly, this proceeding is not concerned with DOEs authority under the NWPA to use a privately-owned, NRC-licensed CISF prior to the availability of a permanent geologic repository.151 Indeed, neither the Filing nor the incorporated BN Motion to Dismiss provides a basis to conclude that the NRC has any authority to decide whether DOE can take title to spent fuel prior to the availability of a permanent repositorywhether within the context of this proceeding or otherwise.152 That is a determination to be made by DOEnot the NRC.153 In any event, based on the explicit concessions in the incorporated BN Motion to Dismiss that its proposed challenge raises issues that are outside the scope of this proceeding and immaterial to the NRC Staffs findings, it is inadmissible as a proposed contention, and should be rejected because the failure to meet any one of the six admissibility criteria in Section 2.309(f)(1) is grounds for dismissal of a proposed contention.154

149 Notice of Hearing Opportunity, 83 Fed. Reg. at 44,070.

150 Id. at 44,071.

151 In the context of this proceeding, DOE is another governmental agency and a potential ISP customer. It is not an NRC license applicant in this proceeding.

152 Cf. PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101, 107 (2007) (denying an appeal claiming that [the] NRC ought to concern itself with... matters within the jurisdiction of other state and federal agencies); Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-16-17, 84 NRC 99, 109 n.35 (2016)

(noting that the NRC lack[s] jurisdiction to consider a licensees compliance with FERC regulations).

153 Cf. Hydro Res., Inc. (Albuquerque, NM), CLI-98-16, 48 NRC 119, 121-22 (1998) (Congress granted us authority merely to regulate radiological and related environmental concerns. It gave our agency no roving mandate to determine other agencies permit authority. Our regulation... show[s] due respect to our sister agencies responsibilities but do not add to our own regulatory jurisdiction.).

154 PFS, CLI-99-10, 49 NRC at 325; Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2

& 3), CLI-05-24, 62 NRC 551, 567-68 (2005).

32 D.

Movants Challenge Is Not Admissible as a Proposed Contention Because It Also Lacks Adequate Factual or Legal Support and Fails to Establish a Genuine Dispute with ISP on a Material Issue of Law or Fact Movants challenge also should be rejected because it fails to satisfy the contention admissibility requirements in 10 C.F.R. §§ 2.309(f)(1)(v) and (vi). Specifically, it lacks a factual foundation because it knowingly mischaracterizes the Application as based on the central or essential premise that DOE must hold title to the spent fuel to be stored at the facility before the facility can be licensed and built.155 It further lacks a legal basis because it claims that the NRC lacks the necessary statutory authority to license the proposed ISP CISF, and that issuance of a license to ISP would violate NWPA and APA requirements.

Movants Challenge Incorrectly Claims that ISP Assumes in Its Application That DOE Necessarily Will Hold Title to the Spent Fuel Stored at the Proposed CISF The central premise of the incorporated BN Motion to Dismiss is factually unfounded.

The Application clearly and consistently states that either the owners of the nuclear plants from which the spent fuel originated (i.e., the SNF Title Holders) or the DOE will be the customer(s) for the proposed CISF. Moreover, the Application is agnostic as to which entities may or may not be ISPs eventual customers. For example, the Application states that [DOE] or other holders of the title to SNF at commercial nuclear power facilities (SNF Title Holder(s)) will hold title to the SNF during transportation to and from and while in storage at the CISF.156 It further provides that ISP will obtain funds to operate the CISF pursuant to future contracts with the DOE or other SNF Title Holder(s), and that ISP shall not receive SNF until such a contract with the DOE or other SNF Title Holder(s) is provided to the NRC as a condition of the license.157

155 BN Motion to Dismiss at 1, 19.

156 Application at 1-1 to 1-2.

157 Id. at 1-7.

33 These representations are not meaningless; in fact, they are embedded in two proposed, legally-enforceable license conditions that express no preference as to either option.158 Proposed License Condition 23 provides that:

Prior to commencement of operations, the Licensee shall have an executed contract with the U.S. Department of Energy (DOE) or other SNF Title Holder(s) stipulating that the DOE or the other SNF Title Holder(s) is/are responsible for funding operations required for storing the material identified in 6.A, 6.B, 7.A or 7.B at the CISF as licensed by the U.S. Nuclear Regulatory Commission.159 Proposed License Condition 24 provides that:

Prior to receipt of the material identified in 6.A, 6.B, 7.A or 7.B, the Licensee shall have a financial assurance instrument required pursuant to 10 CFR 72.30 acceptable to the U.S. Nuclear Regulatory Commission or an executed contract with DOE guaranteeing decommissioning funds will be provided for use by the Licensee.160 The incorporated BN Motion to Dismiss does not (and cannot) point to any statements in the Application or ER that support its claim that approval of the Application is predicated on the assumption that DOE must hold title to any spent fuel that is transported to and stored at the proposed CISF. Instead, it falsely accuses ISP of hedging that purportedly essential assumption through meaningless and unsupported references to private ownership of the SNF.161 However, the BN Motion to Dismiss, as adopted by Movants, fails to provide any information even suggesting that private ownership of the spent fuel to be received and stored at

158 The use of such license conditions by the NRC is a well-established legal and regulatory practice. See, e.g.,

Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23 (2000); PFS, CLI-98-13, 48 NRC at 36; La. Enrichment Servs. (Claiborne Enrichment Ctr.), CLI-97-15, 46 NRC 294 (1997).

159 Application, Attachment A (Proposed License Conditions) at 3 (emphasis added).

160 Id. (emphasis added). To the extent the ER mentions potential ISP customers and funding sources, the ER statements are consistent with those in the Application. For instance, the ER notes that [t]he DOE or the SNF Title Holder(s) would be responsible for transporting spent nuclear fuel (SNF) from existing commercial nuclear power reactors to the CISF. ER at 3-5. It further states that ISP expects to enter into a contract(s) with DOE or the SNF Title Holder(s) that will provide the funding for facility construction, operation, and decommissioning. Id. at 7-15.

161 BN Motion to Dismiss at 19.

34 the CISFas specifically provided for in Revision 2 of the Applicationis impracticable for legal, commercial, or other reasons.

Similarly, the incorporated BN Motion to Dismiss notes that in Section 1.7 of the Application, ISP seeks an exemption from the NRCs decommissioning financial assurance regulations based on federal ownership of the spent fuel.162 It expressly acknowledges that

[t]he application asserts that if it fails to have a contract with DOE, [ISP] will obtain a surety bond for private owners.163 However, the incorporated BN Motion to Dismiss seeks to dismiss this key statementwhich undercuts the central thesis of its challengeas another purportedly pro forma assertion by ISP.164 The plain text of the Application makes clear that it is Movantsnot ISPthat rely on perfunctory assertions. Section 1.7.1 explains that ISP is seeking a contract with DOE that guarantees decommissioning funds will be provided for use by ISP as an alternative method of financial assurance that will guarantee the necessary funding for decommissioning the CISF authorized to store the material defined in... the license that is equivalent to the provisions of 10 CFR 72.30(e).165 Notably, just two paragraphs later Section 1.7.1 presents a second alternative:

In the event that the DOE does not enter into a contract to specifically guarantee that the funds shall be available for use by ISP to decommission said facilities, equipment, and land, then ISP shall have one of the financial assurance instruments, specified in 10 CFR 72.30(e), as specifically approved by the NRC, prior to receipt of SNF at the CISF, as a condition of the license.166

162 Id. at 18.

163 Id.

164 Id.

165 Application at 1-8 (emphasis added). The contract with DOE would require the DOE to pay the actual costs of decommissioning the facilities, equipment, storage systems, and land used to store the material at the CISF. Id.

166 Id. (emphasis added).

35 In the preceding excerpt from the Applicationwhich the BN Motion to Dismiss ignoresISP explicitly commits to comply with the requirements of Section 72.30(e) by providing (before receipt of any SNF at the CISF) an NRC-approved decommissioning financial assurance instrument, in the event it does not execute a contract with DOE. Moreover, ISP has sought to incorporate that commitment into a legally-binding license condition (see proposed License Condition 24, quoted above).167 As explained in Section 1.6.3 of the Application, ISP could implement the second alternative by using a surety bond combined with a conformity external sinking fund, as permitted by 10 C.F.R. § 72.30(e)(3).168 Thus, contrary to the claim in the incorporated BN Motion to Dismiss, ISP does not rely on a pro forma assertion. The Application specifically explains how ISP intends to meet its decommissioning financial assurance obligationsprior to receiving SNFin the event that it does not otherwise satisfy those obligations through a contract with DOE. Significantly, because ISP provides the above alternative paths for satisfying the NRCs decommissioning financial assurance requirements, Staff does not need to find that ISP could obtain a contract with DOE in order to approve the Application or the associated exemption request. Additionally, the incorporated BN Motion to Dismiss does not contest the viability of ISPs proposed alternative financial assurance method (i.e., surety bond with external sinking fund) under NRC regulations, or challenge ISPs ability to implement that method.169

167 As noted above, the Commission has approved the use of financial assurance-related license conditions in multiple materials licensing proceedings.

168 Application at 1-7. Payments from storage operations would be deposited into the external sinking fund as waste is received. A surety bond would be used to assure the difference in the decommissioning cost estimate and the value of the sinking fund until the sinking fund is fully funded by SNF Title Holder(s). Id.

169 10 C.F.R. § 72.30(e) allows applicants/licensees to use a number of different financial assurance methods, including: (1) prepayment; (2) a surety, insurance, or guarantee; or (3) an external sinking fund in which deposits are made at least annually, coupled with a surety method, insurance, or other guarantee method, the value of which may decrease by the amount being accumulated in the sinking fund.

36 In view of the above, Movants plainly have failed to meet their obligations under 10 C.F.R. § 2.309(f)(1)(vi) to develop a fact-based argument that actually and specifically challenges the application.170 In the same vein, the incorporated BN Motion to Dismiss does not provide any information to cast doubt on the veracity of ISPs statements in the ER and Application (including its proposed license conditions), which, by regulation, must be complete and accurate in all material respects.171 Importantly, the Commission has long declined to assume that licensees will refuse to meet their obligations,172 and refused to impute ulterior motive[s] to licensees. There is no reason to do so here, or to otherwise question ISPs stated intention in the Application to rely on DOE or private sector ownership and transport of the spent fuel to be stored at the CISF, as necessary and appropriate.

In summary, the Application, including the proposed license conditions described abovewhich the incorporated BN Motion to Dismiss does not challengemake clear that either DOE or SNF title holders could be ISPs customers. If ISP does not have an executed contract with DOE, then it must have executed contracts with commercial entities holding title to SNF, as well as an NRC-accepted decommissioning financial assurance instrument, before it can commence facility operations and receive licensed material for interim storage. Thus, as a factual matter, Movants challenge has no bearing on the licensability of the WCS CISF.

170 Oconee, CLI-99-11, 49 NRC at 341; see also id. at 342 (quoting PFS, LBP-98-7, 47 NRC at 181 (noting that a contention that fails directly to controvert the license application... is subject to dismissal).

171 See 10 C.F.R. § 72.11.

172 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-03-2, 57 NRC 19, 29 (2003); GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 207 (2000)

(Absent [documentary] support, this agency has declined to assume that licensees will contravene our regulations.); Curators of the University of Missouri (TRUMP-S Project), CLI-95-8, 41 NRC 386, 400 (1995).

37 The NRC Has the Legal Authority to License the Proposed CISF, Irrespective of Alleged NWPA Constraints on the Timing of DOEs Ability to Use the Facility Contrary to claims in the incorporated BN Motion to Dismiss, the NWPA in no way limits or affects the NRCs authority to license away-from-reactor centralized interim spent fuel storage facilities. In fact, the Commission and the judiciary have explicitly upheld that authority.

In the Private Fuel Storage proceedingin which the NRC issued a Part 72 license for a proposed CISFthe Commission conclude[d] that Congress, in enacting the [AEA], gave the NRC authority to license privately owned, away-from-reactor (AFR) facilities.173 The Commission held that [n]othing in the text or legislative history of the NWPA suggests that Congress intended to alter this authority when it enacted the NWPA, which is primarily concerned with the responsibilities and duties of federal agencies [not private companies] with respect to spent fuel storage and disposal.174 On this point, the Commission emphasized that the AEA does not specifically direct the NRC to regulate spent fuel storage and disposal, but instead gives the Commission regulatory jurisdiction over the constituent materials of spent nuclear fuel.175 The U.S. Court of Appeals for the D.C. Circuit reached the same conclusion in Bullcreek

v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004). In that case, the State of

173 PFS, CLI-02-29, 56 NRC at 392.

174 Id. at 411 (emphasis added). Thus, the incorporated argument that CLI-02-29 concerned only privately-owned waste (BN Motion to Dismiss at 21) is irrelevant, as this proceeding is not concerned with DOEs responsibilities and duties under the NWPA. Furthermore, by licensing the proposed ISP CISF, the NRC would not be ignor[ing] the NWPAs prohibition against transfer of title of spent fuel to the federal government in the absence of a repository. Id. As the Commission noted in CLI-02-29, [t]here is no irreconcilable conflict between a law imposing one set of restrictions on federal facilities (the NWPA), and another law imposing a different set of restrictions on private facilities (Part 72). Id. at 403.

175 Id. at 395. As the Commission noted in CLI-02-29, [v]arious courts have recognized [its] authority under the AEA to license and regulate the storage of spent nuclear fuel. Id. at 396. See Pac. Gas & Elec. Co. v.

State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 207 (1983); Jersey Central Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1111 (3d Cir. 1985); Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995),

cert. denied, 515 U.S. 1159 (1995); Illinois v. General Electric Co., 683 F.2d 206, 214-15 (7th Cir. 1982);

Maine Yankee Atomic Power Co. v. Bonsey, 107 F. Supp. 2d 47, 53 (D. Me. 2000).

38 Utah and others sought review of an NRC order denying a petition for rulemaking contending that NRCs rules for licensing a privately-owned, away-from-reactor spent fuel storage installation were superseded by provisions in the NWPA. In the process of rejecting Utahs arguments, the Court cited the NRCs authority under the [AEA] to license private away-from-reactor storage facilities.176 It also explained that because [t]he NRCs authority... to license private generators to store spent nuclear fuel originated with the AEA,... the NWPAs failure to authorize storage at private facilities had no effect on this preexisting authority.177 The D.C.

Circuits decision further underscores the erroneous nature of the argument that the NRCs issuance of a Part 72 license to ISP would somehow violate the NWPA and APA.

Thus, even assuming for arguments sake that the Application presumed that DOE would hold title to any spent fuel stored at the proposed CISF, the incorporated BN Motion to Dismiss still fails to explain how that presumption ipso facto would preclude the NRC from licensing the facility pursuant to its AEA authority. The Commissions actions in the Private Fuel Storage facility proceeding are instructive on this point. The NRC issued a license to PFS on February 26, 2006 to build and operate the proposed ISFSI, notwithstanding the failure of the Bureau of Indian Affairs (BIA) and Bureau of Land Management (BLM) to issue certain approvals necessary for facility construction. In a September 2005 press release announcing the conclusion of the Private Fuel Storage contested adjudication and the Commissions decision to authorize

176 Bullcreek, 359 F.3d at 537-38.

177 Id. at 539 (emphasis added). Indeed, the NRC promulgated its Part 72 regulations governing the licensing of ISFSIs (both at-reactor and away-from-reactor) two years before Congress enacted the NWPA. Id. at 538, 543 (Utah ignores that private away-from-reactor storage was already regulated by the NRC under the AEA prior to the NWPA.). Moreover, the NRC already has licensed several privately owned, away-from-reactor facilitiesboth before and after the NWPAs enactment. See, e.g., NRC License No. SNM-2513 (Private Fuel Storage); NRC License No. SNM-2500 (GE-Morris); NRC License No. SNM-2504 (Ft.

St. Vrain); NRC License No. SNM-2508 (TMI-2 ISFSI); NRC License No. SNM-2512 (Idaho Spent Fuel Facility).

39 license issuance, the NRC noted that BIA and BLM approvals were [s]eparate from the NRCs actions.178 Further, in a May 2006 letter to BLM, the NRC Staff stated:

The NRCs authority to license an away-from-reactor ISFSI is derived from the AEA. While the NWPA addresses interim storage at other sites, it does not reduce or limit the authority granted to the NRC by the AEA to license an away-from reactor ISFSI, and it does not preclude the NRC from issuing a license for the proposed PFS facility. This issue was raised by the State of Utah in the NRC adjudicatory proceeding, and has been resolved. See Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-02-29, 56 NRC 390 (2002).

Moreover, the State of Utahs arguments challenging the NRCs continued authority to license an away-from-reactor ISFSI have been considered and rejected by the U.S. Court of Appeals. See Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004).179 The NRCs action in the Private Fuel Storage proceeding confirms that the alleged inability of DOE to take title to the spent fuel to be stored at the proposed CISF is not an insurmountable legal impediment to the agencys issuance of a license to ISP, particularly in light of ISPs identification of a viable alternative (private ownership of the spent fuel) and associated license conditions. Indeed, the NRC has long held that it need not stay its hand on a requested licensing action merely because other agencies have not taken (or may not take) actions necessary for the planned activity.180

178 NRC News Release No.05-126, NRC Denies Utahs Final Appeals, Authorizes Staff to Issue License for PFS Facility (Sept. 9, 2005) (ML052520163).

179 Letter from E. William Brach, NRC, to Pam Schuller, BLM, NRC Staffs Comments in Response to the Bureau of Land Managements February 7, 2006, Request for Comments Related to Private Fuel Storages Applications for Rights-of-Way, encl. at 3 (May 8, 2006) (ML061280440) (emphasis added).

180 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-02-16, 55 NRC 317, 334 (2002) ([I]t would be productive of little more than untoward delay were each regulatory agency to stay its hand simply because of the contingency that one of the others might eventually choose to withhold a necessary permit or approval.); Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 &

2), ALAB-443, 6 NRC 741, 748 (1977) (citing S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-171, 7 AEC 37, 39 (1974)). Also, the fact that an applicant may face commercial or political uncertainties does not preclude issuance of a license where the NRC finds that the applicant has met all applicable safety and environmental requirements. It is the applicants prerogative to accept such risks. See, e.g., Hydro Res., Inc. (Rio Rancho, NM), CLI-01-4, 53 NRC 31, 48-49, 55 (2001) (noting that the NRC is not in the business of regulating the market strategies of licensees or of crafting broad energy policy involving other agencies, and that [i]t remains nonetheless within [the applicants] business discretion to determine whether market conditions warrant commencing [] operations).

40 In conclusion, the Board should reject Movants challenge (even if viewed as a contention) as inadmissible under 10 C.F.R. §§ 2.309(f)(1)(iii)-(vi). By their own admission, the challenge is outside the scope of this proceeding and immaterial to the NRC Staffs findings on the Application. The challenge also lacks any factual or legal basis. Movants (based on the incorporated BN Motion to Dismiss) claim that the Application is premised on the assumption that DOE necessarily will take title to any spent fuel to be stored at the proposed CISF is factually incorrect. The Application clearly indicates otherwise. Additionally, their argument that NRC issuance of the license would contravene the NWPA and APA is contrary to law, including controlling decisions issued by the Commission and the D.C. Circuit.

V.

CONCLUSION The Board should deny the Filing because Movants have failed to satisfy their affirmative burden to demonstrate standing, and have failed to submit an admissible contention.

41 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Timothy P. Matthews, Esq.

Stephen J. Burdick, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5059 E-mail: timothy.matthews@morganlewis.com E-mail: stephen.burdick@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.

this 20th day of November 2018

DB1/ 100467983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050 November 20, 2018 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing Faskens and PBLROs Motion to Dismiss as Referred to the ASLBP for Consideration Under 10 C.F.R. § 2.309 was filed through the E-Filing system.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC