ML18351A335

Fasken and Pblros Opposition to Interim Storage Partners LLCs Motion to Strike

ML18351A335
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/17/2018
From:	Eye R Fasken Land & Minerals, Ltd, PBLRO Coalition, Robert V. Eye Law Office
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 54709, WCS CISF 72-1050-ISFSI
Download: ML18351A335 (9)

Text

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 OPPOSITION TO INTERIM STORAGE PARTNERS LLCS MOTION TO STRIKE I.

MOVANTS RESPONSE WAS FILED CONSISTENT WITH 10 C.F.R. § 2.306(a)

Fasken and PBLRO (Movants) file this reply in opposition to the Motion to Strike filed by Interim Storage Partners LLC (ISP).1 As a threshold matter, Movants timely responded to ISPs Answer to the Petition.2 In computing any period of time, the day of the act, event, or default after which the designated period of time begins to run is not included.3 To be considered timely, a document served by the E-Filing system must be served by 11:59 p.m.

Eastern Time.4 ISP filed its Answer to Movants Petition on November 20, 2018 and Movants filed their reply on November 28, 2018 before 11:59 p.m. Eastern Time. Because NRC Regulations do not include the day a document is filed in its computation of time, Movants Reply to ISPs Answer to Movants Petition was timely filed.

II.

THE BOARD SHOULD NOT STRIKE PORTIONS OF MOVANTS REPLIES 1 See Interim Storage Partners LLCs Motion to Strike Portions of the Replies Filed by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Dec. 10, 2018)

(ML18344A571) (ISP Motion).

2 ISP Motion at 3, f.n. 7. (stating that pursuant to 10 C.F.R. § 2.309(i)(2) Petitioners were required to respond seven days [after ISP filed its Answer on November 20, 2018].

3 10 C.F.R. § 2.306(a) (emphasis added).

4 Id. at (c)(2).

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.5 The scope of a reply requires petitioners to set forth their claims at the outset of a proceeding.6 The scopes purpose is to avoid unnecessary delays and increase the efficiency of NRC adjudication.7 As ISP establishes, the permissible scope of a reply includes only information that (1) legitimately amplifie[s] arguments in the original petition, or (2) focus[es] narrowly on the legal or factual arguments first raised in the answers [thereto].8 Given the disjunctive nature regarding the scope of a reply, any reply that meets either of these two standards independently is within the scope.

B.

Movants Arguments Below Do Not Exceed the Scope of a Reply

1. ISPs claim that Movants fail to legitimately amplify their standing argument in the Motion to Dismiss does not apply because Movants never intended their Motion to Dismiss to be analyzed under10 C.F.R. § 2.309.

ISP argues that it did not have an opportunity to address Movants standing based on being within the zone of interest to the policies of the NWPA.9 ISP also claims Movants standing argument goes beyond a legitimate amplification of the standing arguments raised. To support their claim, ISP relies on § 2.309(d) which requires petitioners to state the basis for their standing in a petition to intervene.10 While the Secretary has authority under 10 C.F.R. § 2.346(i) 5 USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).

6 La. Energy Servs., LP (Natl Enrichment Facility) CLI-04-25, 60 N.R.C. 223, 225 (2004).

7 Id. at 622-23.

8 ISP Motion at 4 (citing LES, CLI-04-25, 60 N.R.C. at 224-25; Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 732 (2006)) (emphasis added).

9 ISP Motion at 5.

10 Id. f.n. 20.

to refer requests for hearings to the Atomic Safety and Licensing Board Panel (ASLBP), it is unprecedented for the Secretary to refer a Motion to Dismiss for consideration as a petition under 10 C.F.R. § 2.309. The legal substance of Movants Motion to Dismiss is the same irrespective of whether it was brought under the APA, NWPA, or under Section 2.309.

Given that it is ultimately the duty of the petitioner, not the Secretary, to decide whether a contention is raised,11 Movants Motion to Dismiss, as mentioned, should not be analyzed as a contention under 10 C.F.R. § 2.309, but rather under the APA and NWPA.12 Because ISP does not cite to the APA or NWPA to support its argument against Movants standing, ISPs argument fails, and Movants argument should not be stricken.

2. Proposed Contention 1 - Movants argument that various communities have established resolutions opposing the proposed CISF legitimately amplifies arguments made in the original Petition.

ISP argues that Movants addition of multiple communities that have established resolutions opposing the proposed CISF is not a legitimate amplification of the arguments in the[] Petition.13 Indeed, Movants explain in their petition that the DOE recognized the importance of community consent and the linkage between opening an interim storage facility and progress toward a repository.14 In their reply, Movants supplement the petition saying that ISP disregards the concerted resolutions and opposition to the proposed CISF throughout the 11 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).

12 Reply of Fasken and PBLRO to Interim Storage Partners, LLCs and Staffs Oppositions to Motion to Dismiss at 1 (Nov. 30, 2018) (ML18334A360) 13 ISP Motion at 5.

14 Petition of Permian Basin Land and Royalty Organization and Fasken at 14 (Oct. 29, 2018)

(ML18302A412) (Petition).

past two years by Texas and New Mexico Bodies politic.15 This statement legitimately amplifies the argument Movants made in their original Petition regarding DOEs recognition of the importance of community consent. Furthermore, ISPs ability to address the community resolutions would fail to produce any foreseeable argument de-legitimizing the resolutions existence. For these reasons, Movants citation to community resolutions opposing the proposed CISF supplements the argument in the Petition, and thus, legitimately amplifies their argument.

3. Proposed Contention 2 - Movants argument regarding potential pathways to groundwater legitimately amplifies arguments made in the original Petition and did not deny ISP an opportunity to respond.

ISP argues that Movants failed to provide ISP an opportunity to respond to arguments raised in Movants Reply.16 However, Movants argument, as ISP also concedes, cite[d] a portion of the Pachlhofer Declaration which was attached to the Petition.17 The Pachlohofer Declaration implies that rocks and formations will be exposed approximately 500 feet from ground surface.18 Here, use of the Pachlhofer Declaration amplifies arguments made in the original Petition because it supplements Movants argument that on-site and surrounding wells could become potential pathways to groundwater. Indeed, contrary to its claim, ISP did in fact have an opportunity to respond in its Answer to challenge the Pachlhofer Declaration. ISPs Answer attacked Movants failure to challenge those extensive sections of the Application that 15 Fasken and PBLROs Reply to ISPs Opposition to Hearing Request and Petition to Intervene at 3, f.n. 8 (Nov. 28, 2018) (ML18332A530) (Reply to ISP); Fasken and PBLROs Reply to NRC Staffs Opposition to Hearing Request and Petition to Intervene at 2, f.n. 3 (Nov. 30, 2018)

(ML18334A361) (Reply to Staff).

16 ISP Motion at 7.

17 Id.

18 Pachlhofer Decl. at 6.

actually evaluate[d] and reach[ed] conclusions.19 Here, Movants offer a similar argument that ISP had the opportunity, but failed to challenge the cited portion of the Pachlhofer Declaration describing how rocks and formations are exposed 500 feet below many wells in the region.

Given that Movants cited the Pachlhofer Declaration from the original Petition and ISP failed to contest that portion in their Answer, ISP did indeed have an opportunity to respond in their Answer, but failed to do so.

Given that Movants argument amplifies their argument in the original Petition and that ISPs Answer failed to contest the specific sections of the Pachlhofer Declaration that evaluated the existence of exposed rock and formations below oil and gas wells in the region, Movants argument should not be stricken.

4. Proposed Contention 3 - The Staffs Request for Additional Information legitimately amplifies Movants arguments made in the original Petition.

ISP argues that the mere existence of an RAI does not provide the basis for a contention.20 Furthermore, ISP claims that Movants cannot[] provide a basis for why this information is materially different from information previously available. ISP supports this claim on the grounds that the RAI only refers to information in the Application, NRC regulations, and NRC guidance.21 ISP further states that the information was previously available because the Staff developed the RAI on the same Application information that was available to Petitioners.22 In other words, ISP claims that since the RAI was based on the same Application available to the Movants, the information within the RAI was also available. This 19 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 at 36 (Nov. 20, 2018) (ML18324A892) (ISP Answer).

20 ISP Motion at 8.

21 Id.

22 ISP Motion at 8.

argument goes beyond common logic. Clearly the information contained in the RAI was not available to the Movants considering it was filed 18 days after Movants filed their Petition.23 Since the RAI amplifies Movants argument by calling for additional information regarding aircraft traffic near the proposed CISF and because it was filed after Movants filed their Petition, Movants argument should not be stricken.

Even if the Commission finds that the information was previously available, it should take official notice of the RAIs request for information regarding aircraft traffic near the proposed CISF pursuant to 10 C.F.R. § 2.711(j)(1). The Commission may take notice of any fact, or bring to the attention of the parties to any fact before [a] final decision has been made.24 If the Commission takes notice of the RAI, ISP should be given the opportunity to controvert the RAI and explain why the information does not help provide a basis for Movants argument.25

5. Proposed Contention 5 - Movants argument that ISP must conduct a complete biological evaluation does legitimately amplify an argument in the original Petition.

In their reply, Movants argue that ISP must conduct a complete biological re-evaluation of the environment.26 ISP claims that this argument was not raised in the Petition and that it is much more than a legitimate amplification of the arguments in the Petition.27 However, Movants did claim that ISP failed to adequately evaluate the potential for the presence of threatened and endangered species that may be undermined by the proposed CISF in their original Petition.28 Even more, Movants citation to NRC regulation requires applicants to 23 Petition was filed October 29, 2018. RAI was filed November 16, 2018.

24 10 C.F.R. § 2.711(j)(1) 25 Id.

26 Reply to Staff at 10.

27 ISP Motion at 10.

28 Petition at 31.

provide an environmental report that contains a description of the environment affected and to discuss the impact the proposed action will have on the environment.29 Movants argument that ISP conduct a complete biological re-evaluation of the environment is based on the fact that ISPs ecological evaluations were based on studies made 10 to 20 years before the proposed CISF applied for licensing.30 Given that the proposed site was not established when these studies were executed, ISP cannot proffer any reasonable argument that suggests that these studies properly evaluate the affect that the proposed CISF will have on the biology surrounding the site.

Contrary to ISPs claims, Movants did raise the argument in their original Petition.

Because Movants reply legitimately amplifies their argument pursuant to 10 C.F.R. § 51.45(b)(1) in the original Petition, this portion of their reply should not be stricken.

C.

Proposed Contention 4 Raises a Factual Issue Regarding the Existence of Potential Pathways to Groundwater in Movants Original Petition.

ISP claims that Movants made no mention of oil and gas wells in Proposed Contention 4.31 Notwithstanding whether oil and gas wells present a pathway to groundwater, Movants still contend that there are legitimate pathways to groundwater independent of oil and gas wells.32 Given that Contention 4 has established a factual disagreement on the permeability of the substrata below the proposed site, the Board should allow the contention to advance as it is drafted in the original Petition.

29 Id. (citing 10 C.F.R. § 51.45(b)(1))

30 Reply to Staff at 10, f.n. 37.

31 ISP Motion at 9.

32 Petition at 30 (citing Pachlhofer Decl. at 5).

III.

CONCLUSION For the foregoing reasons, Movants arguments should be accepted and not stricken from their reply.

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 December 17, 2018

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