ML18337A443
| ML18337A443 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 12/03/2018 |
| From: | Connolly E, Silberg J Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| HI-STORE Fuel Storage, RAS 54671, Holtec International | |
| Download: ML18337A443 (27) | |
Text
December 3, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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Docket No. 72-1051 Holtec International
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(HI-STORE Consolidated Interim Storage
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Facility)
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Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion / Petition to Intervene on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application
i TABLE OF CONTENTS I. Introduction............................................................................................................................... 1 II. Procedural Background............................................................................................................. 2 III. Applicable Legal Standards...................................................................................................... 3 A. Standing Requirements....................................................................................................... 3 B. Contention Admissibility Standards................................................................................... 7 IV. Petitioner Has No Standing..................................................................................................... 11 V. Petitioners Sole Contention is Not Admissible..................................................................... 13 A. Faskens Contention as Stated in the Motion to Dismiss................................................. 13 B. Faskens Contention as Stated in the Motion to Dismiss Is Inadmissible........................ 15 C. NRC Is Authorized to License the CISF........................................................................... 19 VI. Conclusion.............................................................................................................................. 19
ii TABLE OF AUTHORITIES Page(s)
Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-09-7, 69 N.R.C. 235 (2009)................................................................................................8 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),
CLI-91-12, 34 N.R.C. 149 (1991)....................................................................................8, 9, 10 Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility),
ALAB-682, 16 N.R.C. 150 (1982)....................................................................................11, 12 Babbitt v. United Farm Workers Natl Union, 442 U.S. 289 (1979)...................................................................................................................4 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),
CLI-98-14, 48 N.R.C. 39, motion to vacate denied, CLI-98-15, 48 N.R.C. 45 (1998).........................................................................................................................................9 Bullcreek v. Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004).................................................................................................19 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),
CLI-98-25, 48 N.R.C. 325, 348 (1998)....................................................................................10 Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C. Cir. 1980)...................................................................................................9 Consol. Edison Co. of New York et. al. (Indian Point, Units 1 and 2),
CLI-01-19, 54 N.R.C. 109, 133 (2001)..............................................................................15, 16 Consumers Energy Co. (Big Rock Point ISFSI),
CLI-07-19, 65 N.R.C. 423 (2007)....................................................................................5, 6, 12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-01-24, 54 N.R.C. 349, 359-60 (2001)..........................................................................9, 10 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2),
CLI-03-17, 58 N.R.C. 419 (2003)............................................................................................10 Duke Power Co., et al. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 N.R.C. 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 N.R.C. 1041 (1983)..........................................................................................10
iii EnergySolutions, LLC (Radioactive Waste Import/Export Licenses),
CLI-11-3, 73 N.R.C. 613 (2011)........................................................................................3, 4, 7 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
LBP-06-23, 64 N.R.C. 257 (2005)...........................................................................................11 Exxon Nuclear Co., Inc. (Nuclear Fuel Recovery and Recycling Center),
LBP-77-59, 6 N.R.C. 518 (1977)...........................................................................................6, 7 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-90-16, 31 N.R.C. 509 (1990)...........................................................................................11 Florida Power and Light Co. (St. Lucie, Units 1 and 2),
CLI-89-21, 30 N.R.C. 325 (1989)........................................................................................5, 13 Georgia Inst. of Tech. (Georgia Tech Research Reactor),
CLI-95-12, 42 N.R.C. 111 (1995)..........................................................................................5, 8 Georgia Institute of Technology(Georgia Tech Research Reactor, Atlanta, Georgia),
LBP-95-6, 41 N.R.C. 281, vacated in part and remanded on other grounds, CLI-95-10, 42 N.R.C. 1, affd in part........................................................................................8 Intl Uranium (USA) Corp. (Source Material License Amendment),
LBP-01-8, 53 N.R.C. 204, affd CLI-01-18, 54 N.R.C. 27 (2001)............................................7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...................................................................................................................4 Northern States Power Co. (Pathfinder Atomic Plant),
LBP-90-3, 31 N.R.C. 40 (1990).................................................................................................6 Northern States Power Co. (Prairie Island Nuclear Generating Plant Independent Spent Fuel Storage Installation),
LBP-12-24, 76 N.R.C. 503 (2012).............................................................................................3 Northwest Airlines, Inc. v. Federal Aviation Admin.,
795 F.2d 195 (D.C. Cir. 1986)...................................................................................................4 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),
CLI-10-7, 71 N.R.C. 133 (2010)................................................................................................4 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation),
LBP-02-23, 56 N.R.C. 413, affd, CLI-03-1, 57 N.R.C. 1 (2003).........................................5, 6
iv Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
CLI-02-29, 56 N.R.C. 390 (2002)............................................................................................19 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
CLI-98-13, 48 N.R.C. 26 (1998)............................................................................................3, 7 Private Fuel Storage, L.L.C.,
LBP-98-7, 47 N.R.C. 142 (1998)...........................................................................................4, 9 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station),
LBP-92-23, 36 N.R.C. 120 (1992).............................................................................................4 Sequoyah Fuels Corp. (Gore, Oklahoma Site),
CLI-94-12, 40 N.R.C. 64 (1994)............................................................................................4, 5 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project),
LBP-12-3, 75 N.R.C. 164 (2012)...............................................................................................5 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),
LBP-92-37, 36 N.R.C. 370 (1992), vacated as moot and appeal dismissed, CLI-93-10, 37 N.R.C. 192, stay denied, CLI-93-11, 37 N.R.C. 251 (1993)...........................10 U.S. Department of Energy (Plutonium Export License),
CLI-04-17, 59 N.R.C. 357 (2004)..............................................................................................6 USEC, Inc. (American Centrifuge Plant),
CLI-05-11, 61 N.R.C. 309 (2005)............................................................................................12 USEC, Inc. (American Centrifuge Plant),
CLI-06-9, 63 N.R.C. 433 (2006)................................................................................................8 Yankee Atomic Electric Co. (Yankee Nuclear Power Station),
CLI-96-1, 43 N.R.C. 1 (1996)....................................................................................................4 Statutes and Codes United States Code Title 42, Section 2239(a)............................................................................................................3 Rules and Regulations Code of Federal Regulations Title 10, Section 2.309(i)(1).......................................................................................................1 Title 10, Section 2.309(a)...........................................................................................................3 Title 10, Section 2.309(d)(1)......................................................................................................4 Title 10, Section 2.309(f)(1)........................................................................................7, 8, 9, 16
v Other Authorities Federal Register Volume 54 No. 33,168 - 33,172 (Aug. 11, 1989)..............................................................9, 10 Volume 83 No. 32,919 (July 16, 2018)................................................................................3, 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Atomic Safety and Licensing Board In the Matter of
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Docket No. 72-1051 Holtec International
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(HI-STORE Consolidated Interim Storage
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Facility)
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Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion to Dismiss / Petition to Intervene on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), Holtec International (Holtec) hereby answers and opposes the Motion to Dismiss1 filed by Fasken Land and Minerals and Permian Basin Land and Royalty Owners (Petitioner or Fasken) on September 14, 2018, in the HI-STORE Consolidated Interim Storage Facility (CISF) license proceeding. The Order of the Secretary dated October 29, 20182, referred the Fasken Motion to Dismiss to the Atomic Safety and Licensing Board Panel for considered under 10 C.F.R. § 2.309.
While Fasken originally sought to dismiss this proceeding, by virtue of the Secretarys Order it now seeks to intervene in this proceeding and request that the Nuclear Regulatory Commission (Commission or NRC) conduct a hearing regarding Holtecs application for a 1 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 (Sep. 14, 2018) (ADAMS Accession No. ML18257A330) (Fasken Motion to Dismiss or Fasken Motion).
2 NRC Order (referring motions to the Atomic Safety and Licensing Board Panel), at 2-3 (Oct. 29, 2018)
(unpublished) (ADAMS Accession No. ML18302A355). See also Referral Memorandum to the Atomic Safety and Licensing Board Panel (Oct. 29, 2018) (ADAMS Accession No. ML18302A355) (referring Fasken Motion to Dismiss to the Atomic Safety and Licensing Board Panel for consideration as a petition under 10 C.F.R.
§ 2.309).
2 CISF license. The Fasken Motion/Petition should be denied because Petitioner has failed (1) to demonstrate that it has standing in this proceeding, and (2) to propose an admissible contention.
The Commissions regulations and caselaw clearly set forth the requirements that a petitioner must satisfy in order to demonstrate standing and to propose an admissible contention.
Fasken bears the burden of establishing standing, and it has failed to meet this standard, as previously described in Holtecs Answer Opposing the Fasken Petition.3 Additionally, the Commissions current pleading standards were designed to raise the threshold for the admission of contentions. The purpose of these intentionally strict admissibility requirements is to ensure that hearings would focus on concrete issues that are relevant to the proceeding and that are supported by some factual and legal foundation. Faskens sole contention, derived from the Motion to Dismiss, fails to reach the required threshold, falling far short of a number of the applicable pleading standards. Accordingly, the Board should reject Faskens contention and deny its Petition.
II.
PROCEDURAL BACKGROUND Holtec submitted an application to the NRC for a Consolidated Interim Storage Facility for Spent Nuclear Fuel on March 31, 2017. The Application and this proceeding are governed by 10 C.F.R. Part 72. In particular, Subpart C of Part 72 sets out the procedures and requirements applicable to the issuance and conditions of such a license.
The NRC Staff conducted a sufficiency review and found the Application acceptable for docketing. On July 16, 2018, the NRC published its Notice of Hearing and Opportunity to 3 Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion to Dismiss Licensing Proceeding for HI-STORE Consolidated Interim Storage Facility (Sept. 24, 2018)
(ADAMS Accession No. ML18267A402). For purposes of completeness, Holtec restates in a summary form in this pleading its demonstration that Fasken has failed to establish its standing.
3 Petition for Leave to Intervene and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation on a license to construct and operate the CISF in Lea County, New Mexico.4 Fasken filed a Motion to Dismiss this proceeding on September 14, 2018. On October 29, the Secretary of the Commission denied Faskens Motion to Dismiss on procedural grounds. The Secretary then referr[ed] the motion from [Fasken] to the ASLBP for consideration under § 2.309, Order at 2-3, functionally converting the motion into a Petition to Intervene and request for a hearing.
To be admitted as a party to this proceeding, Fasken must demonstrate standing and submit at least one admissible contention.5 Fasken has done neither. Fasken failed to demonstrate its standing in this proceeding. And it has likewise failed to submit an admissible contention. Therefore, the Petition must be denied.
III.
APPLICABLE LEGAL STANDARDS A.
Standing Requirements The Atomic Energy Act of 1954, as amended (AEA) allows individuals whose interest may be affected by the proceeding to intervene in NRC licensing proceedings.6 The Commission has long applied judicial concepts of standing to determine whether a petitioners interest provides a sufficient basis for intervention.7 Essential to establishing standing are findings of (1) injury, (2) causation, and (3) redressability.8 In other words, a petitioner must establish that (1) it has suffered or will suffer a distinct and palpable injury that constitutes 4 83 Fed. Reg. 32,919.
5 See 10 C.F.R. § 2.309(a).
6 42 U.S.C. § 2239(a).
7 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 N.R.C. 26, 30 (1998).
8 EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 N.R.C. 613, 621 (2011).
4 injury-in-fact within the zones of interests arguably protected by the governing statutes (e.g.,
AEA and the National Environmental Policy Act of 1969 (NEPA)); (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.9 Both the Commission's Hearing Notice for this proceeding and its Rules of Practice require a petitioner to set forth: (1) the nature of its right under the AEA to be made a party to the proceeding; (2) the nature and extent of its property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceeding on its interest.10
[T]he petitioner bears the burden to provide facts sufficient to establish standing.11 To demonstrate a distinct and palpable injury-in-fact sufficient to establish standing, the petitioner must demonstrate that the injury-in-fact is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.12 Where there is no current injury and a party relies wholly on the threat of future injury, the fact that one can imagine circumstances where a party could be affected is not enough. The petitioner must demonstrate that the injury is certainly impending.13 In the NRC licensing context, unsupported general references to radiological consequences are insufficient to establish a basis for injury to establish standing.14 9 Private Fuel Storage, L.L.C., LBP-98-7, 47 N.R.C. 142, 168 (1998) (citing Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 N.R.C. 1, 6 (1996); see also Northern States Power Co. (Prairie Island Nuclear Generating Plant Independent Spent Fuel Storage Installation), LBP-12-24, 76 N.R.C. 503, 507-508 (2012) (citing EnergySolutions, CLI-11-3, 73 N.R.C. at 621).
10 License Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene; Order; Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919, 32,920 (July 16, 2018); 10 C.F.R. § 2.309(d)(1).
11 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 N.R.C. 133, 139 (2010).
12 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI 12, 40 N.R.C. 64, 72 (1994).
13 Northwest Airlines, Inc. v. Federal Aviation Admin., 795 F.2d 195, 201 (D.C. Cir. 1986) (emphasis in original)
(citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
14 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-92-23, 36 N.R.C. 120, 130 (1992).
5 The alleged injury, which may be either actual or threatened, must be both concrete and particularized, not conjectural or hypothetical, and standing will be denied when the threat or injury is too speculative.15 Where a petition seeks to base its claim to standing on economic loss, what is necessary is a showing from the petitioner (or the individual it seeks to represent) that the purported economic loss has some objective fundament, rather than being based solely on the petitioner's (or affiant's) perception of the economic loss in light of the proposed licensing action.16 Under NRC case law, a petitioner may in some cases be presumed to have fulfilled the judicial standards for standing based on his or her geographic proximity to a facility or a source of radiation. For example, the NRC has held that the proximity presumption is sufficient to confer standing on an individual or group in proceedings under 10 C.F.R. Part 50 for reactor construction permits, operating license, or significant license amendments.17 But the Commission has required far closer proximity in other [(i.e., non-reactor)]
licensing proceedings and determine[s] on a case-by-case basis whether the proximity presumption should apply, considering the obvious potential for offsite radiological consequences, or lack thereof, from the application at issue, and specifically taking into account the nature of the proposed action and the significance of the radioactive source.18 15 Sequoyah Fuels Corp., CLI-94-12, 40 N.R.C. at 72.
16 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-12-3, 75 N.R.C. 164, 184 (2012), citing Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), LBP 23, 56 N.R.C. 413, 432 (generic, unsubstantiated claims regarding health, safety, and property devaluation impacts are insufficient to establish standing), aff'd, CLI-03-1, 57 N.R.C. 1 (2003).
17 Florida Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 N.R.C. 325, 329 (1989).
18 Consumers Energy Co. (Big Rock Point ISFSI), CLI-07-19, 65 N.R.C. 423, 426 (2007) (quotation omitted); see also Georgia Inst. of Tech. (Georgia Tech Research Reactor), CLI-95-12, 42 N.R.C. 111, 116-17 (1995) (whether and at what distance a petitioner can be presumed to be affected must be judged on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source).
6 In other words, the smaller the risk of offsite consequences, the closer one must reside to be realistically threatened by radiological consequences. And the potential risk of offsite consequences will be different for each type of licensing proceeding. Here, the potential radiological risks for the CISF are considerably smaller compared other licensing actions because an ISFSI is essentially a passive structure rather than an operating facility, and there therefore is less chance of widespread radioactive release.19 Further, close proximity to potential radioactive waste transportation routes alone is insufficient to establish standing.20 Nor is it enough to assert that additional spent nuclear fuel will be transported by rail or road, or that an accident may occur along a transportation route near which the petitioner resides. This is because Nuclear waste safely and regularly moves via truck and rail throughout the nation under regulations of the NRC and Department of Transportation (49 C.F.R. Parts 100-179). The mere fact that additional radioactive waste will be transported if decommissioning is authorized does not ipso facto establish that there is a reasonable opportunity for an accident to occur at [any location], or for the radioactive materials to escape because of accident or the nature of the substance being transported.21 Consequently, standing will be denied where petitioners allegations of possible physical and/or economic injury are entirely speculative in nature, being predicated on the tenuous assumptions that the spent fuel will be 19 Big Rock Point ISFSI, CLI-07-19, 65 N.R.C. at 426.
20 U.S. Department of Energy (Plutonium Export License), CLI-04-17, 59 N.R.C. 357, 364 n.11 (2004) ([M]ere geographical proximity to potential transportation routes is insufficient to confer standing; instead,... Petitioners must demonstrate a causal connection between the licensing action and the injury alleged.), quoting Diablo Canyon, LBP-02-23, 56 N.R.C. at 433-34; Northern States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 N.R.C. 40, 43-44 (1990) (standing denied to petitioner who resided 1 mile from likely transportation route and merely claimed that an accident along that route would cause an increased radiological dose); accord Exxon Nuclear Co., Inc. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 N.R.C. 518, 520 (1977)
(assertion of injury because spent fuel would travel on railway track very near property was insufficient to establish standing).
21 Pathfinder, LBP-90-3, 31 N.R.C. at 43.
7 shipped by the named carrier and that an accident might occur in the area proximate either to her residence or to her rental property.22 Indeed, standing will be denied even where petitioner resides within one block of the route over which radioactive materials will be transported and claims that any accident of or spill from a truck carrying this material that occurred near [petitioners] home or workplace could result in some impact, even if minor.23 Mere potential exposure to minute doses of radiation within regulatory limits does not constitute a distinct and palpable injury on which standing can be founded.24 Where an organization asserts a right to represent the interests of its members, judicial concepts of standing require that the petitioner show that (1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organizations lawsuit.25 B.
Contention Admissibility Standards All contentions, including those based on NRC environmental review documents, must meet the admissibility standards that apply to all contentions under 10 C.F.R. § 2.309(f)(1).
Specifically, contentions must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted; 22 Exxon Nuclear Co., LBP-77-59, 6 N.R.C. at 520.
23 Intl Uranium (USA) Corp. (Source Material License Amendment), LBP-01-8, 53 N.R.C. 204, 218, affd CLI 18, 54 N.R.C. 27, 31-32 (2001) (the potential radiological consequences to [petitioner] from the transportation of the [radioactive] material, even in the case of an accident on the highway, are negligible; Presiding Officers in the past have declined to find that the mere increase in the traffic of low-level radioactive material on a highway near the petitioner's residence, without more, constitutes an injury traceable to a license amendment that primarily affects a site hundreds of miles away).
24 EnergySolutions, CLI-11-3, 73 N.R.C. at 623 (denying petitioners standing claim for failing to show there would be any impact from the transport of radioactive materials to be imported) (quotation omitted).
25 Private Fuel Storage, CLI-98-13, 48 N.R.C. at 30-31.
8 (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 proceeding; (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; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.26 These standards are enforced rigorously. If any one... is not met, a contention must be rejected.27 A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information.28 Under these standards, a petitioner is obligated to provide the [technical] analyses and expert opinion showing why its bases support its contention.29 26 10 C.F.R. § 2.309(f)(1)(i)-(vi).
27 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N.R.C.
149, 155 (1991) (citation omitted); USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 437 (2006) (These requirements are deliberately strict, and we will reject any contention that does not satisfy the requirements. (footnotes omitted)).
28 See, e.g., Palo Verde, CLI-91-12, 34 N.R.C. at 155; AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 260 (2009) (noting that the contention admissibility rules require the petitioner (not the board) to supply all of the required elements for a valid intervention petition (emphasis added) (footnote omitted)).
29 Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 N.R.C. 281, 305, vacated in part and remanded on other grounds, CLI-95-10, 42 N.R.C. 1, affd in part, CLI-95-12, 42 N.R.C. 111 (1995).
9 Where a petitioner has failed to do so, the [Licensing] Board may not make factual inferences on [the] petitioners behalf.30 Further, admissible contentions must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application].31 In particular, this explanation must demonstrate that the contention is material to the NRCs findings and that a genuine dispute on a material issue of law or fact exists.32 The Commission has defined a material issue as meaning one where resolution of the dispute would make a difference in the outcome of the licensing proceeding.33 As the Commission has observed, this threshold requirement is consistent with judicial decisions, such as Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C.
Cir. 1980), which held that:
[A] protestant does not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that... a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate.34 A contention, therefore, is not to be admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a 30 Id. (citing Palo Verde, CLI-91-12, 34 N.R.C. 149). See also Private Fuel Storage, LBP-98-7, 47 N.R.C. at 180 (explaining that a bald assertion that a matter ought to be considered or that a factual dispute exists... is not sufficient; rather, a petitioner must provide documents or other factual information or expert opinion to show why the proffered bases support [a] contention (citations omitted)).
31 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 N.R.C. 349, 359-60 (2001).
32 10 C.F.R. § 2.309(f)(1)(iv), (vi).
33 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (emphasis added).
34 627 F.2d at 251 (citation omitted); see also Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 N.R.C. 39, 41, motion to vacate denied, CLI-98-15, 48 N.R.C. 45, 56 (1998) (It is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission of its contentions.).
10 fishing expedition which might produce relevant supporting facts.35 As the Commission has emphasized, the contention rules bar contentions where petitioners have what amounts only to generalized suspicions, hoping to substantiate them later, or simply a desire for more time and more information in order to identify a genuine material dispute for litigation.36 Therefore, under the Rules of Practice, a statement that simply alleges that some matter ought to be considered does not provide a sufficient basis for a contention.37 Similarly, a mere reference to documents does not provide an adequate basis for a contention.38 Rather, NRCs pleading standards require a petitioner to read the pertinent portions of the license application, including the safety analysis report and the environmental report, state the applicants position and the petitioners opposing view, and explain why it has a disagreement with the applicant.39 If the petitioner does not believe these materials address a relevant issue, the petitioner is to explain why the application is deficient.40 A contention that does not directly controvert a position taken by the applicant in the license application is subject to dismissal.41 Furthermore, an allegation that some aspect of a license application is inadequate 35 54 Fed. Reg. at 33,171. See also Duke Power Co., et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C. 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 N.R.C. 1041 (1983) ([A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable [the petitioner] to uncover any information that could serve as the foundation for a specific contention. Stated otherwise, neither Section 189a of the [Atomic Energy] Act nor Section 2.714 [now 2.309] of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff.).
36 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI-03-17, 58 N.R.C. 419, 424 (2003).
37 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 N.R.C. 200, 246 (1993), review declined, CLI-94-2, 39 N.R.C. 91 (1994).
38 Calvert Cliffs, CLI-98-25, 48 N.R.C. at 348 (citation omitted).
39 54 Fed. Reg. at 33,170-71; Millstone, CLI-01-24, 54 N.R.C. at 358.
40 54 Fed. Reg. at 33,170. See also Palo Verde, CLI-91-12, 34 N.R.C. at 156.
41 See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 N.R.C. 370, 384 (1992), vacated as moot and appeal dismissed, CLI-93-10, 37 N.R.C. 192, stay denied, CLI-93-11, 37 N.R.C. 251 (1993).
11 or unacceptable does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect.42 IV.
PETITIONER HAS NO STANDING As previously addressed in Holtecs Response to Faskens Motion to Dismiss, Fasken has failed to meet its burden to establish standing. In summary, Holtecs Response demonstrated that: first, the statements in the Fasken Motion concerning potential impacts to Faskens members or employees are not supported by Mr. Taylors Declaration; second, Faskens vague claims of a radiation release are insufficient to establish a distinct and palpable injury-in-fact to individuals, let alone areas of land as asserted by Fasken; third, Fasken is not entitled to a proximity presumption for merely owning land two miles from the site without any plausible explanation of potential risk; and finally, Faskens general and unsubstantiated claims of negative impacts to property values are insufficient to establish standing. See Holtecs Response at 8-11.
In its September 28, 2018 Reply to Holtecs Response to Faskens Motion, Fasken relies on Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 N.R.C. 150 (1982) to argue that the proximity presumption of standing should apply. Fasken argues that it merely needs proximity to a facility storing large concentrations of radioactive materials without otherwise showing that its stated concerns are justified until it reaches the merits of the controversy. Reply at 5.
This reliance on Armed Forces is inappropriate and mischaracterizes the controlling Commission precedent. First, Faskens Motion merely asserted that there may be a radiological 42 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 358 (2005) (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16, 31 N.R.C. 509, 521 & n.12 (1990)).
12 release from the Holtec facility, without otherwise substantiating the claim. This is unlike the Armed Forces case where the intervenor specifically described a prior incident at the facilitya mechanism jamming for a period of time while moving the Cobalt-60 out of its shielding giving rise to a potential for harm.43 Second, the proximity standing in Armed Forces is based on an operating irradiation facility, which has more chance of widespread radioactive release than a passive structure like an ISFSI.44 In recent cases, the Commission has been unwilling to extend such proximity standing to ISFSI cases unless there has been a demonstrated increase in the risk of radiological harm.45 Faskens claim that standing can arise from mere proximity to a facility storing large concentrations of radioactive materials (referencing Armed Forces, ALAB-682, 16 N.R.C. at 153-154) does not comport with current Commission jurisprudence. More recently, the Commission has ruled that in nonreactor cases there is no presumption of standing based upon geographic proximity, absent a determination that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences. Whether and at what distance a petitioner can be presumed to be affected must be judged on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source. Where there is no obvious potential for radiological harm at a particular distance frequented by a petitioner, it becomes the petitioners burden to show a specific and plausible means of how the challenged action may harm him or her.46 Fasken here has not demonstrated a specific and plausible means of harm from radioactive materials inside sealed metal canisters emplaced below ground in steel and concrete storage vaults. See generally Fasken Motion; Fasken Reply. Fasken further fails to demonstrate how the 43 Armed Forces, ALAB-682, 16 N.R.C. at 152.
44 Big Rock Point ISFSI, CLI-07-19, 65 N.R.C. at 426.
45 Id.
46 USEC, Inc. (Am. Centrifuge Plant), CLI-05-11, 61 N.R.C. 309, 311-12 (2005) (emphasis added) (internal quotations omitted).
13 radioactive materials could create a harm to Faskens property interests, as those are the only Fasken interests in proximity to the site. See Fasken Reply at 5 (describing the proximity of Faskens properties and leases).
Finally, Fasken claims that it does not need to justify its stated concerns until the merits phase because it has satisfied the burden of the proximity presumption. Fasken Reply at 5.
However, without an obvious potential for offsite harm, Fasken must allege a specific injury-in-fact. As the Commission has decided It is true that in the past, we have held that living within a specific distance from the plant is enough to confer standing on an individual or group in proceedings for construction permits, operating licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool. However, those cases involved the construction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences. Absent situations involving such obvious potential for offsite consequences, a petitioner must allege some specific injury in fact which will result from the action taken.47 Without alleging a specific injury-in-fact or demonstrating an obvious potential for harm to Faskens property from an ISFSI such as the Holtec CISF, Fasken has failed to demonstrate that it has standing in this proceeding.
V.
PETITIONERS SOLE CONTENTION IS NOT ADMISSIBLE A.
Faskens Contention as Stated in the Motion to Dismiss Because Fasken filed a Motion to Dismiss, it never clearly stated a contention. Setting aside the procedural and standing arguments in Faskens Motion, Faskens contention appears to be limited to the arguments on pages 1-2 and 7-8 of the Motion, regarding whether licensing of a CISF is permitted under the Nuclear Waste Policy Act (NWPA). While it should not be 47 St. Lucie, Units 1 and 2, CLI-89-21, 30 N.R.C. at 329-330.
14 the obligation of the applicant (or the Board for that matter) to draft the petitioners contention,48 Holtec considers the following to be Faskens contention.
Statement of the Contention: The NRC lacks the jurisdiction to approve the CIS application because it is based on the DOE being responsible for the spent nuclear fuel to be transported to and stored at the CISF.
Basis:
The DOE is precluded from taking title to spent fuel until a permanent repository is available. 42 USC §§ 10222(a)(5)(A), 42 USC § 10143. Motion at 1-2.
Argument:
The NRCs acceptance and processing of the applications conflicts with the essential predicate that a permanent repository be available before licensure of a CISF. Further, processing the subject applications implies that the NRC disregards the NWPAs unambiguous requirement that spent fuel remain owned by and is the responsibility of reactor licensees until a permanent repository is available. The logic that underpins the plain language of the NWPAs requirement for a functioning permanent repository is effectively vitiated by processing these applications. Motion at 2.
The CISF applications constitute a violation of the NWPA since no permanent repository for spent nuclear fuel exists in the United States. Processing these applications to licensure under the present circumstances invites the situation Congress was attempting to avoid because licensure of a CISF without an available permanent repository contradicts the NWPAs objective to establish a permanent repository. The prospect that any CISF will become a de facto permanent repository is precisely what the NWPA intends to avoid. Motion at 2.
In enacting the NWPAs prohibition on establishing CISFs without an available permanent repository Congress intended that SNF would not end up stranded indefinitely in an interim facility. An interim facility that receives SNF would certainly relieve reactor owners of their responsibility to manage this waste stream. But this circumstance would also reduce the pressure to find a permanent repository. This is exactly what Congress did not intend. But Congressional intent, manifested by the prohibition on CISFs in the absence of a permanent repository, is in danger of being subverted if Holtecs and ISPs applications are processed and result in the issuance of one or perhaps, two licenses. The Commission should recognize that the CISF licensing attempts of Holtec and ISP are futile under the NWPA. Motion at 7-8.
48 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 22 (1998) (A contentions proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions)
15 Fasken also incorporate[s] by reference the arguments and authorities in the Beyond Nuclear Inc. Motion to Dismiss at sections IV, V and VI. Fasken Motion at 7.
Faskens attempt to incorporate by reference the arguments and authorities in the Beyond Nuclear Inc. Motion to Dismiss at sections IV, V and VI, Fasken Motion at 7, is insufficient to form the basis for an admissible contention. While the Commission allows parties to incorporate contentions by reference, there are limits to the practice. The Commission does not permit wholesale incorporation by reference by a petitioner who, in a written submission, merely establishes standing and attempts, without more, to incorporate the issues of other petitioners.49 Nor does the Commission accept incorporation by reference of another petitioners issues in an instance where the petitioner has not independently established compliance with our requirements for admission as a party in its own pleadings by submitting at least one admissible issue of its own.50 The Commission only allows those who are able to proffer at least some minimal factual and legal foundation in support of their contentions to trigger an adjudicatory hearing.51 As such, Faskens attempt to incorporate by reference the arguments and authorities of Beyond Nuclear cannot be used to provide the basis for a Fasken contention.
B.
Faskens Contention as Stated in the Motion to Dismiss Is Inadmissible.
As an initial matter, Holtec respectfully submits that the Contention should be denied because it is outside the scope of this proceeding. As Fasken concedes, its claims raise jurisdictional issues under the NWPA such [sic] do not require resolution of whether the applications conform to applicable requirements of the Atomic Energy Act (AEA), the 49 Consol. Edison Co. of New York et. al. (Indian Point, Units 1 and 2), CLI-01-19, 54 N.R.C. 109, 133 (2001).
50 Id. (emphasis added).
51 Id.
16 National Environmental Policy Act (NEPA) and pertinent NRC regulations at 10 C.F.R.
§§ 72.40, 51.101. Fasken Motion at 2-3. Based on this concession alone, the Contention should be rejected as inadmissible.
The Contention should also be denied for mischaracterizing both the facts and the law, therefore lacking the required basis, and failing to provide any factual or expert support or sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Faskens Contention is based on the basic premise that the DOE will be responsible for the spent fuel that would be transported to and stored at the proposed facilities.
See Fasken Motion at 1-2. As such, the Contention lacks adequate support and fails to raise a genuine dispute with the application.
Fasken provides no reference to the Application to support its assertion that DOE will be responsible for the spent fuel that will be stored at the CISF. Nor does Fasken provide any other factual or legal support aside from a single reference to the NWPA. A contention must provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact including references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute.52 As a result, this failure to even reference the Application renders Faskens contention inadmissible. Faskens reference to Beyond Nuclears Motion is likewise insufficient, as Fasken must be able to provide its own minimal factual and legal foundation and must show substantial effort in preparing its own contentions.53 52 10 C.F.R. § 2.309(f)(1)(vi).
53 Indian Point, CLI-01-19, 54 NRC at 133.
17 Faskens claim that DOE will be responsible for the spent fuel that would be transported to and stored at the proposed facilities, Motion at 1, is also incorrect. The Application clearly states that either the nuclear plant owners from where the spent fuel originated or the DOE will be the customer for the HI-STORE CIS Facility. For example, proposed License Condition #17 states that the construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner) at
[the] HI-STORE CIS has been established.54 Similarly, License Condition #18 states that
[t]he licensee [i.e., Holtec] shall: (1) include in its service contracts provisions requiring customers to retain title to the spent fuel stored, and allocating legal and financial liability among the licensee and the customers; (2) include in its service contracts provisions requiring customers to provide periodically credit information, and where necessary, additional financial assurances such as guarantees, prepayment, or payment bond; [and] (3) include in its service contracts a provision requiring the licensee not to terminate its license prior to furnishing the spent fuel storage services covered by the service contract.55 In addition, the note to SAR Table 1.0.2 states: in accordance with 10CFR72.22, the construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner) at HI-STORE CIS has been established.56 And the Financial Assurance & Project Life Cycle Report (HI-2177593 rev. 0), which is a part of the Application, states in Sec. 1.0 (at 3), [a]dditionally, as a matter of financial prudence, Holtec will require the necessary user agreements in place (from the USDOE and/or the nuclear plant owners) that will justify the required capital expenditures by the Company.57 54 Proposed Licenses and Tech Specs at 2 (ADAMS Accession No. ML17310A223) (emphasis added).
55 Proposed Licenses and Tech Specs at 2.
56 Safety Analysis Report Rev. 0C at 26 (ADAMS Accession No. ML18254A413) (emphasis added).
57 Financial Assurance & Project Life Cycle Report at 3 (ADAMS Accession No. ML18058A608) (emphasis added).
18 Although Faskens pleadings make no reference to them,58 statements in the Environmental Report that suggest a broader DOE role by omitting the nuclear plant owner portion of the USDOE and/or a nuclear plant owner allocation of responsibility are inconsistent with Holtecs intent and are in the process of being revised to eliminate any confusion and make clear that the Application is not based on DOE taking or holding title to the spent fuel which would be stored at the CISF. In any case, the Environmental Report has been amended to remove these inconsistent references.59 It is also worth noting that Faskens claims of current NWPA restrictions, even though irrelevant, may well be superseded by Congress. Whether the NWPA only authorizes DOE to take title to spent nuclear fuel for a repository and not for interim storage, legislation passed by the House of Representative on May 10, 2018 by a vote of 340-79 authorizes DOE to enter into agreements with a non-Federal entity for an interim spent fuel storage facility.60 But regardless of whether this or other legislation is ultimately enacted, proposed License Conditions 17 and 18 discussed above, and not otherwise challenged in this contention, would provide that either DOE or a nuclear plant owner could be the customer for HI-STORE. If DOE is not authorized to be the customer, the nuclear plant owner is the default party to comply with License Conditions 17 and 18. Thus, the issue raised by the contention is ultimately irrelevant to the licensability of the HI-STORE-CIS facility.
58 Those statement were relied upon by Beyond Nuclear, Beyond Nuclear Motion to Dismiss at 16, and were addressed by Holtec in its Answer Opposing Beyond Nuclears Hearing Request and Petition to Intervene at 20-
- 21.
59 See K. Manzione (Holtec International) to J. Cuadrado (NRC), Holtec International HI-STORE CIS (Consolidated Interim Storage Facility) License Application Responses to Requests for Supplemental Information (ADAMS Accession No. 18333A041) Attachment 5: HI-2177593 HI-STORE Environmental Report Rev 3 - Non-Proprietary at 1-1, 3-104 (Not yet in ADAMS.).
60 H.R. 3053, Nuclear Waste Policy Amendments Act of 2018.
19 C.
NRC Is Authorized to License the CISF Fasken does not appear to challenge the NRCs authority to license away-from-reactor centralized interim spent fuel storage facilities. Motion at 1-2, 7-8. Nor could it, as the Commission and the judiciary have explicitly upheld that authority. As the Commission held in Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-29, 56 N.R.C. 390 (2002), We conclude that Congress, in enacting the Atomic Energy Act (AEA),
gave the NRC authority to license privately owned, away-from-reactor (AFR) facilities. This same conclusion was reached by the U.S. Court of Appeals for the D. C. Circuit in Bullcreek v.
Nuclear Regulatory Commission, 359 F.3d 536 (D.C. Cir. 2004). In that case, the State of Utah and others sought to review an NRC order denying a petition for rulemaking contending that NRCs rules for licensing a privately owned, away-from-reactor spent fuel storage installation were superceded by provisions in the NWPA. In the process of rejecting Utahs arguments, the Court cited to the NRCs authority under the Atomic Energy Act to license private away-from-reactor storage facilities. Id. at 537-38. In addition, the NRC has previously licensed privately owned, away-from-reactor facilities such as the HI-STORE CISF under the provisions of 10 C.F.R. Part 72. See, e.g., NRC License No. SNM-2513 (Private Fuel Storage); NRC License No.
SNM-2500 (GE-Morris).
VI.
CONCLUSION For the foregoing reasons, the Commission should determine that Fasken lacks standing in this proceeding, should reject Faskens contention, and should therefore deny Faskens Motion to Dismiss as considered under 10 C.F.R. § 2.309.
20 Erin E. Connolly Corporate Counsel Holtec International Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 x 3712 e-mail: e.connolly@holtec.com December 3, 2018 Respectfully submitted,
/signed electronically by Jay E. Silberg/
Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8063 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
Docket No. 72-1051 Holtec International
)
)
(HI-STORE Consolidated Interim Storage
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Facility)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion / Petition to Intervene on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application has been served through the E-Filing system on the participants in the above-captioned proceeding this 3rd day of December, 2018.
/signed electronically by Anne R. Leidich/
Anne R. Leidich