ML18351A640

Combined Reply of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., Etc. to ISP WCS and NRC Staff Answers

ML18351A640
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/17/2018
From:	Lodge T - No Known Affiliation, Citizens for Alternatives to Chemical Contamination, Citizens' Environmental Coalition, Don't Waste Michigan, Nuclear Energy Information Service, Public Citizen, San Luis Obispo Grandmothers for Peace, Sustainable Energy & Economic Development Coalition
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54712
Download: ML18351A640 (58)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of INTERIM STORAGE PARTNERS (WCS Consolidated Interim Storage Facility)

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Docket No. 72-1050

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December 17, 2018

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COMBINED REPLY OF DONT WASTE MICHIGAN, CITIZENS ENVIRONMENTAL COALITION, CITIZENS FOR ALTERNATIVES TO CHEMICAL CONTAMINATION, NUCLEAR ENERGY INFORMATION SERVICE, PUBLIC CITIZEN, INC., SAN LUIS OBISPO MOTHERS FOR PEACE, SUSTAINABLE ENERGY AND ECONOMIC DEVELOPMENT COALITION AND LEONA MORGAN TO ISP/WCS AND NRC ANSWERS Now come Petitioners Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, and Sustainable Energy and Economic Development Coalition and Leona Morgan (Joint Petitioners), by and through counsel, and hereby reply in support of their November 13, 2018 Motion to Intervene and Request for an Adjudicatory Hearing in this licensing application case of Interim Storage Partners/Waste Control Specialists (ISP) to construct and operate a Consolidated Interim Storage Facility in Andrews County, Texas (ISP/WCS CISF).

Joint Petitioners respond in this memorandum to Interim Storage Partners LLCs Answer Opposing Hearing Request and Petition to Intervene Filed by Dont Waste Michigan, et al. (ISP Answer) and the NRC Staffs Consolidated Response to Petitioners to Intervene and Requests for Hearing filed by Sierra Club, Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Nuclear Energy Information Service, Citizens Environmental Coalition, and Sustainable Energy and Economic Development Coalition and Leona Morgan (NRC Answer).

I. Joint Petitioners Have Established Legal Standing To Intervene A. The NRC Staffs grossly inadequate investigation of Joint Petitioners standing claims can be safely rejected by the ASLB The NRC Staffs curious position is that the individual standing declarations submitted by members of the Joint Petitioner organizations do not demonstrate that any of the organizations members will suffer a concrete and particularized injury-in-fact that is fairly traceable to the proposed construction and operation of the ISP CISF. NRC Answer at 7. The Staff recites much of the rich detail contained in the declarations, such as sworn statements of the declarants residential proximity to rail lines or highways likely to be used for transporting spent nuclear fuel (SNF), and their legitimate concerns about exposure to routine radioactivity emitted from transport casks, and a great deal more. NRC Answer at 8-9. But it all fails, so far as the Staff is concerned, because the declaration statements do not demonstrate that the declarants themselves will suffer a concrete and particularized injury-in-fact that is fairly traceable to the proposed construction and operation of the ISP CISF. Specifically, the declarations do not provide sufficient support for their assertions that the portions of the transportation routes to which the declarants claim proximity will be used to transport SNF or GTCC waste to the ISP facility, id. at 9, because there is no indication that these maps [which declarants claim to have studied] are specific to shipments to the ISP facility.

The Staffs criticism fails because it only superficially assayed the detailed proximity information given by many of the declarants to present and prospective spent nuclear fuel (SNF) locations and transport routes.

For starters, each of the declarants attested under penalty of perjury to having read the ISP/WCS Environmental Report (see generally ¶¶ 5 and 6 of the declarations). The Environmental Report (ER) contains a one-page national map of railroad mainlines and trunk lines. See ER Figure 2.2-4 on p. 2-71. Presumably someone attesting to having read the Environmental Report may be charged with knowledge of that national map of rail transportation routes. For declarants to state under penalty of perjury that they have evaluated Department of Energy maps and the Environmental Report suggests that they very well might have actually done so and have established a factual belief that they reside, work and/or recreate proximate to an SNF location or transport route.

More to the point, at least seven of the declarants expressly stated in their respective declarations that while investigating the ISP CISF proposal, they perused the railroad line map appearing in the Environmental Report. Declarant Brigitte Gardner-Aguilar, a member of the Sustainable Energy and Economic Development Coalition (SEED Coalition) who lives in Eunice, New Mexico, stated in considerable detail the following:

I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the ISP/WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/highway transport routes are within a mile and a half of my home and believe it is likely that such route would be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. I also travel three to five times a week to and from Hobbs, New Mexico to attend Nursing School, a route that routinely takes me across railroad tracks that go to the WCS site. From Figure 2.2-5 Rail Corridor map on Page 2-72 of the ISP/WCS Environmental Report it appears that rail shipments would come through Eunice before going east to the WCS site. In particular, I have read the contents of page 2-3 of the WCS Environmental Report, which describe a railroad loop encompassing the WCS site that is currently used to transport radioactive waste to the site. I note that WCS proposes to deliver SNF shipments routed eastward from Eunice, New Mexico to the CISF on the railroad loop which is controlled and maintained by ISP joint venture member Waste Control Specialists. In particular, I have read the contents of page 2-3 of the WCS Environmental Report, which describe a railroad loop encompassing the WCS site that is currently used to transport radioactive waste to the site. I note that WCS proposes to deliver SNF shipments routed eastward from Eunice, New Mexico to the CISF on the railroad loop which is controlled and maintained by ISP joint venture member Waste Control Specialists. I have seen trains travel through Eunice on that line, headed to the WCS site. The ER states that no highways or railroad lines cross the CISF site. I have viewed the maps showing rail access to the WCS CISF on Figures 2.2-4 and 2.2-5 of the ER, and of a proposed rail sidetrack into the CISF is shown in Figure 2.2-6, and confirm that those represent the only rail access to the site.

Declaration of Brigitte Gardner-Aguilar, ¶ 4.

SEED member Elizabeth Padilla said the following in her declaration:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the ISP/WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/highway transport routes. [sic]. The WCS site is 37 miles from my home in Andrews, TX, and my family and I drive past the site frequently toward Eunice and then Hobbs, NM. We also drive through Monahans, TX when we go to visit family in El Paso.

It appears from Figure 2.6-1 Transportation Routes in the ISP/WCS Environmental Report that these routes would be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility.

Declaration of Elizabeth Padilla, ¶ 4.

Further, SEED member Patricia Mona Golden asserted in her declaration:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/

highway transport routes are within 100 feet of my workplace and one block of my residence and believe it is likely that such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. The Figure 2.6-1 map of transportation routes provided by WCS in the Environmental Report shows the route for waste that would come from San Onofre Waste. The orange/red line mirrors 1-10 [sic]

and the major railroad lines that run along it. Van Horn is clearly on this route, between El Paso and Monahans, Texas, where transport would turn toward the north.

Declaration of Patricia Mona Golden, ¶ 4.

Individual Petitioner Leona Morgan, of Albuquerque, New Mexico, enunciated in her declaration as follows:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied Figure 2.2-4 on p. 2-71 of the WCS Environmental Report, which is a national map of rail transportation routes, and note that a main railroad line passes within 1 mile of my home and place of employment. That is a main route from California that passes through Arizona to Albuquerque and such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility.

Declaration of Leona Morgan, ¶ 4.

Cemelli de Aztlan, a resident of El Paso, Texas, and member of Petitioner group Public Citizen, Inc., explained in her declaration that:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/

highway transport routes are within one (1) block of my (home/place of work/place of recreation) and believe it is likely that such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility.

Declaration of Cemelli de Aztlan, ¶ 4.

Rev. James L. Caldwell, Public Citizen member who lives in Houston, Texas, alleged in his declaration:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/

highway transport routes are within one (1) mile of my (home/place of work/place of recreation) and believe it is likely that such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility.

Declaration of Rev. James L. Caldwell, ¶ 4.

Also, Petuuche Gilbert, of the Acoma Pueblo in New Mexico, maintained in his declaration that:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/

highway transport routes are within one (1) mile of my (home/place of work/place of recreation) and believe it is likely that such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility.

Declaration of Petuuche Gilbert, ¶ 4.

Besides these statements of explicit attention to the railroad line map published in the ER by ISP/WCS, three members of Dont Waste Michigan narrated the proximity of their residences to the sole rail spur connecting the Fermi 2 nuclear power plant in southeastern Michigan to the national rail system. Hedi Kaufman of Monroe, Michigan claimed this in her declaration:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to IPS/WCS [sic] are presently planned to be via railroad. I have studied Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and I note that the rail route spur into and out of Fermi 2 nuclear plant is within 2.5 miles of my home and where I recreate. The rail spur going into and out of Fermi 2 nuclear plant is to meet rail line shared by Norfolk Southern Railway, Canadian National Railway and CSX Transportation before heading north through Detroit then west toward Plymouth. This route will be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. The Fermi 2 nuclear plant is 4 miles from my home. In addition to the threat from Fermi 2 nuclear reactor, the Fermi 2 has on site ISFSI SNF. My sole source of drinking water for family draws from Water Intakes pipes 1/4 mile and 1/2 mile from the Fermi 2 site. An accident with ISFSI SNF while loading could be catastrophic, and impact the entire Great Lake Erie and region.

Declaration of Hedi Kaufman, ¶ 4.

Hedis husband, Martin, included an identical ¶ 4 in his declaration. Michael Keegan, another DWM member, also of Monroe, Michigan, averred this in his declaration:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to ISP/WCS are presently planned to be via railroad. I have studied Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and I note that the rail route spur into and out of Fermi 2 nuclear plant is within 6 miles of my home and where I recreate. The rail spur going into and out of Fermi 2 nuclear plant is to meet rail line shared by Norfolk Southern Railway, Canadian National Railway and CSX Transportation before heading north through Detroit then west toward Plymouth. This route will be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. The Fermi 2 nuclear plant is 4 miles from my home. In addition to the threat from Fermi 2 nuclear reactor, the Fermi 2 has on site ISFSI SNF. My sole source of drinking water for family draws from Water Intakes pipes 1/4 mile and 1/2 mile from the Fermi 2 site. An accident with ISFSI SNF while loading could be catastrophic, and impact the entire Great Lake Erie and region.

Declaration of Michael J. Keegan, ¶ 4.

Two declarants who are members of the San Luis Obispo Mothers for Peace (SLOMPF) also explained the locations of their residences near the only means of barge travel, highway and railroad ingress and egress for the Diablo Canyon nuclear power plant in California. Jill ZamEk affirmed as follows:

1 At least 95% of the planned shipments to WCS in New Mexico will be railroad ISP/WCS criticizes Joint Petitioners for having submitted the standing declarations for San Luis 1

Obispo Mothers for Peace members Jane Swanson and Jill ZamEk on November 17, 2018, four days after the November 13 deadline. That is true and was a mistake by Petitioners counsel, who omitted to file the declarations along with the rest of the Petition papers on November 13, 2018. In Joint Petitioners timely filed Petition to Intervene, SLOMPF is named as a Petitioner in some detail (Petition at 27), and the ZamEk and Swanson declarations are discussed at length at pp. 27-28. ISP/WCS has shown no prejudice from counsels admitted error, which delayed provision of the declarations for four (4) days.

The NRC Staff did not register an objection.

deliveries. I have studied Department of Energy maps of rail, water and highway transportation routes, and I have made some observations about the routes which will likely be used to transport dozens of cargoes of SNF and/or GTCC wastes from the Diablo Canyon nuclear plant to the WCS facility. The plant is approximately 12 miles from my home. If transport of SNF/GTCC is by rail, the only rail line for at least 10 miles in any direction from Diablo Canyon passes within 4 to 5 miles of my home. The major U.S. highway nearest the plant, on which truck transports of SNF/GTCC, passes within 2 miles of my home. If the SNF/GTCC is loaded on a barge to be sent elsewhere by water, the barge loading area for Diablo Canyon is 10 miles from my home.

Declaration of Jill ZamEk, ¶ 4.

SLOMPF member Lucy Jane Swanson rendered similar observations about proximity of her residence to Diablo Canyon:

I also have learned that all or nearly all of the planned deliveries of SNF and GTCC waste to WCS are presently planned to be via railroad. Some may involve barge shipment and highway transport over earlier stages of shipment. I have studied Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail transport routes are within 12 miles of my (home/place of work/place of recreation) and that such route will likely be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. But it will be necessary to transport those wastes by truck from the Diablo plant to the railroad, and the intersection of the only road leading away from the Diablo Canyon plant to the Highway 101 freeway or its frontage roads is within three miles of my home, as verified by the map posted on the website of the San Luis Obispo County Office of Emergency Services at http://www.slocounty.ca.gov/Departments/Office-of-Emergency-Services.aspx Declaration of Lucy Jane Swanson, ¶ 4.

It is the NRC Staffs obligation to review Joint Petitioners standing declarations thoroughly and with sufficient care to support their opposition to standing. Since Petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to a facility with sufficient care to enable the petitioner to find information that could serve as the foundation for a contention, Final Rule, 54 Fed. Reg. at 33,170 (quoting Duke Power Co.

(Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 N.R.C. 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 N.R.C. 1041 (1983)), presumably those who oppose admission of a contention similarly have an ironclad obligation to be assured of the Petitioners facts and not to misstate or entirely ignore them in registering their opposition.

The Joint Petitioners have overwhelmingly delineated the three elements comprising the irreducible constitutional minimum of standing in Lujan v. Defenders of Wildlife, 112 S.Ct.

2130, 504 U.S. 555, 561, 119 L.Ed.2d 351 (1992). First, they have depicted sufferance of an injury in fact which is concrete and particularized, actual or imminent, not conjectural or hypothetical. Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Second, Petitioners demonstrate a causal connection between the injury and the conduct complained of -- the injury has to be fairly... trace[able] to the challenged action of the defendant, and not... th[e] result

[of] the independent action of some third party not before the court. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Third, they portray that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 38, 43.

Joint Petitioners imminent injury is certainly impending. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Imminence is a function of probability. See 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006) (Standing depends on the probability of harm, not its temporal proximity.); Thomas More Law Center v. Obama, 651 F.3d 529, 536 (6 Cir. 2011).

th The Joint Petitioners have moreover fulfilled the elements of the Commissions proximity-plus test via their declarants by showing that the activity at issue involves geographical closeness to a significant source of radioactivity producing an obvious potential for offsite consequences. Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site),

CLI-94-12, 40 NRC 64, 75 n. 22 (1994). See, also, Shaw Areva MOX Services, LBP-07-14 (2007) (petitioners living 20 to 32 miles from mixed oxide fuel fabrication facility have standing because NRC Staff included residents as far away as 50 miles from the facility in its calculation of potential population doses). Once a declarant shows proximity to a source of dangerously radioactive materials, she does not have the burden of articulating a plausible means through which those materials could cause harm to her; the inherent dangers of the radioactive materials comprise the obvious potential for offsite consequences. U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii),

CLI-10-20, 71 NRC 216, 218 (2010), citing USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 311 (2005).

Each declarant also attested to threatened direct injury in the form of exposure to routine radiation emissions from casks and canisters of SNF in transit. [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 like those concededly emitted by nuclear power plants. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 74 (1978). A threatened unwanted exposure to radiation, even a minor one, is sufficient to establish an injury. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 216 (2003); see also Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978).

To recap, the NRC Staff completely missed significant evidence in more than 20 declarations that established the declarants personal knowledge of ISP/WCSs anticipated mainline rail routes. Those declarants uncontradicted statements that they live, work or recreate within a few miles of a rail route that they have identified from the best evidence available must be accorded decisive weight in the standing determination. The Staffs lack of diligence prompted the Staffs unfortunate and insulting remonstrance about Petitioners repetitive declarations instead of truthful reporting to the Board that at least a dozen declarants provided conclusive evidence of proximity standing. The declarants informed themselves of nearby rail and highway routes that have nearly a 100% likelihood of being used as transportation arteries by which SNF will travel from nuclear power plants to the ISP/WCS CISF. The Staff failed to note the explicit reliance of seven declarants on the national railroad route map in WCS ER in establishing their proximity. The Staff utterly failed to absorb the uncontradicted sworn personal knowledge of six declarants attesting to their proximity to the sole rail lines into Fermi and Diablo Canyon.

A final item evidences the NRC Staffs deficient inquiry into the proofs of the Joint Petitioners standing (as if more evidence were needed). In their Answer, the NRC Staff did not oppose the standing assertions of the Sierra Club, saying:

... [T]he Sierra Club alleges that the proximity of its members to the proposed ISP facility is sufficient to grant them standing in this proceeding. In support, the Sierra Club proffers several declarations from its members residing as close as within 6 miles of the facility. These members reside within a range previously determined by Atomic Safety and Licensing Boards to be sufficient to establish standing under the proximity presumption for similar proceedings. Accordingly, the NRC Staff does not oppose the standing of the Sierra Club here.

NRC Answer at 11.

But one of Joint Petitioners declarants, Brigitte Gardner-Aguilar of the Sustainable Energy and Economic Development (SEED) Coalition, lives at 1301 Avenue A in Eunice, New Mexico, near her mother, Rose Gardner, a Sierra Club member, and Shirley Henson, another Sierra Club member. According to the U.S. Census Bureau, Eunice has a population of about 2,500 and occupies 2.9 square miles, so Brigitte resides precisely as close to the WCS facility as the two Sierra Club members acknowledged by the NRC Staff to suffice to confer standing on the Sierra Club. Besides living within 6 miles of WCS, Brigitte frequently crosses the railroad tracks in Eunice that would be used to deliver SNF to the WCS CISF. She also identifies the rail line into WCS as the only rail access to the site:

4. I have studied the Rail Lines Map that appears at p. 2-71 of Revision 2 of the ISP/WCS Environmental Report, and Department of Energy maps of rail and highway transportation routes identified for the Yucca Mountain geological repository case, and note that one or more rail trackage/highway transport routes are within a mile and a half of my home and believe it is likely that such route would be used to transport many cargoes of SNF and/or GTCC wastes to the WCS facility. I also travel three to five times a week to and from Hobbs, New Mexico to attend Nursing School, a route that routinely takes me across railroad tracks that go to the WCS site. From Figure 2.2-5 Rail Corridor map on Page 2-72 of the ISP/WCS Environmental Report it appears that rail shipments would come through Eunice before going east to the WCS site. In particular, I have read the contents of page 2-3 of the WCS Environmental Report, which describe a railroad loop encompassing the WCS site that is currently used to transport radioactive waste to the site. I note that WCS proposes to deliver SNF shipments routed eastward from Eunice, New Mexico to the CISF on the railroad loop which is controlled and maintained by ISP joint venture member Waste Control Specialists. In particular, I have read the contents of page 2-3 of the WCS Environmental Report, which describe a railroad loop encompassing the WCS site that is currently used to transport radioactive waste to the site. I note that WCS proposes to deliver SNF shipments routed eastward from Eunice, New Mexico to the CISF on the railroad loop which is controlled and maintained by ISP joint venture member Waste Control Specialists. I have seen trains travel through Eunice on that line, headed to the WCS site. The ER states that no highways or railroad lines cross the CISF site. I have viewed the maps showing rail access to the WCS CISF on Figures 2.2-4 and 2.2-5 of the ER, and of a proposed rail sidetrack into the CISF is shown in Figure 2.2-6, and confirm that those represent the only rail access to the site.

Declaration of Brigitte Gardner-Aguilar, ¶ 4.

ISP/WCS similarly bashed Joint Petitioners for repetitive standing declarations, announcing that the declarations do not provide sufficient support for their assertions that the specific portions of the transportation routes to which the declarants refer (to the extent they refer to specific routes at all) will be used to transport SNF or GTCC waste to the WCS CISF.

ISP/WCS Answer at 14 (Emphasis in original).

The Staff conducted a superficial evaluation of Joint Petitioners standing claims, knowing nonethless that its recommendations on standing are typically given great weight by licensing boards. The Staffs and WCSs surprisingly pregnable assessments of the Joint Petitioners standing evidence demonstrates that the ASLB should confer legal standing on Joint Petitioners and allow them to proceed.

II. Joint Petitioners Replies in Support of Contentions Contention No. 1: NEPA Analysis of Transportation of SNF and GTCC Wastes Was Excluded from the Application and Comprises Unlawful Segmentation of the Project A nuanced understanding of what ISP/WCS is attempting to pull off in its decision to segment transportation aspects of the project from the CISF application is revealing. WCS announced in the opening paragraphs of its application that Transportation of the spent nuclear fuel shipping casks from the originating commercial nuclear reactor to the CISF... is not part of this License Application.

This unequivocal statement is a binding judicial admission. Judicial admissions are statements of fact upon which the parties are entitled to rely. Factual assertions in pleadings...

are considered judicial admissions conclusively binding on the party who made them. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). A statement that expressly concede[s]... an alleged fact can be treated as a judicial admission. MacDonald v. Gen.

Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997) (quoting United States v. Belculfine, 527 F.2d 941, 944 (1st Cir. 1975)). " A judicial admission is an express waiver made... by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact. Christian Legal Soc'y Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661, 667, 130 S.Ct. 2971, 2983, 177 L.Ed.2d 838, 854 (2010). The vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it. (Citation omitted). The Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 568 U.S. 558, 592, 185 L.Ed.2d 439 (2013).

Having conclusively admitted the exclusion of core transportation concerns from the NEPA document, ISP/WCS proceeded, nonetheless, to assert carefully chosen predictions of minimal radiation threats from a dozen closed reactor sites, ascribing the near-impossibility of mishap to 20 years and at least 3,000 planned deliveries of SNF over thousands of miles to Texas. ISP/WCS further assures the public via the ER that only NRC-approved casks will be used to ship SNF. Perhaps ISP/WCS made its selective presentation of its version of transportation effects of the project to deflect and mitigate its bald statement excluding transportation concerns, and/or to set up a defense when criticized for not covering in the ER transportation issues of genuine, vital concern to the 218,000,000 people living within 50 miles of every major rail line on the Rail Lines Map at p. 2-71 of Revision 2 of the ISP/WCS Environmental Report. The sum of it is, ISP proclaimed transportation was excluded from its version of NEPA compliance and threw in a few sops to deter objections, including an unsupported argument that its supposed bounding analysis should be allowed to substitute for truthfully disclosing the full spectrum of SNF details and risks to the populations who will be burdened with the literal and political fallout if something goes wrong.

Both the NRC Staff and ISP/WCS urge that ISPs voluntary provision of some selective information related to transportation notwithstanding the companys conscious segmentation of the proposal fulfill NEPAs hard look. WCS Answer at 24, 29; NRC Staff Answer at 16.

However, Joint Petitioners have no obligation to look behind the legal wall created by ISPs judicial admission segmenting transportation matters from the ER. Petitioners are not obligated to respond, point-by-point, to the empty calories of ISPs selective and incomplete transportation analysis. Instead, the Petitioners have raised these substantive concerns, addressing matters that 2

ISP/WCS has omitted from consideration in the ER:

! Projected real-world environmental impacts, of a planned 20-year shipping campaign involving at least 3,000 deliveries of SNF and GTCC waste to the CISF, evaluated with the CISF as a component of a single, integrated project. Exclusion of transportation impacts from disclosure of actual anticipated rail, highway and water routes from the NEPA document serves to preclude consideration of a huge affected environment. According to the Continued Storage GEIS the affected environment includes all rural, suburban, and urban populations living along the transportation routes within range of exposure to radiation emitted from the packaged material during normal transportation activities or that could be exposed in the unlikely event of a severe accident involving a release of radioactive material. The affected environment also includes people in vehicles on the same transportation route, as well as people at truck stops and workers who are involved with the transportation activities. Continued Storage GEIS, NUREG-2157, § 3.15, p. 3-38. Normal, routine radiation exposures to SNF, in particular, are Notably, ISP/WCS couldnt even deliver as to all 12 of the sites it unilaterally chose for its 2

bounding analysis. At ER § 4.2.6.1, p. 4-13 applicant concedes that WebTRAGIS was used in this study to determine the route length and population density along each route segment. Table 4.2-2 lists specific routing parameters used in the study. Highway routes for San Onofre and Humboldt Bay could not be run in WebTRAGIS; the reason for this could not be determined.

not considered.

! Pursuant to 10 C.F.R. § 51.45(b)(1), addressing impacts of the proposed action on the environment in proportion to their significance. The transportation impacts of the overall ISP project are of high significance to completion of the storage project. Transportation is the sine qua non of the ISP CISF project. Adverse environmental effects identified by Joint Petitioners include environmental effects from transport and range from routine exposures to ionizing radiation, such as gamma and neutron radiation, of populations in the transport corridors where shipments will take place; and sabotage, terrorism and accident scenarios which might result in serious and large-scale radioactive releases, such as those accompanied by fire, submersion and external leakage into air and water.

! Questions as to how ISP will respond to the current DOE policy of repackaging fuel rods into smaller capsules (i.e., upwards of 3,000 shipments to ISP/WCS may occur, depending on where the repackaging is ordered to take place).

! The ISPs intended policy of shipping selected canisters, not all SNF, from reactor sites to the CISF. There must be analysis to ascertain how many thousands of fuel assemblies would be stranded at reactor site ISFSIs instead of consolidating them at ISP, and what the security and disposition of those assemblies will be during the purported century or more of ISP operations.

! Identification and disclosure of transportation infrastructure needs in order to accomplish the mass shipping campaign contemplated by ISP, especially given the overweight nature of rail transport casks and carriages.

! Addressing Environmental Justice concerns along every anticipated transit route, whether barge, highway or rail.

! Identification of transit routes, affected corridors, and political jurisdictions with responsibilities for civil disaster planning and response, in order to determine equipment, training and other need for effective response protective of the public.3 ISP/WCS intimates that because Petitioners seek to have all conceivable routes identified and analyzed in the EIS, that the public is asking for a crystal ball inquiry. ISP/WCS Answer at

31. The phrase comes from Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092, 156 U.S.App. D.C. 395 (D.C. Cir. 1973), where the court held that in preparing an EIS, an agency need not foresee the unforeseeable, but... [r]easonable forecasting and speculation is... implicit in NEPA.... The court warned that we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry and concluded that while NEPA does not demand forecasting that is not meaningfully possible, an agency still must fulfill its duties to the fullest extent possible. Id. For WCS to label the publics call for specific transportation route information, now, crystal ball inquiry, implying that it is not called for under NEPA, while it proceeds to extrapolate sweeping conclusions predicated on assumed trouble-free deliveries is sheer burlesque.

Since the sole reference to local or state government emergency responders appearing in the ER 3

is contingent on the U.S. Department of Energy taking possession of the SNF at reactor sites, it is conclusive that ISP/WCS has omitted to disclose, much less discuss, emergency response arrangements in the context of the CISF project: If the DOE is the shipper, the federal government, through DOE, is responsible for providing emergency training to states, tribes, and local emergency responders along the transportation routes where SNF would be transported to the CISF. ISP joint venture member Waste Control Specialists has acquired considerable experience in responding to the potential transportation events given its relative proximity to the Waste Isolation Pilot Plant. Local fire fighters, law enforcement, and emergency medical staff have been trained to respond to put out fires and organizing any emergency response actions that may be needed to reduce the severity of events related to transportation incidents involving SNF. ER § 4.2.4 at 4-9 to 4-10 (italics in original).

The NRCs environmental regulations at 10 C.F.R. § 51.45(e) require that information submitted in the ER should not be confined to information supporting the proposed action but should also include adverse information. By formally excluding transportation impacts from the NEPA document while including some superficial analysis of transportation effects (and falsely insisting that those parts of the ER must be critiqued in order to raise a valid contention), WCS is trying to avoid having to disclose a multitude of project negatives to the public.

Contention 2: ISPs Start Clean/Stay Clean Policy Cherry-Picks Waste For Storage and Contradicts the Projects Purpose And Need Statement The NRC Staff maintains that Joint Petitioners assertion that the ER does not address the environmental impacts of storage of spent fuel for canisters that do not meet the WCS site requirements is inadmissible because it relies on unsupported speculation that licensees storing and transportation activities will not meet NRC regulations and an unexplained implication that such non-compliance means that the applicants proposed site criteria will have a significant environmental impact. NRC Answer at 20. Similarly, ISP/WCS claims that the entire contention is based on a creative misunderstanding of the start clean/stay clean management philosophy.

But as Joint Petitioners point out, the NRC Staff itself asked if a recovery plan for handling canisters identified as damaged or failed would be submitted as part of the application, and the applicant responded a recovery plan would not be submitted. NRC Memorandum, Summary of June 16, 2015 meeting with Waste Control Specialists to discuss its approach of preparing the Environmental Report and the Safety Analysis Report, ML15182A322, p. 2 (July 1, 2015). Apparently someone besides the Petitioners is concerned that there might be a problem of stranded SNF canisters.

As Joint Petitioners stated in their Petition, ISP itself suggests in the SAR the possibility that some SNF and GTCC wastes will be left behind at participating reactor sites by having a screening program in the first place. Petition to Intervene at 50, citing SAR § 7.2, p. 7-3 (To provide assurance that the packages received at the WCS CISF are acceptable for storage, prior to receipt of a canister, a records review is performed to verify that the canister being received was fabricated, loaded, stored and maintained in accordance with the Site Specific or General License requirements and will comply with WCS CISF License Conditions and Technical Specifications.). After all, removal of canisters will take place decades from now, following decades of heat and cold, dry and wet weather, exposure to earthquakes, opportunities for sabotage, tornadoes, hurricanes and blizzards.

Petitioners contention, based on a review of the ER, is simply that ISP/WCS provides zero explanation as to the disposition of canisters that may be left behind for varying periods of time at the sending reactor sites. The NRC Staff argues that the possibility is mere speculation:

that [l]icensees are presumed to be able to meet the requirements of their license and the regulations, absent contrary evidence or allegations otherwise, and that Contention 2 rests on the apparent premise that the existence of screening criteria in the ISP SAR means that canisters sent to the site would be noncompliant, troublesome and nonconforming and that if such canisters are not accepted at the CISF it will result in accumulation of deteriorated or damaged canisters or casks at reactor sites. NRC Answer at 21.

But the contention is not that complicated. ISP/WCS will properly be surveying reactor sites to ascertain whether there are leaking, damaged or otherwise troublesome SNF canisters and will use screening criteria to determine which canisters move to Texas, and which do not. Joint Petitioners contention is to establish specifics: how many canisters will stay, what will their problems be, and what does ISP/WCS propose to do to clear up the problem so that 100% of the waste will be removed to Texas and ISP can supposedly restore hundreds of acres of land at multiple nuclear power plant sites to greenfield uses? The Staffs regulatory role would be 4

more adequately fulfilled if, instead of pouncing on the Petitioners for unsupported allegations, the Staff directed ISP/WCS to answer the questions. If detailed remedial measures can and will be taken to assure removal of all SNF from reactor sites, there should be no difficulty providing those answers. If ultra-dangerous casks and canisters are expected and will prompt dangerous or onerously expensive steps to handle them before they can be shipped offsite, then there should be plans to deal with those problems. If canisters will be left behind at reactor sites, questions of oversight, maintenance and security are legitimate, particularly in light of ISP statement of purpose and need. Questions directed at protection of public health and safety from left-behind canisters containing damaged SNF or with exterior contamination are valid to ask. If there is a prospect of many stranded canisters, then the bigger question may be whether ISP/WCS is avoiding disclosure of a form of alternative disposition of some of the SNF, by stranding it. This would contradict its supposed plan to consolidate the SNF from all of its site customers in west Texas. And such questioning is appropriate to ask given ISP/WCSs screening program.

The NRCs NEPA regulation, 10 C.F.R. § 51.45(b), requires that [t]he environmental report shall contain a description of the proposed action, a statement of its purposes, a description Notably, while ISP/WCSs purpose and need statement uses the term greenfields to 4

greenwash the century-long appropriation and conversion of reactor sites into irradiated brownfields, the applicant elsewhere in the ER explains that The estimated value of the land at shutdown nuclear plants in this analysis was based upon the typical price of brownfield industrial property in the area surrounding the site. ER § 7.2.2, p. 7-12 (emphasis added).

of the environment affected, and discuss the following considerations: (1) The impact of the proposed action on the environment. Impacts shall be discussed in proportion to their significance; (2) Any adverse environmental effects which cannot be avoided should the proposal be implemented.... Joint Petitioners have provided evidence that suggests environmental effects, alternatives, and mitigation possibilities are missing from the ER. The NRC Staff has effectively outlined the unaddressed concerns: In other words, even if the application does contemplate that some canisters may not meet the criteria of this license, that does not demonstrate why it is likely that canisters will not meet NRC regulations, that licensees cannot bring these canisters into compliance, or that the oversight of those canisters entails significant environmental impacts. NRC Answer at 21-22.

The demonstrations enumerated by the Staff are for ISP/WCS, not the Joint Petitioners, to make. ISP, after all, is the party that when asked by the NRC if it would submit a recovery plan for handling canisters identified as damaged or failed as part of the application, refused to do so.

Yet 10 C.F.R. § 51.45( c) requires the ER to include an analysis that considers and balances the environmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects. The admission that there will be unsafe SNF canisters is strongly implicit in the existence of screening criteria and a refusal to propose a recovery plan. The Staff would prefer that those two facts may be interpreted solely to mean that everything will be handled. But if that is so, then the ER must support that interpretation. If the opposite is true-that the two facts, read together, represent a rank refusal by ISP/WCS to address the problem of rejected SNF canisters as a consequence of their screening criteria-then that, too, must obligatorily be disclosed, analyzed and its environmental effects be explained in the NEPA document.

Contention No. 3: The Project Has Inadequate Assurances of Financing The NRC Staff is enabling this CISF scheme by concealing that which is indisputable:

there are no current legal means by which the U.S. Department of Energy can, or should, take title and/or possession of the SNF from utility companies and step in as the cradle-to-grave saviour of ISPs otherwise unworkable business plan.

The Staff defends ISPs amendment of its application, adding assurances that the company will enter into contracts with DOE or the SNF Title Holder(s) that will provide the funding for facility construction, operation and decommissioning, treating the latter arrangements as inconsequential events. But what ISP/WCS has done is added a supposedly lawful, but quite improbable, financing pathway to an unlawful scheme for financing and decommissioning to keep the licensing request alive.

When the NRC Staff asked ISP in 2015 who would take title and liability, WCS stated that the U.S. Department of Energy would take possession of the fuel at the originating storage site and would retain possession of the fuel after it reached the CISF. Petition to Intervene at 56.

In 2016, ISP/WCS sent a letter to the NRC that asserted unconditionally that the DOE would take title to the SNF and transport it from existing storage sites to the CISF. Id. at 57. Joint Petitioners has demonstrated, further, that as of November 13, 2018 (indeed, as of today, December 17, 2018), Interim Storage Partners states at its website that ISP proposed a license condition in its application [to the NRC] that obligates ISP to enter into an agreement that would ensure the interim storage of used nuclear fuel is properly funded by DOE. Given these overt admissions 5

by ISP/WCS, one would think that the companys request for an exemption from 10 C.F.R. § 72.30 requirements would cause the NRC Staff to dismiss the application entirely, or to require.

ISP/WCS to prove there is a genuine customer base willing to pay for SNF storage in west Texas without Price-Anderson liability coverage for transport or storage itself. ISP/WCS is allowed, instead, to seriously propose an alternative method of financial assurance that will guarantee the necessary funding for decommissioning in the form of a contract with the DOE that shall guarantee decommissioning funds will be provided for use by ISP that shall require the DOE to pay the actual costs of decommissioning the facilities, equipment, storage systems, and land used to store the material at the CISF.

Clearly, there is much more at play here than an applicants unremarkable amendment of its application papers.

The NRC Staff essentially agrees with the Joint Petitioners that there is no lawful way that ISP can get corporate welfare under the Price-Anderson Act. The Staff attempts to bury this harsh reality by claiming that the applicant has proposed license conditions very similar to the license conditions approved by the Commission in the Private Fuel Storage proceeding. NRC Staff Answer at 26. But that assertion is false. The financial arrangements for PFS did not involve a line of support for PFS from the Federal government, especially finances that the U.S.

DOE has no authority to provide. The proposed arrangements were these:

PFS will not commence ISFSI construction unless and until it has committed funds sufficient to provide fully for the construction of an ISFSI (including PFSs Highlights of ISP CISF License Application, https://interimstoragepartners.com/proj 5

ect-overview/ (last accessed 12/17/2018).

administrative and operational costs during construction of the project) with an initial capacity of at least { }1 MTU, whether these funds are obtained through equity contributions, through Service Agreements, or through other committed forms of financing...

(Emphasis added). Declaration of John Parkyn (Dec. 2, 1999) at 2 (quoting Letter from John Parkyn, Chairman, PFS, to Director, NRC Office of Nuclear Materials Safety and Safeguards (Sept. 15, 1998) attach. B, PFSF LA RAI No. 1, Question 1-1, at 2 of 2) [hereinafter Parkyn Declaration] (quoted at Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation and LBP-00-06, 51 NRC 101, 108 (2000)). PFS further pledged to use long term Service Agreements with its members and customers:

PFS will not commence operations of the PFSF, and will not accept spent nuclear fuel for storage at the PFSF, unless PFS has in place long term Service Agreements for spent fuel storage services with its members and customers sufficient to cover the costs of operating and maintaining the facility with respect to the spent fuel to be accepted and stored under the contracts. The costs for the storage of additional spent fuel at the PFSF ( beyond that contracted for under the initial Service Agreements at the commencement of operations) will simply be covered by long term Service Agreements for spent fuel storage services with PFSs members and customers. The costs of any additional construction necessary to enable the storage of additional spent nuclear fuel at the PFSF will be funded through equity contributions, the Service Agreements, or other committed forms of financing....

Id. All of the expenditures were for PFS construction and interim storage usage; none of the financing involved a definitive agreement with the DOE. The only definitive agreement that is presently attainable from DOE is DOEs form Contract for Disposal of Spent Nuclear Fuel and/or High-level Radioactive Waste, which states that the DOE has the responsibility, 6

following commencement of operation of a repository.... The Staffs analogy of ISP/WCS to Private Fuel Storage is inapropos because ISP/WCS seeks to commingle lawful financing instruments with a Federal corporate welfare subsidy that does not legally exist.

https://www.energy.gov/sites/prod/files/gcprod/documents/New_Standard_Contract.pdf 6

ISP/WCS, for its part, maintains that DOE has alreadyon multiple occasions exercised its inherent authority to take legal title to and possession of commercial nuclear fuel from numerous commercial entities to transport and store it pending disposal. ISP/WCS Answer at 41. In support of the point, ISP/WCS cites a DOE publication, U.S. Nuclear Waste Technical Review Board, Management and Disposal of U.S. Department of Energy Spent Nuclear Fuel (December 2017). See ISP/WCS Answer at 41 fn. 175. The Department of Energy has almost never taken title to commercial nuclear power plant SNF. A notable example when DOE did was the 1990's acquisition of title to the SNF at the Ft. St. Vrain nuclear power plant in Colorado. DOE found itself embroiled in a hard-fought lawsuit with the State of Idaho when the agency began shipping SNF from Colorado to the DOEs Idaho National Laboratory. The litigation was settled in 1995 with stringent limitations being imposed on DOEs freedom to transport the remaining 2/3 of the waste from the power plant to INL. See Management and Disposal of U.S. Department of Energy Spent Nuclear Fuel at 125. The State of Colorado also sued DOE around the same time and a settlement deal was struck whereby DOE agreed to remove the SNF from Colorado entirely by 2035 or commence payment of significant financial penalties. Id. Besides this suspect record of DOE taking title from the commercial nuclear industry, there is the matter of the Nuclear Waste Policy Act limitation on the DOEs ability to take title. Section 111 of the NWPA specifically provides that the federal government will not take title to spent fuel until it is received at a repository:

The generators and owners of high-level radioactive waste and spent nuclear fuel have the primary responsibility to provide for, and the responsibility to pay the costs of, the interim storage of such waste and spent fuel until such waste and spent fuel is accepted by the Secretary of Energy in accordance with the provisions of this Act [42 U.S.C. 10101 et seq.]

42 U.S.C. § 10131(a)(5). Further, Section 123 provides that [d]elivery, and acceptance by the Secretary [of Energy], of any high-level radioactive waste or spent nuclear fuel for a repository..

. shall constitute a transfer to the Secretary of title to such waste or spent fuel. 42 U.S.C. § 10143 (emphasis added); see also 42 U.S.C. § 10222(a)(5)(A) (requiring DOE to take title to spent fuel only following commencement of operation of a repository). The DOE isnt in a legal position to routinely take title to civilian SNF, clearly.

The reasonable financial assurance required of WCS must be provided through reasonable cost estimates based on plausible assumptions and forecasts. Assumptions seriously at odds with governing realities will not be acceptable. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-05-21, 62 NRC 248, 298-99 (2003).

ISP/WCS categorically cannot count on corporate welfare from the Federal government as a potential contributing source to guarantee, for example, that all decommissioning costs will be covered if a major accident or sabotage occurs at the CISF. ISP/WCSs insistence that it will have either DOE financing or private contracts to finance the CISF, pretending that they are two equivalent sources of financing, is false because only one legal financing method exists (and is highly improbable and will become impossible once isolated as a stand-alone condition). By permitting ISP/WCS to mislead the public, the agency and Congress by indulging the pretense that there are two methods of financing the project, ISP/WCS gets to prolong its shakedown long enough to try for a possible Congressional rescue. The ASLBs obligation, however, is to facilitate the search for, and identification of, the truth. And the truth is, ISP/WCS is advancing a thoroughly impermissible scheme packaged with a surficially lawful but impossible one.

Stripping away the cover granted by the impermissible scheme will let reality take its rightful course to destroy the ISP charade. That is why this contention should be admitted for adjudication.

Contention 4: Low-Level Radioactive Waste Volumes And Repackaging Requirements Are Considerably Underestimated A. Reply as to repackaging issues The NRC Staff ducks several core issues raised in this Contention by the misleading characterization of Joint Petitioners argument that Petitioners claim that to meet these requirements, there will be a need for a centralized repackaging facility which will lead to an increase in the amount of waste generated and result in increased costs. NRC Staff Answer at

28. Similarly, ISP/WCS asserts that it is not seeking, during the term of its license, to conduct repackaging at the WCS CISF. ISP/WCS Answer at 53. ISP/WCS further makes the unsupported conclusory statement, based on a similarly conclusive statement in its Application document, that the pads and storage overpacks are not expected to become activated during the limited term of the license. Id. Based on an expression of a choice, and a science-free conclusion, the applicant predicts, unsurprisingly, that there will be very little LLRW requiring disposal during the operational term of the CISF.

What Petitioners actually establish is that there is a lack of a firm understanding as to whether fuel bundles will be diffused into tens of thousands of storable canisters at individual reactor sites, or at the WCS CISF. The answer to the conundrum has implications for the facility design of the CISF, as whether there will be a dry transfer system and a more nuanced Emergency Response Plan than currently contemplated. It has implications for the LLRW waste stream. There will be thousands more deliveries to WCS, if the repackaging is done offsite, and in any event, tens of thousands more deliveries to an ultimate repository.

As a matter of fact, the present Department of Energy policy is this:

As now proposed, DOE would use a primarily canistered approach to operate the repository; under this approach, most commercial spent nuclear fuel would be packaged at the reactor sites in TAD canisters. DOE would repackage commercial spent nuclear fuel that arrived in packages other than TAD canisters into these canisters in newly designed surface facilities at the repository. The Department would package essentially all DOE material in disposable canisters at the DOE sites. Most spent nuclear fuel and high-level radioactive waste would arrive at the repository by rail. Some shipments would arrive by truck. At the repository, DOE would place the TAD and other disposable canisters in waste packages that were manufactured from corrosion resistant materials.

DOE would array the waste packages in the subsurface facility in tunnels (emplacement drifts).

Final Supplemental Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, Vol. I (2008) (Yucca SEIS), § 1.4.2, p. 1-14 (Emphasis added).

7 The Staffs assertion that the Continued Storage GEIS forbids consideration of Contention 4 because repackaging will occur only after the time span covered by the Environmental Impact Statement for WCS is incorrect, because repackaging is obviously likely to happen as a precondition of shipping SNF to the CISF. Repackaging could also occur at the CISF, in which case emissions of radioactivity to the environment, as well as the generation of LLRWs, would be significantly increased. The Continued Storage GEIS regulation states, This section does not alter any requirements to consider the environmental impacts of spent fuel storage during the term of a reactor operating license or combined license, or a license for an ISFSI in a licensing proceeding. 10 C.F.R. § 51.23( c). The repackaging of SNF poses environmental impacts during the term of the proposed WCS license, so environmental concerns must therefore be addressed according to the requirements of 10 C.F.R. § 51.45.

https://www.energy.gov/sites/prod/files/EIS-0250-S1-FEIS-01-2008.pdf 7

The Staffs asseveration (NRC Staff Answer at 29) that repackaging does not demonstrate that the claim, even if within the scope of the proceeding and taken as true, would materially alter the findings the NRC must make on this application is flatly false. The Commission will issue a license under 10 C.F.R. Part 72 upon determining that the application for a license meets the standards and requirements of the Act and the regulations of the Commission, and upon finding that [t]he applicant's proposed operating procedures to protect health and to minimize danger to life or property are adequate. 10 C.F.R. § 72.40(a)(5). The Commission further must find that [t]here is reasonable assurance that... [t]he activities authorized by the license can be conducted without endangering the health and safety of the public. 10 C.F.R. § 72.40(a)(13).

There is a likelihood that SNF repackaging will occur prior to shipping to WCS, but implementation of that policy increases the numbers of canisters to be delivered and the consequent need for contingency plans and remediation infrastructure at the CISF. There are health and safety implications. The factual support necessary to show that a genuine dispute exists is a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. Gulf States Utilities Co. (River Bend Station, Unit 1), CLI 10, 40 NRC 43, 51 (1994), quoting Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C. Cir. 1980).

The reasonable specificity standard of contention pleading requires that an intervenor include a statement of the reason for his contention that either alleges that an applicant is not complying with a specified regulation, or alleges the existence and detail of a substantial safety issue on which the regulations are silent (a regulatory gap). Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-82-106, 16 NRC 1649, 1655-56 (1982); Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication Facility 66 NRC 169, 207, LBP-07-14 (2007) (The current existence of the uncertainty about the safety analysis of the system for liquid waste handling, referred to above, provides a sufficient basis to support the proffered contentions, given the other support the Petitioners have mustered.).

Joint Petitioners have here articulated a contention based on the fact of uncertainty of regulation, a regulatory gap contention, because a reasonably prudent person, accepting the facts as alleged, would be concerned. Public Service Co. at 1655 fn. 5. Joint Petitioners have stated a contention of omission (i.e., lack of regulatory certainty) that is worthy of admission until there is a precise regulatory determination of the TAD canisters design, where repackaging is to occur, and the means of that repackaging. At that point, there will be significant additional facts that may or may not fuel additional litigation over the adequacy of NEPA or Atomic Energy Act compliance.

B. Reply as to LLRW waste volume The NRC Staff accuses Joint Petitioners of unsupported speculation for their asserted disagreement with the applicants estimates and for fail[ing] to show how the greater volume would be sufficiently environmentally significant to be material to the NRC.

ISP/WCS postulates a need for nearly $1 billion worth of concrete for above-ground storage of 40,000 MTU of spent nuclear fuel. Joint Petitioners provided calculations suggesting a 100-to-200-fold difference in resulting volume of possible LLRW between official estimates and those rooted in west Texas reality. To Petitioners concrete calculations about concrete, they added other unquantified but weighty considerations, such as thousands of discarded, irradiated canisters, an irradiated DTS facility, and along with those observations, an expert witness opinion that the cost considerations of unacknowledged and unquantified canister repackaging would pose commensurately far greater LLRW disposition expense. See Petition to Intervene at 70-74.

This is what the Staff considers to be unsupported speculation. The Staffs principal rebuttal of factual calculations and specific allegations was to maintain that the NRCs GEIS finding was that the insufficient analysis there drove an official conclusion that the environmental impacts would be small. The Continued Storage GEISs conclusion that post-operational environmental effects of LLRW will be small has no bearing on the creation of the mountains of low-level waste that will be generated during CISF operations and decommissioning. The Continued Storage GEIS does not alter any requirements to consider the environmental impacts of spent fuel storage during the term of a reactor operating license or combined license, or a license for an ISFSI in a licensing proceeding. 10 C.F.R. § 51.23( c).

The Joint Petitioners specific environmental concerns must therefore be addressed under other NEPA regulations, such as 10 C.F.R. § 51.45. Contention 4 is fact-specific, site-specific, and period-specific, and should be admitted for adjudication.

Contention 5: ISP Has Not Performed an Environmental Justice Investigation of Transportation Communities; the ISP CISF Will Cause Disparate Impacts From Routine and Non-Routine Transportation-Related Radiation Exposures Upon Minority and Low-Income Populations Along Hundreds Of Miles of Transportation Corridors Joint Petitioners argued earlier in this Reply, supra, that WCS circumscribed ER (Transportation of the spent nuclear fuel shipping casks from the originating commercial nuclear reactor to the CISF... is not part of this License Application) is a binding judicial admission that may be treated as conclusive against ISP/WCS. In its addressing Environmental Justice concerns, moreover, ISP/WCS also tightly circumscribed the geographic area of concern to a four-mile radius of the existing WCS facility in west Texas. ER § 4.11, p. 4-54. Without a hint of irony, the NRC Staff excoriates Joint Petitioners for failing to controvert the single paragraph ISP/WCS dedicated to the discussion of Environmental Justice concerns, and for not asserting that the application omits to address a relevant issue.

Petitioners instead urged that the WCS CISF project has been segmented to exclude transportation concerns, including the serious issues of Environmental Justice (EJ) as they affect literally millions of people along the thousands of miles of rail, highway and barge routes over which 40,000 MTU of spent nuclear fuel will travel en route to west Texas. Petitioners submitted a 20-page argument supported by the declarations of three Native Americans (one of whom is also a Mexican-American) and by an African-American from Albuquerque, western New Mexico, El Paso and Houston respectively. These declarants are representatives of the EJ communities which are likely to be disproportionately exposed to the risks and negatives of living, working and recreating within a close distance to SNF transport corridors.

Besides raising anew, and opposing, ISP/WCSs unlawful act of segmentation, the Joint Petitioners explained the applicability of Executive Order 12898, Council on Environmental Quality authority for EJ, the NRCs own protocols for analyzing anticipated effects of proposed projects on EJ populations and the U.S. Environmental Protection Agencys Promising Practices guidance, which the USEPA advised the NRC to consider when it filed scoping comments. The NRC has previously demonstrated its lack of concern for EJ in its approval some years ago of the URENCO (Uranium Enrichment Corporation) just over the state boundary in Eunice, New Mexico, immediately adjacent to WCS. The ISP/WCS CISF, and the Holtec CISF proposed for construction about 40 miles away, add to the existing EJ transgressions, with NRC as well as DOE (WIPP) blessings.

The NRC Staff concedes Joint Petitioners point that perhaps 218,000,000 Americans live within 50 miles of a transportation artery or corridor likely to be used to transport SNF to west Texas, but adheres to the position that the scope of the project remains strictly the WCS site in Andrews County. But the project as defined by the NRC in Texas is the sole reason for a 20-year transportation campaign which will dispatch inherently-dangerous radioactive waste along millions of rail miles. The scope of the project is national; it is not the equivalent of a glorified zoning case about land use in Andrews County. The WCS CISF would comprise more than half the volume of the Yucca Mountain proposal. The transportation risks associated with Yucca have proven to be a national controversy. The WCS project requires perfect execution through every step and phase, including each transport of SNF to west Texas.

ISP/WCS argues at length, at first, that it is impossible to know what routes, especially rail, will be used years, even decades from now for the transport of SNF, and that although the data is available about present population circumstances along transport corridors, actual routing decisions will not be made for a long time and that demographic and geographic changes will occur. Thats true, but in other parts of its Answer, WCS insists that the EIS must be compiled now with whatever information is at hand. It seems that the Joint Petitioners are too early or too late, and never on time. One relatively unchanging aspect of the WCS CISF, however, is that there are not likely to be many new trunk rail lines or major highways built in the coming decades, so it is implausible to the Petitioners that EJ concerns cannot be addressed now, contemporaneously with other NEPA obligations, such as reversing the segmentation of transportation from the CISF undertaking.

The WCS Environmental Report does not include (indeed, it specifically separates) the two connected actions, i.e., the ISP/WCS facility and the massive transportation undertaking which is essential to its success. Separate actions are connected if, among other things, they

[c]annot or will not proceed unless other actions are taken previously or simultaneously, or they [a]re interdependent parts of a larger action and depend on the larger action for their justification. 40 C.F.R. § 1508.25(a)(1)(ii) and (iii). Under NEPA, connected actions are those that lack independent utility. See Socy Hill Towers Owners Assn v. Rendell, 210 F.3d 168, 181 (3d Cir. 2000). Projects have independent utility where each project would have taken place in the other's absence. Webster v. U.S. Dep't of Agric., 685 F.3d 411, 426 (4th Cir. 2012).

Projects lack independent utility when it would be irrational, or at least unwise, to build one without the other. Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974). In Thomas v.

Peterson, 753 F.2d 754, 758 (9th Cir. 1985), the court pointed out that the timber sales cannot proceed without the road, and the road would not be built but for the contemplated timber sales.

The failure to include all connected actions within the scope of the proposed action is referred to as segmentation or piecemealing, which occurs when an action is divided into component parts, each involving action with less significant environmental effects. Town of Huntington v. Marsh, 859 F.2d 1134, 1142 (2d Cir. 1988) (citing City of W. Chicago v. NRC, 701 F.2d 632, 650 (7th Cir. 1983)). Segmentation is to be avoided in order to insure that interrelated projects[,] the overall effect of which is environmentally significant, not be fractionalized into smaller, less significant actions. Id. The rule against segmentation is to prevent agencies from dividing one project into multiple individual actions each of which individually has an insignificant environmental impact, but which collectively have a substantial impact. NRDC v. Hodel, 865 F.2d 288, 297 (D.C. Cir. 1988) (internal quotation marks omitted).

Where an agency attempts to consider related actions separately by segmenting the mandated unified review into multiple independent analyses that insulate each project from the impacts created by its sister projects, it fails to address the true scope and impact of the activities that should be under consideration and therefore runs afoul of NEPA. Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014).

The NRC Staff improperly elevates the Commissions guidance document, NUREG-1748, that advises a four-mile radius around a project, to the status of a regulation, even as it decries Joint Petitioners arguments that the larger statutory framework of NEPA requires a national scope for the national SNF waste projects. But NUREGs and regulatory guides, by their very nature, serve merely as guidance and cannot prescribe legal requirements. Curators of University of Missouri, CLI-95-1, 41 NRC 71, 98, 100 (1995). See also Duke Energy Corp.

(Catawba Nuclear Station, Units 1 & 2), CLI-04-29, 60 NRC 417, 424 (2004), reconsid. denied, CLI-04-37, 60 NRC 646 (2004) (Guidance documents are, by nature, only advisory. They need not apply in all situations and do not themselves impose legal requirements on licensees.). The Staffs arguments are thus not grounded on binding legal authority-and here, the NRCs very limiting interpretation of its Environmental Justice responsibility is arbitrary and irrational.

An agencys narrowed construction of its statutory authority, as distinct from an express prohibition by Congress, may not be used to limit the agencys obligations under NEPA. Detroit Edison Company (Fermi Nuclear Power Plant, Unit 3), 80 NRC 15, 50, LBP-14-09 (2014), citing Ctr. for Biological Diversity v. Natl Highway Traffic Safety Admin., 538 F.3d 1172, 1213 (9th Cir. 2008); Sierra Club v. Mainella, 459 F.Supp.2d 76, 105 (D.D.C. 2006) (distinguishing agency NEPA responsibilities in situations where an agency has no ability because of lack of statutory authority to address the impact from situations where an agency is only constrained by its own regulation from considering impacts). NEPAs legislative history reflects Congresss concern that agencies might attempt to avoid any compliance with NEPA by narrowly construing other statutory directives to create a conflict with NEPA. Section 102(2) of NEPA therefore requires government agencies to comply to the fullest extent possible. Ctr. for Biological Diversity, 538 F.3d at 1213 (quoting Forelaws on Bd. v. Johnson, 743 F.2d 677, 683 (9th Cir.1985)). See also Flint Ridge Dev. Co. v. Scenic Rivers Assn of Okla., 426 U.S. 776, 787 (1976) (quoting House and Senate Conferees, who inserted the fullest extent possible language into NEPA, to say that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance). The Supreme Court has explained that this statutory directive was neither accidental nor hyperbolic. Flint Ridge Dev. Co., 426 U.S. at 787.

Thus, courts have held that NEPA obligations supplement existing statutory authority and must be complied with to the fullest extent, unless there is a clear conflict of statutory authority. Calvert Cliffs Coordinating Comm., Inc. v. Atomic Energy Commn, 449 F.2d 1109, 1115 (D.C. Cir. 1971). In short, absent clear conflict, an agency cannot interpret its way out of its NEPA responsibilities. Detroit Edison Company (Fermi Nuclear Power Plant, Unit 3), 80 NRC 15, 50, LBP-14-09 (2014).

Multiple projects are often deemed connected actions despite being undertaken by separate entities. See, e.g., Hammond v. Norton, 370 F.Supp.2d 226, 247-53 (D.D.C. 2005)

(ruling that the Bureau of Land Management improperly segmented consideration of two pipeline projects being constructed by two separate companies despite evidence that they lacked independent utility and thus qualified as connected actions); Natural Res. Def. Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) (rejecting as inadequate an FEIS that failed to consider the cumulative impacts on migratory species caused by multiple outer-continental lease sales in the California and Alaska regions). Moreover, projects undertaken by separate entities may still be considered connected actions even in the absence of formal agreement between the parties. See Hammond, 370 F.Supp.2d at 245, 251 (making clear that a determination that actions are connected does not rest upon formal agreement between the entities undertaking the actions, and noting EPAs argument that CEQ does not require a formal agreement in order for two projects to be defined as connected actions). NEPA mandates a case-by-case balancing judgment on the part of federal agencies, not the private parties seeking federal action. Calvert Cliffs, 449 F.2d at 1123.

Despite its opposition to an Environmental Justice contention that takes a national scope, the NRC Staffs arguments rest on a foundation of sand. The ASLB cannot simply ignore the massive generation-length transportation campaign of 3,000 (or perhaps thousands more) cargoes of SNF bound for west Texas as an indispensable component of the overall ISP/WCS CISF project. And it cannot ignore the EJ considerations of such a diverse and protracted undertaking.

This contention must be admitted for trial.

Contention 6: Inadequate Disclosure of Oil and Gas Drilling Activity Beneath the WCS CISF Site The NRC Staff argues that Since the SAR does in fact take into account induced seismicity, and the Joint Petitioners fail to controvert that discussion, the potential for induced seismicity cannot form a basis for their claim that fracking or waste well activity have not been sufficiently discussed. Accordingly, Joint Petitioners have failed to establish in what way their arguments regarding the potential for fracking or waste well activity beneath the site dispute the application or are otherwise material to the findings the NRC must make. NRC Answer at 45.

While admittedly induced seismicity is discussed in the ER, it takes the form of a current snapshot. Cumulative prospective, intensified drilling activity and injection waste disposal in the immediate vicinity of WCS are not addressed. The operating assumption, unsupported by any predictive evidence (in the most prolific shale field on the continent and in the midst of a huge and rapidly-expanding oil and gas boom) appears to be that there will not be ongoing expansion of drilling activity, but at the same time, there is no prediction of reduced drilling activity. Given that it may be 5 to 10 or more years before SNF is delivered to WCS, there must be an accounting of prospective drilling trends and density in the immediate region of the CISF.

Contention 7: Disqualifying Foreign Ownership of Interim Storage Partners Joint Petitioners disagree with the NRC Staffs position that the ISP/WCS CISF is not a utilization facility and thus not covered by the foreign ownership prohibitions of 42 U.S.C. §§ 2133 and 2134. A utilization facility is defined Section 11 of the Atomic Energy Act as (1) any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense or security, or in such manner as to affect the health and safety of the public...

. 42 U.S.C. § 2014cc(1).

At 10 C.F.R. § 72.3, the Commission has defined structures, systems, and components important to safety as those features of the ISFSI, MRS, and spent fuel storage cask whose functions are... (3) To provide reasonable assurance that spent fuel, high-level radioactive waste, or reactor-related GTCC waste can be received, handled, packaged, stored, and retrieved without undue risk to the health and safety of the public. That is evidence that the Commission, by rule, has determined the equipment under 10 C.F.R. Part 72 to be capable of making use of special nuclear material in such quantity... as to affect the health and safety of the public.

There are other public health and safety considerations embodied in the Commissions Part 72 rules, such as in 10 C.F.R. § 72.24, which specifies what must be included in a Part 72 application:

Each application for a license under this part must include a Safety Analysis Report describing the proposed ISFSI or MRS for the receipt, handling, packaging, and storage of spent fuel, high-level radioactive waste, and/or reactor-related GTCC waste as appropriate, including how the ISFSI or MRS will be operated. The minimum information to be included in this report must consist of the following:

(a) A description and safety assessment of the site on which the ISFSI or MRS is to be located, with appropriate attention to the design bases for external events. Such assessment must contain an analysis and evaluation of the major structures, systems, and components of the ISFSI or MRS that bear on the suitability of the site when the ISFSI or MRS is operated at its design capacity. If the proposed ISFSI or MRS is to be located on the site of a nuclear power plant or other licensed facility, the potential interactions between the ISFSI or MRS and such other facility--including shared common utilities and services--must be evaluated.

(b) A description and discussion of the ISFSI or MRS structures with special attention to design and operating characteristics, unusual or novel design features, and principal safety considerations.

( c) The design of the ISFSI or MRS in sufficient detail to support the findings in

§ 72.40 for the term requested in the application, including:

(1) The design criteria for the ISFSI or MRS pursuant to subpart F of this part, with identification and justification for any additions to or departures from the general design criteria; (2) the design bases and the relation of the design bases to the design criteria; (3) Information relative to materials of construction, general arrangement, dimensions of principal structures, and descriptions of all structures, systems, and components important to safety, in sufficient detail to support a finding that the ISFSI or MRS will satisfy the design bases with an adequate margin for safety; and (4) Applicable codes and standards.

(d) An analysis and evaluation of the design and performance of structures, systems, and components important to safety, with the objective of assessing the impact on public health and safety resulting from operation of the ISFSI or MRS and including determination of:

(1) The margins of safety during normal operations and expected operational occurrences during the life of the ISFSI or MRS; and (2) The adequacy of structures, systems, and components provided for the prevention of accidents and the mitigation of the consequences of accidents, including natural and manmade phenomena and events.

(e) The means for controlling and limiting occupational radiation exposures within the limits given in part 20 of this chapter, and for meeting the objective of maintaining exposures as low as is reasonably achievable.

(f) The features of ISFSI or MRS design and operating modes to reduce to the extent practicable radioactive waste volumes generated at the installation.

(g) An identification and justification for the selection of those subjects that will be probable license conditions and technical specifications. These subjects must cover the design, construction, preoperational testing, operation, and decommissioning of the ISFSI or MRS.

(h) A plan for the conduct of operations, including the planned managerial and administrative controls system, and the applicant's organization, and program for training of personnel pursuant to subpart I.

(I) If the proposed ISFSI or MRS incorporates structures, systems, or components important to safety whose functional adequacy or reliability have not been demonstrated by prior use for that purpose or cannot be demonstrated by reference to performance data in related applications or to widely accepted engineering principles, an identification of these structures, systems, or components along with a schedule showing how safety questions will be resolved prior to the initial receipt of spent fuel, high-level radioactive waste, and/or reactor-related GTCC waste as appropriate for storage at the ISFSI or MRS.

(j) The technical qualifications of the applicant to engage in the proposed activities, as required by § 72.28.

(k) A description of the applicant's plans for coping with emergencies, as required by § 72.32.

(l) A description of the equipment to be installed to maintain control over radioactive materials in gaseous and liquid effluents produced during normal operations and expected operational occurrences. The description must identify the design objectives and the means to be used for keeping levels of radioactive material in effluents to the environment as low as is reasonably achievable and within the exposure limits stated in § 72.104. The description must include:

(1) An estimate of the quantity of each of the principal radionuclides expected to be released annually to the environment in liquid and gaseous effluents produced during normal ISFSI or MRS operations; (2) A description of the equipment and processes used in radioactive waste systems; and (3) A general description of the provisions for packaging, storage, and disposal of solid wastes containing radioactive materials resulting from treatment of gaseous and liquid effluents and from other sources.

(m) An analysis of the potential dose equivalent or committed dose equivalent to an individual outside the controlled area from accidents or natural phenomena events that result in the release of radioactive material to the environment or direct radiation from the ISFSI or MRS. The calculations of individual dose equivalent or committed dose equivalent must be performed for direct exposure, inhalation, and ingestion occurring as a result of the postulated design basis event.

(n) A description of the quality assurance program that satisfies the requirements of subpart G to be applied to the design, fabrication, construction, testing, operation, modification, and decommissioning of the structures, systems, and components of the ISFSI or MRS important to safety. The description must identify the structures, systems, and components important to safety. The program must also apply to managerial and administrative controls used to ensure safe operation of the ISFSI or MRS.

(o) A description of the detailed security measures for physical protection, including design features and the plans required by subpart H. For an application from DOE for an ISFSI or MRS, DOE will provide a description of the physical protection plan for protection against radiological sabotage as required by subpart H.

(p) A description of the program covering preoperational testing and initial operations.

(q) A description of the decommissioning plan required under § 72.30.

(Emphasis added).

Further, 10 C.F.R. § 72.30(a) provides that Each application under this part must include a proposed decommissioning plan that contains sufficient information on proposed practices and procedures for the decontamination of the site and facilities and for disposal of residual radioactive materials after all spent fuel, high-level radioactive waste, and reactor-related GTCC waste have been removed, in order to provide reasonable assurance that the decontamination and decommissioning of the ISFSI or MRS at the end of its useful life will provide adequate protection to the health and safety of the public.

(Emphasis added). And 10 C.F.R. § 72.32(d) allows [a] licensee with a license issued under this part to take reasonable action that departs from a license condition or a technical specification (contained in a license issued under this part) in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent. (Emphasis added).

In addition, 10 C.F.R. § 72.40 authorizes the Commission to issue a license under Part 72 upon finding, among other things, that this part upon a determination that the application for a license meets the standards and requirements of the Act and the regulations of the Commission, and upon finding that:

(10) Except for DOE, the applicant's decommissioning plan and its financing pursuant to § 72.30 provide reasonable assurance that the decontamination and decommissioning of the ISFSI or MRS at the end of its useful life will provide adequate protection to the health and safety of the public;... [and]...

(13) There is reasonable assurance that: (I) The activities authorized by the license can be conducted without endangering the health and safety of the public and (ii) these activities will be conducted in compliance with the applicable regulations of this chapter.

Joint Petitioners submit that Part 72 ISFSI facilities are utilization facilities within the meaning of the Atomic Energy Act and that accordingly, the statutory prohibitions against foreign ownership apply.

Contention 8: The Discussion of Alternatives to the Proposed Project Is Inadequate Under NEPA While conceding that the Joint Petitioners have proposed distinct alternatives to the CISF as proposed by ISP/WCS, the NRC Staff proceeds to insist that the Petitioners essentially litigate as if on summary disposition at this point. The Staff admits:

Joint Petitioners proffer five alternatives that the ER allegedly failed to consider, including: (1) the establishment of a Dry Transfer System (DTS), or equivalent, to repackage SNF at the ISP site; (2) modification of the ISP Emergency Response Plan to include preparations for emissions mitigation; (3) modification of the ISP design to prevent malevolent acts; (4) federal control of the ISP facility; and (5) implementation of HOSS at reactor sites. However, Joint Petitioners make absolutely no effort to describe why these alternatives are feasible and/or would align with the purpose of the proposed CISF. Further, regarding the construction of a DTS facility, Joint Petitioners fail to discuss how the ability to repackage fuel at the ISP sitesomething the license application specifically states would not be requiredwould serve as an alternative to the proposed CISF.

NRC Staff Answer at 52. But the Staffs reflexive defense of the ISP/WCS application ignores that the evaluation of alternatives mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals. Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986)); also, Sierra Club v. Marsh, 714 F.Supp. 539, 577 (D.Me. 1989). Nor has the Staff shown that the alternatives proposed by Joint Petitioners are unreasonable. See DuBois v.

U.S. Dept. of Agric., 102 F.3d 1273, 1287 (1st Cir. 1996), cert. denied, 117 S.Ct. 1567 (1997)

(existence of a reasonable, but unexamined, alternative renders the EIS inadequate). Petitioners proposed, unconsidered alternatives are constructive. They point out that WCS has not discussed the alternative of the CISF with a dry transfer system (DTS). They suggest modification of the sites Emergency Response Plan to include preparations for radioactive emissions mitigation, something ISP/WCS apparently refuses to do because of a misplaced belief in the infallibility of technology and personnel for 100 years, or even longer. Petitioners suggest modifications of the ISFSI design to make the SNF storage arrangements more resistant to attack, accident and sabotage, as well as degradation and leakage. They point out that the alternative of ownership, design, and control of the facility by the Federal government has not been addressed. And they propose HOSS.

The agencys duty under NEPA is to study all alternatives that appear reasonable and appropriate for study at the time of drafting the EIS, as well as significant alternatives suggested by other agencies or the public during the comment period. Roosevelt Campobello Intl Park Commn v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982). If an alternative does not involve protracted debate and litigation and is meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed, it is logically a reasonable alternative. Carolina Envtl. Study Grp. v. U.S., 510 F.2d 796, 801 (D.C. Cir. 1975).

The Staff apparently cannot fathom how the ability to repackage fuel at the ISP site would serve as an alternative to the current proposal, even though the ISP/WCS license application specifically rejects the option. NRC Staff Answer at 52. Nor can the Staff grasp what difference the consideration of HOSS would make as an enhancement to the no-action alternative. Id. The Staff consistently misunderstands these principles of contention pleading.

In pleading for the admission of a contention, an intervenor is not required to prove the contention, but must only allege some credible foundation for it. Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-880, 26 NRC 449, 457 (1987),

remanded, Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988); Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), LBP-01-21, 54 NRC 33, 47-48 (2001). Intervenors are not obliged to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention at the outset. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004). The AEA does not require a petitioner to support its claims in formal evidentiary form, or provide support as strong as that necessary to withstand a summary disposition motion. Gulf States Utilities Co., 40 N.R.C. 43, 51 (1994). It requires only a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. Id. (internal citations omitted). Because at its essence, an acceptable contention need only be specific and have a basis, the standard for admitting a contention is not meant to be equivalent to the standard of evidence at a trial on the merits; the truth or falsity of the contention is reserved for adjudication.

Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n. 5 (1983).

The opposition raised by both the NRC Staff and ISP/WCS is in the form of argumentation about the comparative merits of the alternatives. The ASLB, however, 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). 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). While the NRC Staff and ISP/WCS treat the standard of admissibility as proof sufficient to withstand summary disposition, Joint Petitioners remain hopeful that the ASLB is capable of discerning whether the actual contention requirements have been met.

Here, Petitioners suggested alternatives are reasonable. They propose unconsidered variations of the CISF proposal or, in the instance of HOSS, implicate not building the CISF at all. None are enumerated in the ER. Because they are constructive and nowhere near as controversial as the Staff would make them seem, a contention expanding the currently-poor range of alternatives proposed in the ER is in order, to ensure that the NEPA hard look takes place.

Contention 9: ISP Misrepresents the Financial Benefits to the Federal Government From Opening and Operating a CISF The NRC Staff undertakes to explain away ISP/WCSs one-sided depiction of the supposed economic advantages of having the ISP/WCS CISF with an inexplicable listing of the expenses of operating the CISF for 40 years appearing as ER Table 7.4-2, p. 7-31. Table 7.4-1, p.

7-30, supposedly represents the avoidance of reimbursements to utilities for storing spent fuel and return of all nuclear reactor brownfields to greenfield repurposes, even though ISP/WCSs proposal suggests that it will strand some of the SNF canisters at reactor sites and will not consolidate 100% of the SNF at its facility. In Table 7.4-2, ISP/WCS portrays a clutch of vague and unexplained expenses, including transportation infrastructure, Other: transportation, license fees, and Fuel Storage Facility. By subtracting the Table 7.4-2 total from the Table 7.4-1 total, a $1.6 billion benefit will supposedly be realized.

But Table 7.4-1 assumes that all Federal reimbursements to utilities will cease in Year 1 of the 20-year transportation phase of the project; they wont. Table 7.4-1assumes that 100% of the reactor site brownfields will be converted to greenfield usage, apparently without any serious or unexpected remediation, without the need for storing SNF canisters awaiting shipment to Texas for 60 years, and evidently without stranding any canisters at reactor sites because of damage, leakage or contamination problems with high-burnup fuel. Table 7.4-2 likely assumes (since there is no explanation) that there will be zero ISP/WCS site accidents, no undue contamination, no need for a DTS system for unloading/reloading purposes into TAD canisters throughout the first century of operations, all in accordance with its chimerical belief that operations will proceed flawlessly under a start clean, stay clean regime for decades on end. It is not evident from ISP/WCSs presentation in the ER whether the gross underestimation of the volume of low-level radioactive waste, discussed supra, involving 100,000 cubic yards more concrete than estimated, and hundreds or thousands of discarded SNF canisters as LLRW, are reflected anywhere in the costs.

In their initial Petition to Intervene, Joint Petitioners proffered the declaration testimony of their expert, Robert Alvarez, who projected large and growing costs of repackaging at a centralized storage site. Using the Columbia Generating Station as a representative example of a nuclear power plant that one day will need to transport its spent nuclear fuel to a consolidation site, he estimated the expense of moving SNF into canisters to be moved could involve cutting open 120 dry casks and repacking approximately 8,160 spent fuel assemblies into casks suitable for disposal at additional costs of from $272 million to $915 million--for only a single reactor in the U.S. fleet.

ISP/WCS relies on flawed assumptions, to the extent they are even explained, and the corporations simplistic and largely unrevealed accounting contradicts NEPA requirements for cost-benefit analyses. ISP/WCSs cost-benefit comparison does not include consideration of the economic, technical, and other benefits and costs of the alternatives to the WCS facility, as well as the proposed action. It does not address the scenario, for instance, of Federal governmental payments to ISP/WCS at the same time as Federal reimbursements to reactor site owners for storage rolls on for 20 years.

As for the relevance of the alleged cost-benefit comparison offered up by ISP/WCS,

[I]t is essential that the EIS not be based on misleading economic assumptions. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446, 448 (4th Cir.1996) (inflated estimate of recreation benefits versus adverse environmental effects). Moreover, misleading information about economic impacts can defeat the hard look function an EIS must fulfill.

South Louisiana Environmental Council v. Sand, 629 F.2d 1005 (5th Cir.1980).

The Staff haggles over factual disputes by accusing Joint Petitioners of lacking a specific basis for contentions. If a party believes that it can readily disprove a contention admissible on its face, the proper course is to move for summary disposition following its admission, not to assert a lack of specific basis at the pleading stage. Carolina Power & Light Co. and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant, Units 1 & 2), LBP 119A, 16 NRC 2069, 2070-2071 (1982).

Contention 10: The Predicted Lengths of the Period of Operation of the CISF Warrants Scrutiny Under NEPA of Storage Exceeding 100 Years There is a basic law of nuclear waste often overlooked - all waste remains where it is first put, then-Governor Richard Wilson Riley skeptically commented about the Savannah 8

River Site. Joint Petitioners share his faithless perspective, and question whether WCS is not, in fact, going to become a permanent dump, abandoned a century or two out by a decreasingly functional society.

The NRC Staff cites 10 C.F.R. § 51.23(b) as a bar to consideration of environmental effects beyond the term of the NRC license. However, it has not been established what the exact term of the license will be. If there is no final SNF repository selected and open at the end of the license period at ISP/WCS, is abandonment the corporations intention? ISP/WCS mentions an extended operating period of 60 years, but is vague on management arrangements if the CISF lifetime were extended indefinitely. See ER § 8.4, p. 8-2. If ISP/WCS management activity continues beyond 60 years, the Continued Storage GEIS will not be applicable during that period.

Then-Governor Richard Wilson Riley of South Carolina, 1982 (Cited from the findings of the 8

Minnesota administrative law Judge Klein, April 10, 1992, regarding dry cask storage at Prairie Island, MN).

Before the Continued Storage GEIS rule can be invoked, a decision must be made as to whether there will be long-term and/or indefinite management plans, viz., whether regulated, licensed activity will continue beyond the 60 years short-term terminus. De facto conversion of the CISF into the final repository for 1,000,000 years is a potential cumulative effect of its operation as a CISF.

The D.C. Circuit Court of Appeals in the past repudiated a mere 10,000-year compliance period for the proposed Yucca Mountain permanent geological repository which had been set by the U.S. Environmental Protection Agency. The National Academy of Sciences, instructed by Congress by the 1992 Energy Policy Act to advise the U.S. Environmental Protection Agency, had recommended that compliance assessment is feasible for most physical and geologic aspects of repository performance on the time scale of the long-term stability of the fundamental geologic regime - a time scale that is on the order of [one million] years at Yucca Mountain.

NAS predicted that humans may not face peak radiation risks until tens to hundreds of thousands of years after disposal, or even farther into the future. So the court of appeals vacated the USEPA conclusion. Nuclear Energy Institute, Inc. v. Environmental Protection Agency, 373 F.3d 1251, 1257 (D.C. Cir. 2004). There is no provision for oversight of SNF at ISP/WCS beyond 60 years, whether or not there is a final repository somewhere. This is one of the pressing questions of the age; the existence of the Continued Storage Rule and its GEIS must not be allowed to foreclose investigation and consideration of the possibility that the WCS CISF might become Americas de facto permanent SNF/GTCC waste repository.

Contention 11: Having No Dry Transfer System And No Radioactive Emissions Mitigation Plan For ISPs CISF Are Impermissible Omissions Under the AEA And Must Be Addressed Under NEPA In the midst of considerable uncertainty over major policy determinations with direct implications for the design and operations of the CISF, the NRC Staff reassuringly pulls all the legal subterfuges to halt challenges to the plans irrationality. While no battle plan survives contact with the enemy, ISP/WCSs business plan, by contrast, replete with invocations of the Continued Storage Rule and charges of speculation, is designed to transcend whirlpools of uncertainty and cascades of imperfection.

The problem for the public--albeit apparently not for ISP/WCS--is that the tentative, nonfinal posture of the DOEs canister repackaging policy is a fact. It is not at all clear what the dimensions, even the engineered profiles, of repository storage canisters will have, nor even the size and shape of the repository caverns themselves. The dozen closed reactor sites examined by ISP/WCS for its hazard bounding analysis have no capability of repackaging, a troublesome fact, requiring, as a matter of fact, a dry transfer system or some other extensive technological infrastructure to counter the fact that repackaging is dangerous. This is admitted in the Continued Storage GEIS. None of the current storage or transport canisters have been reopened once loaded-a fact deftly omitted from the Staffs legal laser show. The lack of complete information on the high-burnup fuel and want of better understanding of the physics related to it are facts left unaddressed in this take-no-prisoners contest. Instead of acknowledging these facts, the Staff chastise the Joint Petitioners, incorrectly, for appear[ing] to assume that containers that are being shipped would fail to meet Part 71 transportation requirements and result in significant consequences to the public. NRC Staff Answer at 59. The Petitioners actually have suggested that unforeseen mishaps might befall SNF cargoes en route to west Texas, after they leave the reactor sites, and that ISP/WCS could well be confronted with the decision of what to do with a damaged load that must either be returned to a cleared, vacant site without remediation equipment, or proceed on to a CISF with no means of addressing the hazards. It is a fact that ISP/WCS intends to have no provisions for radioactive emissions mitigation in its Emergency Response Plan-and a legitimate inference from that fact is that the applicant oddly refuses to address a contingency that is very relevant to protection of workers, public health and safety, and the environment.

The Staffs incantation of 10 C.F.R. § 71.47 as a strict standard regulating radioactive contamination of SNF shipments is rather a misleading panacea. While 10 C.F.R. § 71.47(a) provides external radiation standards for all packages and specifically allows a degree of radiation on the external surface of the package during transportation, this radiation limit is not absolute and can be exceeded if certain additional conditions are met. 10 C.F.R. § 71.47(b).

9 Moreover, ISP/WCS does not mention the regulation in the Environmental Report nor how 10 C.F.R.§ 71.47 will work as a component of its business plan. The regulation is mentioned only once in the ER for containing the maximum dose rate allowed for exclusive use shipments under NRC regulations (10 CFR 71.47 (b) (3)) [0.1 mSv per hour at 2 meters from the outer edge of the transport vehicle]. ER § 4.2.6.1, p. 4-13.

The Joint Petitioners are not speculating. They have described the current state of (b) A package that exceeds the radiation level limits specified in paragraph (a) of this section 9

must be transported by exclusive use shipment only, and the radiation levels for such shipment must not exceed the following during transportation:

(1) 2 mSv/h (200 mrem/h) on the external surface of the package, unless the following conditions are met, in which case the limit is 10 mSv/h (1000 mrem/h):

(I) The shipment is made in a closed transport vehicle; (ii) The package is secured within the vehicle so that its position remains fixed during transportation; and (iii) There are no loading or unloading operations between the beginning and end of the transportation....

vacillation and indecision on important matters of SNF waste transport and storage policy. The NRC Staff has endorsed ISP/WCSs segmentation and other avoidances so that a plan that is not grounded on firm decisions can emerge and be approved. The aim could well be to plow through the public participation phase of planning to the end of securing a license, and nonpublicly working out the multitude of dangerous details in private with the NRC (or to not work them out at all). Regardless, it falls to the ASLB to take cognizance of the facts of incompletion and uncertainty, and admit contentions addressing them.

Contention 12: ISP/WCS Is Disqualified From And/Or Has Waived Applicability Of The Continued Storage Generic Environmental Impact Statement To the Licensing Review The NRC Staff would invoke the Continued Storage GEIS shield to keep a DTS out of the infrastructure at the site for 160 years, a ridiculously long whistle past the graveyard. For advocating that a DTS system must be incorporated into the ISP/WCS CISF plan within the short term, 60-year period, instead of waiting an additional century, the Joint Petitioners are branded as rule-challenging heretics.

The NRC Staff seems to hold for the position that the Continued Storage GEIS is an insurmountable barrier forbidding the requirement of ISP/WCS to construct a DTS during the short-term period of operations instead of at the end of 160 years. Joint Petitioners argue, by contrast, that the GEIS amounts, at most, to a rebuttable presumption against a DTS. Setting aside the odds question (assumption of 100% perfect CISF operations for 160 years), the regulatory state-of-the-art in 2018 compels a DTS to mitigate the environmental impacts of spent fuel storage during the term of... a license for an ISFSI in a licensing proceeding. 10 C.F.R. § 51.23( c). It is pretty certain that there will be a dramatic need to repackage the SNF into disposal canisters. The repackaging effort cannot be done at a dozen closed, cleared reactor sites, so arrangements either will be made offsite to accomplish the move of SNF from current storage canisters and casks at those sites to the repository canisters, or to do so at the CISF. If the CISF is needed for long-term or indefinite use, there will still be the need to swap out the canisters (a regulated, licensed activity).

The reasonable specificity standard of contention pleading requires that an intervenor include a statement of the reason for his contention that either alleges that an applicant is not complying with a specified regulation, or alleges the existence and detail of a substantial safety issue on which the regulations are silent (a regulatory gap). Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-82-106, 16 NRC 1649, 1655-56 (1982); Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication Facility 66 NRC 169, 207, LBP-07-14 (2007) (The current existence of the uncertainty about the safety analysis of the system for liquid waste handling, referred to above, provides a sufficient basis to support the proffered contentions, given the other support the Petitioners have mustered.). Joint Petitioners assert that the fact of uncertainty of regulation, a regulatory gap contention, exists, because a reasonably prudent person, accepting the facts as alleged, would be concerned. Public Service Co. at 1655 fn. 5. At a minimum, Joint Petitioners have articulated a contention of omission (i.e., lack of regulatory certainty) that is worthy of admission until there is a precise regulatory determination of the TAD canisters design, where repackaging is to occur, and the means of that repackaging.

The Continued Storage GEIS must not be allowed to block consideration of the need for a DTS under these circumstances.

Contention 13: Any Anticipated Nuclear Reprocessing Activity Must Be Disclosed In The EIS And Included in Cumulative Effects Analysis Joint Petitioners stated in their initial filing pleading that in 2008 DOE published a Draft Global Nuclear Energy Partnership Programmatic Environmental Impact Statement (GNEP PEIS; DOE/EIS-0396), in which it expressed a preference for reprocessing of spent nuclear fuel under U.S. auspices, as a supposed nonproliferation policy. GNEP proposed to institute a framework for nuclear fuel services in order to dispense with each individual countrys need to develop its own enrichment or reprocessing facilities. GNEP PEIS p. I-3.

Now, the publics success in squelching reprocessing plans a decade ago is being cited as the reason to not take prudent steps to ensure that the risks and expense of reprocessing are again exposed and dissected in the ER and DEIS.

During the GNEP era, Areva, the French national nuclear power corporation, actively promoted reprocessing in the U.S. Areva is now Orano, and is the lead partner in development of the Waste Control Specialists proposed CISF. This, alone, supplies strong justification for a no reprocessing provision to be included in a license for the CISF, if the Commission, decides to grant a license.

Contention No. 14: NEPA Requires Significant Security Risk Analyses for the Spent Nuclear Fuel and Greater-Than-Class-C Wastes Proposed for Interim Storage, And Associated Transportation Component, at ISP/WCSs Texas Facility The NRC Staffs reprise of this Contention bears only a distant resemblance to what Joint Petitioners stated and the relief they seek.

Petitioners security expert, James David Ballard, Ph.D., pointed to the contemporary storage nearly five years of Department of Energy waste formerly bound for the Waste Isolation Pilot Project (WIPP), located some 40 miles from WCS in New Mexico. Some of those waste packages overheated in the west Texas sun and at one point, WCS made an ad hoc decision to partially cover them in shadier circumstances, to avoid an ignition threat. Dr. Ballard opined in his report that ISPs proposal suggests plans for additional modifications for waste limits and that the The community near the CISF should expect mission creep as to additional forms of wastes if DOE is involved and additional waste shipment streams must be anticipated. Petition to Intervene at 144.

The Staff urges that the ASLB ignore that, as well as another studied conclusion suggested by Dr. Ballard, that ISP does not address the complexity of, or risks of the range of HIE [human-induced events] in their proposal and that This lack of the ability to perceive systematic risk complexity for a proposed interim storage facility may well underestimate the impacts of a radiological event.... Id. at 145. Dr. Ballard warned that ISP could become vulnerable to liability in the event of a radiological emergency at the storage site, but perhaps also while in-transit wastes are moving towards that destination. Id. He blamed this on what he calls ISPs single variable based risk profile that can fall victim to under-prediction of the possibilities for disaster, failing to consider compounding and cascading events, and exacerbation by human error. Id. Dr. Ballard counseled against risk blindness and warned of the atrophy of vigilance. Id.

These are criticisms of the security posture adopted by ISP/WCS in the ER. Dr. Ballard further critiqued ISP/WCS start clean/stay clean policy-a component of the application-and the unconsidered possibility that the CISF could become a de facto permanent repository for SNF. Earlier in this Reply, supra, Joint Petitioners responded in support of contentions directed at both of these aspects of the WCS proposal.

The Staff resists the suggestion that the ER or SAR must contain added inquiry into the risks of terrorism, sabotage, or vandalism, and has highlighted the legal policy conflict among U.S. circuit courts of appeal as to whether NEPA requires such attention. Considerable SNF reposes at present in the states comprising the Ninth Circuit, where the prevailing NEPA interpretation requires terrorism and sabotage concerns to be addressed in the Environmental Impact Statement. Yet the Staff suggests that hundreds of SNF transport trips to WCS through the Ninth Circuits geographical area need not be analyzed for terrorism or sabotage in the EIS because the project is located in Texas, outside the Ninth Circuit. Despite Petitioners provisions of legal authority that the risks of terrorism and sabotage fall within the coverage of the National Environmental Policy Act (viz., Petition to Intervene at 150-152, ) the NRC Staff 10 insists that the NRC has no such responsibility.

But an agencys narrowed construction of its statutory authority, as distinct from an express prohibition by Congress, may not be used to limit the agencys obligations under NEPA.

Detroit Edison Company (Fermi Nuclear Power Plant, Unit 3), 80 NRC 15, 50, LBP-14-09 (2014), citing Ctr. for Biological Diversity v. Natl Highway Traffic Safety Admin., 538 F.3d 1172, 1213 (9th Cir. 2008); Sierra Club v. Mainella, 459 F.Supp.2d 76, 105 (D.D.C. 2006)

(distinguishing agency NEPA responsibilities in situations where an agency has no ability because of lack of statutory authority to address the impact from situations where an agency is only constrained by its own regulation from considering impacts).

For instance, at p. 150, the argument that the possibility of terrorist attack is not so remote and 10 highly speculative as to be beyond NEPA's requirements. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1032 (9th Cir. 2006): The numeric probability of a specific attack is not required in order to assess likely modes of attack, weapons, and vulnerabilities of a facility, and the possible impact of each of these on the physical environment, including the assessment of various release scenarios.....

And at p. 151, Petitioners assertion that an agency conducting a NEPA process must examine both the probability of a given harm occurring and the consequences of that harm if it does occur, stating that Only if the harm in question is so remote and speculative as to reduce the effective probability of its occurrence to zero may the agency dispense with the consequences portion of the analysis. State of New York v. Nuclear Regulatory Com'n, 681 F.3d 471, 482 (D.C.Cir. 2012).

Joint Petitioners further urged in the Petition to Intervene that the requisite hard look under NEPA consequently embraced the 24 itemized security considerations listed at pp. 153-159. Read in the context of the Commissions obligations under NEPA and the Atomic Energy Act, they are mandatory areas of scrutiny. This contention is legally and factually supported and 11 should be admitted for adjudication.

Contention 15: Adoption of Sierra Club Contentions By Joint Petitioners The NRC Staff does not oppose Joint Petitioners request to adopt Sierra Clubs contentions. WCS views the adoption as grounds for a motion. It is certainly notice to all parties of the intentions of Joint Petitioners to adopt for litigation purposes the Sierra Clubs contentions, once standing is established and contentions admitted.

/s/ Terry J. Lodge Terry J. Lodge, Esq.

316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 205-7084 Tjlodge50@yahoo.com Counsel for Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition and Leona Morgan, Petitioners CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that, on this 17th day of December, 2018, copies of the Combined Reply of Dont Waste Michigan, Citizens Environmental Coalition, (It is the purpose of this Act to effectuate the policies set forth above by providing for-) d. a 11 program to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public.... 42. U.S.C. § 2013(d).

Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition and Leona Morgan to ISP/WCS and NRC Staff Answers was filed in the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding for service via automated distribution to all registered counsel and parties.

/s/ Terry J. Lodge Terry J. Lodge, Esq.

Counsel for Joint Petitioners