ML19029B498
| ML19029B498 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 01/24/2019 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 72-1051-ISFSI, ASLBP 18-958-01-ISFSI-BD01, Holtec International, NRC-0087, RAS 54773 | |
| Download: ML19029B498 (177) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Holtec International (HI-STORE Consolidated Interim Storage Facility)
Docket Number:
72-1051-ISFSI ASLBP Number:
18-958-01-ISFSI-BD01 Location:
Albuquerque, New Mexico Date:
January 24, 2019 Work Order No.:
NRC-0087 Pages 211-386 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
211 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: : Docket No.
8 HOLTEC INTERNATIONAL : 72-1051-ISFSI 9
- ASLBP No.
10 (HI-STORE Consolidated : 18-958-01-ISFSI-BD01 11 Interim Storage Facility) :
12
x 13 Thursday, January 24, 2019 14 15 State Bar of New Mexico 16 5121 Masthead Street NE 17 Albuquerque, New Mexico 18 19 BEFORE:
20 PAUL S. RYERSON, Chair 21 GARY S. ARNOLD, Administrative Judge 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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212 APPEARANCES:
1 On Behalf of Holtec International:
2 JAY SILBERG, ESQ.
3 of:
Pillsbury Winthrop Shaw Pittman, LLP 4
1200 Seventeenth Street, NW 5
Washington, DC 20036 6
jay.silberg@pillsburylaw.com 7
8 On Behalf of the Nuclear Regulatory Commission:
9 JOSEPH I. GILLESPIE, ESQ.
10 of:
Office of the General Counsel 11 U.S. Nuclear Regulatory Commission 12 Mail Stop - O-15 D21 13 Washington, D.C. 20555-0001 14 joe.gillespie@nrc.gov 15 16 On Behalf of Beyond Nuclear:
17 DIANE CURRAN, ESQ.
18 of:
Harmon, Curran, Spielberg & Eisenberg, LLP 19 1725 DeSales Street, NW 20 Suite 500 21 Washington, D.C. 20036 22 dcurran@harmoncurran.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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213 On Behalf of the Sierra Club:
1 WALLACE L. TAYLOR, ESQ.
2 of:
Law Offices of Wallace L. Taylor 3
4403 1st Avenue SE 4
Suite 402 5
Cedar Rapids, Iowa 52402 6
wtaylor784@aol.com 7
8 On Behalf of Fasken Land and Minerals and 9
Permian Basin Land and Royalty Owners:
10 ROBERT V. EYE, ESQ.
11 of:
Robert V. Eye Law Office, LLC 12 4840 Bob Billings Parkway 13 Lawrence, Kansas 66049 14 bob@kauffmaneye.com 15 16 On Behalf of Eddy-Lea Energy Alliance:
17 JOHN A. HEATON 18 Vice Chairman 19 of:
Eddy-Lea Energy Alliance 20 102 S. Canyon Street 21 Carlsbad, New Mexico 88220 22 jaheaton1@gmail.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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214 On Behalf of NAC International, Inc.:
1 SACHIN S. DESAI, ESQ.
2 of:
Hogan Lovells, LLP 3
555 13th Street NW 4
Washington, D.C. 20004 5
sachin.desai@hoganlovells.com 6
7 On Behalf of the Alliance for Environmental 8
Strategies:
9 NANCY L. SIMMONS, ESQ.
10 of:
Law Office of Nancy L. Simmons 11 120 Girard Boulevard SE 12 Albuquerque, New Mexico 87106 13 nlsstaff@swcp.com 14 15 On Behalf of Don't Waste Michigan:
16 TERRY J. LODGE, ESQ.
17 of:
Don't Waste Michigan 18 316 N. Michigan Street 19 Suite 520 20 Toledo, Ohio 43604-5627 21 tjlodge50@yahoo.com 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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215 On Behalf of Lea County, New Mexico:
1 JONATHAN SENA 2
100 N. Main Avenue 3
Lovington, New Mexico 88260 4
jsena@leacounty.net 5
6 On Behalf of Eddy County, New Mexico:
7 RICK RUDOMETKIN 8
101 W. Greene Street 9
Suite 110 10 Carlsbad, New Mexico 88220 11 rrudometkin@co.eddy.nm.us 12 13 On Behalf of the City of Carlsbad, New Mexico:
14 JASON G. SHIRLEY 15 1024 North Edwards Street 16 Carlsbad, New Mexico 88220 17 jgshirley@cityofcarlsbadnm.com 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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216 CONTENTS 1
Call to Order.................
217 2
Fasken Land and Minerals and Permian Basin Land 3
and Royalty Owners 217 4
City of Carlsbad, New Mexico 229 5
Holtec International 232 6
NRC/Staff...................
329 7
Closing Statements 8
Beyond Nuclear 357 9
Sierra Club...............
362 10 Don't Waste Michigan 365 11 NAC International............
370 12 Fasken Land and Minerals and Permian Basin 13 Land and Royalty Owners.........
375 14 Holtec International 377 15 Adjourn....................
386 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217 P R O C E E D I N G S 1
9:00 a.m.
2 CHAIR RYERSON: Good morning, please be 3
seated. Welcome again, everyone. We're back here for 4
the second day of oral arguments on the Holtec matter, 5
Holtec International application to construct and 6
operate an interim nuclear waste facility in Lea 7
County, New Mexico.
8 I think the way we'll proceed this morning 9
is, first, with Fasken. And then, I believe that --
10 if the representative of the City of Carlsbad is here, 11 we'll give you a few minutes to say what you would 12 like to say.
13 And then, we will turn to Holtec, which 14 will probably take quite a bit more time. And 15 finally, the NRC staff.
16 Any questions about how we're proceeding 17 today that we haven't addressed? Everybody's prepared 18 to go forward? Good. Somebody -- yes, and a 19 reminder, again, to turn off or silence your cell 20 phones, will help a lot. Okay.
21
- Well, let's
- begin, then, with the 22 representative of Fasken, Mr. Eye.
23 MR. EYE: May it please the Panel, my name 24 is Robert Eye. I represent Fasken and Permian Basin 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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218 Land and Royalty Owners.
1 At a bare minimum, any decision concerning 2
the establishment of a consolidated interim storage 3
facility that would have the greatest concentration of 4
radiation between here and the sun should be done in 5
conformance with applicable law.
6 The application before you now does not 7
meet this minimum test. Including any Department of 8
Energy involvement in this proposal violates the 9
Nuclear Waste Policy Act.
10 When Congress passed the
- NWPA, it 11 recognized the real possibility that establishing a 12 CISF without a deep geologic repository would 13 effectively relieve the pressure off the imperative to 14 establish a deep geologic repository.
15 Why did Congress, in the NWPA, require the 16 repository be available and operational before 17 allowing a CISF? Congress well recognized that 18 putting a CISF into operation simply allowed a further 19 delay in establishing a deep repository, kicking the 20 can down the road farther.
21 And, yes, in 2019, there seems to be a 22 doubt about whether this unambiguous intent of 23 Congress, that clearly is manifested in the text of 24 the NWPA, is being met by the application presented by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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219 Holtec.
1 This doubt raises all the familiar 2
problems with reaching a final disposition on spent 3
nuclear fuel in a deep geologic repository.
4 As plans are made to store 173,000 metric 5
tons of spent nuclear fuel in Southeast New Mexico, 6
durations of time for the use of this facility exceed 7
100 years.
8 What is the public to make of this?
9 Hearing these durations with no prospect of a deep 10 geologic repository raises the issue of an adherence 11 to the rule specified in the NWPA.
12 The Applicant and staff have been silent 13 about this attempted end-run around the NWPA. This 14 silence, coupled with the idea that the proposed CISF 15 will be in operation for over 100 years, leads to the 16 conclusion that a deep geologic repository is just so 17 much pie in the sky.
18 The authors of the NWPA would be troubled 19 and perplexed by this circumstance. They would be, I 20 think, very disagreeable about how their careful 21 sequencing and balancing in the NWPA has been 22 disregarded in the Holtec application.
23 This application puts the cart before the 24 horse. In doing so, the NWPA is violated. And that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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220 is why Fasken and PBLRO took the steps it did to file 1
a motion to dismiss the application.
2 And I'm sure that there will be -- I sense 3
that there may be some questions about that later, so 4
I will turn and make a few brief statements about 5
standing.
6 Fasken and PBLRO have standing. First, as 7
discussed in the declaration of Tommy Taylor from 8
Fasken, Fasken has mineral interests two miles from 9
the Holtec site. These are mineral interests that 10 represent a substantial business investment and they 11 want to protect those.
12 This close proximity puts Fasken well 13 within the zone of the 14 to 17 miles that we've 14 discussed, we've heard discussed prior, that has been 15 recognized as proximate distance to justify standing 16 in the CISF context.
17 Fasken's interests, and the interests of 18 their counterparts in PBLRO, are jeopardized by the 19 Holtec proposal for its CISF.
20 Not only are the economic interests 21 related to the mineral rights at stake, but, as Mr.
22 Taylor points out in his declaration, there are 23 concerns about the health and safety of people in the 24 area who are exposed to this radiation.
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221 And then, indeed, that might force Fasken 1
to incur further costs to accommodate a CISF. Fasken 2
and other members of PBLRO work and live in that area.
3 And Fasken, for example, has to dispatch workers out 4
to that area, to tend to its interests.
5 Fasken recognizes that things like medical 6
costs, lost productivity, and long-term viability of 7
their business interests are directly at stake with 8
the CISF that's proposed in this matter.
9 You heard yesterday about how oil and gas 10 industry is so robust in the Permian Basin area that 11 they can't find enough workers to fill all the 12 available positions.
13 This is a sign of business activity that 14 is not only enviable, but it helps sustain the economy 15 of this area. The thousands of jobs that Fasken and 16 its PBLRO counterparts offer are at stake, which 17 ripples through the way of life of this entire area.
18 PBLRO's purpose, as stated in our papers, 19 is to protect those interests from the hazards 20 represented by the Holtec CISF. Accordingly, PBLRO 21 has representative standing. With that, I will do my 22 best to answer any questions that you have.
23 CHAIR RYERSON: Thank you, Mr. Eye. I 24 think we put in our January 10 order two questions 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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222 that really are directed at you, Questions 3 and 4.
1 Let's assume that your clients have 2
standing, hypothetically, let's assume the Board 3
concluded that. The issue that we see is -- and it's 4
complicated by the procedural posture here. Let me go 5
back a little bit.
6 You, on behalf of your clients, filed a 7
motion to dismiss, as I recall, not a petition with 8
contentions. And Beyond Nuclear filed both a motion 9
to dismiss, and as a protective matter, a petition 10 with one contention, fundamentally the same issue as 11 the motion to dismiss.
12 Your motion was directed at the Commission 13 through the Secretary. The Commission has in effect 14 said that we should treat it, treat your motion, as a 15 petition with a contention.
16 The problem that I see, I think the Board 17 has concerns about, is that Commission case law is 18 pretty clear that a Petitioner may adopt the 19 contention of another Petitioner, but only if the 20 Petitioner who wants to do the adopting has a 21 contention of its own.
22 And in this
- instance, your motion 23 essentially adopts the arguments presented by Beyond 24 Nuclear's motion. And so, therefore, aren't we kind 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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223 of stuck with the rule that you have not submitted a 1
contention of your own?
2 MR. EYE: As we explained in our response, 3
that I think addressed this, at least in part, it was 4
never our intention to present a contention.
5 CHAIR RYERSON: Right.
6 MR. EYE: I mean, to us, this is a 7
counterpart, a parallel, it's analogous to a Federal 8
Rule of Civil Procedure 12(b) motion. It says, in 9
effect, that the Commission lacks jurisdiction.
10 That's a classic 12(b) motion.
11 If we conceive that a petition -- or 12 rather, that a contention is necessary, we effectively 13 have abandoned this idea that somehow you have -- that 14 you don't have jurisdiction. We implicitly say, with 15 this contention, you have jurisdiction to decide this 16 case.
17 And indeed, it goes at the heart of our 18 arguments that the issue of the NWPA's involvement in 19 this case, although absent from the discussion from 20 the Applicant and staff, is one that is extant and 21 it's existential in this case.
22 A jurisdictional matter ought to be 23 handled properly in the context of the motion to 24 dismiss. I will grant you that it falls outside the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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224 strict formalities of contention practice, but so does 1
the omission of discussions of the NWPA.
2 So, how do we respond to that? Do we 3
essentially accede to the idea that the Commission has 4
jurisdiction, submit a contention, and let it play 5
out, only then to be confronted by a judge on appeal 6
who says, it appears to us that in fact you recognized 7
the NRC's jurisdiction over this?
8 So, we were caught -- one of the other 9
counsel put it well yesterday, caught between the 10 proverbial rock and hard place. The context of this 11 is unusual, it's unusual for the Panel, the 12 Commission, for the participants.
13 And we couldn't find another instance, and 14 we looked, we couldn't find another instance where the 15 Secretary had actually taken the step that was taken 16 here, where they take a pleading, they send it back to 17 the Panel, and they say, treat it in this way.
18 So, that lack of precedent puts us all 19 into unknown territory, I suppose, or unchartered 20 territory, to a certain extent. But we have to 21 remember that the essential piece of this is to ask, 22 has the Applicant conformed to the Nuclear Waste 23 Policy Act?
24 Irrespective of the procedural means to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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225 get to that question, whether it's through a 1
contention, whether it's through a motion to dismiss, 2
the issue remains the same.
3 So, we certainly were not intentionally 4
setting out to make this thing a procedural morass, we 5
really were not. On the other hand, we had to make 6
some judgment calls about how to proceed and this 7
seemed like a logical way to proceed, to have it run 8
more or less like a 12(b) motion would in civil 9
practice in court.
10 CHAIR RYERSON: Yes. Beyond Nuclear's 11 response to the Secretary's ruling was also to go 12 directly to a Federal Court of Appeals, in Beyond 13 Nuclear's case, the United States Court of Appeals for 14 the District of Columbia Circuit.
15 Have you sought relief in the Court of 16 Appeals in an interlocutory basis? Or have you sought 17 any relief in the Court of Appeals?
18 MR. EYE: I'm sorry, I didn't hear the last 19 part of your question.
20 CHAIR RYERSON: Have you sought to review 21 the SECY's order in the Court of Appeals?
22 MR. EYE: We have not yet.
23 CHAIR RYERSON: Okay. Hasn't your -- do 24 you still have time to do that?
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226 MR. EYE: We have not. We're here --
1 CHAIR RYERSON: Okay.
2 MR. EYE: -- and again, this is, frankly, 3
this is a procedural scenario that only Franz Kafka 4
could really completely appreciate.
5 (Laughter.)
6 MR. EYE: And it does leave us all a little 7
uncertain about what steps ought to be taken.
8 So, partly respecting the fact that the 9
Secretary sent this, sent our motion back to the Panel 10 and ask that it be characterized and considered as a 11 contention, in respect of that, and to have an 12 opportunity to present our arguments to you, we hope 13 in a persuasive fashion, we decided to pursue this 14 route at this point.
15 And again, it is unusual. It's -- we're 16 hoping that at some point procedurally, we get 17 clarification. But I'm not actually counting on that.
18 CHAIR RYERSON: Okay. I think, if I 19 understand your argument correctly, and I think I do 20 better as a result of your comments right now, if you 21 had filed a petition with one contention that adopted 22 someone else's contention, it is pretty clear, I 23 think, under Commission precedent, that you are out.
24 That you can't just adopt somebody else's contention, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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227 you have to have one of your own.
1 But what you're saying is, I think, is 2
that this is a very unusual, indeed unique, situation, 3
where we, that is the Board, has been told to treat 4
this as a contention, but this is unprecedented and 5
perhaps the Commission's ruling on that issue was 6
intended to apply to people who had intentionally 7
filed contentions, but not to those who were told, you 8
may have filed a motion, but it is a contention, it's 9
going to be treated as a contention, so we should 10 consider it in that light.
11 MR. EYE: Perhaps. I mean, but there are 12 other ways to interpret what was done as well. So, 13 again, we're working in sort of an unclarified 14 context.
15 CHAIR RYERSON: Yes. But, I mean, what 16 you're saying, I think, is that we should consider 17 whether the Commission precedent applies in this 18 unique situation. The Commission precedent in the 19 normal situation is, I think, pretty clear.
20 But you are urging that we take a hard 21 look at whether the Commission precedent, which would 22 effectively throw you out, your client out, whether 23 the Commission would really have intended for it to 24 apply in this unique situation?
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228 MR. EYE: That is correct, Your Honor. And 1
one other minor, I think relatively minor point here.
2 I'm not sure that I really agree that we have adopted 3
the contention of Beyond Nuclear. We adopted their 4
legal argument, because they happen to support our 5
client's interest.
6 The contentions have certainly the same 7
intention, rely upon the same legal reasoning, but 8
they're different parties, with different interests, 9
that -- so, I don't really think that that point is 10 controlling.
11 I don't think it's dispositive. I think 12 what's dispositive is what you just articulated, 13 Judge, in terms of trying to figure out what to do in 14 this unusual context, where you have neither fish nor 15 fowl. And yes, that is unusual.
16 The NRC's general practice for resolving 17 these kinds of disputes is through contentions. So, 18 all of a sudden, now, you get a party who throws a 19 curve ball and raises a motion to dismiss.
20 It's not as if motions to dismiss are 21 unusual or unheard of in various forms of practice, 22 it's just that in this context, it's outside of what 23 is normally expected.
24 CHAIR RYERSON: Okay. Thank you. Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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229 Arnold, did you have questions?
1 JUDGE ARNOLD: No questions.
2 CHAIR RYERSON: Judge Trikouros?
3 JUDGE TRIKOUROS: No questions.
4 CHAIR RYERSON: Thank you.
5 MR. EYE: Thank you.
6 CHAIR RYERSON: Well, let's deal with a few 7
brief comments from the City of Carlsbad. Is that Mr.
8 Shirley? Welcome, Mr. Shirley.
9 MR. SHIRLEY: Thank you, Your Honor. I 10 appreciate the opportunity to speak to you today. And 11 I apologize, my voice is a little rough today, so 12 we're going to get through this though.
13 As you know, my name is Jason Shirley. I 14 serve on the City Council in Carlsbad and I'm the 15 designated representative to the Eddy-Lea Energy 16 Alliance that is working with Holtec on this project.
17 Carlsbad has an official population of 18 27,000 people, but is much larger in recent years, due 19 to the expansion of the oil and gas in the region.
20 Additionally, Carlsbad's approximately 35 miles away 21 from the proposed Holtec HI-STORE Consolidated Interim 22 Storage Facility.
23 Carlsbad has been keenly interested in the 24 development of the Holtec site since the 2013 report 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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230 from the President's Blue Ribbon Commission 1
recommendation that a consolidated interim storage 2
facility be established.
3 The CISF will have a real impact on our 4
community and we expect that it will bring the 5
following benefits to Carlsbad. That it will create 6
several hundred jobs for our citizens. That those 7
jobs will come with high salaries and raise local wage 8
averages.
9 That it will generate significant tax 10 revenue for the City of Carlsbad, improving our 11 infrastructure and further diversifying our economy.
12 It will not only benefit our region, but also provide 13 a service for our nation in safely storing spent 14 nuclear fuel.
15 We're familiar with living near a site for 16 nuclear waste disposal, as we're located 25 miles from 17 the existing Waste Isolation Pilot Plant Facility 18 that's ran by the Department of Energy, which employs 19 some 1,200 people and has a $400 million annual budget 20 that benefits the region very greatly.
21 Our constituents support the Holtec CISF.
22 We know that we are a nuclear savvy community, with 23 many years of experience in the field. We've seen 24 success and we follow the science and we have a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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231 culture of safety in Carlsbad.
1 We also are here today to show our support 2
for the Holtec CISF. It's welcome in our community.
3 We look forward to the jobs, the revenue, the 4
diversification, and the other benefits that it will 5
create. Thank you so much for your time today.
6 CHAIR RYERSON: Thank you, Mr. Shirley.
7 MR. SHIRLEY: Yes, sir.
8 CHAIR RYERSON: And I'd just like to 9
confirm, I believe we heard yesterday that the City of 10 Hobbs will not be participating orally. Again, all of 11 the petitions by local governments stand unopposed at 12 this point. So, there's certainly no need to say 13 anything today.
14 We will next move to Holtec. And just two 15 comments to start. I don't know -- Mr. Silberg, will 16 you be speaking?
17 MR. SILBERG: I will be making the opening 18 statements.
19 CHAIR RYERSON: The opening statement. I 20 don't know if you need extra time. We recognize it's 21 five and a half, again, five and a half to one, at 22 this point, perhaps is the way to characterize it, so 23 our clocks might run a little slow on the ten minutes, 24 if you need more time. But you may conclude that you 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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232 really just want to answer the questions.
1 Either, Mr. Silberg, you or one of your 2
colleagues probably should address, at the outset, 3
either as part of your opening or right after it, the 4
issue we asked for some comments on yesterday.
5 And what that related to was NAC's 6
argument that if they are not in this proceeding to 7
address the environmental report issues now, they will 8
not have the same opportunity at a later time, if 9
there's an amendment, hypothetically, that would 10 permit the NAC canisters to be placed in the Holtec 11 casks.
12 So, if either you, Mr. Silberg, could 13 address that in addition to your general opening or 14 one of your colleagues, we would appreciate that.
15 Thank you.
16 MR. SILBERG: Good morning, Mr. Chairman, 17 Members of the Board.
Holtec International 18 appreciates this opportunity to appear before you, as 19 an important step forward towards the licensing of the 20 Holtec HI-STORE Consolidated Interim Storage Facility.
21 We believe that this is a extremely 22 important facility for this nation. Holtec is pleased 23 to be able to sponsor it.
24 We're disappointed that we need it, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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233 because the Nuclear Waste Policy Act provided that the 1
Department of Energy was supposed to start accepting 2
spent nuclear fuel from the nuclear industry starting 3
January 31, 1998, a day some of us say will live in 4
infamy.
5 Because they have not met that obligation 6
and because we do not have a permanent repository, 7
facilities like this are necessary for a variety of 8
reasons.
9 There are stranded spent fuel storage 10 installations around the country. There will be more 11 of them as time moves on, as plants are shut down, 12 plants are decommissioned, and everything but the 13 spent fuel is off the site.
14 Facilities like the Holtec facility will 15 enable those sites to be finally returned to other 16 productive uses. Both the utilities that own those 17 sites and the jurisdictions in which those sites are 18 located would desperately like that spent fuel to be 19 stored safely and environmentally secure at another 20 location.
21 This location is also a much more secure 22 location than where many of the interim spent fuel 23 storage sites are now located. Some of those are very 24 near major metropolitan areas. There are many of them 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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234 scattered around the country.
1 It is safe at those locations. We believe 2
it is safe, the Commission has found that it is safe.
3 But it would be better if it were in a more remote 4
location, far away from metropolitan areas.
5 With those introductory remarks, let me 6
first introduce the Holtec team. Our attorneys, from 7
the Pillsbury Law Firm in Washington, myself, Jay 8
Silberg, Tim Walsh, and Anne Leidich, my associates.
9 The Holtec management, project, and 10 technical personnel here today: Joy Russell, who is 11 the Senior Vice President and a member of Holtec's 12 Executive Committee; Ed Mayer, who is our Project 13 Director for the HI-STORE facility; and Kim Manzione, 14 who is the Licensing Manager.
15 Let me give you a little bit of background 16 about Holtec. The company was formed in the mid-17 1980s. Today, it designs, engineers, licenses, 18 manufactures, and deploys its technology and services 19 around the world. And while nuclear is the focus of 20 Holtec, Holtec also provides technology for solar, 21 geothermal, and fossil power industries.
22 Holtec's early focus was on heat exchanger 23 technology. And today, over 120 power plants on four 24 continents use these Holtec components.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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235 In 1992, Holtec launched its technology 1
for dry storage of spent nuclear fuel. Among the 2
first of that technology was the first licensed 3
multipurpose canister for storage and transportation, 4
the first dual-purpose metal cask, the first transport 5
cask licensed for high burnup and MOX, mixed oxide, 6
fuel, and the first double-walled canister for special 7
storage.
8 The Nuclear Regulatory Commission has 9
issued certificates of compliance under 10 CFR Part 72 10 for four different Holtec dry storage technologies.
11 Its dry storage systems were first installed in 2000 12 and today, over 1,200 Holtec systems are in service, 13 storing more than 62,000 spent fuel assemblies in 65 14 nuclear sites in the U.S. and 51 nuclear sites abroad.
15 In addition to dry storage, Holtec is a 16 leader in wet storage technology and is currently 17 developing the design for a small modular nuclear 18 reactor.
19 And more recently, Holtec has become 20 involved in the nuclear plant decommissioning and has 21 agreements with two utilities to own and decommission 22 their reactors, including assuming the ownership of 23 spent fuel.
24 The NRC staff is now reviewing the license 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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236 transfer applications for those facilities. Once 1
those transactions close, Holtec will, in essence, 2
become a nuclear utility, owning spent fuel currently 3
in dry storage and in pool storage.
4 Holtec manufactures all of its own 5
equipment and has three U.S. manufacturing facilities, 6
with more than 1,400,000 square feet of manufacturing 7
space.
8 In addition to manufacturing dry storage 9
systems, Holtec has also constructed spent fuel 10 storage facilities and provides for moving spent fuel 11 from pools to pads.
12 A little bit about the project. I think, 13 as you've heard from representatives of the 14 jurisdictions that will host the facility and we've 15 worked with closely, Holtec has a well of local 16 support for these facilities and a well of support 17 around the state.
18 In 2015, the Governor of New Mexico wrote 19 to the Secretary of Energy suggesting the 20 consideration of an interim storage site in 21 Southeastern New Mexico. In 2016, the House and 22 Senate of the New Mexico Legislature both issued 23 memorials in support of a CISF facility.
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237 Alliance, that you've heard John Heaton speak about 1
yesterday, and the Cities of Carlsbad and Hobbs, and 2
Holtec entered into a memorandum of agreement for the 3
HI-STORE facility.
4 And in July of 2016, the New Mexico Board 5
of Finance approved an option agreement for the sale 6
of the HI-STORE site to Holtec.
7 As you've heard, the site is in Lea 8
County, about 35 miles from Hobbs and about 35 miles 9
east of Carlsbad. It's a little bit over 1,000 acres.
10 The area is home to other nuclear projects, as you've 11 heard, Urenco Uranium Enrichment Facility in Lea 12 County and the DOE WIPP Facility in Eddy County.
13 The project itself will use Holtec 14 canisters in the initial phase, with NRC certificates 15 of compliance, that are loaded and welded shut at 16 utilities, transported to the site unopened, and 17 placed in subsurface vertical modules at the site.
18 The canisters are not opened after being welded shut 19 at the utility site.
20 The initial phase will be -- for which 21 we've applied, is 8,680 metric tons or 500 casks, and 22 the initial phase is limited to Holtec casks and 23 canisters.
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238 is capable of storing 100,000 metric tons of uranium, 1
in 10,000 canisters. Holtec is not asking for a 2
license beyond Phase 1. But because expansion is 3
possible, the environmental report evaluates the 4
environmental impacts for all phases.
5 And I would notice there have been a lot 6
of discussion that the capacity is 173,000 metric tons 7
of uranium, that is a number that is not correct. The 8
capacity, as defined by Holtec, is 100,000 metric 9
tons.
10 Studies at the site started in 2006, as 11 part of the Global Nuclear Energy Partnership, a $250 12 million DOE project to develop advanced nuclear 13 technologies.
14 HI-STORE is based on licensed technology 15 which is currently installed and in operation. The 16 HI-STORM UMAX, the underground storage, certificate of 17 compliance was issued in 2015 and is currently in use 18 at two U.S. nuclear plants.
19 I want to be very clear, because a lot of 20 the discussion centers around the role of DOE. This 21 project is not dependent on contracts with DOE and is 22 not dependent on DOE ownership of the spent fuel.
23 I'm happy to respond to the questions you 24 may have on that. But the short answer is if DOE is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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239 not entitled to hold title to commercial fuel, DOE 1
won't be involved.
2 The NRC review of the application was 3
filed in March of 2017. It was accepted for NRC 4
review in March of 2018. Holtec has received four 5
requests for additional information from the NRC 6
staff. That process is well underway.
7 As to the petitions to intervene, we have 8
carefully examined each one and have addressed in our 9
submittals whether each has met the Commission's 10 requirements for standing and contention 11 admissibility, and we believe they have failed to meet 12 those requirements.
13 Our answers to the petitions set forth our 14 positions in detail and explain why the petitions do 15 not meet the NRC standards. In the interest of time, 16 we will not try to summarize our positions, as they 17 are well set forth in our briefs, but we are very 18 pleased to answer questions that the Board may have.
19 We thank the Board for being here, we look 20 forward to answering your questions, and we look 21 forward to dealing with you through the completion of 22 this licensing facility.
23 I'd like also to ask the Board's 24 permission, if we could sit at the front row, we'll be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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240 passing the microphone, if we could have the 1
microphone back and forth between Tim and Anne and 2
myself.
3 CHAIR RYERSON: Yes, I think that will work 4
nicely.
5 MR. SILBERG: Thank you very much.
6 CHAIR RYERSON: We -- our space here is not 7
what we originally intended and we're doing the best 8
we can.
9 MR. SILBERG: We understand.
10 CHAIR RYERSON: Thank you.
11 MR. SILBERG: Let me first address the 12 question you raised about the NAC issue. We believe 13 that it's incorrect that if they're not in this 14 proceeding, they will lack the opportunity to address 15 the environmental report.
16 Right now, the application does not permit 17 the storage of NAC casks or non-Holtec casks at this 18 facility. We accept and are very clear, that in order 19 for other vendors' casks to be stored at the site, we 20 would need to amend the license and we would need to 21 amend the certificate of compliance for the UMAX 22 system, because right now, that is only licensed for 23 Holtec casks.
24 It may well -- we may well file those 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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241 applications. The casks, the underground facility, 1
are large enough to accommodate canisters of any 2
manufacturer. That's why we call it universal.
3 We recognize that NRC will have questions, 4
we recognize that the licenses and the certificate of 5
compliance may need to be amended. At those times, we 6
will have to, as part of the application, determine 7
whether there are any changes needed to the 8
environmental documents that have already been 9
submitted.
10 There will be an environmental statement 11 in each application. That statement may be no change 12 is required. If a change is required, our application 13 will include that.
14 If the NRC staff disagrees with our 15 conclusion, if that is our conclusion, that no changes 16 to the environmental analysis are needed, the NRC can 17 ask us additional questions or can provide that 18 information on their own. We will have to deal with 19 it.
20 If NAC believes that our conclusion, if 21 that is our conclusion, that no changes to the 22 environmental report are needed, they can challenge 23 that conclusion in the appropriate forum, which may be 24 a license amendment, it may be an amendment to the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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242 COC. They will have rights to participate, they will 1
not be shut out.
2 Right now, their interests are not 3
affected, because they're not in the application. We 4
don't say, in the environmental report, that any NAC 5
casks will be stored at the site.
6 We have tried to bound the environmental 7
impacts by saying, here are the impacts for a fully 8
developed site. If the site is less than fully 9
developed, if we only build five phases instead of ten 10 phases, we have bounded the environmental impacts. If 11 we reach the full capacity of the site, we will have 12 fully addressed the environmental impacts.
13 In no case are we shutting out NAC, if 14 they have issues with their particular casks. But 15 what we have looked at here is the capacity of the 16 site, whether it's 100,000 tons in Holtec casks or 17 100,000 tons in Walmart casks, whosever casks those 18 are, we have evaluated it.
19 There's nothing unique about NAC, their 20 interests are not affected, we're not saying good, 21 bad, or indifferent about their technology.
22 So, our answer is, we don't think they 23 need to be in this proceeding to protect their 24 interests, we don't believe they have demonstrated 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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243 that they have standing, and we don't believe that 1
they have demonstrated an admissible contention.
2 CHAIR RYERSON: Thank you, Mr. Silberg.
3 MR. SILBERG: And at this time, if I could 4
regain my seat and we'll go through --
5 CHAIR RYERSON: You may, it could be a long 6
time at the podium otherwise. Let me -- I probably 7
have fewer questions than my technical colleagues, so 8
let me begin, again.
9 First, Mr. Silberg, you may -- you have 10 every right not to respond on this point. There were, 11 last week, motions to file new or amended contentions 12 that seemed to be pretty closely related to Beyond 13 Nuclear Contention 1 and Sierra -- Beyond Nuclear's 14 only contention, and Sierra Club Contention 1.
15 And are you prepared to discuss those at 16 all now or do you want to wait? You have until, I 17 think, mid-February, February 11, something like that 18 to respond to those.
19 MR. SILBERG: I can certainly discuss --
20 let me turn on the mic here.
21 CHAIR RYERSON: Okay.
22 MR. SILBERG: I could certainly --
23 CHAIR RYERSON: That one should be working.
24 MR. SILBERG: I can certainly --
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244 (Laughter.)
1 MR. SILBERG: I missed my career as a rock 2
singer.
3 (Laughter.)
4 MR. SILBERG: I can certainly discuss it 5
and I think I would like to put in perspective some of 6
the statements that have been made, because I think, 7
for those who may not be familiar with the project, 8
there's a lot of misinformation that we've heard.
9 We've --
10 CHAIR RYERSON: Excuse me, if you're 11 prepared to address them, then, to some extent, you 12 have time respond in writing and then, there will be 13 a reply.
14 But I must say, I was somewhat struck 15 myself by what appears to be a Holtec document that 16 was issued this month, and we hear from you that if 17 DOE can't be involved, they won't be involved, but the 18 Holtec document, I'm not quoting it, but loosely says, 19 and of course, this Lea County Project will have to 20 await action either by the Congress or by DOE. And 21 that was confusing to me.
22 MR. SILBERG: Let me read you the sentence.
23 And I will say that this is one sentence out of a six 24 or seven page document. The sentence has been totally 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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245 taken out of context by the Interveners.
1 What the sentence says is, quote, while we 2
endeavor to create a national monitored retrievable 3
storage location for aggregating used nuclear fuel at 4
reactor sites across the United States into one (HI-5 STORE CISF) to maximize safety and security, its 6
deployment will ultimately depend on the DOE and the 7
U.S. Congress.
8 And it's that last phrase that seems to 9
have gathered everybody's attention. Honestly, I 10 think the sentence has been totally misconstrued by 11 Petitioners.
12 The phrase in question, its deployment 13 will ultimately depend on the DOE and the U.S.
14 Congress, does not say that we need DOE approval to go 15 ahead. It does not say that we need DOE to hold title 16 to spent fuel. It does not say we need DOE to take 17 over any aspect of this project.
18 What it says is that if DOE and the 19 Congress make decisions, particularly with spent fuel 20 storage and permanent storage, that will have an 21 impact on this project, and its deployment will depend 22 on that.
23 If, for instance, Congress and DOE decide 24 to go ahead with Yucca Mountain, we pray that will 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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246 happen -- and it's ironic that people would criticize 1
this facility as, perhaps, reducing the incentive for 2
a permanent disposal are among those who have fought 3
toughest to keep us from Yucca Mountain.
4 Putting that aside, if Congress were to 5
take steps to put in place permanent disposal or 6
federal interim storage on a schedule that made the 7
CISF, the Holtec HI-STORE project unnecessary, 8
obviously that would have an impact on the Holtec HI-9 STORE project.
10 So, its deployment would ultimately depend 11 on what DOE and Congress does. If we build Phases 1, 12 2, 3, 4, 5, and Yucca Mountain becomes available, we 13 won't build Phases 6, 7, 8, 9, and 10.
14 So, the obvious connection between the 15 state of the DOE nuclear waste program and interim 16 storage is clear in every way, because if we had 17 interim storage in operation today, we wouldn't be 18 here. We would be most pleased to be sending fuel 19 directly to Yucca Mountain.
20 Unfortunately, we're not in that position.
21 Utilities, after having contributed $35 billion to the 22 Federal Treasury to pay for Yucca Mountain, find that 23 their money has dissipated.
24
$7 billion has been spent on Yucca 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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247 Mountain and there are people in Congress and in the 1
outside community who would like that money to be 2
thrown away, for Yucca Mountain to disappear forever.
3 If Yucca Mountain proceeds on a schedule 4
which makes this facility unnecessary, in whole or in 5
part, if some other permanent disposal facility were 6
developed on a schedule which makes this facility not 7
usable, in whole or in part, that would have an effect 8
on the deployment of this facility.
9 That's what that statement means, nothing 10 more, nothing less. The environmental report has been 11 amended.
12 Rev 3, which was filed with the NRC in 13 November, which is available, publicly available, has 14 made clear that the few references in the report where 15 it appeared that DOE would hold title to the fuel or 16 would be responsible for the fuel that would come to 17 Holtec, those references have been clarified, to make 18 sure that it is either the utilities or DOE.
19 And the reason DOE is in there is, DOE may 20 have the ability to take title. They don't know, we 21 agree with that, for commercial fuel that they don't 22 already have -- unless it's through an R&D program, 23 because DOE has a few assemblies from commercial 24 reactors that it took for R&D that are probably at 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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248 Idaho National Labs.
1 But if Congress passes legislation that 2
allows DOE to take title, Congress passes legislation 3
which authorizes direct funding for this project, then 4
sure, DOE could have a role. That isn't the situation 5
now. We aren't depending on it, we don't assume it.
6 The statement that we heard yesterday, 7
that having Option 1 and Option 2 means that both 8
options are illegal just makes no sense at all.
9 Severability clauses exist throughout private 10 contracts and public statutes. There's no indication 11 that putting DOE as a possible participant in this 12 would make illegal private participation in the 13 absence of DOE ability.
14 The environmental report, where these 15 statements appear, is to describe, what are the 16 environmental impacts?
17 If you look at it in that context, we 18 don't need to address who owns the fuel at all, 19 because whether it's DOE hold title or the utilities 20 hold title or Holtec holds title, the environmental 21 impacts are going to be identical.
22 So, the statements in the environmental 23 report are useful for background information, but in 24 terms of environmental impacts, and that is what the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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249 environmental report is there to do, those statements 1
have no bearing and don't provide a basis for 2
contention in this proceeding.
3 CHAIR RYERSON: I just want to be sure I 4
heard you correctly, Mr. Silberg. You said that, 5
today -- are you conceding that as of today, DOE 6
cannot take title to spent nuclear fuel, that it 7
doesn't already own, cannot take the power companies' 8
spent nuclear fuel, take title to it, today, as the 9
law currently stands?
10 MR. SILBERG: I agree with you in general.
11 I would note that DOE has taken the position that it 12 has authority under the Atomic Energy Act, under its 13 research and development authority, to take spent fuel 14 to study. And they have done that.
15 DOE has the core from Three Mile Island 16 Unit 2 facility, sitting up in Idaho, they studied 17 them. They have occasional assemblies, I believe they 18 have one from North Anna. I think they may have one 19 from Point Beach, that has been moved to Idaho and is 20 being studied.
21 The high burnup fuel program that's being 22 developed, already in effect, that's a DOE EPRI 23 program. DOE is going to take fuel, I believe, from 24 North Anna, in a cask.
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250 Eventually, that cask will be moved up to 1
Idaho. They'll open it and confirm the high burnup 2
fuel is not being destroyed, because it's high burnup 3
fuel.
4 So, there are cases where DOE has title.
5 But what we're talking about -- and those are very, 6
very small quantities compared to the amounts we're 7
talking about, and that's not the focus of this 8
project.
9 But I will agree with you that, on their 10 current legislation, DOE cannot take title to spent 11 nuclear fuel from commercial nuclear power plants, 12 under the current statement of facts, but that could 13 change, depending on what Congress does.
14 CHAIR RYERSON: Yes, it could change, based 15 on what Congress does. But I guess where I was coming 16 was, I was going to suggest that this seemed to me 17 like an ideal issue for a legal issue contention.
18 We did not, in the pleadings, have you 19 position on the lawfulness of DOE's taking title.
20 Now, we did have the staff's, which I think treated 21 that issue as premature.
22 MR. SILBERG: But the reason we didn't put 23 the legal position in is because it's irrelevant, 24 because we don't depend on DOE's taking title. And we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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251 say we don't depend on DOE's taking title.
1 CHAIR RYERSON: But for Option 1, you do, 2
don't you? Wouldn't you?
3 MR. SILBERG: If that were the case, but 4
Option 1, as we've --
5 CHAIR RYERSON: Okay. So, in other words, 6
Option 1 is a contingent option, based upon something 7
happening --
8 MR. SILBERG: In the future.
9 CHAIR RYERSON: -- that makes it lawful?
10 MR. SILBERG: Correct.
11 CHAIR RYERSON: Okay. So, we don't need to 12 argue whether it's lawful today, you --
13 MR. SILBERG: I don't think there's any 14 dispute on the law, as to DOE's current authority to 15 take title for other than R&D purposes.
16 CHAIR RYERSON: Okay. Other than what you 17 characterized, I think, as a narrow research exception 18 19 MR. SILBERG: Correct.
20 CHAIR RYERSON: -- you agree, Holtec 21 International agrees that, under the Nuclear Waste 22 Policy Act, today, DOE may not lawfully take title to 23 spent nuclear fuel?
24 MR. SILBERG: Correct.
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252 CHAIR RYERSON: Correct. And the staff, I 1
just have to turn to the staff on this, which consider 2
the issue premature, does the staff agree with that?
3 MS. KIRKWOOD: Does the staff agree that 4
it's premature or does the staff agree that it's 5
unlawful?
6 CHAIR RYERSON: I'm sorry --
7 MS. KIRKWOOD: I just want to be sure I'm 8
answering the right question. Are you asking if the 9
staff agrees that it's premature --
10 CHAIR RYERSON: No.
11 MS. KIRKWOOD: -- or if the staff believe 12 that it's unlawful?
13 CHAIR RYERSON: No. I -- you said it's 14 premature.
15 MS. KIRKWOOD: Okay.
16 CHAIR RYERSON: You said it was premature.
17 My question today, having heard Mr. Silberg's 18 statement on behalf of Holtec International, does the 19 staff agree that, as of today, it was unlawful, under 20 the Nuclear Waste Policy Act, for DOE to take title, 21 put aside the research exception, to generally take 22 title to spent nuclear fuel?
23 MS. KIRKWOOD: The staff has not reached a 24 position on that issue --
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253 CHAIR RYERSON: Okay.
1 MS. KIRKWOOD: -- at this time.
2 CHAIR RYERSON: All right. Well, we have 3
Holtec's position. We may find that satisfactory. I 4
don't think we probably -- well, we'll probably have 5
a few minutes for everybody at the end, if we have 6
time, and we can see, but it seems to me that, what I 7
thought appeared to be just a fine legal issue 8
contention is no longer necessary.
9 MR. SILBERG: I think we're all in violent 10 agreement on this question --
11 CHAIR RYERSON: Okay.
12 MR. SILBERG: -- except perhaps for the 13 staff.
14 CHAIR RYERSON: All right. Well, that --
15 MR. SILBERG: But I will note that in the 16 litigation that arose out of the DOE breach of 17 contract, we argued, going back to the 1990s, that DOE 18 did have authority, other than the Nuclear Waste 19 Policy Act, to take our spent fuel, as they were 20 taking from research reactors, for instance, or Three 21 Mile Island.
22 And DOE and the Courts, DOE argued that 23 that was a unique Atomic Energy Act R&D authority and 24 the Court generally agreed. We've conceded that since 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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254 then.
1 CHAIR RYERSON: Okay. Thank you. Okay.
2 Well, let me move -- I have really just a few more 3
questions and then, maybe we'll take a break after 4
those and go to my technical colleagues.
5 But on Sierra Club Contention 4, this is 6
the challenge to, primarily a challenge to the 7
consequences of an
- accident, a
transportation 8
accident, with respect to spent nuclear fuel.
9 And the Sierra Club, I believe, relies 10 upon the Lamb and Resnikoff study, based on the 2001 11 Baltimore tunnel fire, and they're treating that as 12 though it had been a nuclear accident, and the 13 consequences of that.
14 And the Sierra Club's position is that, at 15 the very least, that raises a factual dispute for 16 which there should be a hearing.
17 And your position, as I understand it, is 18 that you have cited the 2008 final supplemental 19 environmental impact statement from the Department of 20 Energy on the Yucca Mountain case, which was rather 21 critical of that study, and which would be grounds 22 for, I think, at the least, you would argue, at the 23 least, saying that that is -- the Lamb and Resnikoff 24 analysis represents a worst case basis, which the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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255 Applicant's environmental report does not need to deal 1
with.
2 And my question for you, Mr. Silberg, is, 3
is that apparent from the environmental report? I 4
know the Commission has said that it is the 5
Applicant's job to -- or not the Applicant's job, the 6
Petitioner's job to read the application, read and 7
study the application, but this is a citation in the 8
application.
9 Does the application explain that position 10 explicitly or would the Petitioner be required to read 11 the application and then, read every citation in the 12 application?
13 MR. SILBERG: Well, before we do that, and 14 my colleagues are looking to see exactly what it says, 15 let me make a number of other points.
16 CHAIR RYERSON: Okay.
17 MR. SILBERG: First of all, we don't think 18 that the Lamb-Resnikoff study is material in this 19 case, for a number of reasons. One is, there's no 20 showing that that tunnel is on a rail route that will 21 take fuel from anywhere to CISF.
22 Second, the larger criticism in the Lamb-23 Resnikoff study is that the fire that engulfed the 24 train and the tunnel was more severe than the NRC 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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256 requirements require, I believe it is an 1,800 degree 1
maximum temperature.
2 The NRC Part 71 standards for 3
transportation casks give a maximum temperature number 4
that is below that. I believe it's 1,400 degrees 5
Fahrenheit.
6 So, in essence, that's a challenge to the 7
NRC's regulations for designing the casks. If they 8
wanted to put in a claim for a waiver of the NRC Part 9
71 standards, they could have done that.
10 In fact, the Part 71 standards should not 11 be involved in this case. The transportation casks 12 that Holtec would use have their certificates of 13 compliance.
14 You don't challenge, in this case, in a 15 licensing case, for a site-specific license, a 16 certificate of compliance that's been adopted by the 17 Commission in a rulemaking. If they wanted to 18 challenge that, they're well beyond the time frame.
19 The Lamb-Resnikoff study is also 20 inapplicable to this case, because the reason that 21 tunnel fire was so intense were the contents of the 22 cars.
23 Holtec will ship spent fuel by dedicated 24 trains. There will be no contents that will be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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257 flammable of the type that created that fire in the 1
tunnel.
2 So, that study, while it's interesting, 3
and that was a very significant fire, has no relevance 4
to spent fuel transportation.
5 And further, as we explained, there are 6
requirements that the Federal Railway Administration 7
review all the routes to make sure they are 8
appropriate.
9 We believe that if the Baltimore tunnel 10 were on a transportation route to the HI-STORE 11 facility, that the FRA would review that route and if, 12 in their expert judgment, they determined that it was 13 an inappropriate route, we would bypass it. If they 14 determined it was an appropriate and we needed to use 15 it, we would feel free to use it.
16 So, for all those reasons, I think Lamb-17 Resnikoff is of no relevance in this case. It 18 challenges the NRC regulation. Now, I don't know, 19 have you guys -- I'll pass the mic to Tim Walsh.
20 CHAIR RYERSON: Yes.
21 MR. WALSH: Thank you, Your Honor. With 22 respect to your question about if the environmental 23 impact statement addresses this, Section 4.9.3.2, 24 Accident Impacts, discusses how the Holtec analysis 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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258 was tiered off of the Department of Energy final 1
environmental impact statement.
2 So, the explicit reference is there. And 3
while the ER doesn't specifically address the Lamb-4 Resnikoff report, that's what the analysis is based 5
on. And the DOE analysis specifically addressed the 6
higher estimates provided by Lamb and Resnikoff.
7 CHAIR RYERSON: Okay. But Sierra Club's 8
counsel, if he read the application and the 9
environmental report, he would have seen the citation, 10 but he would not have been clued in in any way that 11 the Lamb and Resnikoff suffered from the deficiencies 12 that the supplemental environmental impact statement 13 addresses?
14 MR. WALSH: Certainly, Sierra Club's 15 expert, Dr. Resnikoff, would be intensely familiar 16 with the criticism that's --
17 CHAIR RYERSON: Good point, sir.
18 MR. WALSH: -- levied against him.
19 CHAIR RYERSON: Okay, thank you. But --
20 okay. A couple more questions. Sierra Club 21 Contention 8, and this is a contention that I believe 22 the NRC staff says is admissible, at least in part.
23 The calculation of the annual contribution 24 to a fund for -- looking for the right word -- for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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259 closing out the
- facility, decommissioning the 1
facility, Holtec -- I think the staff's principal --
2 I believe Sierra Club saw an inconsistency between the 3
numbers that were in, perhaps, the environmental 4
report and in other parts of the application.
5 And the staff raised the issue whether --
6 can we assume that every canister is full? They may 7
vary in the amounts.
8 And so, from both those directions, there 9
was some challenge to whether there isn't an 10 admissible contention on whether the amount, the 11 metric tons of uranium, at a certain amount, would 12 give rise to the total decommissioning fund payment 13 that you calculated. What is your response on that?
14 MR. WALSH: As explained in our response, 15 Your Honor, they used the wrong number. And so, we 16 detailed in our response their contention that --
17 CHAIR RYERSON: Excuse me, they would be 18 the Sierra Club?
19 MR. WALSH: Yes, Your Honor, the Sierra 20 Club. They used the wrong number in their calculation 21 and we laid out the calculation for them in our 22 response. And also, they overlooked the fact of the 23 real rate of return, which was discussed yesterday.
24 CHAIR RYERSON: Yes, that, we understand.
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260 The real rate of return, they ignored. But there were 1
two numbers in the application, weren't there?
2 JUDGE ARNOLD: Let me just say, the 3
environmental report clearly says, 5,000 metric tons.
4 And you used a capacity of 8,600-and-something metric 5
tons, times the $840 per metric ton. So, that 6
confusion still exists.
7 MR. WALSH: I am confirming that the 8
correct number was used in the decommissioning funding 9
plan, but let me -- if you give me a moment, I can 10 check.
11 MR. SILBERG: While Tim is looking, let me 12 make one further point, in terms of the staff's, and 13 I don't want to put words in their mouth, but the 14 staff's response to the contention and finding of 15 admissibility was made before it had the benefit of 16 reviewing our response to the contention.
17 I don't know whether the staff would be in 18 a position to say that cleared it up for them or not, 19 but they did not have the benefit of that when they 20 filed their contention responses.
21 CHAIR RYERSON: Well, while we're waiting, 22 we might as well ask the staff. Thus far, the staff 23 has not changed its position on anything, but let's 24 ask whether the staff's review of Holtec's response 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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261 has affected the staff's position?
1 In other words, the simple question, I 2
should try to simplify this, does the staff continue 3
to assert that the Sierra Club Contention 8 is, well, 4
either is admissible or you would not oppose its 5
admission?
6 MS. KIRKWOOD: Your Honor, at this point, 7
the staff would like to change its position to take no 8
position on the admissibility of that contention.
9 CHAIR RYERSON: The staff is taking note of 10 the position. Are you changing -- you're changing 11 your position to no longer oppose? I mean, you're 12 changing the position that you consider the contention 13 now not admissible?
14 MS. KIRKWOOD: We're -- initially, we had 15 filed saying we found a portion of it admissible.
16 CHAIR RYERSON: Correct.
17 MS. KIRKWOOD: We're changing that to say, 18 we're just not taking a position on that contention.
19 CHAIR RYERSON: You're not -- oh, you're 20 not taking a position one way or the other?
21 MS. KIRKWOOD: Right.
22 CHAIR RYERSON: Okay. Thank you.
23 MR. SILBERG: Perhaps we can come back to 24 that. Tim and Kim are both looking for the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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262 references.
1 CHAIR RYERSON: Okay.
2 JUDGE ARNOLD: Let me just clarify what I 3
said, it's in the Chapter 1 Introduction to the ER.
4 And it says, quote, Holtec is currently requesting 5
authorization to possess and store 500 canisters of 6
spent nuclear fuel, containing 5,000 metric tons of 7
8 However, if you look at your proposed 9
license, it says, 8,680 metric tons. So, there seems 10 to be a disjoint between the ER and the proposed 11 license.
