ML18361A921
| ML18361A921 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 12/27/2018 |
| From: | Burdick S, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54723 | |
| Download: ML18361A921 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 December 27, 2018 INTERIM STORAGE PARTNERS LLCS MOTION TO STRIKE PORTIONS OF THE REPLY FILED BY SIERRA CLUB I.
INTRODUCTION In accordance with 10 C.F.R. § 2.323(a),1 Interim Storage Partners LLC (ISP) moves to strike portions of the Reply2 filed by Sierra Club (Petitioner) on the above-captioned docket on December 17, 2018 related to its November 13, 2018 Petition to Intervene and Request for an Adjudicatory Hearing (Petition).3 The Petition concerns ISPs pending application for a 40-year specific license under 10 C.F.R. Part 72 to build and operate a Consolidated Interim Storage Facility (CISF) in Andrews County, Texas, referred to as the WCS CISF (the Application).4
1 Pursuant to 10 C.F.R. § 2.323(b), ISP counsel certifies that ISP has made a sincere effort to contact other affected participants in the proceeding and resolve the issues raised in this motion, and ISPs efforts to resolve the issues have been unsuccessful. Petitioner stated that it opposes the motion. The NRC Staff agrees with ISP that new material was raised for the first time in the Reply, such that a motion to strike is appropriate.
2 Sierra Clubs Reply to Answers Filed by Interim Storage Partners and NRC Staff (Dec. 17, 2018)
(ML18351A531).
3 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Nov. 13, 2018)
(ML18317A411).
4 ISP, WCS CISF License Application, Rev. 2 (July 19, 2018) (ML18206A595) (including the Safety Analysis Report, Rev. 2 (SAR) and Environmental Report, Rev. 2 (ER)).
2 The portions of the Reply identified below should be stricken because they impermissibly attempt to cure deficiencies in the original filings and/or introduce new arguments into the proceeding without satisfying the late-filing criteria in 10 C.F.R. § 2.309(c). Those arguments neither legitimately amplify arguments raised in the Petition, nor focus narrowly on the legal or factual arguments raised in the Answers.5 By presenting new information and arguments in its Reply, Petitioner has denied ISP and the U.S. Nuclear Regulatory Commission (NRC) Staff a full and fair opportunity to respond.
Specifically, ISP requests that the following portions of the Reply be stricken, which also are shown in the Reply markup provided as Attachment 1:
Page 11: the first full paragraph (beginning, Furthermore, Beyond Nuclear...);
Pages 17-18: the first full paragraph on page 17 (beginning, With respect to...)
through the first three lines on page 18 (ending,... of the proceedings);
Pages 29-31: the second sentence of the last paragraph on page 29 (beginning NRC guidance...) through the first full sentence of the first full paragraph on page 30 (ending... and fund decommissioning), and the first sentence of the second full paragraph on page 31 (beginning, So, in reviewing...);
Pages 35-36: the last paragraph on page 35 (beginning NRC Guidance...) through the first sentence of the first full paragraph on page 36 (ending... evaluation of alternatives);
Pages 37-39: the last paragraph on page 37 (beginning, Section 4.5.10...) through the end of the first full paragraph on Page 38 (ending,... highly adaptable), the last full paragraph on page 38 (beginning, NEPA regulations...), and the last two sentences of the first paragraph on page 39 (beginning, The horned lizard...); and Page 40: the first three full sentences (beginning, If the expected life...).
5 Interim Storage Partners LLCs Answer Opposing Hearing Request and Petition to Intervene Filed by Sierra Club (Dec. 10, 2018) (ML18344A684) (ISP Answer); NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed by: Sierra Club; 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 (Dec. 10, 2018) (ML18344A594) (Staff Answer).
3 II.
THE BOARD SHOULD STRIKE PORTIONS OF PETITIONERS REPLY A.
