ML18344A571
| ML18344A571 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 12/10/2018 |
| From: | Burdick S, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54683 | |
| Download: ML18344A571 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 December 10, 2018 INTERIM STORAGE PARTNERS LLCS MOTION TO STRIKE PORTIONS OF THE REPLIES FILED BY PERMIAN BASIN LAND AND ROYALTY ORGANIZATION AND FASKEN LAND AND MINERALS I.
INTRODUCTION In accordance with 10 C.F.R. § 2.323(a),1 Interim Storage Partners LLC (ISP) moves to strike portions of the three Replies recently filed by Permian Basin Land and Royalty Organization (PBLRO) and Fasken Land and Minerals (Fasken) (collectively, Petitioners) related to their October 29, 2018 Petition to Intervene and Request for a Hearing (Petition)2 and their September 28, 2018 motion to dismiss that was referred to the Licensing Board for consideration under 10 C.F.R. § 2.309 (Referred Motion).3
1 Pursuant to 10 C.F.R. § 2.323(b), ISP counsel certifies that ISP has made a sincere effort to contact other affected participants in the proceeding and resolve the issues raised in this motion, and ISPs efforts to resolve the issues have been unsuccessful. Petitioners stated that they oppose the motion. The NRC Staff agrees with ISP that new material was raised for the first time in the replies, such that a motion to strike is appropriate.
2 Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412) (Petition).
3 Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 28, 2018) (ML18271A244) (Referred Motion). Although the Secretary of the Commission denied this motion, it also referred it to the Atomic Safety and Licensing Board Panel for consideration as a petition to intervene under 10 C.F.R. § 2.309. Order of the Secretary (Oct. 29, 2018)
(ML18302A329) (Referral Order).
2 The portions of those Replies identified below should be stricken because they impermissibly attempt to cure deficiencies in the original filings and/or introduce new arguments into the proceeding without satisfying the late-filing criteria in 10 C.F.R. § 2.309(c). Those arguments do not legitimately amplify the arguments raised in the Petition or Referred Motion, nor do they focus narrowly on the legal or factual arguments raised in the Answers.4 By presenting new information and arguments in their Replies, Petitioners have denied ISP and Staff an opportunity to respond.
Specifically, ISP requests that the following portions of the Replies be stricken:
November 30, 2018 Reply of Fasken and PBLRO to Interim Storage Partners, LLCs and Staffs Oppositions to Motion to Dismiss (Referred Motion Reply)5:
o Page 5 - First full paragraph (As mentioned,...).
November 28, 2018 Fasken and PBLROs Reply to ISPs Opposition to Hearing Request and Petition to Intervene (Reply to ISP)6:
o Page 3 - Last sentence (Moreover,...) and footnote 8; o Page 7 - Second sentence of Section C.3 (Given that...);
o Page 8 - Footnote 31; o Pages 10 Last three sentences on page 10 (Mr. Pachlhofer also articulates
...) through first sentence of the first full paragraph on 11 (ISP has not...);
and
4 Interim Storage Partners LLCs Answer Opposing Faskens and PBLROs Motion to Dismiss as Referred to the ASLBP for Consideration Under 10 C.F.R. § 2.309 (Nov. 20, 2018) (ML18324A886) (ISP Answer to Referred Motion); Interim Storage Partners LLCs Answer Opposing Hearing Request and Petition to Intervene Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Nov. 20, 2018) (ML18324A892) (ISP Answer); NRC Staffs Response to Petitions to Intervene and Requests for Hearing Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Nov. 23, 2018) (ML18327A071) (Staff Answer).
5 Reply of Fasken and PBLRO to Interim Storage Partners, LLCs and Staffs Oppositions to Motion to Dismiss (Nov. 30, 2018) (ML18334A360).
6 Fasken and PBLROs Reply to ISPs Opposition to Hearing Request and Petition to Intervene (Nov. 28, 2018) (ML18332A530).
3 o Pages 12 Last sentence of the partial paragraph on top of page 12 (NUREG-1748 states) and first sentence on page 13 (This may or may not...).7 November 30, 2018 Fasken and PBLROs Reply to NRC Staffs Opposition to Hearing Request and Petition to Intervene (Reply to Staff)8:
o Pages 2 Last sentence on page 2 (Moreover...) and footnote 3; o Page 4 - Last full sentence (ISP admits...);
o Pages 6 Last sentence on page 6 (Lastly...) and footnotes 16-18; o Page 8 - Last two sentences of the first full paragraph (Mr. Pachlhofer also
...); and o Page 10 - Third sentence of second paragraph (While older...).
II.
THE BOARD SHOULD STRIKE PORTIONS OF PETITIONERS REPLIES A.
Legal Standards Governing the Scope of a Reply The Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had an opportunity to address.9 Rather, NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must... set forth their claims... at the outset of the proceeding.10 As the Commission has explained, [t]here simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new
7 Because ISP filed its Answer to the Petition on November 20, 2018, Petitioners were required to respond seven days later, on November 27, 2018. See 10 C.F.R. § 2.309(i)(2) (The reply must be filed within 7 days after service of that answer.). Petitioners, however, filed the Reply to ISP on November 28, 2018a day late. This provides an independent basis to strike the entire Reply to ISP. The other Replies were timely filed.
8 Fasken and PBLROs Reply to NRC Staffs Opposition to Hearing Request and Petition to Intervene (Nov.
30, 2018) (ML18334A361).
9 USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).
10 La. Energy Servs., LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (internal quotation marks omitted), reconsideration denied, CLI-04-35, 60 NRC 619 (2004).
4 bases or new issues that simply did not occur to [them] at the outset.11 The Commission demands adherence to this requirement to avoid unnecessary delays and increase the efficiency of NRC adjudication,12 because answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.13 Thus, as the Commission has explained, the permissible scope of a reply includes only information that (1) legitimately amplifie[s] arguments in the original petition,14 or (2) focus[es] narrowly on the legal or factual arguments first... raised in the answers [thereto].15 B.
Petitioners New Arguments Exceed the Proper Scope of a Reply
- 1.
Petitioners New Arguments in Their Reply Regarding Standing Are Not a Legitimate Amplification of Arguments Advanced in the Referred Motion In the Referred Motion, Petitioners argued that they satisfy the traditional standing requirements because of potential harm to their members who live, work and travel on or along transportation routes and potential adverse impacts on property values to their members.16 Petitioners also claimed standing based on the Atomic Energy Act and the so-called proximity presumption because a PBLRO member lives near the proposed ISP facility.17 In opposition, ISP argued that Petitioners failed to demonstrate traditional standing or standing by the proximity presumption.18
11 LES, CLI-04-25, 60 NRC at 225.
12 LES, CLI-04-35, 60 NRC at 622-23.
13 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).
14 LES, CLI-04-25, 60 NRC at 224-25.
15 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
16 Referred Motion at 3-5.
17 Id. at 5-7.
18 ISP Answer to Referred Motion at 18-26.
5 In reply, Petitioners now claim a new basis for standing that goes beyond a legitimate amplification of the standing arguments raised in the Referred Motion. Petitioners new theory is that they have standing because they are within a zone of interest to the policies of the NWPA.19 This new legal theory was not raised in the Referred Motion,20 and ISP and Staff have thus been denied an opportunity to address it as part of their opposition to Petitioners other theories of standing.21 For that reason, the first full paragraph on page 5 of Petitioners Referred Motion Reply should be stricken.
- 2.
Proposed Contention 1Petitioners New Argument That Various Communities Oppose the Proposed Project Is Not a Legitimate Amplification of Arguments Advanced in the Petition In Proposed Contention 1, Petitioners challenged the completeness and accuracy of ISPs Environmental Report (ER) and argued that there is no national strategic need to transfer spent nuclear fuel (SNF) to a central storage location.22 One of Petitioners arguments was that ISP did not demonstrate a need for the project because the proposed CISF would not advance the recommendation of the Blue Ribbon Commission (BRC) on Americas Nuclear Future on the need for progress towards a permanent repository as part of an interim storage strategy.23 According to Petitioners, the BRC was concerned about interim storage untethered to a permanent repository and that communities may not consent to host a facility for fears of
19 Referred Motion Reply at 2, 5.
20 10 C.F.R. § 2.309(d) (requiring petitioners to state the basis for their standing in a petition to intervene).
21 Cf. USEC, CLI-06-9, 63 NRC at 439.
22 Petition at 9.
23 Id. at 13-14.
6 becoming a de facto permanent repository.24 ISP and Staff both opposed the admission of this contention.25 In their Replies, Petitioners raise the new argument that the proposed contention is admissible because ISP and Staff offered no examples of communities or states willing to host a CISF26 and disregarded the various resolutions of opposition adopted by several cities and counties in the ER.27 Petitioners now go beyond a passing reference to the BRC report to argue that specific communities do not consent to this project and that ISP failed to acknowledge and respond to the concerns of these communities in the ER.28 This is not a legitimate amplification of the arguments in their Petition. For this reason, the last sentence along with footnote 8 on page 3 of Petitioners Reply to ISP and the last sentence along with footnote 3 on page 2 of Petitioners Reply to Staff should be stricken.
- 3.
Proposed Contention 2Petitioners New Argument Regarding Potential Pathways to Groundwater Raises a New Theory and Does Not Legitimately Amplify an Argument in the Petition In Proposed Contention 2, Petitioners claimed that ISP failed to provide adequate data about active and abandoned oil and gas wells along with borings on and near the proposed site.29 ISP opposed the admission of this proposed contention.30 Staff opposed the portion of the
24 Id. at 14.
25 ISP Answer at 27-34; Staff Answer at 10-15.
26 Reply to ISP at 3; Reply to Staff at 2.
27 Reply to ISP at 3 n.8; Reply to Staff at 2 n.3.
28 Reply to ISP at 3; Reply to Staff at 2.
29 Petition at 15-17.
30 ISP Answer at 34-41.
7 contention that claimed that the wells should be analyzed as a potential pathway to groundwater because Petitioners provided no facts or expert support for this claim.31 In their Replies, Petitioners seek to cure the lack of support for their claim that abandoned wells could provide a pathway to groundwater by raising a new argument that 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.32 To support this new argument, Petitioners cite a portion of the Pachlhofer Declaration.33 Although that Declaration was attached to the Petition, the portion now cited was not relied upon by Petitioners before to support its groundwater arguments. By introducing a new argument on their claim of potential pathways to groundwater and citing a portion of the Pachlhofer Declaration that they had not referenced before for the groundwater arguments, Petitioners failed to provide ISP an opportunity to respond to this argument. For this reason, the second sentence of Section C.3 on page 7 of Petitioners Reply to ISP and the last full sentence on page 4 of Petitioners Reply to Staff should be stricken.
- 4.
Proposed Contention 3The Staffs Request for Additional Information Does Not Create an Admissible Contention and Petitioners Are Impermissibly Seeking to Amend This Contention In Proposed Contention 3, Petitioners claimed that ISPs Emergency Response Plan (ERP) failed to address how ISP will protect the facility from fires and explosions caused by aircraft crashes.34 ISP and NRC staff both opposed the admission of this contention.35
31 Staff Answer at 15-17.
32 Reply to ISP at 7; Reply to Staff at 4.
33 Id.
34 Petition at 18-26.
35 ISP Answer at 41-52; Staff Answer at 17-22.
8 In their Replies, Petitioners now claim that the Staffs recent request for additional information (RAI) on aircraft traffic near the proposed site makes their contention credible and provides a factual basis for this contention.36 Petitioners argue they can rely on this RAI because it was not previously available when they filed their Petition and they cite the provision on motions for leave to file amended contentions as support for this argument.37 The portions of Petitioners Replies referencing the RAI must be stricken. Petitioners are trying to use the RAI to raise a legal theory on the admissibility of their contention that they could have raised in their Petition. Raising a new legal theory in a reply is contrary to longstanding Commission case law.38 And by citing 10 C.F.R. § 2.309(c), Petitioners are trying to amend their contention to raise this new legal theory without filing the required motion for leave to amend.39 Petitioners cannot disregard the Commissions procedural rules.
But even if Petitioners followed the procedural rules, their motion for leave to amend their contention would be denied. Although the RAI was unavailable when they filed their Petition, the mere existence of an RAI does not provide the basis for a contention.40 Moreover, Petitioners have not, and cannot, provide a basis for why this information is materially different from information previously available, contrary to 10 C.F.R. § 2.309(c)(1)(ii). The referenced RAI only refers to information in the Application, NRC regulations, and NRC guidance.41 For
36 Reply to ISP at 8 n.31; Reply to Staff at 6.
37 Reply to Staff at 6 n.18.
38 USEC, CLI-06-9, 63 NRC at 439.
39 Reply to Staff at 6 n.18.
40 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336 (1999)
(Petitioners must do more than rest on [the] mere existence of RAIs as a basis for their contention.)
(alteration in original) (citing Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),
CLI-98-25, 48 NRC 325, 349 (1998)).
41 Reply to ISP at 8 n.31; Reply to Staff at 6 n.16.
9 this reason as well, the information was previously available, contrary to 10 C.F.R. § 2.309(c)(1)(i), because the Staff developed the RAI on the same Application information that was available to Petitioners. For these reasons, footnote 31 on page 8 of Petitioners Reply to ISP and the last sentence on page 6 and footnotes 16-18 of Petitioners Reply to Staff should be stricken.
- 5.
Proposed Contention 4Petitioners New Argument Regarding Potential Pathways to the Santa Rosa Aquifer Raises a New Theory and Does Not Legitimately Amplify an Argument in the Petition In Proposed Contention 4, Petitioners claimed that ISP failed to adequately discuss and evaluate the impact the site will have on the environment and the potential of waste-contaminated groundwater traveling to aquifers below the proposed site.42 Petitioners made no mention of oil and gas wells in Proposed Contention 4.
In their Replies, Petitioners raise new arguments about alleged potential pathways to the Santa Rosa aquifer. Petitioners new arguments are that well casings of temporarily abandoned wells end approximately 500 feet below the surface and that the presence of 905 deep and abandoned wells surrounding the site could potentially serve as a direct pathway to exposed rock located 500 feet below the surface and to the subsurface water connected to each hole.43 This argument is closely related to the new argument Petitioners raised in their Replies on Proposed Contention 2 in that they both attempt to cure deficiencies surrounding Petitioners claims of groundwater contamination. As with Proposed Contention 2, the argument raised here was not raised in the Petition related to this proposed contention, and by failing to raise the argument, Petitioners denied ISP an opportunity to respond to this argument. For this reason, the last three
42 Petition at 26-31.
43 Reply to ISP at 10-11; Reply to Staff at 8.
10 sentences of the paragraph on page 10 through the first sentence of the first full paragraph on page 11 of Petitioners Reply to ISP and the last two sentences of the first full paragraph on page 8 of Petitioners Reply to Staff should be stricken.
- 6.
Proposed Contention 5Petitioners New Argument that ISP Must Conduct a Complete Biological Evaluation and Consult with the Fish and Wildlife Service Does Not Legitimately Amplify an Argument in the Petition
In Proposed Contention 5, Petitioners claimed that ISP failed to adequately evaluate the potential for the presence of threatened and endangered species and relevant conservation efforts that may be undermined by the proposed CISF.44 ISP and Staff both opposed the admission of this contention, but nowhere raised the subject of agency consultation.45 In their Replies, Petitioners argue for the first time that ISP must conduct a complete biological evaluation46 and that ISP is required to consult the Fish and Wildlife Service (FWS) according to NUREG-1748.47 Neither of these arguments was raised in the Petition. In fact, Proposed Contention 5 is notable for its terseness and lack of support beyond the declarations of Messrs. Pachlhofer and Taylor. To now argue that ISP must conduct a complete biological evaluation and that NUREG-1748 requires ISP to consult with the FWS, is much more than a legitimate amplification of the arguments in the Petition. For this reason, the last sentence of the partial paragraph on the top of page 12 and the first sentence on page 13 of Petitioners Reply to ISP and the third sentence in the second paragraph on page 10 of Petitioners Reply to Staff should be stricken.
44 Petition at 31.
45 ISP Answer at 65-74; Staff Answer at 27-31.
46 Reply to Staff at 10.
47 Reply to ISP at 13 (emphasis added).
11 III.
CONCLUSION
Petitioners new arguments in their Replies neither legitimately amplify arguments in the original Petition, nor focus narrowly on legal arguments first raised in an answer. Instead, they raise new challenges to the Application. Because Petitioners have neither requested nor obtained leave from the Board to file new or amended contentions, and cannot satisfy the late filing requirements, the appropriate remedy is to strike the untimely arguments.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Stephen J. Burdick, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5059 E-mail: timothy.matthews@morganlewis.com E-mail: stephen.burdick@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.
this 10th day of December 2018
DB1/ 100915163 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 December 10, 2018 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Motion to Strike Portions of the Replies Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals was filed through the E-Filing system.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC