ML18327A071

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NRC Staff'S Response to Petitions to Intervene and Requests for Hearing Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals
ML18327A071
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 11/23/2018
From: Joe Gillespie, Sara Kirkwood, Alana Wase
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 54650, WCS CISF 72-1050-ISFSI
Download: ML18327A071 (38)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

NRC STAFFS RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING FILED BY PERMIAN BASIN LAND AND ROYALTY ORGANIZATION AND FASKEN LAND AND MINERALS Sara Kirkwood Alana M. Wase Joe I. Gillespie III Counsel for NRC Staff November 23, 2018

TABLE OF CONTENTS Introduction ................................................................................................................................ 1 Background................................................................................................................................ 1 Discussion ................................................................................................................................. 3 I. Standing to Intervene .......................................................................................................... 3 A. Applicable Legal Requirements ....................................................................................... 3

1. Traditional Standing Principles ..................................................................................... 4
2. Proximity Plus Standing ............................................................................................... 5
3. Organizational and Representational Standing ............................................................ 6 B. Fasken has standing under a proximity-plus presumption. .............................................. 6 II. Admissibility of the Petitioners Proffered Contentions ......................................................... 7 A. Legal Requirements for Contentions ............................................................................... 7 B. Analysis of Faskens Proposed Contentions ...................................................................10
1. Fasken Contention 1 ...................................................................................................10
2. Fasken Contention 2 ...................................................................................................15
3. Fasken Contention 3 ...................................................................................................17
4. Fasken Contention 4 ...................................................................................................22
5. Fasken Contention 5 ...................................................................................................27
6. Faskens Motion to Dismiss ........................................................................................31 Conclusion ................................................................................................................................34 ii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

NRC Staffs Response to Petitions to Intervene and Requests for Hearing Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals Introduction Pursuant to 10 C.F.R. § 2.309, the U.S. Nuclear Regulatory Commission Staff hereby responds to the both the Petition to Intervene and recharacterized Motion to Dismiss filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Fasken). 1 As further discussed below, the Petition should be granted in part.

Background

By letter dated April 28, 2016, Waste Control Specialists, LLC (WCS) tendered a specific license application under 10 C.F.R. Part 72, requesting authorization to construct and operate a 1 Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ADAMS Accession No. ML18302A412); 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. 14, 2018) (ML18257A330) (Fasken Motion to Dismiss); Order (Granting Joint Motion to Establish Briefing Schedule) (unpublished) (ML18313A119) (Briefing Schedule Order).

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consolidated interim storage facility for spent nuclear fuel and reactor-related Greater than Class C waste in Andrews County, Texas. 2 On April 18, 2017, WCS requested that the NRC temporarily suspend all review activities associated with its application, and the next day WCS and the NRC Staff jointly requested that the then pending hearing opportunity be withdrawn. 3 By letters dated June 8 and July 19, 2018, WCS requested that the NRC resume its review of its application, and it provided a revised application, reflecting, among other changes, a new applicant, Interim Storage Partners, a joint venture between WCS and Orano CIS, LLC. 4 On August 29, 2018, a notice of opportunity to request a hearing and petition for leave to intervene for the Interim Storage Partners application was published in the Federal Register. 5 On September 28, 2018, Fasken filed a motion to dismiss the WCS application. 6 On October 25, 2018, the Commission denied the motion and referred it to the Atomic Safety and Licensing Board Panel (ASLBP) for consideration under § 2.309. 7 In accordance with the Board 2 Letter from J. Scott Kirk, WCS, to Mark Lombard, NRC, License Application to Construct and Operate a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas, Docket 72-1050 (Apr. 28, 2016) (ML16132A533).

3 Joint Request to Withdraw the Federal Register Notice Providing an Opportunity to Submit Hearing Requests (Apr. 19, 2017) (ML17109A480) (attaching letter to NRC Document Control Desk from Rod Baltzer, WCS (Apr. 18, 2017)).

4 Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC (July 19, 2018) (ML18206A482);

Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC, Submittal of License Application Revision 2 and Request to Restart Review of Application for Approval of the WCS CISF, Docket 72-1050 (June 8, 2018) (ML18166A003).

5 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed.

Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018), 83 Fed. Reg. 45,288 (Sept. 6, 2018)

(correcting the title of the August 31, 2018 correction).

6 Fasken Motion to Dismiss at 8.

7 Order of the Secretary (unpublished) (Oct. 29, 2018) (ML18302A329).

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Order of November 9, 2018, setting a deadline to answer the motion as a hearing petition by November 23, 2018, the Staff hereby also responds to that motion. 8 Discussion In order for a petition to intervene and hearing request to be granted, a petitioner must demonstrate that it has standing to intervene in the proceeding and submit at least one admissible contention. 9 I. Standing to Intervene A. Applicable Legal Requirements In accordance with the Atomic Energy Act (AEA), the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. 10 The Commission will grant a request for hearing if the petitioner meets the standing requirements of 10 C.F.R. § 2.309(d) and submits at least one admissible contention pursuant to 10 C.F.R. § 2.309(f). 11 The petitioners hearing request must contain:

(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the pro-ceeding on the requestor's/petitioner's interest. 12 8 Briefing Schedule Order.

9 10 C.F.R. § 2.309(a).

10 42 U.S.C. § 2239(a)(1)(A).

11 See 10 C.F.R. § 2.309(a).

12 10 C.F.R. § 2.309(d).

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1. Traditional Standing Principles In addition to fulfilling the general standing requirements of 10 C.F.R. § 2.309(d)(1), a petitioner must demonstrate that it has an interest that may be affected by the proceeding. 13 The Commission applies contemporaneous judicial concepts of standing to evaluate whether the petitioner has demonstrated the requisite interest. 14 To this end, a petitioner must (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. 15 The injury claimed by the petitioner must be actual or threatened and both concrete and particularized. 16 Further, the injury alleged must be to an interest arguably within the zone of interests protected by the governing statutehere, the AEA or NEPA. 17 The causation element of standing requires a petitioner to show that the injury is fairly traceable to the proposed action. 18 The redressability element of standing requires the intervenor to show that its actual or threatened injuries can be cured by some action of the tribunal. 19 The petitioner has the burden to demonstrate standing requirements are met. 20 13 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

14 See id.; see also Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).

15 Turkey Point, CLI-15-25, 82 NRC at 394; see also Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71-72 (1994); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

16 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 250 (2001); see also Sequoyah Fuels Corp., CLI-94-12, 40 NRC at 71 (stating that standing has been denied when the threat of injury is too speculative).

17 Calvert Cliffs, CLI-09-20, 70 NRC at 915 (citing Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993) (internal quotations omitted)).

18 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

19 Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site Decommissioning), CLI-01-02, 53 NRC 9, 15 (2001).

20 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000).

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However, a licensing board will construe the [intervention] petition in favor of the petitioner when making a standing determination. 21

2. Proximity Plus Standing In cases involving reactor facilities, the Commission will apply a standing presumption based on proximity to the site. 22 No such automatic presumption exists for nuclear materials proceedings. 23 In such cases, to obtain standing based on geographic proximity to a facility, a petitioner must demonstrate that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences. 24 This proximity-plus standard is applied on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source. 25 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. 26 [C]onclusory allegations about potential radiological harm are insufficient for this showing. 27 Where a petitioner is unable to demonstrate proximity-plus standing to intervene, traditional standing principles will apply. 28 21 Turkey Point, CLI-15-25, 82 NRC at 394 (quoting Ga. Institute of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 115 (1995) (internal quotations omitted)).