Legal Standards Governing the Scope of a Reply The Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had an opportunity to address.6 Rather, NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must... set forth their claims... at the outset of the proceeding.7 As the Commission has explained, [t]here simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.8 The Commission demands adherence to this requirement to avoid unnecessary delays and increase the efficiency of NRC adjudication,9 because answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.10 Thus, as the Commission has explained, the permissible scope of a reply includes only information that (1) legitimately amplifie[s] arguments in the original petition,11 or (2) focus[es] narrowly on the legal or factual arguments first... raised in the answers [thereto].12
6 USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).
7 La. Energy Servs., LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (internal quotation marks omitted), reconsideration denied, CLI-04-35, 60 NRC 619 (2004).
8 LES, CLI-04-25, 60 NRC at 225.
9 LES, CLI-04-35, 60 NRC at 622-23.
10 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).
11 LES, CLI-04-25, 60 NRC at 224-25.
12 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
4 B.
Petitioners New Arguments Exceed the Proper Scope of a Reply Proposed Contention 1: New Assertion of Commission Ruling Regarding Scope In the Petition, Petitioner argued that the NRC lacks the authority to license the WCS CISF under the Nuclear Waste Policy Act of 1982 and the Atomic Energy Act of 1954, as amended.13 However, as ISP and NRC Staff noted in their Answers,14 Proposed Contention 1 is inadmissible because inter alia Petitioner made no attempt to, and did not in fact, [d]emonstrate that the issue raised in the contention is within the scope of the proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii).15 In its Reply, Petitioner asserts for the first time that, because the Commission required other participants to raise the issue of [the U.S. Department of Energy (DOE)] taking title in this proceeding, rather than by a motion to dismiss, allegedly the Commission itself has determined that the ownership of the waste is a proper issue for this proceeding and is within the scope of this proceeding.16 However, Petitioners untimely attempt to cure the pleading defect identified by ISP and NRC Staff (by offering a scope argument for the first time in its Reply) is impermissible.
Petitioner could have, but did not, raise this argument in its Petition. The Commission action in question occurred on October 29, 2018,17 about two weeks before Petitioner filed its Petition on November 13, 2018. Specifically, the Secretary of the Commission considered two threshold motions to dismiss ISPs Application on grounds similar to those raised in Proposed
13 See generally Petition at 14.
14 ISP Answer at 24-25; Staff Answer at 77-78.
15 Emphasis added.
16 Reply at 11.
17 Office of the Secretary, Order at 2-3 (Oct. 29, 2018) (unpublished) (ML18302A329).
5 Contention 1.18 The Secretary denied both motions on procedural grounds, without prejudice to the underlying merits of the legal arguments embedded within the motions, and referred those legal arguments to the Atomic Safety and Licensing Board Panel for consideration under § 2.309.19 ISP and NRC Staff have been denied any opportunity to respond to this new assertion that the Secretarys Order somehow constitutes a binding determination that the issue raised by Petitioner in Proposed Contention 1 is within the scope of the proceeding (and therefore satisfies 10 C.F.R. § 2.309(f)(1)(iii)), particularly given the lack of any such discussion of scope in that Order. Thus, Petitioners untimely proffer, as contained in the first full paragraph (beginning, Furthermore, Beyond Nuclear...) on page 11 of its Reply, should be stricken.
Proposed Contention 4: New Documents Offered to Attempt to Provide Necessary Threshold Support Among other things, Proposed Contention 4, as pled in the Petition, challenged the ER for not including an analysis of cleanup costs for a hypothetical transportation accident.20 In its Answer, ISP explained that Petitioners argument in this regard did not satisfy the contention admissibility requirements because it failed to identify threshold support for Petitioners unfounded assertion that any legal requirement or precedent mandates such analysis.21 Similarly, the NRC Staff observed that where the cost analysis sought by the Petitioner concerns the consequences of cleanup for a hypothetical accident associated with offsite transportation, an activity that is not even being directly licensed by this action, the Petitioner fails to explain why
18 Id. at 2.
19 Id. at 2-3 (emphasis added).
20 Petition at 37-38, 43.
21 ISP Answer at 52.
6 this concern is within [the National Environmental Policy Act of 1969, as amended (NEPA)]s rule of reason rather than merely speculative.22 In its Reply, Petitioner seeks to offer new information and arguments to attempt to cure these pleading deficiencies identified by ISP and Staff. For example, Petitioner now claims that NUREG-1748 supplies the missing basis information for its contention because it requires a discussion of [transportation] impacts to include a cost-benefit analysis (which Petitioner interprets as supporting its demand for an analysis of cleanup costs from hypothetical transportation accidents).23 Petitioner also now claims NUREG-1714 provides the requisite support for its contention because it purportedly shows that the economic impacts from an accident during transportation of radioactive material to a CIS site are a relevant subject for inclusion in the ER.24 However, these new arguments and proffers of support, which were not raised in the Petition or the Answers thereto, exceed the proper scope of a reply. The Commissions contention rules do not allow using reply briefs to provide, for the first time, the necessary threshold support for contentions.25 Moreover, Petitioner has articulated no reason it could not have raised this information in the Petitionnor is there any. In fact, in the Petition, Petitioner raised NUREG-1748 in other contentions, and thus was well aware of its existence and content;26
22 Staff Answer at 86.
23 Reply at 17 (citing NUREG-1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs; Final Report §§ 6.4.2 and 6.7 (Aug. 2003) (ML032450279)).
24 Id. (citing NUREG-1714, Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah § 5.7.2.5 (Dec. 2001)
(ML020150217) (PFS FEIS)); see also id. at 18-19 (arguing that, because the PFS FEIS examined economic impacts of a transportation accident, it is likewise necessary for the ER to do so here).
25 LES, CLI-04-35, 60 NRC at 623 (emphasis added).
26 See, e.g., Petition at 24 (raising NUREG-1748 in the context of Proposed Contention 2).
7 and in this contention, Petitioner explicitly derided NUREG-1714s discussion of transportation accident impacts as being irrelevant to this proceeding.27 Thus, Petitioners new argument that this very document allegedly provides support for Proposed Contention 4is not a legitimate amplification of arguments presented in the Petition. Accordingly, the Board should reject Petitioners belated attempt to resurrect its contention by striking the first full paragraph on page 17 (beginning, With respect to...) through the first three lines on page 18 (ending,...
of the proceedings) of the Reply.
Proposed Contention 9: New Argument Alleging Outright Omission of a Certification of Financial Assurance In the Petition, Petitioner claimed that the decommissioning plan submitted by ISP fails to meet the requirements of 10 C.F.R. § 72.30 because it purportedly does not provide a detailed decommissioning cost estimate and fails to provide reasonable assurance that funds will be available to decommission the WCS CISF.28 Now, in its Reply, Petitioner also claims that a certification of financial assurance... must be provided at the time of license application, and asserts that it does not appear that... a certification of financial assurance has been submitted by ISP.29 In other words, Petitioner alleges, for the first time, the complete omission of an allegedly-required certification from ISPs Application.
This is an entirely new argument that represents a significant shift in Petitioners theory of the contention. Because ISP and Staff have been denied a full and fair opportunity to address this alleged omission,30 the second sentence of the last paragraph on page 29 (beginning NRC guidance...) through the first full sentence of the first full paragraph on page 30 (ending...
27 Id. at 41-42.
28 Id. at 60.
29 Reply at 29-30.
30 Cf. USEC, CLI-06-9, 63 NRC at 439.
8 and fund decommissioning), and the first sentence of the second full paragraph on page 31 (beginning, So, in reviewing...) of the Reply should be stricken.
