ML18351A531

Sierra Clubs Reply to Answers Filed by Interim Storage Partners and NRC Staff

ML18351A531
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/17/2018
From:	Taylor W Law Offices of Wallace L. Taylor, Sierra Club
To:	NRC/OCM
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 54711, WCS CISF 72-1050-ISFSI
Download: ML18351A531 (46)

Text

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC )

)

(Consolidated Interim Storage) December 17, 2018 Facility Project) )

Comes now Sierra Club and hereby submits this combined Reply to the Answers filed by Interim Storage Partners (ISP) and the NRC Staff.

STANDING Sierra Club agrees with the NRC Staff that Sierra Club has standing in this proceeding. The Staff notes that Sierra Club has members who live within six miles of the proposed site, a distance that has been approved for standing in other cases. See, Pacific Gas & Electric Co. (Diablo Canyon ISFSI), LBP-02-23, 56 NRC 413, 428 (2002)(finding 17 miles sufficient and noting other agency rulings approving standing for petitioners located within 10 miles of facility for spent fuel pool expansion proceedings); see also, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163-64 (2000)(6 miles sufficient for standing in license transfer proceeding).

ISP argues that Sierra Club has not established proximity standing, or even proximity plus standing. In 1

attempting to support this argument, ISP has cited to various Commission and licensing board decisions. But, of course, each of those decisions was based on the specific facts of each case. Therefore, Sierra Club will respond to only a few of those cases.

In Consumers Energy Co. (Big Rock Point ISFSI), 65 NRC 423 (2007), the petitioners were challenging the transfer of a license for an existing ISFSI. So the implications of that activity were not nearly as significant as the impact of licensing a completely new storage facility that would store 40,000 MTU of radioactive waste. Furthermore, the individual upon whose interests standing was based lived some 42 miles from the facility. In deciding that the petitioners did not have standing, the Commission specifically noted the following:

Although Mr. McManemys claim of residence within 50 miles of the Big Rock Point ISFSI might entitle him to a presumption of standing based on his proximity if this were a reactor construction permit or operating license proceeding, we have required far closer proximity in other licensing proceedings, including license transfer cases. We determine 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.

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License transfers even for operating nuclear power plants typically involve little if any radiological risk, as there are generally no changes to the physical plant, its operating procedures, or its design basis accident analysis. The potential radiological risks associated with an ISFSI license transfer are even lower, because an ISFSI is essentially a passive structure rather than an operating facility, and there therefore is less chance of widespread radioactive release.

Mr. McManemy has not demonstrated that the mere transfer of the ISFSI somehow increases his risk of radiological harm. There is simply no obvious potential for offsite consequences from this ISFSI transfer sufficient to justify applying a presumption of standing based on proximity. He therefore fails to qualify for standing. And because the two petitioning organizations base their own claims of standing solely on Mr. McManemys proximity, they too lack standing.

So the facts in Big Rock Point are clearly distinguishable from this case.

ISP also cites U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii & Pohakuloa Training Area, Island of Hawaii, Hawaii), 71 NRC 219 (2010), which in turn, cited Sequoyah Fuels Corp. & General Atomics (Gore, Okalahoma Site), 40 NRC 64 (1994), for the proposition that the mere existence of a source of radiation - even a significant one - does not itself demonstrate an obvious potential for offsite consequences. However, those cases do not say that. They simply recited the standard for proximity plus standing that there must be a significant 3

source of radiation with obvious potential for offsite consequences. That does not mean that the significance of the radiation source cannot by itself create an obvious potential for offsite consequences.

The standing declarations of Rose Gardner and Shirley Henson specifically state that leaks from the storage casks would enter the groundwater. Sierra Club Contention 10, supported by the report of Dr. Patricia Bobeck, establishes the risk of groundwater contamination, as described in the standing declarations of Ms. Gardner and Ms. Henson.

The Gardner and Henson declarations also describe the impact of earthquakes induced by fracking for oil and gas.

These statements are supported by Sierra Club Contention 6.

And if earthquakes were not a relevant issue, 10 C.F.R. §§ 51.45 and 72.103(f)(1) would not require discussion of earthquakes.

Standing of Sierra Club members in this case clearly come within the accepted parameters set by the Commission for non-reactor cases. See, Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), 16 NRC 150 (1982). In Armed Forces an application was made to possess up to 320,000 curies of radioactive cobalt-60 in a water-shielded irradiation facility. The amount of radioactive 4

material was described as being one of the largest in the United States. Id. at 154. Standing was premised on individuals living within 5 miles of the facility. The licensing appeal board in Armed Forces cited in support of its grant of standing, the Supreme Court decision in Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 74 (1978), for the proposition that the release of any sort of radiation constitutes an injury in fact to persons in the area surrounding a nuclear facility, and quoted from Duke Power as follows:

[T]he emission of non-natural radiation into appellees environment would also seem a direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions....

In addition, the Armed Forces decision referred to the decision in Virginia Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), 9 NRC 54 (1979), as follows:

In North Anna, one of the members of petitioners organization who resided on the lakeshore very near the plant asserted that the proposed spent fuel pool expansion might result in ground water contamination, which in turn might affect the well water on her property. These assertions per se established the petitioners standing. We stated:

[W]e have never required a petitioner in such geographical proximity to the facility in question to establish, as a precondition to intervention, that his concerns are well-founded in fact....

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Rather, close proximity has always been deemed to be enough, standing alone, to establish the requisite interest.

Ibid. Whether the petitioners concern was in fact justified, we held, must be left for consideration when the merits of the controversy are reached. Ibid.

In other words, Sierra Club in this case need only show that its members have a plausible concern that there will be adverse impacts to them from the construction and operation of the proposed CIS facility. ISP is improperly trying to force Sierra Club to prove the merits of its contentions to establish standing.

Another case relevant to determining standing in this case is Private Fuel Storage LLC (Independent Spent Fuel Storage Installation, 47 NRC 142 (1998). In that case involving a CIS planned to store 40,000 MTU of radioactive waste, standing was accorded to a petitioner living four miles from the site.

With regard to transportation impacts, ISP claims that Sierra Club has not shown a causal connection between the licensing of the CIS facility and the impacts to Sierra Club members from transportation of the nuclear waste. On the contrary, however, it is axiomatic that without the licensing of the CIS facility there would be no 6

transportation of the nuclear waste. Thus, the causal connection is established.

The U.S. Supreme Court decision in Massachusetts v.

EPA, 549 U.S. 497, 127 S.Ct. 1438 (2007), presents a further perspective on standing that is relevant here. In Massachusetts the plaintiffs challenged the EPAs failure to address climate change through the Clean Air Act. In finding that the plaintiffs had standing, the court first quoted from Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691 (1962),

that the basis of standing is whether plaintiffs have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination. In Massachusetts, the court noted that a party to whom the legislature has granted a procedural right to protect its concrete interests, such as the right to challenge agency action, has standing without meeting all the normal standards for redressability and immediacy. With respect to NEPA cases, the United States Court of Appeals for the Eighth Circuit, in Sierra Club v.

Corps of Engineers, 446 F.3d 808 (8th Cir. 2006), explained that the injury-in-fact was not the consequences of the proposed federal action, but rather the increased risk of 7

environmental harm stemming from the agencys allegedly uninformed decision-making.

Based on the foregoing, Sierra Club has established standing.

CONTENTION ADMISSIBILITY GENERAL CONSIDERATIONS In its Petition to Intervene Sierra Club discussed the standards for admissibility of contentions. Based on the Answers of ISP and NRC Staff herein, it appears that a review of those standards would be beneficial before discussing the Answers to specific contentions.

The first important point is that the burden of persuasion is on the license applicant. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The applicant submits an SAR and an ER. In many instances, as demonstrated in Sierra Clubs replies to some of the contentions below, the applicants documentation makes conclusory statements without referring to any supporting facts or information.

But yet, the applicant will challenge the intervenors contentions with the argument that the contention does not meet an unreasonably high standard of specificity and presentation of facts and expert opinion. That argument effectively shifts the burden to the intervenor.

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The standard for intervention is simply to com[e]

forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy, supra. Or put another way, intervenors are only required to make a showing sufficient to require reasonable minds to inquire further, a standard that is significantly less than making a prima facie case. Vermont Yankee Power Corp. v.

NRDC, 435 U.S. 519, 554 (1978).

Sierra Club respectfully requests that the burden of persuasion not be unduly shifted to it as the intervenor, and that the burden remain with ISP.

CONTENTION 1 Sierra Club asserted in this contention that the NRC has no authority pursuant to the Nuclear Waste Policy Act (NWPA) or the Atomic Energy Act (AEA) to license the ISP facility. Significantly, neither ISP nor the NRC Staff dispute Sierra Clubs statement that DOE cannot legally take title to the waste. They cant dispute it because the law is clear. And ISP provides absolutely no indication that any nuclear plant owner would retain title to the waste. It strains credulity to believe that a nuclear plant owner would want to retain title. The point of a CIS is so the plant owner is relieved of responsibility for the waste.

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ISP admits in its Answer to Sierra Club Contention 2 that a purpose of the CIS facility is to address the situation that [n]uclear power utilities continue to remain responsible for the surveillance, maintenance, emergency preparedness, and physical security of the SNF stored at their ISFSIs. In response to this dilemma of its own making, ISP argues that ISP would possess the waste, and the utilities would own it (ISP Answer, p. 27). But that still does not explain why the reactor owners would want to still own the waste if they can be relieved of the responsibility of keeping it on site. It is not Sierra Clubs burden at this point to answer that question. It is sufficient for admissibility that Sierra Club make a showing sufficient to require reasonable minds to inquire further. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978).

The NRC Staff claims that the ownership of the waste does not present a genuine dispute regarding the actual content of the current application. (Staff Answer, p. 77).

But the NRC cannot license an action (DOE ownership) that is illegal. Arizona Public Service Co., et al. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), 16 NRC 1964 (1964)([I]t would be improper for the Board to entertain a collateral attack upon any action or inaction of sister 10

agencies on a matter over which the Commission is totally devoid of any jurisdiction.). Thus, by considering a license application in which ISP would be violating the NWPA, the NRC would also violate the NWPA. That is certainly germane to this licensing proceeding.

Furthermore, Beyond Nuclear and Fasken Oil, et al. were required by the Commission to raise the issue of DOE taking title in this proceeding, rather than by a motion to dismiss. So the Commission itself has determined that the ownership of the waste is a proper issue for this proceeding and is within the scope of this proceeding.

Contention 1 also asserted that the NRC has no jurisdiction under the AEA to issue a license for a CIS facility. This contention is not an attack on Part 72 rules that allegedly allow for the licensing of a CIS facility.

This contention is a challenge to the NRCs jurisdiction. In Private Fuel Storage LLC (Independent Spent Fuel Storage Installation), 55 NRC 260 (2002), the State of Utah raised a contention challenging the NRCs jurisdiction under the NWPA. This contention was initially considered an attack on NRC regulations. But the licensing board decided that the contention should be addressed because the issue presented 11

here raises a fundamental issue going to the very heart of this proceeding. That same reasoning applies in this case.

CONTENTION 2 The NRC has made it clear that the purpose and need statement in the ER must show a need for the project and not merely a justification for it. NRC Guidance, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs, NUREG-1748. Therefore, the purpose and need statement should not just be accepted out of hand, as ISP and the NRC Staff seem to propose.

Although ISP posits several alleged purposes or needs for the project, ER 1.1, none of those qualify as actual needs, as required by NUREG-1748:

1. The only current alternative is to store the waste at the reactor site. As shown by this contention; Contentions 3, 5, 7, and 8; and Dr. Gordon Thompsons declaration, there is no reason the waste cannot be safely stored on site. The other justifications asserted in support of a CIS are simply desires, not needs.

2. Spent fuel remains at 9 decommissioned reactors.

Again, there is no reason the waste cannot be safely stored at the reactor sites.

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3. Communities where reactors are located want waste removed to allow complete decommissioning and to return the land to allegedly more beneficial uses.

That is not a need. That is a desire.

4. Removing the waste to a CIS facility would allow the decommissioned reactor site to be placed in greenfield status. That is not a need. That is a desire.

5. Reactor owners are responsible for the expense of storing the waste at the reactor site. That is not a need. That is a desire.

6. A CIS facility would provide a transfer of the waste from shutdown reactors to an allegedly safer and more secure location. As Sierra Club has shown, there is no evidence that a CIS facility is safer or more secure than onsite storage.

7. The CIS facility would be able to take waste from operating reactors as well. Again, since the waste can be safely stored on site, there is no need for the CIS facility.

The NRC Staff argues that the purpose and need statement in the ER does not limit the range of reasonable alternatives that should be considered. On the contrary, the 13

purpose and need statement adversely impacts consideration of the no action alternative. Although NEPA and NRC regulations require consideration of the no action alternative, the purpose and need statement effectively precludes reasonable consideration of the no action alternative.

CONTENTION 3 The NRC Staff and ISP claim that the Continued Storage Rule and the incorporated GEIS did not evaluate the safety of the storage of spent fuel at reactor sites and off site storage facilities. But the environmental impacts reviewed in the GEIS included public and occupational health and environmental impacts of postulated accidents. GEIS, 5.17-5.18. These are essentially safety impacts.

The GEIS, 5.17.1, describes the public health impacts being addressed in the GEIS as the human health impacts resulting from construction, operation, and potential accidents at the site, including analysis of the radiological impacts from the spent fuel stored at the facility, including potential radiological accidents and their consequences. Section 5.17.1 goes on to state that the EIS for the PFS project in Utah used the review and evaluation of the PFSF Safety Analysis Report to assess the 14

radiological impacts on the general public (i.e., potential dose to a hypothetical maximally exposed individual located at the boundary of the proposed facility as well as known nearby residents) and estimated dose to occupational personnel. These excerpts from the GEIS make clear that it is entirely appropriate and necessary for an ER or EIS to assess safety in terms of public health.

In Section 5.18 of the GEIS, Environmental Impacts of Postulated Accidents, exposure to humans from radiation as a result of an accident is assessed. Again, this certainly implicates the safety and security of the CIS facility.

Sierra Club is not saying that the ER disagrees with the Continued Storage Rule. We are saying that the ER is in conflict with the Rule. The point of this contention is that when the ER makes the unsupported statement that the CIS facility is safer and more secure than on site storage, when the Continued Storage Rule determined that on site storage is safe, the purpose and need statement unjustifiably prejudices the choice of alternatives.

The NRC itself has asserted consistently that both pool storage and dry cask storage at the reactor site are safe.

For example, NRC Chair Kristine Sviniki made that assurance 15

to Representative Darrell Issa in a November 14, 2017 letter (Accession No. ML17303B054):

The NRC agrees that ensuring the safety and security of spent nuclear fuel stored onsite at nuclear power plants is very important. Nuclear plant licensees use proven technology that for decades has enabled spent nuclear fuel to be safely and securely stored on their sites, either in spent fuel pools or dry storage casks.

In addition, through our ongoing regulatory oversight process, we continue to examine the performance of these onsite storage systems to provide for early discovery of any issues and appropriate mitigation if issues develop. The NRC has concluded that storage of spent fuel at reactor sites (and at away-from-reactor sites) can safely continue until a repository becomes available.

It is clear from Ms. Svinikis letter that she was referring to the Continued Storage Rule.

This issue is material to NRCs environmental review because it impacts consideration of the purpose and need for the CIS project, and thus, the appropriate range of alternatives.

CONTENTION 4 The NRC Staff agrees that the analysis in the ER is inadequate in discussing the radiological consequences of severe transportation accidents. The Staff is incorrect, however, in asserting that the contention is inadmissible to the extent it seeks to challenge the application with 16

respect to cost of cleanup and the likelihood of severe transportation accidents.

With respect to cleanup costs, NRC Guidance, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs, NUREG-1748, 6.4.2, specifically lists transportation impacts as a required subject to be included in environmental reports. NUREG-1748, 6.7, further requires a discussion of those impacts to include a cost-benefit analysis. The cost of cleaning up the environmental damage from a transportation accident is certainly a cost that must be considered in a cost-benefit analysis.

As an example, the EIS for the PFS project in Utah, NUREG-1714, 5.7.2.5, states Transportation accidents resulting in a release of radioactive material would have economic costs. The EIS then discusses the factors in determining the economic damages. So it is clear that the economic impacts from an accident during transportation of radioactive material to a CIS site are a relevant subject that must be included and accurately evaluated in the ER.

The ER, Chapter 6, discusses costs and benefits, but does not discuss the cost of remediating the environmental damage from a rail accident. Therefore, the NRC Staffs 17

argument is not supported by NRC policy, or at the most is a factual dispute which is not appropriate at this stage of the proceedings.

The ASLB should not address the merits of a contention when determining its admissibility. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir. 1988). What is required is that the intervenor state the reasons for its concerns. Public Service Co. of New Hampshire_(Seabrook Station, Units 1 & 2), 16 NRC 1649, 1654 (1982). The contention rules require only that contentions have at least some minimal factual and legal foundation in support and are not to be a fortress to deny intervention. U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).

The NRC Staff also appears to argue that transportation accidents need not be discussed in the ER because such accidents allegedly have a low probability of occurrence. In this context, as well, the Staff claims that Sierra Club is positing a worst case analysis. In this regard, the litigation surrounding the Private Fuel Storage (PFS) case in Utah is instructive. The EIS, 5.7.2, prepared by the NRC in the PFS case examined the economic impacts of a 18

transportation accident. So it is likewise necessary for the economic impacts to be discussed in the ER in this case.

ISP claims that the opinions of Sierra Clubs expert, Marvin Resnikoff, are insufficient or not relevant to this case. ISP cites to the self-serving EIS issued by DOE, the proponent of the project, in the Yucca Mountain case. The EIS stated, DOE believes that the State of Nevada estimates

[from Dr. Resnikoffs report] are unrealistic....

(emphasis added). But, contrary to DOEs belief, it appears that Nevadas contentions, based on Dr. Resnikoffs report, were admitted. U.S. Dept. of Energy (High-Level Waste Repository), 69 NRC 367, 492 (2009).

ISP also complains that Sierra Clubs showing that ISPs reliance on NUREG-1714, NUREG-2125, and NUREG-2157 is not justified is an attack on an NRC regulation. But a NUREG is not a regulation.

The description of numerous rail accidents of oil trains over the past three years is relevant to show that rail accidents are not uncommon. That shows the likelihood that a train carrying radioactive waste would be involved in an accident that would cause release of radioactive material.

CONTENTION 5 19

The crux of the Answers of ISP and the NRC Staff to this contention is that the contention is an attack on the Continued Storage Rule, 10 C.F.R. § 51.23. Sierra Club explained in its Petition, however, why the Continued Storage Rule does not apply to the issues in this contention.

The Continued Storage Rule is based on a number of assumptions that do not apply in this case. Two of those assumptions are that there would be institutional controls over the waste and that there would be a dry transfer system to transfer the waste to new containers after a period of 100 years. ISP does not deny that these assumptions are not applicable to the CIS project in this case. So, Sierra Club is not attacking the Continued Storage Rule, but rather, that the Rule does not apply to the facts of this case.

Contention 5 explained that the Continued Storage Rule does not preclude site-specific review, citing New York v.

NRC, 824 F.3d 1012 (D.C. Cir. 2016)(New York II). The court in New York II said that site-specific issues can always be raised during a licensing proceeding. That is the case here.

The point of Contention 5 is the site-specific issues are that the facility will be licensed for only 60-100 years, but if a permanent repository is not developed within that 20

time, the license will have expired and there will be no institutional controls over the facility.

CONTENTION 6 The NRC Staff Answer begins with a misleading statement, that the ER does not need to evaluate the impact of earthquakes. While the regulations do not specifically say the ER must specifically evaluate the potential for earthquakes, such an evaluation would certainly come within the mandate of 10 C.F.R. § 51.45 to contain a description of the affected environment and the environmental impacts of the project. In addition, NRC guidance, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs, NUREG-1748, § 6.4.3, states, More likely, geological resources may exert an impact on the proposed action and these effects should be summarized in this section (e.g., seismic or volcanic hazards). That is a clear statement that the ER must discuss the environmental impacts of potential earthquakes.

Contention 6 notes that Section 4.3 of the ER, the only section that would appear to appropriately include any impacts from earthquakes, does not contain any mention of potential earthquakes. NRC Staff points to the ER, 4.1, where ISP says that soil will be removed prior to 21

installation for seismically designed structures. That is not the point. That has nothing to do with earthquake impacts and does not address the potential for earthquakes induced by fracking for oil and gas in the area.

The NRC Staff also engages in an extended discussion of the references to historical earthquakes in the area of west Texas, but makes no reference to the more recent information presented by Sierra Club in support of this contention. But more importantly, it is the inadequate discussion of the impacts from earthquakes, rather than the historic occurrence of earthquakes, that is at the heart of this contention.

ISP makes the same mistake as the NRC Staff in citing to Section 4.3 of the ER. That section talks about seismic activity induced by the construction and operation of the CIS facility itself. As noted above, the point is earthquakes induced by the activity of the oil and gas industry in the area.

Beyond that, ISPs exception to this contention is simply a dispute about the facts presented in the contention. The ASLB should not address the merits of a contention when determining its admissibility. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power 22

Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir. 1988). What is required is that the intervenor state the reasons for its concerns. Public Service Co. of New Hampshire_(Seabrook Station, Units 1 &

2), 16 NRC 1649, 1654 (1982). The contention rules require only that contentions have at least some minimal factual and legal foundation in support and are not to be a fortress to deny intervention. U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).

With respect to the safety aspect of Contention 6, Sierra Club noted that the seismic hazard analysis incorporated in the SAR was withheld from the public as proprietary. ISP and the NRC Staff assert that Sierra Club could have used the SUNSI procedure to obtain this information.

The SUNSI procedure requires that the request be made within 10 days after the Federal Register Notice by sending a letter to several places within the NRC. The request must contain specific information as to the need for the information and why a publicly available version will not suffice. Ten days is not enough time for a petitioner to make that determination. Furthermore, the NRC will decide at that point if the requester, as a petitioner to intervene, 23

is likely to establish standing in the licensing proceeding and that the requester has established a legitimate need for the information. So the petitioner is at the mercy of the discretion of the NRC in even having the request considered.

Then, only if those two conditions have been established to the NRCs satisfaction, will consideration be given to disclosing the information. Even if disclosure is granted, the requester must then be subject to whatever conditions the NRC places on disclosure, including the requester signing a non-disclosure agreement or a protective order. And, of course, all of this occurs while the 60-day time period for preparing a petition to intervene and contentions is running.

This is not meaningful access to the information under the circumstances. Courts have found that the burden for contention admissibility may be lower where the information needed for the contention was in the hands of the licensee or NRC staff and was not made available to the petitioner.

See, e.g., York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975)(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the 24

burden of going forward on petitioners appears inappropriate.)

Therefore, it should be no defense to Sierra Clubs contention that Sierra Club was not able to obtain the information.

CONTENTION 7 The NRC Staff alleges that the ER, 2.1, contains a summary of the no-action alternative. But, as explained in Contention 7, more than a summary of the no-action alternative is required. Section 2.1 contains only five short conclusory paragraphs. As the NRC Staff admits, NRC regulations require a discussion of alternatives sufficiently complete to aid the NRC in developing and exploring appropriate alternatives in the EIS....,

citing 10 C.F.R. § 51.45(b)(3).

A fair discussion of the no-action alternative in this case requires a discussion of the implications of the Continued Storage Rule because that Rule analyzed the environmental consequences of storage at the reactor site.

It is clear from a review of Section 2.1 of the ER that ISP is painting the picture that the no-action alternative of continued on-site storage is unacceptable. In order to paint 25

a complete picture the Continued Storage Rule should be considered.

The no-action alternative does not mean that the NRC must assess that alternative on the basis that nothing is done on-site to improve safety and protection of the environment with on-site storage. That is why Sierra Club explains in Contention 7 that hardened on-site storage (HOSS) must be analyzed in connection with the no-action alternative.

CONTENTION 8 ISP and the NRC Staff claim that the Blue Ribbon Commission report is insignificant in ISPs justification for its CIS project. But in the ER, 2.1, ISP states:

Under the No Action alternative, a decision by the NRC not to approve the WCS CISF license would constitute inaction in response to the Commissions rulemaking on the Continued Storage of SNF and the recommendations from the Presidents Blue Ribbon Commission on Americas Nuclear Future to promote efforts to develop one or more consolidated storage facilities in the U.S.

The No Action alternative would not meet the purpose of and need for the proposed action. Under the No Action alternative, a decision by the NRC not to approve the WCS CISF license would constitute inaction in response to the Commissions rulemaking on the Continued Storage of SNF and the recommendations from the Presidents Blue Ribbon Commission on Americas Nuclear Future to promote efforts to develop one or more consolidated storage facilities in the U.S. The No Action alternative would not meet the purpose of and need for the proposed action.

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In addition, the ER, 2.5, reaffirms the statement in Section 2.1:

Under the No Action Alternative, the license would not be approved and the CISF would not be built. The shutdown, decommissioned and operating commercial reactor sites would be required to operate an ISFSI on their current property. In this alternative the shutdown, decommissioned commercial reactors would not be able to return to a greenfield condition, causing a disadvantage for the local communities because this land will not be available for further economic development. This alternative does not support the communities needs or the recommendations from the Presidents Blue Ribbon Commission on Americas Nuclear Future.

Finally, Table 2.5-1 in the ER, copied below, emphasizes the BRC report a reason for rejecting the no-action alternative.

Table 2.5-1 Comparison of the No Action Alternative, Proposed Action Alternative, and Alternatives Eliminated from Detailed Analysis Alternative Operational Impacts Considerations Environmental Impacts Considerations State and Community Support Alternatives to be Analyzed No Action Would need to license each site to store spent fuel onsite until a permanent repository is opened Would need to analyze environmental aspects at each site Each site would need community support; goes against recommendations of the Presidents Blue Ribbon Commission Proposed Action:

Andrews County, TX Scored highest with 174.0 Scored highest with 185.3 Has state and community support to construct and operate the CISF Alternatives Eliminated from Detailed Analysis Design Alternative Information unavailable, could not be assessed Information unavailable, could not be assessed Lacks state and community support; has support of SVBG Location Alternative

PFS, Utah License was authorized by the NRC License was authorized by the NRC BLM does not support; State of Utah government and senators do not support 27

Location Alternative

Loving, TX Lowest score with 78.9 Lowest score with 163.5 Has state and local support Location Alternative

Lea, NM Scored third highest with 157.6 Scored third highest with 166.9 Has state and local support Location Alternative

Eddy, NM Scored second highest with 161.4 Scored second highest with 168.9 Has state and local support The NRC and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner.

The petitioner only needs to com[e] forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001).

All of these references show that the BRC report is a significant factor in defining the alleged purpose and need for the project, and thereby a claimed justification for rejecting the no action alternative. That is why Sierra Club is presenting this contention challenging ISPs reliance on the BRC report.

It is also important to point out that the primary focus of the BRC report in promoting CIS is the belief that CIS would provide safe and secure storage of nuclear waste.

BRC Report, p. xii. At the same time, however, in the BRC report, as explained in Contention 8, the BRC determined 28

that on-site storage is just as safe and secure as a CIS facility.

CONTENTION 9 The NRC Staff agrees that this contention is admissible to the extent that it challenges ISPs requested exemption from the application of 10 C.F.R. § 72.30. ISP, on the other hand, claims that Contention 9 does not make any showing that neither DOE nor private waste owners would provide decommissioning funds. In making that argument, ISP is improperly shifting the burden of proof. As explained in Sierra Clubs Petition to Intervene, p. 13, the NRC and the courts have made clear that the burden of persuasion is on the licensee, not the petitioner. The petitioner only needs to com[e] forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001).

With that burden of proof in mind, ISP has not presented any evidence that private parties would want to retain title to the waste and fund decommissioning. NRC guidance, Consolidated Decommissioning Guidance, v. 3, Rev.

1 (2012), NUREG-1757, states that applicants for a license to store large amounts of nuclear waste must provide a certification of financial assurance to cover the cost 29

estimate for decommissioning, and this certification must be provided at the time of license application. Although guidance cited above does not describe exactly what form the required certification must take, it does not appear that anything that could reasonably be described as a certification of financial assurance has been submitted.

There should at least be some credible statement from nuclear plant owners that they are willing to retain title to the waste and fund decommissioning.

Nor is there any certification that DOE would be willing or legally able to take title to the waste and fund decommissioning. In fact, ISP asserts that it will request a waiver of the provisions of 10 C.F.R. § 72.30(e) in order to try to execute a contract with DOE to fund decommissioning.

(Application, Rev. 2, App. D, p. 1-8).

There is certainly no assurance that the NRC would grant such a waiver or exemption. 10 C.F.R. § 72.7 states:

The Commission may, upon application by any interested person or upon it own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.

In this case, for the reasons explained in Sierra Club Contention 1, granting such an exemption for DOE to provide 30

decommissioning funding would be a violation of the NWPA.

ISP has not made any showing that an exemption would not violate the NWPA. In its Answer, n. 325, ISP cites to a report of the Nuclear Waste Technical Review Board that ISP claims proves DOE can legally take title to waste at a waste facility. The Review Board report refers to four sites where DOE owns the waste: Hanford, Idaho National Laboratory, Savannah River, and Ft. St. Vrain. But these are all government owned and operated sites. They have no relevance to the issue of DOE ownership in this case.

So, in reviewing ISPs statements regarding financial assurance for decommissioning, we are treated to a host of possible funding mechanisms, but no certification of assurance. ISP says maybe DOE will provide funding or maybe the nuclear plant owners will provide funding. Maybe the funding will be supplied by surety or insurance or guarantee or external sinking fund. Or maybe there will be no funding source at all. Based on ISPs decommissioning funding plan there is no way to know.

Finally, ISP and NRC Staff misapprehend Contention 9 with respect to ISPs decommissioning cost estimate. Both parties cite to page 60 of Sierra Clubs Petition to Intervene. That reference in the Petition to the cost 31

estimate was simply reciting the cost estimate as one of the items to be set forth in the license application. Sierra Club is not challenging the cost estimate.

CONTENTION 10 ISP and NRC Staff claim that Contention 10 is incorrect in stating that the ER asserts that the Ogallala Aquifer is not present under the site of the CIS. But Contention 10 specifically referred to Section 3.4.14.1 of the ER, which says, The southern and eastern limits of the Ogallala aquifer lie to the north and east of the Waste Control Specialists property. This is a clear statement in the ER that the Ogallala Aquifer is not under the ISP site.

To the extent that ISP and NRC Staff take issue with the report of Dr. Patricia Bobeck, they are engaging in factual disputes that must be left to a hearing on the merits, but are inappropriate at the contention admissibility stage of the proceedings.

The ASLB should not address the merits of a contention when determining its admissibility. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir. 1988). What is required is that the intervenor state the reasons for its concerns. Public Service Co. of New 32

Hampshire_(Seabrook Station, Units 1 & 2), 16 NRC 1649, 1654 (1982). The contention rules require only that contentions have at least some minimal factual and legal foundation in support and are not to be a fortress to deny intervention. U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).

Contention 10 explains, with information supported by citation to a DOE report and an NRC report and the information in Contention 16, that there will have to be high-burnup fuel in the containers stored at the CIS facility. This information further explains why high-burnup fuel creates a risk of leakage from the containers that would contaminate the groundwater with radioactive material.

Again, the only response from ISP and NRC Staff to this portion of the contention is a dispute about the facts that is outside the scope of the contention admissibility stage of the proceedings.

Dr. Bobeck, in supporting Contention 10, pointed out the probability of earthquakes induced by fracking for oil and gas in the area. This issue was discussed in detail in Contention 6. As pointed out in Sierra Clubs Reply regarding Contention 6, ISP and NRC Staff miss the point then they claim there will be no induced earthquakes because 33

ISP will not cause seismic activity. The point, as explained in Contention 6 and as noted by Dr. Bobeck, is that the earthquakes caused by fracking create a risk of cask rupture.

Contention 6 cited two studies of earthquake potential in west Texas. In Frohlich, et al. it states that fracking for oil and gas began on a large scale in the Permian basin of west Texas in about 2011. The study further notes that since about 2008 the rate of of earthquakes had increased from about 2 earthquakes/year to about 12 earthquakes/year in 2016 in the Permian basin area. The second study by Snee and Zoback, published in 2018, shows recently induced faults in the area of the ISP site. 10 C.F.R. § 72.103(f)(1) requires an analysis of earthquake potential in and around a proposed CIS site just because that potential creates an environmental and safety hazard. That hazard is damage to the storage containers and resulting leaks that, as Dr.

Bobeck describes would impact the groundwater.

CONTENTION 11 The 15 siting criteria are set forth and discussed in the ER so they obviously are intended to be relevant to the environmental impacts of the proposed CIS facility. NRC Staff claims that the siting criteria are related strictly 34

to the purpose and need for the project. But the Staff does not cite to any legal or regulatory basis for that statement. There is nothing in the purpose and need statement, ER, 1.1, that refers to siting criteria, or to any aspect of actually siting the facility.

ISP is actually more correct that the siting criteria pertain more closely to the review of alternatives, in this instance alternative sites. ISP misses the point, however, in citing Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), 6 NRC 541 (1977), for the argument that an applicants selection of a site may be rejected on the ground that a preferable alternative exists only if the alternative is obviously superior. As the St. Lucie decision pointed out, an intervenor can challenge the procedures the applicant followed in conducting its alternative site review, without alleging that another site is obviously superior. ISP is attempting to misdirect the focus of this contention.

It is obvious that Contention 11 challenges the procedure used in the site selection analysis.

NRC Guidance on environmental reports, NUREG-1748, 6.2.1, requires a detailed description of alternatives. The alternatives analysis is the heart of the environmental 35

impact statement. 40 C.F.R. § 1502.14. NEPA requires that an environmental review [r]igorously explore and objectively evaluate all reasonable alternatives and

[d]evote substantial treatment to each alternative considered in detail.... Id. The point of Contention 11 is that the ISP ER does not comply with these requirements.

Sierra Clubs discussion of Contention 11, p. 71-75, sets forth in detail why the discussion of the environmental impacts of the alternative sites does not comply with the requirement for a rigorous and objective evaluation of alternatives. The arguments by ISP and NRC Staff in attempting to challenge Sierra Clubs discussion is a dispute about the facts, which is inappropriate at the contention admissibility stage of the proceedings.

The ASLB should not address the merits of a contention when determining its admissibility. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir. 1988). What is required is that the intervenor state the reasons for its concerns. Public Service Co. of New Hampshire_(Seabrook Station, Units 1 & 2), 16 NRC 1649, 1654 (1982). The contention rules require only that contentions have at least some minimal factual and legal foundation in 36

support and are not to be a fortress to deny intervention. U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).

CONTENTION 12 Sierra Club has no additional response beyond what is stated in Contention 12.

CONTENTION 13 NRC Staff again has the burden of proof backwards.

Staff states in its Answer that Sierra Club has the burden of presenting facts and expert opinion, but that the ER can make unsupported conclusory statements and allegedly satisfy the applicants burden.

Section 4.5.10 of the ER simply says, Additionally, the two identified species of concern in the general area, the Texas horned lizard and the sand dune lizard either do not occur on the CISF or are highly adaptable. The part of that statement alleging that the two species do not occur in the project area is in direct contradiction of the statement in the ER, 3.5.2. That section states, Two species of concern, the Texas horned lizard (Phyrnosoma cornutum) and sand dune lizard (Sceloporus arenicolus), occur within the area.

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The second part of the statement in Section 4.5.10, that the species are highly adaptable, is contradicted by the statement in Section 3.5.2 that the horned lizard is considered threatened because of over-collecting, incidental loss, and habitat disturbance. The sand dune lizard has a specialized habitat that occurs throughout much of the region of the proposed CISF. These descriptions of the precarious status of the species do not support the assertion that they are highly adaptable.

Most importantly, the statements in Sections 3.5.2 and 4.5.10 do not reference any authority or basis for those statements. They are simply unsupported conclusory statements.

NEPA regulations provide that [a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. 40 C.F.R. § 1500.1(b). NEPA regulations further require:

Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement.

40 C.F.R. § 1502.24. The unsupported statements regarding the protected species do not satisfy these standards.

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ISP also attempts a diversionary tactic in referring to a letter from the U.S. Fish and Wildlife Service, found in -3 of the ER. USFWS has jurisdiction only over federally protected species. The horned lizard and the sand dune lizard are not federally protected, but the horned lizard is a state threatened species and the sand dune lizard is of special concern at the state level. In any event, the ER, 3.5.2, lists those two species as be of concern and the ER expressly attempts to deny any impact to those species from the CIS project.

Contention 13 also raised the point that the sources allegedly relied upon in the ER, 3.5.16, regarding the ecological resources, are not described well enough to allow members of the public to access the sources. As noted above, NEPA regulations require enough information as to the scientific methodology used and reference the sources to ensure the public scrutiny... essential to implementing NEPA. If the sources of the scientific information are not available to the public, there can be no public scrutiny.

CONTENTION 14 The Continued Storage Rule does not make this contention inadmissible. As noted in the contention, the license period for the containers is 20 years, with ISPs 39

expectation of license renewal for an additional 40 years.

If the expected life of the facility, as stated by ISP, is60-100 years, the containers will be in use beyond the period of institutional controls. One of the assumptions on which the Continued Storage Rule is based is that there will be institutional controls. So the Continued Storage Rule does not apply in this case.

Another assumption on which the Continued Storage Rule is based is that there will be a dry transfer system in place to transfer the waste to new containers by the time the waste has been stored for 100 years. ISP admits in its Answer, p. 118, that there will be no dry transfer system.

So if no permanent repository is found in 100 years and the ISP facility is required to continue operation beyond that point and there is no dry transfer system, the Continued Storage Rule would not apply and the consequences of that occurrence must be considered in the ER.

It must also be emphasized that this contention is about the containers, not about the storage per se. The GEIS which forms the basis of the Continued Storage Rule makes no mention of the containers or any assumptions regarding the containers. Therefore, the impacts related to the specific container systems beyond their licensed period would be a 40

site specific issue that is not precluded by the Continued Storage Rule.

CONTENTION 15 At the outset, NRC Staff misrepresents the holding in Louisiana Energy Services, LP (Claiborne Enrichment Center, 47 NRC 77 (1998). In that case the Commission did not overturn the licensing boards general procedure and findings with respect to environmental justice. The Commission only said that there was no requirement to establish racial discrimination, only disparate impact. In all other respects, the licensing board decision was upheld.

NRC Staff cites to Private Fuel Storage LLC (Independent Spent Fuel Storage Installation, 47 NRC 142, 203 (1998), for the proposition that siting criteria and procedure are not relevant for EJ concerns. The PFS decision relied on the Commission decision cited above. But that Commission decision simply said the Commission would not consider discriminatory intent in siting procedures. The Commission left intact the licensing board holding that siting procedures were relevant in the EJ context with respect to disparate impact.

ISP appears to argue in its Answer that the site selection process in the ER that is discussed in Contention 41

15 is essentially irrelevant. On the contrary, the site selection process is exactly what the licensing board considered in the EJ context in Louisiana Energy Services, 45 NRC 367 (1997). The licensing board reviewed the siting process in the context of the environmental justice issue in great detail. Id. at 381-397. Contention 15 simply follows the roadmap set forth in Louisiana Energy Services.

ISP also claims that Contention 15 does not plead any violation of NEPA. On the contrary, the contention refers to and follows the licensing board decision in Louisiana Energy Services, which was clearly a NEPA case. Furthermore, Contention 15 challenges specific sections of and statements in ISPs ER.

Also, contrary to ISPs allegation, Contention 15 identifies the potentially affected minority communities for EJ purposes. Contention 15 sets forth in detail the affected communities in the various counties involved in the site selection process and the percentage of minority population in each. The contention more specifically identifies the cities of Hobbs, Eunice and Jal, New Mexico. In summary, the contention shows how the site selection process did not adequately address the EJ considerations required by NEPA and NRC guidance and precedent.

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Nor is this about selecting an obviously superior site. This contention is about the process and complying with Executive Order 12898 and NRC guidance and precedent.

This was explained in Sierra Clubs Reply regarding Contention 11.

NRC Staff and ISP raise the issue of the 4-mile radius for EJ considerations in NRC guidance. NUREG-1748, Appendix A. As noted in Contention 15, the 4-mile radius is merely guidance and that the area to be considered in determining EJ impacts should be commensurate with the potential area.

In that regard, it is entirely appropriate to use the 50-mile radius designated for health and safety impacts in the Yucca Mountain case. Health and safety are exactly the impacts EJ considerations are meant to address. Low income and minority communities should not have to unreasonably suffer the health and safety impacts other communities do not. The ER in this case violated the purpose of EJ considerations by hewing to the 4-mile radius as if it were a strict legal requirement.

Finally, transportation impacts with respect to EJ are certainly within the scope of this proceeding. 10 C.F.R. § 72.108 clearly makes transportation impacts relevant to NEPA 43

considerations. And EJ is certainly an aspect of NEPA review.

CONTENTION 16 Environmental impacts from transportation of radioactive material are within the scope of this proceeding. 10 C.F.R. § 72.108. Contention 16 sets forth the environmental impacts of transporting high-burnup fuel.

ISP claims that the high-burnup fuel will be canned within the canister. ISP has made no showing, however, that canning the waste will address the concerns expressed in Contention 16.

ISP refers to the ER, 4.2.6, which section in turn refers to a RADTRAN modeling study that appears in -1 of the ER. That RADTRAN study is a general modeling exercise that does not indicate if, or the extent to which, the issues surrounding high-burnup fuel were considered. For example, if canning the waste in the canister is the answer, as asserted by ISP, Attachment 4-1 does not indicate whether the model considered whether high-burnup fuel was modeled, and if so, if the model assumed that the fuel was canned. That is why Contention 16 states that neither the SAR nor the ER discuss the issues raised in the contention.

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Contention 16 is not challenging the certification of the container system. The contention is challenging the lack of proper documentation concerning the impacts of high-burnup fuel.

CONTENTION 17 The NRC Staff has no objection to Sierra Clubs request to adopt the contentions of Dont Waste Michigan, et al. ISP argues that the request to adopt another partys contentions should be presented as a motion pursuant to 10 C.F.R. § 2.309(f)(3).

This contention is effectively a motion within the context of a contention. Contention 17 refers to § 2.309(f)

(3) and satisfies the requirements of that rule.

CONCLUSION Based on the foregoing, Sierra Club has established standing and its contentions are admissible.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 45

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 72-1050 INTERIM STORAGE PARTNERS )

)

(Consolidated Interim Storage ) December 17, 2018 Facility Project) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Reply to the Answers filed by Interim Storage Partners and the NRC Staff were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 46