ML18332A530
| ML18332A530 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 11/28/2018 |
| From: | Eye R Fasken Land & Minerals, Ltd, Permian Basin Land and Royalty Owners, Robert V. Eye Law Office |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54658 | |
| Download: ML18332A530 (14) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of:
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Interim Storage Partners
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Docket No. 72-1050
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(WCS Consolidated Interim Storage Facility)
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FASKEN AND PBLROS REPLY TO ISPs OPPOSITION TO HEARING REQUEST AND PETITION TO INTERVENE I.
INTRODUCTION Fasken and PBLRO (Petitioners) submit this Reply in response to Interim Storage Partners LLCs (ISPs) Answer Opposing Hearing Request and Petition to Intervene (Nov. 20, 2018) (ML18324A892) (the ISP Response) addressing Fasken and PBLROs Hearing Request and Petition to Intervene (Oct. 29, 2018) (ML18302A412) (the Hearing Request).
As discussed below in Section II.A, Fasken has shown, and the NRC Staff agrees, that Fasken and PBLRO have standing to request a hearing.Section II.B asserts that Contention 1 is not a challenge to the Continued Storage Rule.Section II.C asserts that Contention 2 is material, that ISP has not performed a detailed site investigation for site suitability regarding oil & gas wells, and that these oil and gas wells should be analyzed as potential pathways to groundwater.
Section II.D asserts that Contention 3 is admissible because it raises a material issue pursuant to guidance from NUREG-1567.Section II.E asserts that Contention 4 is admissible because there is a genuine dispute of fact regarding the presence of aquifers below the proposed site and ISP has failed to conclude that subsurface groundwater will not be contaminated by means of a direct pathway. Lastly,Section II.F asserts that Contention 5 is admissible because ISP fails to rely on
2 recent data to meet the requirements of 10 C.F.R. § 51.45(b) requiring the environmental description, impact and effects that a proposed action will have on threatened or endangered species and their habitat.
II.
DISCUSSION A.
Petitioners have Standing based on proximity and representational standing.
ISP argues that Fasken and PBLRO have failed to establish either proximity-based standing or traditional standing.1 Apart from disputing ISPs claim that Petitioners and Beyond Nuclear use the same declarant to establish standing,2 ISPs arguments regarding standing have been previously addressed in the Fasken and PBLRO intervention petition and will not be restated here. Additionally, NRC Staff has determined Petitioners have demonstrated proximity-plus standing and organizational standing.3 B.
Contention 1 is not a challenge to the Continued Storage Rule.
ISP argues that Contention 1 is an impermissible challenge to the Continued Storage Rule.4 However, the point of Contention 1 is to reinforce the Continued Storage Rules support for on-site SNF storage as a safe and secure practice even for indefinite durations. In effect, ISPs argument is that at-reactor storage and its proposed CISF are both safe and secure; however, because the proposed CISF is a different facility it somehow offers more safety and 1 ISP Response at 23.
2 See NRC Staff Response to Beyond Nuclear Hearing Request and Petition to Intervene (Oct.
29, 2018) (ML18302A365) at 7, f.n. 32 (Staff supports Beyond Nuclears proximity and representational standing based on the declaration of Rose Gardner: Because the NRC Staff agrees that the Gardner declaration provides sufficient support to establish the Petitioners representational standing, the NRC Staff does not consider it necessary to determine whether Mr.
Boyd has independently articulated a basis for standing.).
3 See NRC Staffs Response to Fasken & PBLRO Petition to Intervene, pp. 3-6 (Staff Response).
4 ISP Response at 33.
3 security. ISP contends that an away-from-reactor CISF is more safe and secure for various reasons such as consolidating and enhancing monitoring and security functions.5 But ISP offers no examples of or comparisons to extant on-site storage that are plagued by insufficient monitoring or security. ISPs argument infers that its proposed CISF is superior but such is undermined by ISPs agreement with the provisions of the Continued Storage Rule that find both methods safe and secure.6 Staff opposes Contention 1, as well. Inter alia, Staff argues that the prospect of the interim facility becoming a de facto permanent facility does not implicate the Blue Ribbon Commission and that the ER actually supports the BRCs condition that a CISF be located in a state and community that willingly offers to host it.7 This argument does not address the willingness of a community to host a CISF that may become a de facto permanent facility. ISP offers no examples of communities or states that are lining up to host a CISF with the prospect that it may become a de facto permanent facility. Moreover, this argument disregards the concerted resolutions and opposition to the proposed CISF throughout the past two years by Texas and New Mexico bodies politic.8 C.
Contention 2 is admissible because it states a material issue which was omitted from ISPs site suitability analysis.
- 1.
Contention 2 states a material issue.
5 Id. at 30.
6 Id.
7 Staff Response at 14.
8 Resolutions in opposition to the proposed CISF include, but are not limited to, Dallas County, TX (Apr. 2017), Midland County, TX (Apr. 2017), Bexar County, TX (Feb. 2017), Midland, TX (Nov. 2018), San Antonio, TX (Mar. 2017), Santa Fe County, NM (Sept. 2018), Las Cruces, NM (July 2018), Belen, NM (Nov. 2018), Lake Arthur, NM (Sept. 2017), and the New Mexico Cattle Growers Assoc. (June 2018).
4 ISP claims that Petitioners have failed to identify a material issue pursuant to 10 C.F.R.
§§ 2.309(f)(1)(iv).9 Contrary to ISPs claims, Petitioners and Staff agree that the issue presented in Contention 2 is material.10 ISP tries to distinguish the Exelon case by its factual difference involving a light water nuclear power reactor to the current proceedings which involves a ISFSI.11 However, the crux of the issue in Exelon involved an analysis under 10 C.F.R. § 100.20(b) which pertained to the sites suitability, and considered the nature and proximity of manrelated hazards and [p]otential hazards associated with nearby... industrial facilities.12 ISP argues that Section 100.20(b) is completely different than Section 72.103 because Section 72.103 addresses: unstable geological characteristics, soil stability problems, or potential for vibratory ground motion.13 However, Section 72.103, while more general than Section 100.20(b), requires that regional geographic conditions be considered.14 ISPs attempt to distinguish Exelon from this proceeding conveniently omitted Section 72.103s requirement that the applicant consider the regional geographic conditions, and in doing so, improperly guides the Board as to the crux of the issues addressed by Petitioners in the Exelon case.
ISP claims that Petitioners provide no explanation for how abandoned or orphan wells could impact the CISF,15 but this is not the duty of the Petitioners. As 10 C.F.R. § 72.103(a)(1) states, sites will be acceptable if results from the onsite foundation and geological investigation 9 ISP Response at 38.
10 Hearing Request at 16 (citing In the Matter of Exelon Nuclear Texas Holdings, LLC (Victoria County Station Site), LBP-11-16, 73 N.R.C. 645, 669 (2011) (hereinafter Exelon)); Staff Response at 16 (Staff does not oppose the admissibility of Contention 2 and therefore implies that the contention raises a material issue).
11 ISP Response at 40.
12 Exelon, 73 N.R.C. at 669.
13 ISP Response at 40.
14 10 C.F.R. § 72.103(a)(1) 15 ISP Response at 38.
5 of geological investigation, literature review, and regional geological reconnaissance show no unstable geological characteristics. Since it is the duty of ISP to show there are no unstable geological characteristics based on their investigation, review, and regional geological reconnaissance, it is thus ISP that must explain how abandoned or orphan wells could impact the CISF. By failing to include an explanation of how abandoned and orphan wells may impact the CISF, it is ISP that actually fails to show there are no unstable geological characteristics.
- 2.
ISP has not performed a detailed site investigation for site suitability purposes under 10 C.F.R. § 72.103(a)(1) regarding active, abandoned, and orphan oil and gas wells and their effect on the stability of the WCS CISF site.
Contention 2 asserts that ISPs Safety Analysis Report (SAR) fails to mention or discuss the presence and effect that well bores drilled near the WCS site will have on the stability of the site.16 Staff, in part, agrees that Contention 2 is admissible on these grounds.17 While ISPs SAR has analyzed the seismic activity related to petroleum recovery activities,18 the SAR has not analyzed the potential effects that the 905 abandoned wells or additional orphan wells may have on the stability of the site as required by 10 C.F.R. § 72.103(a)(1).
In its response, ISP states that it performed a detailed site investigation of the site and states that an evaluation of unstable geological characteristics, soil stability problems, or potential for vibratory ground motion at the site was provided throughout SAR Chapter 2 and 16 Hearing Request at 15-17.
17 Id. at 17; Staff Response at 16 (Staff does not oppose the admissibility of Contention 2 as a challenge to the applications evaluation of the potential impact of wells on site stability pursuant to 10 C.F.R. § 72.103(a)(1), but does oppose the contention in regards to its claim that wells should be analyzed as potential pathways to groundwater.).
18 Id. at 37 (citing SAR Section 2.6.2 (Vibratory Ground Motion)).
6 its attachments.19 However, while ISP states that it considered local land uses, including drilling for and production from oil and gas wells,20 these considerations are more or less vague statements that minimize the full extent of the oil and gas exploration and production prevalent within the vicinity of the site. 10 C.F.R. § 72.103(a)(1) not only requires that an applicant consider the geological characteristics of the region, but also requires an applicant to show that there are no unstable geological characteristics, soil stability problems, or potential for vibratory ground motion at the site. While ISP may have considered the regional land use of drilling and production from oil and gas wells, ISP fails to include and to dispute in their response21 the presence and effect that the 4,947 wells located within a 10-mile radius will have on the sitespecifically as it relates to the 905 abandoned and orphan wells.22 ISPs statement that the [a]pplication fully acknowledges the oil and gas wells in the region and highlights the absence of oil wells on the site23 is misleading. In its response, ISP references an analysis in its application of subsurface petroleum exploration and production which states that [t]he local area has been heavily explored for oil and gas reserves over the last 35 years.24 ISP suggests that an absence of oil wells on the site supports the absence of favorable conditions for oil production.25 This suggestion is improper. In fact, of the 3,656 well bores still in production,26 one active well is situated immediately adjacent to WCS south-19 ISP Response at 35 (citing SAR Section 2.6 titled Geology and Seismology, each of the Sections Subsections and supposed relevant SAR attachments including Attachment D (Seismic Hazard Evaluation for WCS CISF) and Attachment E (Geotechnical Investigation for WCS CISF)).
20 Id.
21 Id. at 34-41.
22 Hearing Request at 17.
23 ISP Response at 37.
24 Id.
25 Id.
26 Pachlhofer Decl. at 6.
7 eastern border;27 a fact which ISP fails to indicate in their response. The presence of this well clearly indicates that there are favorable conditions for oil and gas exploration and production activity near the site
- 3.
Contrary to ISP, Petitioners claim that abandoned wells should be analyzed as potential pathways to groundwater is supported.
ISP states that there is a single dry hole that exists on the WCS CISF footprint.28 Given that casing for oil and gas wells typically ends around 500 feet below the ground surface,29 there is reason to believe that the rock and minerals located below the 500 foot mark of a dry well would create potential pathways to groundwater in the event of a credible accident or off-normal incident that breached the dry hole located on the WCS site and/or other abandoned and orphan wells in the sites vicinity.
In summary, Contention 2 must be accepted pursuant to 10 C.F.R. § 72.103(a)(1) because Petitioners have identified a material issue regarding ISPs failure to address the potential impact that regional abandoned and orphan wells may have on the stability of the WCS CISF site.
D.
Contention 3 is admissible because it raises a material issue pursuant to guidance from NUREG-1567.
Contention 3 raises a material issue related to the completeness of ISPs Application because of the absence of specifications regarding aircraft crashes as required by NUREG-1567 Sec. 2.5.2. NUREG-1567 Sec. 2.5.2 directs CISF applicants to consider aircraft parameters in determining the nature and extent of hazards that a CISF may encounter. Despite the unambiguous directive of NUREG-1567 Sec. 2.5.2 neither ISP nor Staff find that compliance 27 ISP SAR, Figure 2-3 Proposed WCS CISF 1-mile Radius at 2-54 (the well is located inside of the notched-out section of the green perimeter used to indicate WCS current boundary).
28 ISP Response at 40.
29 Pachlhofer Decl. at 6.
8 therewith is required.30 Notably, NUREG-1567 Sec. 2.5.2 does not delineate exceptions that allow a CISF applicant to forego the analysis of the effects of aircraft crashes. The Sec. 2.5.2 analysis is not dependent on whether the Applicant has deemed a particular hazard as a credible accident. Nor does Sec. 2.5.2 excuse the aircraft crash hazard analysis because the applicant has presented an emergency response plan. Indeed, the logic behind the Sec. 2.5.2 analysis is to require a detailed analysis of aircraft crash hazards to, inter alia, determine the suitability of emergency response plans.
The Sec. 2.5.2 analysis is crucial to the completeness of the CISF application. Without it, decision makers and the public will be unable to consider whether a CISF is sufficiently robust to withstand the effects of an aircraft crash let alone whether the emergency plan is adequate to deal with such.31 E.
Contention 4 is admissible because there is a genuine dispute of fact regarding the presence of aquifers below the site and Applicants fail to conclude that subsurface groundwater will not be contaminated.
- 1.
Petitioners have established that there is a genuine dispute of fact regarding the presence of aquifers below the proposed site.
ISP contends that Petitioners commingle[] references to ISPs ER and SAR and never clearly identify which portion(s) of the Application it purports to challenge.32 However, Petitioners have identified pertinent sections within the SAR to support Contention 4, and thus satisfy the specificity and materiality requirements of Section 2.309(f)(1)(i), (v) and (vi).
Petitioners cite to the SAR to contradict ISPs analysis of subsurface hydrology and water 30 ISP Response at 42-48; Staff Response at 17-22.
31 See also RAI of Nov. 16, 2018, Enclosure 1 that raises questions about aircraft crashes in RAI 2.2-1 and the applications deficiency related to 10 C.F.R. 72.94. This RAI cites NUREG-1567 Sec. 2.4.2 as a basis to consider the implications of aircraft traffic from nearby Lea County Airport on flyway V68.
32 ISP Response at 53.
9 bearing zones at the site.33 The SAR and ERs analysis of the subsurface hydrology is virtually similar.34 In fact, portions from either documents can be cited verbatim.35 Similar to statements cited by Petitioners in support of their contention in the SAR, the ER claims that the potential for negative impacts on surface water resources is very low due to lack of water presence and formidable natural barriers to any surface or subsurface water occurrences.36 Given that the ERs analysis of the subsurface hydrology is virtually similar to that of the SAR, Petitioners reliance on the SAR to support Contention 4s argument regarding material issues of facts relating to the subsurface hydrology does not render Contention 4 inadmissible.
- 2.
ISP fails to conclude that subsurface groundwater will not be contaminated by means of a direct pathway located at or near the site and Petitioners have provided adequate information to support their claim that radiological releases could contaminate groundwater beneath the site.
Petitioners assert that the Ogallala Formation is present along the north and east side of the WCS-Flying W Ranch.37 Contrary to Petitioners claim, ISP does not admit that the Ogallala Formation is present, but submits that if [the Ogallala Formation is] present, [it] is not water bearing in the WCS CISF area.38 ISP dismisses Petitioners claim that the Ogallala Aquifer extends beneath the WCS CISF site based on the Lehman and Rainwater study which found groundwater in the Ogallala Formation along the eastern border of the WCS ranch.39 ISP supports the claim that their facility poses no threat to groundwater beneath the site based on 33 Hearing Request at 28 (citing SAR at 2-21).
34 Compare Environmental Report, Section 3.4.14 et seq. at 3 3-29 to SAR, Section 2.5. at 2 2-25.
35 Id.
36 ISP Environmental Report, Section 4.4 (Water Resources Impacts) at 4 4-30 (Rev. 2).
37 Hearing Request at 28.
38 ISP SAR at 2-22; ISP ER at 3-26.
39 ISP Response at 60.
10 TCEQ approving the license for the WCS LLRW disposal facility in 2009 and a 2014 Texas Court of Appeals case affirming TCEQs denial of contested groundwater contamination concerns.40 These decisions came after the contested re-mapping of the Ogallala aquifer in 2007.41 Given the location of the Ogallala Aquifer is contested, the approval of WCS LLRW license, and the decision of the Texas Court of Appeals came after the contested re-mapping, there is a genuine issue as to whether the Ogallala Aquifer exists below the site.
ISP also discredits Petitioners argument that fractures in red bed clays overlying the Santa Rosa Aquifer may provide a direct pathway to the Santa Rosa Aquifer.42 ISP claims that Mr. Pachlhofer provides no information or analysis to suggest that such fractures are interconnected and/or extend the entire depth of the geologic formations overlying the Santa Rosa Aquifer.43 To the contrary, Mr. Pachlhofer infers that the red bed clay fractures are interconnected to the Santa Rosa using TCEQs memo from 2007 citing that [t]he fractures are up to 3 millimeters wide. While Mr. Pachlhofer suggests that fractures in red bed clays overlying the Santa Rosa Aquifer may provide a direct pathway to the Aquifer itself,44 Mr.
Pachlhofer also articulates that it is common for well casings of temporarily abandoned wells to end at approximately 500 feet below the grounds surface.45 Even if ISP successfully contends that Mr. Pachlhofer has not provided that red bed clays would provide direct pathways to the Santa Rosa Aquifer, Mr. Pachlhofer has documented the presence of 905 deep and abandoned wells surrounding the WCS site. These wells could potentially serve as direct pathways to the 40 ISP Response at 53.
41 See Pachlhofer Decl. at 5.
42 ISP Response at 61 43 Id. at 61-62.
44 Hearing Request at 30; Pachlhofer Decl. at 5.
45 Pachlhofer Decl. at 6.
11 exposed rock located 500 feet below the surface of each hole, and ultimately, the subsurface water connected to each hole.
ISP has not only failed to analyze the impact that these abandoned and orphaned wells could have on the stability of the proposed site as mentioned in Contention 2, but it has also failed to analyze whether the wells surrounding the proposed site could serve as potential and direct pathways to the Santa Rosa Aquifers and other aquifers that each well intersects.
Furthermore, ISP seems to contradict its stance that there is no potential for groundwater contamination, stating that unspecified aquifers should be unaffected from effluents that might be produced during construction and operation.46 This statement is conclusory and riddled with uncertainty.
Petitioners have provided material issues of fact and provided adequate information relating to potential contamination of groundwater located below the proposed site. Given that ISP believes, but is not entirely certain that groundwater should be unaffected from effluents released during construction and operation of the facility, and given that ISP has failed to analyze the direct pathways to groundwater that could potentially be created by abandoned and orphaned wells, Contention 4 is admissible.
F.
Contention 5 is admissible because ISP fails to rely on recent data regarding changes in threatened and endangered species and habitats to meet the standards for environmental description, impact and effects under 10 C.F.R.
§ 51.45(b). Therefore, Petitioners disagree with ISPs argument that the ER fully complies with NRC Regulations and guidance in considering the impact of the CISF on Endangered and Threatened species.
NRC regulations require that ISP submit an ER that complies with the requirements of 10 C.F.R. Part 51.47 The ER must contain a description of the environment that would be affected 46 ISP ER at 4-65 (emphasis added).
47 10 C.F.R. § 72.34.
12 by the proposed construction and operation of the CISF, a description of the impact of the CISF on the environment, and a description of any adverse environmental effects which cannot be avoided.48 Furthermore, NUREG-1748 provides guidance to the NRC Staff in reviewing applications for construction of ISFSIs, as well as guidance to applicants on the format and technical content of an ER.49 NUREG-1748 states [i]f a proposed action may affect listed species or critical habitat, consultation with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service is required pursuant to 50 C.F.R. § 402.50 ISP argues that its ER fully complies with NRC regulations and guidance based on ecological studies performed in 1997, 2004, 2007, and 2008.51 However, more recent research has been devoted to these vulnerable species and their habitats over the past 14 years and has revealed better-mapped ranges for the species.52 In fact, recent reports from the FWS state that prairie chicken numbers have improved over the years thanks to conservation efforts by the oil &
gas and ranching industries.53 Thus, reliance on these older studies that ISP uses to allegedly comply with NRC regulations and guidance documents is outdated and could very well misinterpret the current state of critical habitats and migration of species.
Even though it is based on the outdated ecological studies, Section 4.5.4 of the ER states that ISP expects there to be small land disturbances to dune formations located directly adjacent to the proposed site which are capable of providing a habitat for the Dunes Sagebrush Lizard.54 48 10 C.F.R. § 51.45(b).
49ISP Response at 66 (citing NUREG-1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs; Final Report at 6-1 to 6-35 (Aug. 2003)
(ML032450279)).
50 NUREG-1748, Section 1.4.2 Section 7 of the Endangered Species Act at 1-8.
51 ISP Response at 67.
52 Pachlhofer Decl. at 8.
53 Pachlhofer Decl. at 8.
54 ISP Response at 68.
13 This may or may not be the case currently, but given the expectation of small disturbances of the Dunes Sagebrush Lizard, ISP is required to consult the FWS according to NUREG-1748;55 something which it has not done. While the older ecological studies conclude the proposed site will disturb habitats of the Dunes Sagebrush Lizard, newer and more accurate studies may find that the proposed site could negatively impact the Lesser Prairie Chicken as well; especially considering research on the species has changed over the last 14 years and the number of prairie chickens have improved since then.56 ISPs description of the environmental impacts on the subject species is insufficient and fails to make certain that the proposed action will not affect a listed species or critical habitat.
Because the current description of the environment, the impact of the environment, and the adverse environmental effects on the environment are unknown based on the outdated data used by ISP, ISP has failed to meet the requirements of 10 C.F.R. § 51.45(b).
III.
CONCLUSION For the foregoing reasons, Petitioners Hearing Request and Petition to Intervene should be accepted.
Respectfully submitted,
/electronically signed by/
Robert V. Eye, KS S.C. No. 10689 Robert V. Eye Law Office, L.L.C.
4840 Bob Billings Pky., Suite 1010 Lawrence, Kansas 66049 785-234-4040 Phone 785-749-1202 Fax bob@kauffmaneye.com Attorney for Petitioners November 28, 2018 55 See NUREG-1748 Section 1.4.2 at 1-8.
56 Pachlhofer Decl. at 8.
14 Certificate of Service Undersigned certifies that a true and correct copy of the above and foregoing was submitted to the NRCs Electronic Information System for filing and service on participants in the above-captioned dockets.
/signed electronically by/
Robert V. Eye