Proposed Contention 11: New Arguments Regarding Detailed Discussion of Environmental Impacts and Alternative Sites In the Petition, Petitioner argued that: (1) the site selection screening criteria described in ER Section 2.3.3 have little or no relationship to some unspecified criteria in the statutes or regulations,31 and (2) the discussion in ER Section 2.3.4 of site selection results for Criterion 11 for Andrews County, Texas is allegedly inadequate.32 In its Reply, Petitioner attempts to recharacterize Proposed Contention 11 as a much broader challenge to the discussion of the environmental impacts of the alternative sites.33 But this attempted expansion of the scope of the contention is beyond the permissible bounds of a reply.
First, as support for its new challenge to the ERs detailed evaluation of environmental impacts (as opposed to its original challenge regarding the initial site selection screening process) Petitioner cites two new authorities for the proposition that each alternative considered in detail should be given substantial treatment.34 Petitioner then argues, for the first time, that the ER does not comply with these requirements. However, the ER evaluates environmental impacts for alternatives considered in detail in Chapter 4not in Sections 2.3.3 or 2.3.4. This entirely new line of argument, which seemingly challenges the impacts discussion in Chapter 4, was not raised in the Petition. Second, the Reply seeks to recharacterize Proposed Contention 11 as a broad challenge to the discussion of alternative sites, i.e., sites other than Andrews
31 Petition at 68 (specifically identifying ER § 2.3.3 in the statement of the contention).
32 Id. at 71 (specifically identifying the Criterion 11 discussion in ER § 2.3.4).
33 Reply at 36 (emphasis added).
34 Id. at 35-36 (quoting 40 C.F.R. § 1502.14) (emphasis added); see also id (citing NUREG-1748).
9 County, Texas. However, the contention as originally pled in the Petition challenged only the site selection discussion for Andrews County, Texas.35 Petitioners untimely attempt to expand its challenge to include ER Chapter 4, and the ERs discussion of other sites, denies ISP and the NRC Staff a full and fair opportunity to address these new claims.36 For these reasons, the last paragraph on page 35 of the Reply (beginning NRC Guidance...) through the first sentence of the first full paragraph on page 36 (ending... evaluation of alternatives) should be stricken.
Proposed Contention 13: New Theory of the Contention and New Proffered Support In Proposed Contention 13 (the entirely of which includes 1.5 double-spaced pages)
Petitioner briefly argued that the ER is deficient because it contains no discussion of any studies or surveys to determine if the [Texas horned lizard and dunes sagebrush lizard (Species)] are present [at the CISF site] and the impact of the project on those species.37 In other words, Petitioner presented a contention of omission regarding supporting studies or surveys.38 ISP and the NRC Staff both opposed the contention of omission, pointing to the detailed discussion of both Species in the ER, and highlighting Petitioners clear failure to identify facts or expert opinions in support of its proposed contention.39 In its Reply, Petitioner greatly expands upon its initial arguments and improperly attempts to cure those threshold admissibility defects by offering new arguments and alleged
35 Petition at 71 (specifically identifying the Criterion 11 discussion in ER § 2.3.4, titled Site Selection Process: Results for Andrews County, Texas).
36 Cf. USEC, CLI-06-9, 63 NRC at 439.
37 Petition at 78.
38 See also id. (asserting the conclusion in ER § 4.5.10 lacks factual support); id. at 79 (also asserting the absence of an appropriate survey).
39 ISP Answer at 104-05; Staff Answer at 119.
10 supportand indeed a new working theory of the contention. More specifically, Petitioner seeks to amend its original contention of omission to argue, for the first time, the existence of two alleged internal contradictions within the ER:
First, between Section 4.5.10, which acknowledges that the Species in the general area.
.. either do not occur on the CISF or are highly adaptable, and Section 3.5.2, which states that the Species occur within the area;40 and Second, between Section 4.5.10s either/or statement that the Species either do not occur on the CISF or are highly adaptable, and Section 3.5.2, which Petitioner now characterizes as contrary to the assertion that the Species are highly adaptable.41 But the working theory of the original contention was simply that the ER was deficient due to its omission of supporting studies. Petitioners new theory is far from a legitimate amplification of its original omission argument.
Likewise, as alleged support for these new arguments, Petitioner points to Council on Environmental Quality (CEQ) regulations in 40 C.F.R. Part 1502.42 The original contention contained no citations to any CEQ regulations. And Petitioner, for the first time in its Reply, references and purports to distinguish between federal protection versus state protection of the two Species.43 The original contention included no references or discussion of the federal or state status of either Species.
These new substantive arguments and alleged support, raised for the first time in the Reply, are improper because answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.44 Moreover, using reply briefs to provide,
40 Reply at 37.
41 Id. at 38.
42 Id.
43 Id. at 39.
44 Wolf Creek, ALAB-279, 1 NRC at 576 (emphasis added).
11 for the first time, the necessary threshold support for contentions is impermissible.45 Thus, ISP and the NRC Staff have been improperly denied an opportunity to respond. Accordingly, the last paragraph on page 37 (beginning, Section 4.5.10...) through the end of the first full paragraph on Page 38 (ending,... highly adaptable), the last full paragraph on page 38 (beginning, NEPA regulations...), and the last two sentences of the first paragraph on page 39 (beginning, The horned lizard...) should be stricken.
Proposed Contention 14: New Argument Regarding Institutional Controls In the Petition, Petitioner claimed (among other things) the ER is deficient because ISP allegedly cannot rely upon the Continued Storage Rule (CSR) because the CSR Generic Environmental Impact Statement (GEIS) assumed the availability of a dry-transfer system (DTS), whereas the WCS CISF Application does not include plans for a DTS.46 ISP and the NRC Staff opposed the admission of Proposed Contention 14 as barred primarily by the CSR, 10 C.F.R. § 51.23.47 In its Reply, Petitioner argues for the first time that ISPs expected life of the facility will require the dry storage containers be in use beyond the period of institutional controls.48 Petitioner further argues this is an additional reason ISP allegedly cannot rely upon the CSR, because the CSR GEIS assum[ed]... there will be institutional controls.49 But this is not merely a legitimate amplification of its original argument that the lack of plans for a DTS is what allegedly renders the CSR inapplicable; rather, it is a distinctly new argument in the context
45 LES, CLI-04-35, 60 NRC at 623 (emphasis added).
46 Petition at 81.
47 ISP Answer at 111; Staff Answer at 122.
48 Reply at 40.
49 Id.
12 of Proposed Contention 14. Petitioner could have, but did not, raise this argument in Proposed Contention 14.50 And its attempt to do so now is untimely.
By raising this new argument in the Reply, Petitioner effectively denies ISP and the NRC Staff an opportunity to respond. Accordingly, the first three full sentences on the top of page 40 (beginning, If the expected life...) of the Reply should be stricken.
III.
CONCLUSION Petitioners new arguments in its Reply neither legitimately amplify arguments in the original Petition, nor focus narrowly on legal arguments first raised in ISPs or Staffs Answer.
Instead, they raise new challenges to the Application. Because Petitioner has neither requested nor obtained leave from the Board to file new or amended contentions, and cannot satisfy the late filing requirements, the appropriate remedy is to strike the untimely arguments.
50 The CSR GEIS was published in 2014, four years before Petitioner filed the Petition. See NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel; Final Report, Vol.
1 (Sept. 2014) (ML14196A105). Moreover, Petitioner raised the institutional controls argument in Proposed Contention 5, and thus was well aware of its existence. See Petition at 47. Although Proposed Contention 14 briefly references Proposed Contention 5 for the proposition that waste will be stored at the CIS facility until a permanent repository is found, id. at 80, it does not remotely discuss or purport to incorporate any arguments related to institutional controls.
13 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Stephen J. Burdick, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5059 E-mail: timothy.matthews@morganlewis.com E-mail: stephen.burdick@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.
this 27th day of December 2018
DB1/ 101207800 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 December 27, 2018 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Motion to Strike Portions of the Reply Filed by Sierra Club and Attachment 1 thereto were filed through the E-Filing system.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC