ML18334A361
| ML18334A361 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 11/30/2018 |
| From: | Eye R Fasken Land & Minerals, Ltd, Permian Basin Land and Royalty Organization, Robert V. Eye Law Office |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 19-959-01-ISFSI-BD01, RAS 54666, WCS CISF 72-1050-ISFSI | |
| Download: ML18334A361 (12) | |
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 NRC STAFFS OPPOSITION TO HEARING REQUEST AND PETITION TO INTERVENE I.
INTRODUCTION Fasken and PBLRO (Petitioners) submit this Reply in response to NRC Staffs (Staffs) Response to Petition to Intervene and Request for Hearing (Nov. 23, 2018)
(ML18327A071) (the Staff 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 Petitioners have standing to request a hearing.Section II.B asserts that Contention 1 is admissible because the NWPA precludes construction of the proposed CISF in the absence of a construction license for a permanent repository.Section II.C asserts that Contention 2 is admissible because ISP has failed to analyze the wells in and around the proposed site and because it is typical for wells to expose minerals and formations 500 feet below each well.
Section II.D asserts that Contention 3 is admissible because it raises a material issue pursuant to guidance from NUREG-1567 and because new information regarding airplane traffic was submitted by Staff after Petitioners filed their Petition.Section II.E asserts that Contention 4 is admissible because there is a geneuine dispute of fact regarding the presence of aquifers below
2 the site, Applicants fail to conclude that subsurface groundwater will not be contaminated, and use of a fully-fueled aircraft crash is a credible groundwater contamination incident. Lastly,Section II.F asserts that Contention 5 is admissible because Petitioners raise a material issue of law pursuant to 10 C.F.R. § 51.45(b).
II.
DISCUSSION A.
Petitioners have Standing based on proximity and representational standing.
Petitioners standing analysis can be found in the Hearing Request but will not be restated here. Staff has determined that Petitioners have demonstrated proximity-plus standing and representational standing.1 B.
Contention 1 is admissible because the NWPA precludes construction of the proposed CISF in the absence of a construction permit for a permanent repository.
Staff opposes Contention 1. Inter alia, Staff argues that the prospect of the interim facility becoming a de facto permanent facility does not implicate the Blue Ribbon Commission (BRC) 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.2 This argument does not address the willingness of a community to host a CISF that may become a de facto permanent facility. Staff 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 various Texas and New Mexico bodies politic.3 1 See NRC Staffs Response to Fasken & PBLRO Petition to Intervene, pp. 3-6 (Staff Response).
2 Staff Response at 14.
3 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
3 Staff argues that there is no necessity for ISP to demonstrate that the proposed CISF will further the establishment of a permanent repository.4 Accepting this argument means that a CISF may be established with no assurance to the host state and community that it is actually intended to be interim in its duration. The Department of Energys Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste (ML13011A138) recognizes the need for the NRC to at least license a permanent repository before embarking on interim storage:
The NWPA currently constrains the development of a storage facility by limiting the start of construction of such a facility until after the Nuclear Regulatory Commission (NRC) has issued a license for construction of a repository. This restriction has effectively eliminated the possibility of having an interim storage facility as an integral component of a waste management system.5 This acknowledgement by DOE that a CISF may not be constructed absent an extant license for construction of a permanent repository is the only assurance that a host state and community has that the proposed CISF will not become a de facto permanent facility. Under the present scenario neither the NRC nor ISP can represent to the State of Texas or Andrews County that the proposed CISF will actually be interim in nature. And such a representation cannot be made in the absence of a license to construct a permanent repository.
Accordingly, the ASLB panel should admit this contention for adjudication.
C.
Contention 2 is fully admissible because ISP has failed to analyze the wells in and around the proposed site and because it is typical for wells to expose minerals and formations 500 feet below each well.
(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 Staff Response at 14.
5 Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste (ML13011A138) at 5-6.
4 Staff does not oppose the admissibility of Contention 2 as a challenge to the applications evaluation of the potential impact that surrounding oil and gas wells may have on site stability pursuant to 10 C.F.R. § 72.103(a)(1).6 However, Staff rejects Petitioners contention as it relates to wells be[ing] analyzed as pathways to groundwater.7
- 1.
Petitioners have identified expert support explaining how on-site wells and wells surrounding the proposed site could serve as potential pathways to groundwater and have identified a genuine dispute with the application.
Staff argues that [Petitioners have] 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.8 To the contrary, Petitioners have exposed ISPs failure to analyze wells pursuant to 10 C.F.R. § 72.103(a)(1).9 Failure to analyze these wells in any capacity ensures that ISP has not identified the potential effects on stability nor the potential effects on groundwater for that matter. ISP admits that there is a single dry hole on-site,10 but given that casing for oil and gas wells typically ends around 500 feet below the ground surface,11 there is reason to believe that the minerals and formations located below the 500-foot mark of a dry well would be exposed as potential pathways to groundwater. The potential for contamination is 6 Staff Response at 16 7 Id. (citing Hearing Request at 17).
8 Id.
9 Hearing Request at 16.
10 ISPs Answer Opposing Hearing Request and Petition to Intervene (Nov. 20, 2018)
(ML18324A892) at 40 (the ISP Response).
11 Pachlhofer Decl. at 6.
5 especially salient if the on-site dry hole or any abandoned and orphan wells in the sites vicinity were breached during a credible accident or off-normal incident.12 In summary, Contention 2 must be accepted in full pursuant to 10 C.F.R. § 2.309 because Petitioners have identified expert support explaining how wells on-site and in the surrounding area of the proposed site could serve as potential pathways to groundwater and have identified a genuine dispute with the application given ISPs complete failure to analyze the many effects that the presence of oil and gas wells may have.
- 2.
Contention 2 does not rely on the application complying with 10 C.F.R. § 100.20 as part of, or in addition to, compliance with § 72.103(a)(1).
For clarity purposes, Petitioners do not assert that ISPs application must comply with 10 C.F.R. § 100.20.13 Petitioners use of § 100.20 was to support the materiality of Contention 2.
Petitioners only intention was to compare the similarities between § 100.20 and § 72.103.
D.
Contention 3 is admissible because it raises a material issue pursuant to guidance from NUREG-1567 and because Petitioners rely on Staffs Request for Additional Information which is information that was not previously available to Petitioners before filing.
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. Staff discusses ISPs 12 See Hearing Request at 25 (Petitioners contend that ISP has failed to satisfy 10 C.F.R. § 72.122(c) which requires ISP to design structures, systems and components that are important to safety in a way that allows the facility to perform its safety functions effectively under credible fire and explosion exposure conditions).
13 See Staff Response at 17, f.n. 84 (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.).
6 adherence to a separate Staff guidance document,14 but despite the unambiguous directive of NUREG-1567 Sec. 2.5.2, Staff fails to mention or require compliance therewith.15 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.16 Lastly, given Staffs recent request for additional information regarding aircraft traffic near the proposed site,17 Petitioners contention is credible and can be used to provide a factual basis to establish that Contention 3 is admissible.18 14 Staff Response at 20 (citing Spent Fuel Project Office Interim Staff Guidance-16 Emergency Planning (ISG-16)).
15 Staff Response at 17-22.
16 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.
17 See NRC Letter to Interim Storage Partners - Request for Additional Information for WCS CISF License Application at RAI 2.2-1 (Nov. 16, 2018) (ML18320A184).
18 Pursuant to 10 C.F.R. § 2.309(f)(vii)(2), [c]ontentions must be based on documents or other information available at the time the petition is to be filed. Furthermore, pursuant to 10 C.F.R. § 2.309(c)(1)(i), [f]ilings after the deadlinewill [] be entertainedby showing that: [t]he information upon which the filing is based was not previously available. Given that Staffs RAI was filed on November 16, 201818 days after Petitioners filed their Request for Hearing
7 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.
Staff asserts that Petitioners have not adequately shown a material issue of law or fact in dispute with ISPs characterization of the site groundwater conditions and the impacts of the site on the area groundwater.19 Petitioners have, however, identified pertinent sections within the SAR that support Contention 4s materiality, and thus have satisfied the specificity and materiality requirements of Section 2.309(f)(1)(i), (v) and (vi).
Petitioners claim there is indeed a material issue of fact. Petitioners assert that the Ogallala Formation is present along the north and east side of the WCS-Flying W Ranch.20 Contrary to Petitioners claim, ISP does not admit that the Ogallala Formation is present, but states that if [the Ogallala Formation is] present, [it] is not water bearing in the WCS CISF area.21 However, ISP contradicts its stance that there is no potential for groundwater contamination by stating that unspecified aquifers should be unaffected from effluents that might be produced during construction and operation.22 This statement is conclusory, riddled with uncertainty, and furthers Petitioners stance that there is a material dispute. ISP supports the claim that their facility poses no threat to groundwater beneath the site based on the TCEQ approving the license for the WCS LLRW disposal facility in 2009 and a 2014 Texas Court of and Petitioner to Intervene on October 29, 2018Petitioners can rely on this information because it was not previously available.
19 Staff Response at 24.
20 Hearing Request at 28 (citing Lehman and Rainwater study).
21 ISP SAR at 2-22; ISP ER at 3-26.
22 ISP ER at 4-65 (emphasis added).
8 Appeals case affirming TCEQs denial of contested groundwater contamination concerns.23 Given that the location of the Ogallala Aquifer is contested, there remains a genuine and material issue of fact.
Staff also argues that Petitioners fail to provide requisite factual or expert support that there is a potential for groundwater contamination.24 However, Petitioners have provided factual support from Mr. Pachlhofer who references a 2007 memo from TCEQ to support his analysis that red bed clay fractures are interconnected with the Santa Rosa Aquifer and that [t]he fractures are up to 3 millimeters wide.25 Mr. Pachlhofer also documents the presence of 905 deep and abandoned wells surrounding the WCS site.26 These wells could potentially serve as direct pathways to the exposed rock and formations located 500 feet below the surface of each hole, and ultimately, the subsurface hydrology intersected by each hole as stated in Section C.1 of this reply.
Lastly, Staff claims that Petitioners ha[ve] 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.27 However, Petitioners cite to Section 2.4.5 of NUREG-1567 which requires applicants to analyze potential groundwater contamination from the sites operations when the site is located over an aquifer that provides a source of water.28 Given the uncertainty of the sites location over the Ogallala, it 23 Id. at 53.
24 Staff Response at 22-23.
25 Pachlhofer Decl. at 5.
26 Id. at 6.
27 Staff Response at 25.
28 Hearing Request at 27.
9 is unclear whether this analysis is needed. However, until such a determination is made, the possibility of having to perform this analysis is still relevant.
Petitioners also correlate the requirements of NUREG-1567 Section 2.4.5 to those of 10 C.F.R. § 51.53(c)(3)(ii)(P) which requires applicants for renewal of licensing to describe past releases of radionuclides into groundwater and the projected impact to aquifers during the license renewal term.29 Petitioners correlation of Section 2.4.5 and 10 C.F.R. § 51.53(c)(3)(ii)(P) was done to identify the anomaly that applicants for a renewal of a license must consider impacts on groundwater and aquifers, but applicants for construction permits and new licenses do not have to meet this requirement.30
- 2.
Petitioners use of a fully-fueled aircraft crash causing contamination to groundwater is credible.
Staff argues that Contention 4 relies 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.31 Staff does not believe that Petitioners have supported their assertion that an aircraft crash is a credible event.32 Given Staffs recent request for additional information regarding aircraft traffic near the proposed site,33 Petitioners contention is credible and can be used to provide a factual basis to establish that a credible pathway for groundwater contamination exists.
F. Contention 5 is admissible because Petitioners raise a material issue of law pursuant to 10 C.F.R. § 51.45(b).
29 Id. at f.n. 52; See also Staff Response at 24, f.n. 112.
30 See 10 C.F.R. § 51.50.
31 Staff Response at 24.
32 Id. at 24.
33 Supra, f.n. 17.
10 Staff asserts that Petitioners have failed to raise a genuine dispute with the applicant on a material issue of law or fact.34 However, Petitioners claim that ISP has failed to adequately evaluate relevant conservation efforts that may be undermined by the proposed site pursuant to 10 C.F.R. § 51.45(b).
As Mr. Pachlhofer explains, the FWS has stated that prairie chicken numbers have improved over the years thanks to conservation efforts by the oil & gas and ranching industries.35 Section 4.5.4 of ISPs ER 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.36 While older ecological studies were used by ISP to conclude the proposed site will in fact disturb habitats of the Dunes Sagebrush Lizard,37 a complete biological re-evaluation is needed, as Mr. Pachlhofer suggests, to ensure that the site will not impact the potential habitats of threatened or endangered species that may be present.38 Failure to do so could directly undermine conservation efforts by the oil and gas and ranching industries. ISP has failed to adequately evaluate conservation efforts pursuant to 10 C.F.R. § 51.45(b). Thus, Petitioners have successfully raised a material issue of law.
34 Staff Response at 29.
35 Pachlhofer Decl. at 8.
36 ISP Response at 68.
37 ISP Response at 67 (ISP argues that its ER fully complies with NRC regulations and guidance based on ecological studies performed in 1997, 2004, 2007, and 2008).
38 Pachlhofer Decl. at 8.
11 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 30, 2018
12 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