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

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

24 Georgia Tech Research Reactor, CLI-95-12, 42 NRC at 116.

25 Id. at 116-17.

26 USEC Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 311-12 (2005) (quoting Nuclear Fuel Servs, CLI-04-13, 59 NRC at 248 (internal quotations omitted)).

27 Nuclear Fuel Servs., CLI-04-13, 59 NRC at 248.

28 See U.S. Army Installation Command (Schofield Barracks, Oauhu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 189 (2010).

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3. Organizational and Representational Standing When an organization requests a hearing, it must demonstrate either organizational or representational standing. To demonstrate organizational standing, the petitioner must show an injury-in-fact to the interests of the organization itself. 29 Where an organization seeks to establish representational standing, it must demonstrate that at least one of its members would be affected by the proceeding and identify any such members by name and address. Also, the organization must show that the identified members would have standing to intervene in their own right, and that these members have authorized the organization to request a hearing on their behalf. 30 In addition, the interests that the representative organization seeks to protect must be germane to its own purpose, and neither the asserted claim nor the required relief must require an individual member to participate in the organization's legal action. 31 B. Fasken has standing under a proximity-plus presumption.

The NRC Staff does not oppose Faskens demonstration of standing in this proceeding.

In addition to Faskens arguments regarding traditional standing, Fasken seeks representational standing on the basis of two declarations submitted by members of Fasken and Permian Basin Land and Royalty Organization (PBLRO). 32 Fasken alleges that its members demonstrate standing via, among other things, each members proximity to the proposed CISF. Specifically, 29 See EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613, 621 (2011).

30 See Detroit Edison Company (Fermi Power Plant Independent Spent Fuel Storage Installation),

CLI-10-3, 71 NRC 49, 51-52 (2010); see also Sequoyah Fuels Corp., CLI-94-12, 40 NRC at 72 (citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979)) (An organization seeking representational standing on behalf of its members may meet the injury-in-fact requirement by demonstrating that at least one of its members, who has authorized the organization to represent his or her interest, will be injured by the possible outcome of the proceeding.).

31 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).

32 See Declaration of Tommy E. Taylor (Exhibit 1); Declaration of D.K. Boyd (Exhibit 2).

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one member of PBLRO owns and ranches the Frying Pan Ranch located four miles from the proposed facility. 33 Further, this member testifies that the Texas and New Mexico Railway runs through approximately 5.5 miles of the Frying Pan Ranch, which he regularly crosses via car and horse while ranching cattle. 34 Therefore, this member has demonstrated regular and significant contact with property he owns within a range previously determined by Atomic Safety and Licensing Boards to be sufficient to establish standing under the proximity presumption for similar proceedings. 35 Accordingly, as Fasken has proposed at least one admissible contention, the NRC Staff does not oppose Faskens standing here.

II. Admissibility of the Petitioners Proffered Contentions A. Legal Requirements for Contentions 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 36 Pursuant to that section, a contention must:

(i) provide a specific statement of the issue of law or fact to be raised or contro-verted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised in the contention is within the scope of the pro-ceeding; (iv) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 33 Declaration of D.K. Boyd ¶ 4.

34 Id. ¶ 8.

35 See Pacific Gas & Elec. Co. (Diablo Canyon ISFSI), LBP-02-23, 56 NRC 413, 428 (2002) (finding 17 miles sufficient and noting other agency rulings approving standing for petitioners located within 10 miles of facility for spent fuel pool expansion proceedings); see also Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163-64 (2000) (6 miles sufficient for standing in license transfer proceeding).

36 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 571-72 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-437 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

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(v) provide a concise statement of the alleged facts or expert opinions, including ref-erences to specific sources and documents, that support the petitioner's position and upon which the petitioner intends to rely at hearing; and (vi) provide information sufficient to show that a genuine dispute with the applicant/li-censee exists in regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case of an application that is asserted to be deficient, the identification of such deficien-cies and supporting reasons for this belief. 37 The failure to comply with any one of the 10 C.F.R. § 2.309(f)(1) requirements is grounds for the dismissal of a contention. 38 The contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 39 The Commission has stated 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 as indicated by a proffered contention that satisfies all of the 10 C.F.R. § 2.309(f)(1) requirements. 40 The Commission has emphasized that the 10 C.F.R.

§ 2.309(f)(1) requirements are strict by design. 41 Attempting to satisfy these requirements by

[m]ere notice pleading does not suffice. 42 A contention must be rejected where, rather than 37 See 10 C.F.R. § 2.309(f)(1).

38 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

39 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

40 Id.

41 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).

42 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006) (quoting Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 808 (2005)).

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raising an issue that is concrete or litigable, it reflects nothing more than a generalization regarding the petitioners view of what the applicable policies ought to be. 43 Pursuant to 10 C.F.R. § 2.309(f)(1)(iii), a proposed contention must be rejected if it raises issues beyond the scope of the proceeding as dictated by the Commissions hearing notice. 44 Thus, a proposed contention that challenges a license amendment must confine itself to health, safety or environmental issues fairly raised by [the license amendment]. 45 The adequacy of the Staffs review, as opposed to the adequacy of the application, cannot be challenged. 46 Also, to show that a dispute is material pursuant to 10 C.F.R. § 2.309(f)(1)(iv) a petitioner must show that its resolution would make a difference in the outcome of the proceeding. 47 Further, pursuant to 10 C.F.R. § 2.309(f)(1)(v), a proposed contention must be rejected if it does not provide a concise statement of the facts or expert opinions that support the proposed contention together with references to specific sources and documents. Neither mere speculation nor bare or conclusory assertions, even by an expert, suffices to allow the admission of a proposed contention. 48 While a Board may view a petitioners supporting 43 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 129 (2004) (citing Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13, 20-21 (1974)).

44 See Pub. Serv. Co. of Ind., Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).

45 Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981).

46 See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 493 n.56 (2010) ("The contention . . . inappropriately focused on the Staffs [sic] review of the application rather than upon the errors and omissions of the application itself. Such challenges are not permitted in our adjudications.); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 123 n.39 (2009); 69 Fed. Reg. at 2202.

47 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3) CLI-99-11, 49 NRC 328, 333-34 (1999).

48 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, Inc.

(Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

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information in a light favorable to the petitioner, if a petitioner neglects to provide the requisite support for its contentions, it is not within the Boards power to make assumptions or draw inferences that favor the petitioner, nor may the Board supply the information that a contention is lacking. 49 Additionally, simply attaching material or documents as a basis for a contention, without setting forth an explanation of that information's significance, is inadequate to support the admission of the contention. 50 The Board is not expected to sift through attached material and documents in search of factual support. 51 Finally, pursuant to 10 C.F.R. § 2.309(f)(1)(vi), a proposed contention must be rejected if it does not present a genuine dispute with the applicant on a material issue of law or fact.

The Commission has emphasized that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. 52 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 53 B. Analysis of Faskens Proposed Contentions

1. Fasken Contention 1 The Applicants proposed CISF is not needed to ensure safe storage of SNF, even for indefinite durations. In Contention 1, Fasken challenges the Applicants Purpose and Need statement in the Environmental Report (ER). Specifically, Fasken asserts that the ERs 49 See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553-54 (2009);

Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

50 See Fansteel, CLI-03-13, 58 NRC at 204-05.

51 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012).

52 Id. (quoting Oconee, CLI-99-11, 49 NRC at 335).

53 Id. (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

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statement that the CISF would provide a safer and more secure centralized storage location implies that an away-from-reactor CISF is needed because at-reactor storage is unsafe. 54 In Faskens view, the Applicants statement conflicts with the NRCs Continued Storage Generic Environmental Impact Statement (GEIS). 55 Contention 1 is inadmissible as Fasken has failed to provide sufficient information demonstrate that the issued raised is material to the findings the NRC must make, and failed to to show that a genuine dispute exists on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(iv) and (vi), respectively.

An applicant is required to include in its ER, and an agency is required to include in its NEPA analysis, a brief statement on the purpose and need of a proposed action. 56 NUREG 1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, Section 6.1 provides guidance on an ERs purpose and need section. 57 It states that this section describes the underlying need for the proposed action and should not be written merely as a justification of the proposed action, nor to alter the choice of alternatives. . . .

Examples of need include a benefit provided if the proposed action is granted or descriptions of the detriment that will be experienced without approval of the proposed action. In short, the need describes what will be accomplished as a result of the proposed action. 58 Here, the Applicants ER notes the recent shutdown of several nuclear power plants and the decommissioning of others to levels that would allow for unrestricted release of the site. 59 54 See Petition at 9; WCS Consolidated Interim Spent Fuel Storage Facility Environmental Report, Rev. 2, at 1-6 (ML18221A405 (package)) (ER).

55 See Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel NUREG-2157, Vol. 1 (Sept. 2014)(ML14196A105) (Continued Storage GEIS).

56 10 C.F.R. § 51.45(b); 10 C.F.R. Part 51, App. A § 4.

57 NUREG-1748 (July 2003) (ML032450279).

58 Id. at 6-1.

59 ER at 1-5.

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With respect to these sites, the ER states that [m]any policymakers and stakeholders in the communities that host shutdown reactors want to have the SNF removed to complete decommissioning of the site and to allow for more beneficial uses of the land. 60 The ER concludes that the proposed CISF is needed to permit the removal of SNF at commercial reactor sites so that those sites can be returned to greenfield status. 61 Finally, the ER notes that nuclear power utilities continue to remain responsible for the surveillance, maintenance, emergency preparedness, and physical security of the SNF stored at their ISFSI and the proposed CISF would alleviate some of these costs. 62 In alleging a conflict between the ER and Continued Storage GEIS, Fasken fails to demonstrate that the issue raised in the contention is material to the findings the NRC must make with respect to the application. Specifically, Fasken alleges that the GEIS anticipates that on-site storage of SNF is acceptable and could continue safely indefinitely. 63 This is incorrect. The Continued Storage GEIS analyzed the environmental effects of the continued storage of spent fuel at both reactor sites and away-from-reactor ISFSIs. In doing so, the GEIS made certain assumptions to guide the NRCs analysis (such as the assumption that the storage activities described in the long-term storage timeframe would continue indefinitely should a repository not become available). 64 These assumptions did not include any qualitative analysis of the safety benefits of at-reactor vs. away-from-reactor consolidated storage. Indeed, Fasken later appears to concede this point, noting that the GEIS does not differentiate between the efficacy of at-reactor storage versus away-from-reactor storage. 65 Accordingly, Fasken has 60 Id.

61 Id.

62 Id.

63 Petition at 9-10 (citing Section 2.2.3 of the Continued Storage GEIS at 2-35).

64 Continued Storage GEIS at 2-35.

65 Petition at 11.

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failed to establish any conflict between the ER and the Continued Storage GEIS with respect to safety. Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(iv), Fasken has failed to show how Contention 1 is material to the NRC Staffs review.

Faskens other allegations challenging the ERs purpose and need fail to establish a genuine dispute with the application on a material issue of law or fact. For example, in addition to the alleged conflict with the Continued Storage GEIS, Fasken asserts that the Applicants statement that the CISF is safer and more secure than at-reactor storage lacks any basis. In support, Fasken states that the NRC has not expressed a preference for centralized away-from reactor storage over on-site storage. 66 Fasken also points to the lack of any safety finding in the NRCs environmental analysis of both storage options in the Continued Storage GEIS.

Consistent with the discussion above, the Staff does not disagree with Faskens characterization of the Continued Storage GEIS as being focused on environmental impacts rather than safety.

But Faskens discussion of the Continued Storage GEIS fails to dispute the application here.

Importantly, the Applicants purpose and need described in the ER does not rely onlet alone mentionthe NRCs environmental impact findings in the Continued Storage GEIS. Further, Fasken does not explain how the environmental impacts discussed in the Continued Storage GEIS are otherwise at odds with the ERs purpose and need statement.

Moreover, Fasken alleges that the ER has not presented a case to support that the proposed CISF will further the overarching need to establish a permanent repository. 67 Fasken avers that the ER must address why the proposed facility will not become a de facto permanent SNF storage facility. 68 Fasken notes that the Blue Ribbon Commissions report discusses the apprehension that states and communities may have regarding consolidated storage in the 66 Id.

67 Id. at 13.

68 Id.

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absence of a disposal program. 69 But Fasken again fails to dispute the application. Indeed, the ERs purpose and need statement only references the Blue Ribbon Commissions report regarding the cost estimate for maintaining at-reactor ISFSIs. 70 Elsewhere the ER specifically agrees with the Blue Ribbon Commissions report, stating that ISP supports the Blue Ribbon Commissions recommendation to only site a CISF in a state and community willing to host such a facility. 71 Therefore, its unclear what Fasken seeks to dispute here. While Fasken may disagree with the ERs conclusions, more than conclusory assertions regarding the requirements for a license application is required for an admissible contention. 72 Fasken also alleges that the Applicant is required to demonstrate that the proposed CISF would further the establishment of a permanent repository. 73 No such demonstration is required. Faskens sole support for this requirement is a reference to the Nuclear Waste Policy Acts requirement that the NRC condition a license for a DOE monitored retrievable storage (MRS) facility to ensure that construction does not commence until a repository is licensed. 74 NRC regulations in 10 C.F.R. Part 72 provide for the licensing of an MRS facility designed, constructed, and operated by DOE for the receipt, transfer, handling, packaging, possession, safeguarding, and storage of spent nuclear fuel . . . pending shipment to a [high-level waste]

repository or other disposal. 75 Faskens support is inapposite because the Applicant, a private entity, is seeking a license for an interim storage facility under 10 C.F.R Part 72. Faskens misplaced reference to the NWPAs requirements for an MRS facility lends no support to its 69 Id. at 13-14.

70 ER at 1-5.

71 Id. at 2-61.

72 See S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 253 (2007) (citing Fansteel, CLI-03-13, 58 NRC at 203).

73 Petition at 13.

74 Id. at 14 (citing 42 U.S.C. § 10168(d)(1)).

75 10 C.F.R. § 72.3.

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Contention. Therefore, because Fasken fails to provide any legal authority that would require the Applicant to demonstrate that its proposed interim storage facility could also serve as a disposal facility, Contention 1 fails to demonstrate a genuine dispute with the application.

Finally, Contention 1 all but ignores the Applicants discussion of the purported purpose and need of the proposed facility as it relates to reactor decommissioning. Fasken asserts that the ER fails to demonstrate that the decommissioning of reactors would be hampered without the proposed CISF. But Fasken cites to no legal authority and fails to establish that NEPA or NRC regulations would render the Applicants proposed purpose invalid unless it could show that decommissioning would be more difficult without the proposed CSIF. Here, the ER provides that the proposed CISF would allow SNF to be removed from decommissioned sites to allow for more beneficial uses of the land and to save costs associated with maintaining individual ISFSI-only sites. 76 While NRC regulations require the Applicant to describe the purpose of the proposed facility, 77 there is no legal requirement that would broaden the Applicants burden to demonstrate that its proposed facility is indispensable to any singular purpose (e.g.,

decommissioning, disposal, etc.). Whats more, Fasken otherwise fails to specifically controvert the ERs stated purposes of greenfield development and cost-reduction for ISFSI-only sites.

Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Faskens allegations in Contention 1 fail to demonstrate a genuine dispute with the license application.

2. Fasken Contention 2 ISPs SAR fails to provide adequate data regarding active and abandoned oil and gas wells and borings on and near the WCS site, contrary to the requirements of 10 C.F.R. 72.103.

76 ER at 1-5.

77 10 C.F.R. § 51.45(b); 10 C.F.R. Part 51, App. A § 4.

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In Contention 2, Fasken asserts that the Safety Analysis Report (SAR) fails to mention or discuss the presence and effect of well bores drilled near the WCS site. 78 Specifically, Fasken claims that it has information demonstrating the presence of 4,947 wells drilled within ten miles of the WCS site, 905 of which are abandoned, and that there may be additional orphan wells that have not been documented. 79 Fasken asserts that these wells may affect the stability of the site and as a result, 10 C.F.R. § 72.103(a)(1) requires a discussion of these wells and their potential effects. 80 The Staff does not oppose the admissibility of Fasken Contention 2 as a challenge to the applications evaluation of the potential impact of these wells on site stability pursuant to 10 C.F.R. § 72.103(a)(1).

However, the last sentence of Faskens description of the proposed contention appears to assert a separate concern, that these wells should be analyzed as potential pathways to groundwater. 81 With respect to that claim, the contention is inadmissible, as Fasken has not identified facts or expert support to explain how wells in the surrounding area could serve as pathways to groundwater (or in what specific respect that would affect the review); nor has it identified a genuine dispute with the application, as it does not specify an applicable regulatory standard that has not been met or any section of the application that it disputes. 82 The statement of the contention refers solely to 10 C.F.R. § 72.103, but that regulation does not define standards regarding groundwater. Rather, it defines standards for the suitability of the site 78 Petition at 15-17.

79 Id. at 16 (referencing Declaration of Aaron Pachlhofer at 6 (Exhibit 3)).

80 Id.

81 Id. at 17.

82 See 10 C.F.R. § 2.309(f)(1)(v) and (vi).

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with respect to geological and seismological characteristics. 83 Consequently, Fasken does not explain how its statement regarding groundwater has any bearing on the applications compliance with the referenced regulation. For these reasons, although the contention is admissible with respect to the applications evaluation of local oil and gas wells on the soil stability of the proposed site pursuant to 10 C.F.R. § 72.103(a)(1), the portion of the contention which references groundwater should be excluded. 84

3. Fasken Contention 3 The Applicants Emergency Response Plan (ERP) Fails to Address How Licen-see Will Protect the Facility from Credible Fire and Explosion Effects Including Those that are Caused by Aircraft Crashes.

The proposed Contention asserts that the ERP has failed to establish that the facility is designed to effectively perform its safety functions under all credible fire and explosion conditions pursuant to the requirements of 10 C.F.R. § 72.122(c). 85 The Contention is inadmissible in that it fails to show that the issue raised is material to the findings the NRC must 83 See Geological and Seismological Characteristics for Siting and Design of Dry Cask Independent Spent Fuel Storage Installations and Monitored Retrievable Storage Installations, 68 Fed. Reg.

54,143, 54,143 (Sep. 16, 2003) (noting that in updating 10 C.F.R. §§ 72.102 and 72.103, [t]hese amendments update the seismic siting and design criteria, including geologic, seismic, and earthquake engineering considerations. (emphasis added)).

84 Moreover, to the extent that Fasken contends that the Applicant must also satisfy the provisions of 10 C.F.R. § 100.20, Fasken has not demonstrated that those requirements are material to the Staffs review. Petition at 16-17. The Commission, in a 2003 rule change, specifically provided that for Part 72 applications submitted after October 16, 2003, an applicant could develop its site-specific design earthquake based on the new criteria in 10 C.F.R. § 72.103(f). See 68 Fed. Reg. at 54,145. Prior to this rule change, 10 C.F.R. § 72.102(a)(2) allowed the use of a design earthquake based explicitly on the standards of 10 C.F.R. Part 100, Appendix A. Id. at 54,143. However, in part because of challenges that arose in the application of this standard to ISFSI applicants, the Commission adopted alternative standards for applications under 10 C.F.R. § 72.103. Id. Consequently, to the extent proposed Contention 2 relies on an assertion that the application must comply with 10 C.F.R. § 100.20 as part of (or in addition to) compliance with § 72.103(a)(1), the Petitioner has failed to show that such a claim is material to the findings the NRC must make on the application.

85 Petition at 18.

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make; fails to provide facts or expert opinions; and fails to show that a genuine dispute exists with the applicant on a material issue of fact, in contravention of 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

First, a central premise of the Contention appears to be that the facilitys threshold design capability to withstand accidents or perform safety functions in an accident scenario is required to be analyzed within the ERP. Namely, the Contention asserts that the ERP does not satisfy 10 C.F.R. § 72.122(c), which states that [s]tructures, systems and components important to safety must be designed and located so that they can continue to perform their safety functions effectively under credible fire and explosion exposure conditions. However, by its plain language, this requirement goes to the design of structures, systems, and components. An ERP addresses the requirements of 10 C.F.R. § 72.32, which sets forth a framework for how the applicant would respond to onsite emergencies. 86 Accordingly, contrary to 10 C.F.R. § 2.309(f)(1)(iv), Fasken fails to demonstrate why challenges regarding § 72.122(c) and the design adequacy of SSCs are material to determining the sufficiency of the ERP.

Contrary to Faskens apparent assumption regarding the scope of the ERP, the Applicants basis for determining compliance with 10 C.F.R. § 72.122(c) is found in Chapter 12, Accident Analysis. 87 Because Fasken has not cited to, or otherwise disagreed with, the analysis found in Chapter 12 of the SAR, it fails to demonstrate how the stated concerns about 10 C.F.R. § 72.122(c) constitute a genuine dispute with the application. 88 86 While Fasken includes a passing reference to 10 C.F.R. § 72.32(a), id. at 18 n.29, the explanations of the basis for the contention rely solely on the asserted failure of the ERP to meet requirements found in other regulations.

87 WCS Consolidated Interim Storage Facility Safety Analysis Report, Rev. 2 (ML18221A408 (package)) (SAR).

88 See Georgia Power Co., et al., (Vogtle Electric Generating Plant, Units 1 & 2), CLI-93-16, 38 NRC 25, 41 (1993).

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Fasken also cites 10 C.F.R. § 72.44(c)(1)(i), which states that the license must include technical specifications to guard against the uncontrolled release of radioactive materials. 89 Fasken appears to assume that such technical specifications are required to be in the ERP.

However, the Applicants proposed technical specifications are contained in the Proposed License, Appendix A. 90 Because Fasken has not cited to, or otherwise disagreed with, those proposed technical specifications, Fasken fails to demonstrate that any asserted deficiency in the technical specifications constitutes a genuine dispute with the application. 91 Similarly, Fasken does not cite to or otherwise challenge the Applicants description of the facility fire protection system in Section 4.3.8 of the SAR. Accordingly, to the extent Fasken seeks to assert deficiencies in that analysis, Fasken fails to acknowledge the Applicants evaluation, let alone demonstrate a genuine dispute with it. As stated above, 10 C.F.R. § 72.122(c) is a regulation regarding the design of the facility and is reviewed in the SAR. By contrast, for example, the requirement in 10 C.F.R. § 72.32(a)(5) governing the emergency response plan calls only for a brief description of the means of mitigating the consequences of each type of accident. 92 Similarly, Fasken asserts that the ERP has not demonstrated compliance with ALARA principles. 93 However, Fasken does not dispute or acknowledge the applicants discussion of ALARA found in Chapter 11 of the SAR.

At root, Fasken appears to assume that all Part 72 requirements related to analysis of accidents must be analyzed in the ERP rather than elsewhere in the application. To the extent Fasken is demanding that the emergency response plan address other Part 72 safety and design requirements and technical specifications, rather than the requirements for emergency 89 Petition at 19.

90 See Interim Storage Partners, 2 to Application for Approval of the WCS Consolidated Interim Storage Facility at App. A (Aug. 9, 2018) (ML18206A483).

91 See Vogtle, CLI-93-16, 38 NRC at 41.

92 10 C.F.R. 72.32(a)(5).

93 Petition at 24-25.

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response plans found in 10 C.F.R. § 72.32(a), Fasken fails to show that its concern is material to the findings the NRC must make regarding the emergency response plan.

Furthermore, the Contention appears to be premised on an underlying misreading of the application and what is defined as a credible accident. Fasken references the ERP Appendix C, Facility Emergency Action Levels, which lists an airplane crash as among the incidents that could trigger an emergency alert or a site area emergency. 94 Fasken appears to assume that the 12 incidents that trigger emergency action levels are therefore considered credible accidents. 95 Fasken references a general introductory statement in the Applicants ERP, which states The ERP is developed to include radiological and non-radiological emergency incidents that are deemed credible when hazard analyses are applied to routine operations of the facility. 96 But Staff guidance in Spent Fuel Project Office Interim Staff Guidance-16 Emergency Planning (ISG-16), which identifies acceptable methods for meeting the requirements of 10 C.F.R § 72.32, states that an emergency response plan should include emergency action levels at which an alert or site area emergency will be declared. 97 For emergency planning analysis purposes, ISG-16 sets forth various initiating events that could lead to the initiation of an alert or site area emergency. 98 One of the hypothetical initiating events set forth in the ISG for that purpose is an aircraft crash into a facility. 99 The statements of consideration for 10 C.F.R.

§ 72.32 noted that [e]mergency planning requirements for power reactors, fuel cycle facilities, ISFSIs and MRSs are all based on a spectrum of accidents, including worst-case severe 94 See Petition at 19 (citing WCS, Consolidated Emergency Response Plan, Revision 03-15-2017 at 59 (ML17082A054) (ERP)).

95 See Petition at 19.

96 Id. (citing ERP at 5).

97 ISG-16 at 5 (Jun. 14, 2000) (ML003724570).

98 Id.

99 Id. at 6.

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accidents. 100 However, neither the statements of consideration for 10 C.F.R. § 72.32 nor the introductory statement in the Applicants ERP means that an aircraft crash has been defined as a credible event for purposes of 10 C.F.R. § 72.122(c), only that, consistent with ISG-16 guidance, it is considered among the events that, for emergency planning purposes, could initiate a site area emergency.

For purposes of 10 C.F.R. § 72.122(c), the credible events that could lead to an accident from an offsite event are found in Section 12.2.2 of the SAR. As explained above, Fasken has neither referenced nor disputed this section. The evaluation of the postulated accident on each cask is identified in Table 12-1, and analyzed in the Appendices, Section 12. Fasken has not challenged this analysis. A petitioners imprecise reading of a document does not generate an issue suitable for litigation. 101 Since Fasken has failed to establish a genuine dispute with the application, the contention is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(vi).

Lastly, even if Fasken had explained why the identified issues would be material to the ERP, it has failed to identify factual or expert support for the Contention, contrary to 10 C.F.R. § 2.309(f)(1)(v). Fasken makes several general assertions that the equipment at the site would be inadequate to cope with a fire or explosion, or that response times would be insufficient. 102 However, Fasken fails to support these claims with facts or expert opinions. A bald assertion that a matter ought to be considered is not sufficient to support an admissible contention. 103 As noted above, Fasken fails to reference any of the portions of the application that analyze accidents and credible events, facility design, cask safety, or fire protection systems. But even had Fasken done so, the Contention ultimately presents no facts or expert opinion to support 100 Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed. Reg. 32,430, 32,435 (June 22, 1995).

101 Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Ga), LBP-95-6, 41 NRC 281, 300 (1995).

102 See Petition at 23-24.

103 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998).

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the its series of implicit assumptions regarding a catastrophic fire: that an aircraft crash resulting in a large fire would in fact be a credible event for the WCS site; that such an aircraft crash could result in a canister being breached; or that radiological dose from such a scenario would fail to meet dose or ALARA requirements. A contention is inadmissible if it does not include expert testimony, tangible information, or substantive affidavits, but instead, contains only bare assertions and speculation. 104 In light of Faskens misreading of the application (and the scope of the emergency response plan), the absence of factual support for the Contentions assertions about the credibility and consequences of an aircraft crash also fails to meet 10 C.F.R. 2.309(f)(1)(v). Thus, proposed Contention 3 is inadmissible.

4. Fasken Contention 4 ISP has failed to adequately discuss and evaluate the impact the proposed site will have on the environment and has also failed to include adverse information specifically relating to potential of waste-contaminated groundwater traveling to aquifers and other groundwater formations located below and around the pro-posed site.

In Contention 4, Fasken asserts that the application fails to adequately evaluate and describe adverse information concerning the potential for radiological and other environmental impacts from the proposed action. Specifically, Fasken asserts that the SAR fails to provide an analysis bounding the potential groundwater contamination from site operations, and therefore fails to meet the requirements of 10 C.F.R. § 51.45(b)(1). 105 In support of this claim, Fasken references guidance in NUREG-1567, 106 the declaration of Aaron Pachlhofer (including internal references) (Exhibit 3), and a study of the geology of the WCS/Flying W Ranch (Exhibit 4).

This contention is inadmissible because Fasken fails to provide the requisite factual or expert 104 Nuclear Mgmt Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735, 752 (2005)

(internal citation omitted).

105 Petition at 27.

106 Standard Review Plan for Dry Storage Facilities, NUREG-1567 (Mar. 2000) (ML003686776).

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support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v),and fails to raise a genuine dispute with the Applicant, as required by 10 C.F.R. § 2.309(f)(1)(vi).

Faskens concern is founded on the assumption that operation of the WCS CISF could result in contamination of aquifers and other groundwater formations underlying and surrounding the facility. 107 However, Fasken has not provided the factual or expert basis to support this assumption. In its SAR, the Applicant describes four independent bases that support its conclusion that operation of the WCS CISF will not lead to contamination of groundwater[t]he method of storage (dry cask), the nature of the canisters, the extremely low permeability of the red bed clay[,] and the depth to groundwater of the WCS CISF[.] 108 Fasken cites, but does not challenge, the Applicants assessment that both the dry cask storage method and the nature of the canisters preclude groundwater contamination from operation of the WCS CISF. 109 Indeed, Fasken appears to concede that the dry casks and canisters do not provide a pathway to groundwater contamination from operation of the WCS CISF, acknowledging in its Petition that Section 9.4.2.1 of NUREG-1567 states that it is unnecessary for the Applicant to perform a radionuclide confinement analysis under normal[,] off-normal and accident conditions for storage casks having closure lids that are designed and tested to be leak tight[.] 110 107 Petition at 27-28.

108 SAR at 2-21; see also ER at 3-25.

109 Petition at 27-28 (citing SAR at 2-21). Fasken does not cite to or challenge any other portion of the SAR or ER in which the Applicant asserts that a contaminant leak from the method of dry cask storage or the nature of the canisters is not credible. See, e.g., SAR at 11-1 to 11-2 & Appendix A.11; ER at 4-29 to 4-32, 6-1 to 6-2.

110 Petition at 28 (quoting NUREG-1567 § 9.4.2.1). Nor does Fasken refer to or challenge the Applicants analyses concerning the potential dose release under normal, off-normal, and accident conditions for those canisters types requiring such an analysis. The Applicant presents the results of its dose analysis in Table A.11-8 of the SAR. As reflected in that table and associated analyses in Section A.11 of the SAR, the potential dose would be below regulatory limits set by 10 C.F.R. §§ 72.104(a) and 72.106(b).

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Instead, Fasken appears to rely solely on the premise that the pathway to groundwater contamination from the WCS CISF from the dry storage casks would be from the impact of large, fully-fueled aircrafts, which Fasken asserts is a credible incident requiring an analysis bounding the potential groundwater contamination from the site operations under Section 2.4.5 of NUREG-1567. 111 As explained in the Staffs response to Contention 3, however, Fasken has not supported their assertion that an aircraft impact is a credible event requiring analysis under 10 C.F.R. § 72.122. 112 Accordingly, contrary to 10 C.F.R. § 2.309(f)(1)(v), Fasken has not provided a factual basis to establish its threshold premise that a credible pathway for groundwater intrusion from operation of the WCS CISF exists.

Likewise, Fasken has not shown that its dispute with the Applicants characterization of site groundwater conditions and its analysis of the impacts of the WCS CISF on area groundwater is on a material issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iv),(vi).

To show that a dispute is material, a petitioner must show that its resolution would make a difference in the outcome of the licensing proceeding. 113 As noted above, the Applicants determination that the operation of the WCS CISF will not lead to contamination of groundwater is based on four independent bases. 114 Two of these independent bases are the confinement provided by the dry cask storage method and the storage canisters. 115 Because Fasken has not 111 Petition at 27-28.

112 Fasken also asserts that the information called for in Section 2.4.5 of NUREG-1567 directly correlates to the requirement in 10 C.F.R. § 51.53(c)(3)(ii)(P) that an ER describe any past inadvertent releases [of radionuclides into groundwater] and the projected impact to the environment (e.g., aquifers, rivers, lakes, ponds, ocean) during the license renewal term. See Petition at 27 n. 52.

As the latter requirement is, by its terms, applicable only to applicants for renewal of a license to operate a nuclear power plant, Fasken has not explained how it directly correlates to Section 2.4.5 of NUREG-1567.

113 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3) CLI-99-11, 49 NRC 328, 333-34 (1999) (citing Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989).

114 SAR at 2-21; ER at 3-25.

115 Id.

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challenged the Applicants determination that the dry cask storage method and canisters preclude a pathway to groundwater contamination under normal or accident conditions, and has not provided sufficient information to show that such a pathway to contamination from an aircraft strike is credible, Fasken has not shown how its assertions regarding the adequacy and specificity of the SARs characterization and evaluation of groundwater formations underlying the WCS CISF site would make a difference in the Applicants conclusion regarding the safety implications of the WCS CISF for area groundwater. 116 Accordingly, the Fasken has not shown that these concerns with the analysis in the SAR constitute a genuine dispute with the application on a material issue of law or fact.

Finally, Fasken challenges the Applicants compliance with the NRCs NEPA-implementing regulations in 10 C.F.R. Part 51, but it does not cite to, let alone controvert, any portion of the Applicants ER. In the ER, the Applicant evaluate[s] the potential for radiological and other environmental impacts, including cumulative impacts. 117 In Section 3.4.14 of the ER, the Applicant discusses the affected environment with respect to groundwater. 118 As in the SAR, the ER describes the Applicants determination that the method of storage (dry cask), the nature of the storage casks, the extremely low permeability of the red bed clay and the depth to groundwater beneath the site preclude the possibility of groundwater contamination from the operation of the facility. 119 Further, in Section 4.4 of the ER, the Applicant evaluates the potential impacts of the proposed CISF on groundwater resources. 120 The ER concludes that

[t]he storage system design and construction, along with environmental monitoring of the 116 For the same reason, Fasken has not shown how the application lacks relevant adverse information, as required by 10 C.F.R. § 51.45(e).

117 See Petition at 26-28 (citing 10 C.F.R. §§ 51.45(b)(1), 51.45(c), 51.45(e)).

118 See ER at 3-24 to3-29.

119 Id. at 3-25.

120 See id. at 4-29 to 4-32.

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storage pad, combine to make the potential for contaminant release through this system extremely low. 121 The ER also concludes that the cumulative impact to water resources would be small. 122 With respect to an analysis of potential for radiological and other environmental impacts generally, 123 the ER asserts that [t]here is no air pathway to [public exposure to radiation from routine operations] because the casks are sealed by being welded shut and

[t]here is no potential for a liquid pathway because the spent fuel contains no liquid component and the casks are sealed to prevent any liquids from contacting the spent fuel assemblies. 124 Having failed to controvert the ERs analyses and conclusions regarding potential radiological and environmental impacts of the proposed WCS CISF, to the extent that Fasken proffers Contention 4 as a challenge to the Applicants ER, the contention must be dismissed for failing to raise a genuine dispute with the ER on a material issue of law or fact, in accordance with 10 C.F.R. § 2.309(f)(1)(vi). 125 In sum, because Contention 4 does not meet the requirements of 10 C.F.R. § 2.309(f)(1)(iv), (v), and (vi), it is inadmissible.

121 Id. at 4-31.

122 Id. at 4-32.

123 See Petition at 26.

124 ER at 6-1.

125 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 433 (citing Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994)) (Any contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed.).

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5. Fasken Contention 5 The Applicants Environmental Report (ER) discusses its assessment of the pres-ence of threatened and endangered species. However, the ER does not ade-quately characterize the threatened and endangered species in the area of the proposed CISF.

Fasken asserts that contrary to the requirements of 10 C.F.R. § 51.45, the ER inadequately characterizes the threatened and endangered species in the area of the proposed CISF. 126 Specifically, Fasken asserts that WCS has failed to adequately evaluate the potential for the presence of threatened and endangered species and relevant conservation efforts. 127 In support of the proposed contention, Fasken relies on the Declarations of Aaron Pachlhofer and Tommy Taylor. 128 As discussed below, this contention is inadmissible because it fails to support the contention with facts or expert opinion and it fails to raise a genuine dispute with the applicant, in contravention of 10 C.F.R. § 2.309(f)(1)(v) and (vi).

The central premise of Contention 5 is that two species listed as threatened or endangered for purposes of the Endangered Species Act have been inadequately discussed in the application. However, that premise is incorrect. Consequently, as a threshold matter, Fasken fails to provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi). Mr. Pachlhofer asserts that the CISF site exists within the known range of two species federally listed as threatened by the US Fish and Wildlife Service (FWS): (1) the Dunes Sagebrush Lizard and (2) the Lesser Prairie-Chicken. 129 Mr. Pachlhofer faults the ER for failing to list the Dunes Sagebrush Lizard in Table 3.5-1 of the ER as a threatened species. 130 However, contrary to 126 Petition at 31.

127 Id.

128 Id. at 32.

129 Exhibit 3 at 8.

130 Id.

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Faskens assertion, neither species is listed by the FWS as a threatened species. The FWS Environmental Conservation Online System (ECOS) states the Dunes Sagebrush Lizard listing status as Not Listed. 131 Similarly, the FWS ECOS states the Lesser Prairie-Chicken listing status as Under Review. 132 Although the Lesser Prairie-Chickens status is [u]nder [r]eview and a petition was submitted to the FWS in May 2018 to list the Dunes Sagebrush Lizard as a threatened or endangered species, 133 neither species is currently listed as threatened or endangered. 134 The Endangered Species Act only affords protection to listed species. 135 Furthermore, neither species is listed by the State of Texas as a threatened or endangered species. 136 Neither Mr.

131 U.S. Fish and Wildlife Service, Environmental Conservation Online System, Species Profile for dunes sagebrush Lizard (Sceloporus arenicolus),

https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=C03J, also available at https://go.usa.gov/xPwct (last visited Nov. 21, 2018).

132 U.S. Fish and Wildlife Service, Environmental Conservation Online System, Species Profile for Lesser prairie-chicken (Tympanuchus pallidicinctus),

https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=B0AZ, also available at https://go.usa.gov/xPwcz (last visited Nov. 21, 2018). On page 3-34 of the ER, it should be noted that the Applicant lists the Lesser Prairie-Chicken as a federally listed threatened species. This is in error.

133 Center for Biological Diversity and Defenders of Wildlife, Petition to List the Dunes Sagebrush Lizard as a Threatened or Endangered Species and Designate Critical Habitat, https://ecos.fws.gov/docs/petitions/92210/1040.pdf, also available at https://go.usa.gov/xPwcJ (last visited Nov. 21, 2018).

134 The listing process may begin by the FWS proposing to list a species or from a petition filed by an individual or group requesting that a species be listed. 16 U.S.C. § 1533(b)(1)(A), (b)(3)(A). After receipt of a petition, [t]o the maximum extent practicable, within 90 days. . . . the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. 16 U.S.C. § 1533(b)(3)(A). If this preliminary finding is positive, the Secretary then has 12 months from the original receipt of the petition to determine whether the petitioned action is warranted. 16 U.S.C. § 1533(b)(3)(B).

135 Wilson v. Block, 708 F.2d 735, 747-52 (D.C. Cir. 1983); see also U.S. Fish and Wildlife Service, Listing a Species as a Threatened or Endangered Species, https://www.fws.gov/endangered/esa-library/pdf/listing.pdf, also available at https://go.usa.gov/xPwxq (last visited Nov. 21, 2018) (Before a plant or animal species can receive the protection provided by the ESA, it must first be added to the Federal lists of threatened and endangered wildlife and plants . . . . Once we add an animal or plant to the List, protective measures apply.).

136 Texas Parks & Wildlife Department, Federal and State Listed Amphibians and Reptiles in Texas, https://tpwd.texas.gov/huntwild/wild/wildlife_diversity/nongame/listed-species/amphibians-reptiles.phtml, also available at https://go.usa.gov/xPwxc (last visited Nov. 21, 2018); Texas Parks &

28

Pachlhofer nor Mr. Taylor provide any reference for their assertion regarding the species listed status. As the Dunes Sagebrush Lizard and the Lesser Prairie-Chicken are not listed as threatened species, Fasken has failed to raise a genuine dispute with the applicant on a material issue of law or fact.

Fasken has also failed to provide a concise statement of the alleged facts or expert opinions to support their position. Mr. Pachlhofer correctly notes that the application relies on ecological assessments completed in 2003-04 and supplemented in 2006-07. 137 Mr. Pachlhofer asserts that due to the age of these assessments, and because the ER ignores that one species is a federally listed threatened species, [a] complete biological re-evaluation is needed, as more threatened or endangered species may be present. 138 However, as discussed above, Mr.

Pachlhofer is incorrect that the Dunes Sagebrush Lizard is federally listed. He further states, without any reference, that [m]ore research has been devoted to the prairie chicken in the past 14 years, that [r]ecently prairie chicken number have improved, and that both the Dunes Sagebrush Lizard and the Lesser Prairie-Chicken have been the subject of extensive conservation efforts in both Texas and New Mexico. 139 But he does not explain why any of these observations have the potential to alter the applicants analysis or conclusions, much less reveal a deficiency. In sum, Mr. Pachlhofer offers no rationale for his assertion that the age of the data renders it inaccurate. [N]either mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention. 140 Similarly, the last sentence of Mr. Pachlhofers Wildlife Department, Federal and State Listed Birds in Texas, https://tpwd.texas.gov/huntwild/wild/wildlife_diversity/nongame/listed-species/birds.phtml, also available at https://go.usa.gov/xPwxW (last visited Nov. 21, 2018).

137 Exhibit 3 at 7.

138 Id. at 8.

139 Id.

140 Vogtle, LBP-07-3, 65 NRC at 253 (2007) (citing Fansteel, CLI-03-13, 58 NRC at 203).

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declaration states that any release of radioactive material or any amount of radiation will become a direct threat to the survivability of [the Dunes Sagebrush Lizard, the Lesser Prairie-Chicken] and the Texas Horned Lizard (Phrynosoma cornutm), which is protected under Texas law, is also an entirely conclusory assertion. Mr. Pachlhofer does not provide any basis for why such radiation release is a likely scenario, or even if it were, in what way any amount of radiation would be a direct threat to the survivability of these species. Similarly, Mr. Taylors sole discussion concerning this contention consists of a single paragraph asserting that his organization has taken voluntary steps to protect the Lesser Prairie-Chicken and that a facility like the proposed CISF is not compatible with that conservation program. 141 This statement fails to explain in what way the conservation program would conflict with any aspect of the WCS facility as described in the application, or even what the conservation program involves. 142 For similar reasons, Fasken does not explain how its stated concerns ultimately controvert the portions of the ER that directly discuss these species. For example, the Dunes Sagebrush Lizard is discussed in the ER at pages 1-8, 3-29 to 3-31, 3-34 to 3-37, and 4-37 to 4-38. Similarly, the Lesser Prairie-Chicken is discussed at pages 1-9, 3-32, 3-34 to 3-37, and 3-39. And the Texas Horned Lizard which Mr. Pachlhofer references for the first and only time in a single sentence asserting unspecified harm from radiation is discussed in the ER at pages 1-8, 2-25, 3-29 to 3-30, 3-34, and 4-37 to 4-38. Mr. Pachlhofer criticizes ER Table 3.5-1 for failing to reference the Dunes Sagebrush Lizard as threatened, but because the species is in 141 Exhibit 1 at 3 (Another omission from the ER is an accurate and adequate discussion of the species in the area that are covered by the Endangered Species Act. Fasken and other members of PBLRO were instrumental in taking voluntary steps to protect the Lesser Prairie Chicken by altering oil and gas activities in certain areas. The construction and operation of a large industrial complex like the proposed CISF is not compatible with the Lesser Prairie Chicken conservation program voluntarily developed and followed by Fasken and other members of PBLRO[.]).

142 Because neither Mr. Pachlhofer nor Mr. Taylor specifies expertise in biology (Mr. Taylor describes his business role with Fasken and Mr. Pachlhofer is a geologist and geoscientist), and neither identifies any supporting documents or other references for this contention, it is unclear that their statements should be considered as expert support for the subject of this contention.

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fact not listed as threatened, he fails to demonstrate why this is ultimately a material dispute.

None of Mr. Pachlhofer or Mr. Taylors observations regarding research or conservation efforts specifically identify the ERs analyses and conclusions concerning these species, let alone contradict them. Because [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed, 143 Fasken has not demonstrated a genuine dispute with the application.

For these reasons, Fasken fails to provide support for its assertion that the ER inadequately assesses the presence of threatened and endangered species and fails to provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. As a result, this contention is inadmissible.

6. Faskens Motion to Dismiss The NRC must dismiss ISPs license application and terminate this proceeding based on the Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. §10101, et seq (NWPA) and the Administrative Procedure Act, 5 U.S.C. §§702(2)(A),

702(2)(C). The NRC lacks jurisdiction over the application because it is premised on the proposition that the U.S. Department of Energy (DOE) will be responsi-ble for the spent fuel that would be transported to and stored at the proposed fa-cilities. This premise is prohibited under the NWPA because the DOE is pre-cluded from taking title to spent fuel unless and until a permanent repository is available. 42 U.S.C. §§ 10222(a)(5)(A), 42 USC §10143. 144 As a threshold matter, it is not clear that the Fasken even seeks to litigate the statement above as a contention. Fasken did not file this as a contention as part of a Petition to Intervene, but solely as a separate Motion to Dismiss. 145 The Secretary of the Commission denied the 143 See Millstone, LBP-08-9, 67 NRC at 433 (citing Rancho Seco, LBP-93-23, 38 NRC at 247-48 (1993)).

144 See Fasken Motion to Dismiss at 1-2.

145 Fasken Motion to Dismiss. Indeed, when Fasken later filed a Petition to Intervene, it did not include this issue amongst its Contentions. See Petition at 8-32.

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motion to dismiss and referred the motion to the ASLBP for consideration under § 2.309. 146 Because the Motion does not purport to be a contention, by definition it does not comply with 10 C.F.R. § 2.309 since it does not set forth with particularity the contention sought to be raised. 147 The contention rule is strict by design and does not permit a petitioner to file vague, unparticularized, unsupported contentions. 148 Since Fasken has failed to define the claim as a contention, let alone pled with particularity how it meets the contention standards, the Board should not admit it.

Moreover, the Board should not admit this issue because Fasken failed to independently support its argument, and has instead simply stated that it incorporated by reference the arguments and authorities in the Beyond Nuclear Inc. Motion to Dismiss at sections IV, V, and VI. 149 In the Indian Point license transfer proceeding, the Commission specifically stated that it would not permit incorporation of contentions by reference when a petitioner merely establishes standing and attempts, without more to incorporate the issues of other petitioners. 150 For the claim in its Motion, Faskens exclusive reliance on another petitioners pleading fails to demonstrate that Fasken has supplied at least some minimal factual and legal foundation in support of its argument. 151 Furthermore, to the extent Fasken is seeking to co-sponsor such a challenge, Fasken did not comply with 10 C.F.R. § 2.309(f)(3) in that it did not identify whether Beyond Nuclear or Fasken has the authority to act for the petitioners with respect to it. 152 146 See Briefing Schedule Order.

147 See 10 C.F.R. § 2.309(f).

148 Shieldalloy Metallurgical Corp. (Licensing Amendment Request for Decommissioning of the Newfield, New Jersey Facility), LBP-07-5, 65 NRC 341, 352 (2007).

149 Fasken Motion to Dismiss at 7.

150 Consolidated Edison Co. of New York and Entergy Nuclear (Indian Point Units 1 & 2), CLI-01-19, 54 NRC 109, 132-133 (2001).

151 Id. at 133 (citing Oconee, CLI-99-11, 49 NRC at 334).

152 10 C.F.R. § 2.309(f)(3).

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In any event, even if Fasken were permitted to incorporate by reference Beyond Nuclears arguments and present it as a Contention, it should be considered inadmissible based on Beyond Nuclears subsequent clarification regarding its intended scope. Unlike Fasken, Beyond Nuclear also filed a Petition to Intervene in this proceeding with a Contention raising the same issue. 153 As support for that Contention, Beyond Nuclear attached its Motion to Dismiss, which Fasken claims to incorporate. 154 Beyond Nuclear identified several places in the SAR where ISP states that it may enter into a contract (or contracts) either with DOE or with nuclear plant licensees. 155 Beyond Nuclear also identified that ISP has sought an exemption, in its CISF application, from the decommissioning financial assurance regulations based on its intent to enter into a contract with DOE. 156 The Staff construed Beyond Nuclears Contention as raising an issue of law as to whether the NRC can issue a CISF license when the applications basis for satisfying NRC decommissioning financial assurance requirements includes a proposed exemption that would depend on the applicant entering into a contract with DOE for that purpose. The Staff agreed the Contention was admissible solely to the extent that Beyond Nuclear challenged the adequacy of the basis for the proposed exemption from the decommissioning financial assurance requirements, which is premised on obtaining a contract with DOE. 157 However, in reply, Beyond Nuclear stated that the Staff had misconstrued Beyond Nuclears Contention, and indeed asserted that its proposed Contention was inadmissible. 158 In 153 Beyond Nuclear, Inc.'s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242)

(Beyond Nuclear Petition).

154 Id.

155 Id., Exhibit 1, 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, at 18 (Beyond Nuclear Motion).

156 Beyond Nuclear Motion at 18.

157 NRC Staff's Response to Beyond Nuclear, Inc.'s Hearing Request and Petition to Intervene at 11-13 (Oct. 29, 2018) (ML18302A365).

158 Beyond Nuclears Reply to Oppositions to Hearing Request and Petition to Intervene at 11, n. 7 (Nov.

5, 2018) (ML18309A369).

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short, Faskens motion relies solely on the arguments made in Beyond Nuclears petition, but Beyond Nuclear has disclaimed the admissibility of the only portion of the Beyond Nuclear Contention the Staff identified as admissible. To the extent Fasken, like Beyond Nuclear, wishes to litigate a broader question of the hypothetical role of DOE in the facility once it has been licensed, Fasken has failed to show how this broader dispute would be material to the findings the NRC staff must make on the application.

For all of these reasons, the issue presented by Fasken in its motion is not admissible as a contention in this proceeding.

Conclusion For the foregoing reasons, the NRC Staff respectfully requests the Board to grant, in part, the petition filed by Fasken and deny the Motion to Dismiss that was referred to the Panel as a petition.

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Respectfully submitted,

/Signed (electronically) by/

Sara B. Kirkwood Counsel to the Staff Mail Stop: 0-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Signed November 23, 2018 Executed in Accord with 10 C.F.R. 2.304(d)

Alana M. Wase Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Signed November 23, 2018 Executed in Accord with 10 C.F.R. 2.304(d)

Joe I. Gillespie III Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Signed November 23, 2018 35

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC Staffs Response to Petitions to Intervene and Requests for Hearing Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals, dated November 23, 2018, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 23 day of November, 2018.

Respectfully submitted,

/Signed (electronically) by/

Sara B. Kirkwood Counsel to the Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Dated in Arlington, VA This 23 day of November 2018

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