12 MR. SILBERG: Yes. My understanding is the 13 appropriate number is 8,670 metric tons, I don't know 14 if the 5,000 is still in there --
15 JUDGE ARNOLD: Well, the --
16 MR. SILBERG: -- in the ER.
17 JUDGE ARNOLD: The 5,000 is consistent with 18 the eventual goal of 100,000.
19 MR. SILBERG: But that --
20 JUDGE ARNOLD: The 8,680 is consistent with 21 the number Interveners were saying of 170,000.
22 MR. SILBERG: Right. And the assumption is 23 that all canisters are equal, and all canisters are 24 not equal. In fact, the early canisters, which will 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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263 be Holtec, will have more fuel in them, because they 1
have greater capacity than the average of other 2
canisters.
3 So, on an average basis, the 173,000 4
number is wrong, because the later canisters are 5
expected to have less fuel than the earlier canisters.
6 I think that's the clarification as to why there are 7
different numbers.
8 CHAIR RYERSON: Thank you, Mr. Silberg. I 9
think -- you're still researching an answer, is that 10 correct?
11 MR. SILBERG: Yes.
12 CHAIR RYERSON: This could be, then, maybe 13 a good time to take a little bit of an early break.
14 MS. CURRAN: Before we break, could I --
15 CHAIR RYERSON: Yes.
16 MS. CURRAN: -- have the microphone? I 17 also have looked at different documents for the 18 different numbers, about how many metric tons.
19 And I just want to read for Judge Arnold 20 the sentence from Page 1-1 of the environmental 21 report. It's in the middle of the page.
22 It says, Holtec is currently requesting 23 authorization to possess and store 500 canisters of 24 SNF, containing 8,680 metric tons of uranium, MTUs.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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264 So, that number, 8,680, appears on the first page of 1
the environmental report. It is Revision 3, but I 2
believe it's in earlier revisions as well. Thank you.
3 CHAIR RYERSON: Thank you. Let's -- we 4
have a request here from NAC's counsel. I think we're 5
going to take a break shortly, if you have a minute or 6
two that you can respond, if you wish to respond.
7 MR. DESAI: A minute or two, thank you very 8
much.
9 CHAIR RYERSON: Okay. Go right ahead, 10 then.
11 MR. DESAI: So, the -- a lot of their reply 12 regarding -- their answer regarding the question 13 relates to the scope of the ER for an amendment. They 14 say that there will be an ER for an amendment.
15 And our reply is they didn't say that that 16 ER would get to facility design alternatives. I want 17 to cite to just -- you will find a lot of cases that 18 get to this point.
19 Turkey Point, LBP-90-16, 31 NRC 509, 20 Westlaw didn't give you the page number for this one.
21 31 NRC 509, the statement says the scope of the 22 National Environmental Policy Act (NEPA) review is 23 more limited than one performed prior to initial 24 licensing.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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265 And it cites to other decisions, LBP 1 14, 13 NRC 677, and in other decisions, they get to 2
the fact that an environmental review for an amendment 3
is limited, it's linked to the consequences of that 4
amendment.
5 For an amendment, for a cask-canister 6
thing, it would be limited to a cask-canister 7
infraction.
8 And that makes sense, because when you 9
have a power plant, they get amendments all the time 10 for their license, in the amendment proceeding, you 11 don't get to go back in that amendment proceeding over 12 design and litigate the design of the power plant.
13 In this case, the facility, the ER is 14 going to govern the whole facility, they said that.
15 So, whenever this amendment happens, Amendment 3 gets 16 passed or later amendments that put in NAC, the 17 facility will have been designed and will have been 18 built. So, there's no ability to litigate the design 19 alternatives.
20 And on the contra-side, look at it this 21 way, if we challenge the design alternatives later, 22 we're going to run into this ironclad obligation that 23 is well discussed, because we know everything now.
24 We know that -- we know their design 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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266 approach. We know it involves the universal casks, 1
which they acknowledged is comprehensive, going to 2
take other canisters. In addition to their point, 3
look at 2.2.2.1 of the ER, which says what universal 4
cask is in more detail.
5 And we're going to know all the 6
information we need at this point to file a contention 7
about the design alternatives analysis. So, later on, 8
what are we going to really get out of this that's 9
going to prevent us from running into this ironclad 10 obligation analysis?
11 CHAIR RYERSON: Thank you, Mr. Desai. Mr.
12 Silberg, did you want to say something before we take 13 a break?
14 MR. SILBERG: I have two points. First, I 15 didn't think we would get into a debate on individual 16 contentions, but --
17 CHAIR RYERSON: Right.
18 MR. SILBERG: -- there is a -- again, I 19 would like to respond to NAC counsel. The idea that 20 we will have fully designed and built the facility 21 when this issue might come up, we won't have built the 22 facility Phases -- whatever phase we're seeking 23 approval for won't have been built at the time that 24 change comes forward.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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267 And the idea that we have to consider as 1
a design action putting out competitors' facilities on 2
our site makes, frankly, no sense at all. It's as if 3
we wanted to build a reactor with a Westinghouse 4
design and GE came and said we want you to evaluate 5
putting a GE plant on that same site.
6 Well, that's not the purpose of this 7
project. As we made very clear, the purpose of this 8
project is to deploy Holtec technology. They want to 9
talk about alternative technologies and alternative 10 sites, it's not the competitor.
11 CHAIR RYERSON: All right. Thank you, Mr.
12 Silberg. Let's take a break now, let's go to promptly 13 at 10:30, and we will resume then. Thank you.
14 (Whereupon, the above-entitled matter went 15 off the record at 10:12 a.m. and resumed at 10:30 16 a.m.)
17 CHAIR RYERSON: Welcome back, please be 18 seated. Mr. Taylor?
19 MR. TAYLOR: Chair, before we move on, may 20 I clarify something that was discussed about the 21 Baltimore tunnel fire and Dr. Resnikoff's report?
22 CHAIR RYERSON: Yes.
23 MR. TAYLOR: I believe Mr. Silberg made 24 some comment before the break that Dr. Resnikoff's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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268 report --
1 CHAIR RYERSON: I don't think that mic is 2
on.
3 MR. TAYLOR: Before the break, Mr. Silberg 4
made a comment, I believe, as I understood it, that 5
the Baltimore fire report by Dr. Resnikoff was 6
irrelevant, because that was not a route that was 7
being considered for the Yucca Mountain project.
8 It's my understanding that that report was 9
a response to the 1999 Yucca Mountain EIS draft, which 10 did have the Baltimore tunnel as part of the route to 11 Yucca Mountain, and that, in response to Dr.
12 Resnikoff's report, the route was then modified for 13 the final EIS.
14 CHAIR RYERSON: Okay. Thank you, Mr.
15 Taylor. Back to Holtec, I think you were looking for 16 some information to give us.
17 MR. WALSH: Yes, Your Honor. With respect 18 to the decommissioning of cost estimate, Table 9.1.4 19 of the Decommissioning Funding Plan provides the 20 Holtec estimate for the decommissioning cost for Phase 21 1, $23.7 million.
22 Section 2.2 of the separate document, the 23 life cycle cost estimate says we need to collect $840 24 per MTU to meet those decommissioning costs. You have 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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269 to use the 8,680 MTU number to get to that number.
1 So, that's why the decommissioning costs 2
estimates that we provided were based on the intended 3
capacity of Phase 1. And the ER Rev 3 does have the 4
correct number, as far as holding 8,680.
5 CHAIR RYERSON: Okay. Thank you. I really 6
-- I think I have one more area for questions myself, 7
and then, I think there are some questions from some 8
of my colleagues, particularly on the geology issues.
9 My question is on standing. I want to 10 understand Holtec's position on the standing a little 11 better. Holtec's position is that none of the six 12 Petitioners has standing and NAC is kind of a 13 different case.
14 But -- oh, I know, Beyond Nuclear has a 15 member who lives a mile, I believe, from the facility 16 and I'm not quite sure I fully understand Holtec's 17 position on standing.
18 I guess my concern, to give it to you, is 19 that, is Holtec arguably conflating the test for the 20 admissible contention with the test for standing? I 21 know the Commission tells us that when we consider 22 standing, unlike when we consider contentions, we 23 should be fairly lenient in finding standing.
24 And if someone lives a mile from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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270 facility, do they have to establish a pathway, a 1
possible leak from the facility, if you're putting all 2
these metric tons of uranium practically in their 3
backyard, doesn't that give them standing?
4 Would you like to explain a little more 5
why even those who reside very close to the proposed 6
facility, in your view, do not have standing?
7 MR. WALSH: Thank you, Your Honor. Yes.
8 Our position is that the Commission requires a case-9 by-case analysis of standing in materials license 10 cases. And specifically, it is the Petitioner's 11 burden to show that they would be impacted by the 12 facility. And in this case, they have not done so.
13 There are several reasons for our 14 position. It is true that Petitioners are obligated 15 to demonstrate some sort of plausible mechanism by 16 which they would be impacted by the analysis. And 17 there's Commission case law on that.
18 In particular, the U.S. Army Installation 19 Command case, which is a case cited by several of the 20 Petitioners, where the Commission rejected standing 21 where it found that there was no obvious potential for 22 offsite migration of the radionuclides in that case.
23 The Commission has also issued some 24 rulings with respect to what type of dose has to be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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271 received in order to constitute a harm.
1 And their Energy Solutions case, CLI-11-3, 2
says, mere potential exposure to minute doses of 3
radiation within regulatory limits does not constitute 4
a distinct and palpable harm on which standing can be 5
founded.
6 The SAR, Table 7.3 of the SAR, gives you 7
the dose at 1,000 meters, or a kilometer away, and 8
that is 0.0848 millirem. And no one has asserted that 9
they reside closer to that, there. And that's 10 assuming continually 8,000-and-change hours of 11 occupation. It's a 24/7, 365 day/year analysis.
12 There's been some discussion, too, about 13 some of the case law in here. In particular, the 17-14 mile radius that was established in the Diablo Canyon 15 and the Shearon Harris cases. Those cases are easily 16 distinguishable from the one at present here.
17 Shearon Harris involved a spent fuel pool 18 expansion proceeding. And in that case, the 19 activities that were going to be licensed involved 20 actual handling of bare fuel, having it shipped in in 21 transportation casks, unloaded, and put into the spent 22 fuel pool at the Harris plant site.
23 In the Diablo Canyon proceeding, while, 24 yes, that was an at-reactor independent spent fuel 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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272 storage installation, the licensed action there 1
- involved, first and
- foremost, an above-ground 2
independent spent fuel installation, whereas the one 3
we propose to build will be below-ground, and 4
therefore, has a significantly different risk profile.
5 But in addition, the licensing action at 6
Diablo Canyon involved the placement of spent fuel 7
from the spent fuel pool into canisters, and then 8
moving those canisters onto the pad.
9 Those operations are not present here in 10 this proceeding. The canisters, as my colleague said 11 in the very beginning, are going to come to the site 12 sealed and will not be opened.
13 And so, our contention is that Petitioners 14 have not demonstrated that that case ought to apply 15 here. And again, I think it's incumbent upon the 16 Petitioners to show, in a case-by-case scenario, why 17 that ought to apply here, and we don't think it does.
18 CHAIR RYERSON: Okay. I guess the problem 19 I potentially have with that position is that I have 20 a hard time imagining who would have standing in your 21 view.
22 You say that the canisters are not going 23 to leak, the casks aren't going to leak. But can you 24 tell me who might have standing? Can you think of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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273 anyone who would possibly have standing under your 1
theory?
2 MR. WALSH: Your Honor, it's Petitioner's 3
burden to demonstrate they have standing. We've laid 4
out all the facts that are appropriate here.
5 CHAIR RYERSON: Okay. Thank you. All 6
right. I think, Judge Trikouros, did you have some 7
questions?
8 JUDGE TRIKOUROS: Yes. Fortunately, many 9
of my questions have already been answered, which is 10 convenient.
11 We started the discussion yesterday with 12 the Don't Waste Michigan group, regarding their 13 Contentions 5 and 12. And the -- I had asked the 14 question, would subsidence on this site potentially 15 cause damage to the UMAX storage system? And the 16 answer, of course, came back, yes.
17 I will ask you the same question. And 18 I'll add to it that, if you tell me that the design of 19 the system incorporates subsidence as part of the 20 design basis, then perhaps the answer to that question 21 is no. But what is the correct answer?
22 MS. LEIDICH: The correct answer, we 23 believe, is that there won't be subsidence on the 24 site. And we've provided information in the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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274 environmental report, which also refers to the ELEA 1
2007 report, which underwent a detailed analysis of 2
the site itself, looking for evidence of subsidence.
3 And this is specifically the site, not 4
West Texas, which Interveners or Petitioners have used 5
as their basis for subsidence. They refer to West 6
Texas, we're looking at the actual site itself.
7 And it goes back about 50 years worth of 8
what they're looking at. And there has been no 9
evidence of subsidence at the site that we have seen.
10 JUDGE TRIKOUROS: So, you're saying there 11 won't be subsidence and you don't have to account for 12 it for that reason? Okay.
13 MS. LEIDICH: We believe that it's not a 14 credible threat.
15 JUDGE TRIKOUROS: It seems like, the SAR, 16 I think agrees with you, on, I think it's Page 2-54, 17 I mentioned it yesterday, seems to indicate the same 18 as what you're saying.
19 However, the ER does have places where it 20 seems to indicate that subsidence is possible, Page 21 344-345. Again, that's a PDF reference. It's the 22 section that says Pecos Valley Section and 23 Physiographic Subregions.
24 It says solution subsidence depressions of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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275 varying sizes are common landscape features across 1
this
- section, because of the dissolution of 2
evaporating carbonate units. Also, I would --
3 MS. LEIDICH: I'm sorry, could you -- 344 4
and 345 of the document that I'm looking at appear to 5
be graphs.
6 JUDGE TRIKOUROS: Well, we may -- okay.
7 So, this is a PDF document and the one I have is 8
obviously different than the one you have. The 9
section is called Pecos Valley Section and 10 Physiographic Subregions. That's the section name.
11 MS. LEIDICH: Is it possible that you're 12 looking at Rev 3 of the document?
13 JUDGE TRIKOUROS: No, I am not.
14 MS. LEIDICH: Oh, well, in the area, there 15 has been subsidence, in the general Permian Basin 16 region. Without looking at the document itself and 17 finding the page, and I might have to get back to you 18 a little bit later, I can't tell you specifically if 19 this is near the Holtec site.
20 JUDGE TRIKOUROS: Okay.
21 MS. LEIDICH: We haven't seen subsidence 22 near the Holtec site. However, in the overall Permian 23 Basis region, there has been some.
24 It's typically more associated with the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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276 potash mining that occurs in the area, which is why, 1
in Section 3-2, or Page 3-2 of the ER, we reference 2
that Holtec holds the mineral rights for potash mining 3
down to 5,000 feet, which is why they don't expect 4
subsidence.
5 Once you get below that level, you don't 6
expect subsidence to occur. And in fact, the 7
Schafersman report itself indicates that activity 8
below 3,000 feet would not result in subsidence. He 9
says that on Page 15.
10 JUDGE TRIKOUROS: Okay. And I bring this 11 up because, of course it's Don't Waste Michigan, two 12 contentions specifically deal with this. We learned 13 yesterday, from Mr. Lodge, that there's an RAI that 14 was issued recently, well, I guess it was March, that 15 dealt with this. And I hadn't seen the RAI or any 16 answers. So, this was all news to me.
17 But subsidence would be a common mode 18 failure, in risk parlance. It wouldn't potentially 19 fail one canister, it would fail all canisters, all 20 casks, perhaps I should say. So, it's a serious 21 matter. And not one that should be lightly dismissed.
22 MS. LEIDICH: Your Honor, the RAI in 23 question was issued in March of 2018, of last year.
24 It was responded to in May of 2018. The Interveners 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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277 or the Petitioners had the opportunity to address that 1
RAI in their contention, if they so choose, and they 2
did not. We can probably provide an ML number for you 3
with a bit of looking.
4 In terms of the risk of subsidence, again, 5
we do not believe that a risk has been substantiated 6
at the site. We do not believe that Petitioners have 7
put forth a risk.
8 And given that Holtec controls the mining 9
rights down to 5,000 feet and that there has been no 10 evidence of past subsidence, we don't consider this a 11 risk that is credible.
12 JUDGE TRIKOUROS: Okay. But the Petitioner 13 did put forth a challenge to that in Contention 5 and 14 12, correct?
15 MS. LEIDICH: The Petitioner's --
16 JUDGE TRIKOUROS: And they do have an 17 expert who supports their position.
18 MS. LEIDICH: The Petitioner's own expert 19 indicates that there is no risk if the drilling occurs 20 below 3,000 feet, and we own the mineral rights down 21 to 5,000 feet.
22 JUDGE TRIKOUROS: With respect to hydraulic 23 fracturing?
24 MS. LEIDICH: We own the potash mineral 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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278 rights down to 5,000 feet. Potash mineral mining 1
occurs about 5,000 feet, traditionally in the 1,000-2 2,000 range. As Petitioners even note in their own 3
report, oil and gas drilling occurs much lower, 4
generally 8,000 feet.
5 JUDGE TRIKOUROS: And what about Contention 6
12, with respect to the geology below the site? Their 7
expert, Dr. or Mr. Schafersman, I believe it is, 8
indicates that the nature of the geology of the site 9
is significantly different than what's mentioned in 10 the ER.
11 I think I mentioned this yesterday, but 12 comparing Section 3.3.3 of the ER with Section 2 of 13 the, I guess I would refer to it as the Schafersman 14 report, are in direct contradiction, with respect to 15 the occurrence of karst in the geology of the site.
16 And my understanding is that the karst geology does 17 lead potentially to subsidence.
18 And also, subsidence has been shown to 19 occur in the vicinity of the site. Now, you're saying 20 it has not occurred at that exact spot --
21 MS. LEIDICH: And there's a lot of data to 22 support that assertion.
I don't read the 23 Schafersman's report as asserting that there is karst 24 specifically at the location. In fact, I believe he 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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279 says that there is not.
1 What he does point out is that there is a 2
Salado area below the site. I believe that he says it 3
starts at 1,400 feet. And he alleges that the Salado 4
area may grow into karst if there were leaking oil, 5
fuel, oil field waters, old burn injection wells, or 6
broken casing causing a dissolution cavity to develop 7
in the Salado.
8 I don't see any specific references to 9
particular karst formations at the site itself.
10 However, I would say that these are all speculative, 11 he's assuming that a series of events may occur that 12 have not occurred at the site.
13 And all of this, again, is contrary to the 14 evidence at the site that there has been no subsidence 15 there.
16 I don't see anything in the Schafersman's 17 report that specifically points towards karst at this 18 specific site. He does say, of course, that it's in 19 West Texas and it's in other areas of the Permian 20 Basin, which we do not dispute.
21 I will make a note that the basic geologic 22 data on Page 13 of the Schafersman's report, to the 23 extent that you are relying on it, this is geologic 24 data for Well CP975. That is not at the Holtec site, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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280 that's actually at the border with Texas. It's 1
somewhat unclear from the report where that's located.
2 JUDGE TRIKOUROS: Yes. I'm not relying on 3
it, I'm -- the Petitioners are relying on it. Okay.
4 Well, I understand. But we do have a contention, we 5
do have two contentions, that deal with this and they 6
are supported by expert opinion.
7 MS. LEIDICH: Well, we disagree that the 8
Schafersman's report supports the existence of karst 9
at the site or subsidence at the site.
10 JUDGE TRIKOUROS: But right now, we're not 11 in a hearing, we're --
12 MS. LEIDICH: Well, if the Petitioner's own 13 documents can be reviewed to whether or not they 14 support the contention, in fact, the Petitioner's 15 documents that are put forth in support of a 16 contention should be reviewed to determine whether or 17 not it presents an adequate basis for factual or 18 expert support.
19 JUDGE TRIKOUROS: Okay. That's fine. At 20 this point, that's enough. But I will, again, remind 21 you that we were told yesterday that staff is looking 22 at this, as well.
23 MS. LEIDICH: Just as one last comment, 24 again, that RAI was from last year and it has been 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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281 responded to. We can get you the ML number, if you 1
wish.
2 JUDGE TRIKOUROS: Yes, I hope --
3 MS. LEIDICH: We'll look for that.
4 JUDGE TRIKOUROS: -- you can. Yes. All 5
right. Okay. I'm going to jump around a little bit 6
at this point and ask --
7 MS. LEIDICH: If it's geology, it's still 8
me.
9 JUDGE TRIKOUROS: No, no, no, it's --
10 (Laughter.)
11 JUDGE TRIKOUROS: I have other questions 12 that -- do you want to -- how do you want to do this?
13 CHAIR RYERSON: Why don't you continue, 14 Judge Trikouros?
15 JUDGE TRIKOUROS: Okay. All right. I'm 16 just going to try and fill in gaps that I have. With 17 respect to the start clean stay clean question, if a 18 canister doesn't meet the receipt and inspection 19 procedures that Holtec has, the plan is to ship it 20 back to the sender.
21 Would there be -- and of course, it would 22 have to meet the requirements of 10 CFR Part 71. If 23 it doesn't, if it can't be shipped back, and I assume 24 that that may happen, there's no indication that it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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282 couldn't happen, what would happen at that point?
1 MR. WALSH: Your Honor, we don't anticipate 2
it happening at all. If a canister is found to be 3
leaking or damaged in any way, it will be shipped back 4
in an NRC-approved transport cask. And it must be 5
shipped in accordance with Part 71.
6 And we can't imagine a circumstance where 7
a canister that doesn't meet our requirements would 8
not be -- when inserted into the transportation casks 9
would not be sufficiently protective.
10 But we would take whatever steps are 11 necessary to ensure that it could be transported back 12 to its originating site.
13 JUDGE TRIKOUROS: Do you have the ability 14 to, for let's say canning or anything like that, at 15 the Holtec facility?
16 MR. WALSH: No, we do not.
17 MR. SILBERG: I will make one further 18 point, that is, you can insert a Holtec canister into 19 a sleeve, if there's a problem with the canister, 20 before it's put into the vertical shaft.
21 The shaft has enough clearance to support 22 an additional over-canister over the canister before 23 it's permanent or temporarily set in the vertical 24 shaft.
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283 JUDGE TRIKOUROS: Okay.
1 MR. TAYLOR: Your Honor, I don't know if an 2
objection is appropriate, but this is the first time 3
we're hearing --
4 JUDGE TRIKOUROS: Can somebody --
5 CHAIR RYERSON: Excuse me, you might ask 6
for the opportunity to speak.
7 MR. TAYLOR: I'm sorry, I apologize. If I 8
may be heard for a moment, Your Honor?
9 CHAIR RYERSON: Yes.
10 MR. TAYLOR: Thank you. This is the first 11 time we're hearing this information. We're trying 12 this case, we're trying things on the merits, so it 13 seems. Certainly, there is a problem of conflating 14 standing and merits kinds of issues, that I've been 15 hearing this morning.
16 But this is new information, and a 17 representation of counsel, certainly nothing we've 18 seen in the documentation that there's some sort of 19 mitigating methodology that's available, if there is 20 a troubled canister that is delivered to the site.
21 Thank you.
22 CHAIR RYERSON: Is that your point, that --
23 MR. TAYLOR: Yes.
24 CHAIR RYERSON: Okay, thank you.
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284 MS. LEIDICH: Your Honor, we have an ML 1
number available for you for that RAI response, if 2
you're ready. This was RAI 2-2, and the ML number is, 3
4 JUDGE TRIKOUROS: That was ML18150A30?
5 MS. LEIDICH: A330.
6 JUDGE TRIKOUROS: A330, good. Okay, thank 7
you.
8 MS. LEIDICH: Thank you.
9 JUDGE TRIKOUROS: Okay. In your answer to 10 Contention 23, you state, the system allows for ready 11 retrieval of the spent fuel from the storage system 12 for further processing or disposal. Can you tell me 13 what you mean by further processing or disposal?
14 MR. WALSH: Your Honor, that simply means 15 removing it from the storage module and sending it to 16 a repository, as is the hope one day. Taking the 17 canister out of the module and sending it to its 18 ultimate disposition.
19 JUDGE TRIKOUROS:
Regardless of its 20 condition?
21 MR. WALSH: It's supposed to meet the 22 staff's Interim Staff Guidance 2 on retrievability.
23 That's why we state that in there. In the matter of 24 transportation, the canister will have to be inspected 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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285 again to meet the requirements of Part 71.
1 JUDGE TRIKOUROS: All right. So, what you 2
mean is, shipping it offsite to a disposal facility?
3 That --
4 MR. WALSH: Correct.
5 JUDGE TRIKOUROS: That's what that means, 6
okay. That's fine.
7 With respect to high burnup fuel, is 8
meeting the requirements of Interim Staff Guidance 11 9
Rev 3, we talked about this yesterday with, perhaps, 10 Mr. Lodge, is that sufficient to maintain safe storage 11 for, let's say, the service life, 100-year service 12 life?
Just simply meeting those temperature 13 requirements are sufficient?
14 MR. WALSH: We believe it's sufficiently 15 protective of the cladding, yes, Your Honor. In 16 addition, we also meet the ambient temperature 17 requirements as well, too, with some margin.
18 So, there is less likelihood -- at the 19 site itself. Therefore, there is less likelihood of 20 potential degradation due to temperature-induced 21 degradation.
22 JUDGE TRIKOUROS: All right. So, from your 23 point of view, as long as you maintain the fuel within 24 certain temperature limits, high burnup fuel can be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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286 treated the same as lower burnup fuel?
1 MR. WALSH: Yes. In addition, Your Honor, 2
I would also like to correct something from yesterday.
3 There is the aging management program for high burnup 4
fuel, which is not a voluntary program, as was stated.
5 It will be part of the license requirements of the 6
facility.
7 That is a program that's going to, 8
basically, incorporate data that is learned from the 9
Department of Energy and EPRI, and we'll take whatever 10 protective actions are necessary. But the assertion 11 yesterday that it's a voluntary program is flat wrong.
12 JUDGE TRIKOUROS: Okay. I guess we did 13 discuss that yesterday with Mr. Lodge. And you're in 14 a position to implement anything that comes out of 15 these research programs that are underway?
16 MR. WALSH: Yes, that is our position.
17 JUDGE TRIKOUROS: All right. Thank you.
18 JUDGE ARNOLD: I've got a question along 19 that line. Concerning high burnup fuel, now, your 20 canisters are certified for the storage of high burnup 21 fuel, right?
22 MR. WALSH: Correct.
23 JUDGE ARNOLD: And the transportation casks 24 are certified for transportation of high burnup fuel?
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287 MR. WALSH: Correct.
1 JUDGE ARNOLD: Now, is it your assertion 2
that these certifications pretty much put all of the 3
questions on high burnup fuel out of the scope of this 4
licensing action?
5 MR. WALSH: The design related issues are 6
outside the scope of this action. We still have to 7
evaluate, as we did, the environmental impact of 8
storing and transporting spent nuclear fuel. And 9
that's what we did.
10 JUDGE ARNOLD: Okay. I'm just wondering, 11 what -- is there some rule that tells us that these 12 issues being certified are no longer within the scope 13 14 MR. WALSH: Yes.
15 JUDGE ARNOLD: -- of this?
16 MR. WALSH: Yes, Your Honor. Rule 72.46(e) 17 of the Commission regulations deals with the storage 18 question.
19 And it specifically states that if an 20 application for a specific license incorporates by 21 reference a design of a spent fuel storage cask for 22 which NRC approval under Subpart L has been issued or 23 sought, the scope of any public hearing to consider 24 the application will not include any cask design 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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288 issues.
1 And then, with respect to transportation, 2
it's a similar analysis, but different rules apply.
3 Because we have the transportation certification and 4
we are allowed to transport spent fuel under the 5
general license, that general license is not subject 6
to challenge in this proceeding.
7 JUDGE ARNOLD: Thank you.
8 JUDGE TRIKOUROS: Okay. Let me continue 9
with high burnup fuel discussion. There's a table in 10 the UMAX FSAR, it's Table 5.0.1. There's also a Table 11 7.1.1.
12 And the Table 5.0.1 and the subsequent 13 table define what they call a design basis fuel 14 burnup. Actually, it says, design basis fuel burnup, 15 cooling time, and enrichment.
16 The Table 5.0.1 is referring to an MPC-32 17 and also the MPC-37 canister. And it has a burnup of 18 45 gigawatt days per metric ton uranium, which is 19 defined as the threshold where high burnup fuel 20 begins. It also has a cooling time of five years and 21 it has an enrichment of 3.6 percent, which is less at 22 issue here.
23 What -- and the other table, 7.1.1, has a 24 burnup of also 45 gigawatt days per metric ton, a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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289 cooling time of eight years.
1 And I guess my question is why would you 2
set a design basis to be the minimum threshold of high 3
burnup fuel? And I -- okay.
4 Before you answer that, there is also, in 5
the certificate of compliance document, let's see if 6
I can give you the exact reference, this is 7
certificate of compliance for the MPC-37 canister.
8 That certificate of compliance had some appendices 9
attached to it. Appendix B is entitled the Approved 10 Contents and Design Features.
11 So, for MPC-37 canister, the maximum 12 enrichment is five percent, which is certainly 13 acceptable. The cooling time is greater than or equal 14 to three years, which is also acceptable.
15 But the assembly average burnup is less 16 than or equal to 68.2 gigawatt days per metric ton, 17 which means, of course, it could be 68.2. So, how do 18 you reconcile -- and this Appendix B is the references 19 given for what should be acceptable to your site, for 20 an MPC-37.
21 There's also the MPC-89 portion of that, 22 very similar, but it's 65 gigawatt days per metric 23 ton, so it's slightly less.
24 So, you have a design basis assembly of 45 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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290 and you have assemblies coming in that are at, let's 1
say, 65 or perhaps more gigawatt days, how does that 2
all work?
3 MR. WALSH: Just to confirm, you referenced 4
Table 5.0.1 from the UMAX FSAR, and --
5 JUDGE TRIKOUROS: Yes.
6 MR. WALSH: -- you mentioned also a Table 7
7.1.1, is that in the same document?
8 JUDGE TRIKOUROS: I believe so, yes. In 9
fact, it is.
10 MR. WALSH: That might be the HI-STORE.
11 JUDGE TRIKOUROS: I believe it's identified 12 as the UMAX FSAR.
13 MS. LEIDICH: We don't have a Table 7.1.1 14 in the UMAX FSAR.
15 MR. WALSH: We recommend that we take a 16 moment to --
17 JUDGE TRIKOUROS: Oh, let me take that 18 back. The first table is the UMAX FSAR. The second 19 table is the --
20 MR. WALSH: HI-STORE?
21 JUDGE TRIKOUROS: -- CISF, yes, that's 22 correct, FSAR.
23 MR. WALSH: Can we take a moment to 24 research and get back to you?
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291 JUDGE TRIKOUROS: Sure.
1 MR. SILBERG: We could either do that over 2
the lunch break and continue now, or take the break 3
now --
4 JUDGE TRIKOUROS: It might be better to do 5
that, to give you the time to do that, unless it's 6
going to be real quick.
7 CHAIR RYERSON: Yes, so, I mean, do you 8
want to continue with your other questions now?
9 MR. SILBERG: I think we have the answer.
10 JUDGE TRIKOUROS: Okay, good. Excellent.
11 MR. WALSH: The answer is that source terms 12 and doses are based on a combination of burnup, 13 enrichment, and cooling time. The chosen mix is 14 reasonably bounding. Burnup alone does not determine 15 dose for the spent fuel.
16 JUDGE TRIKOUROS: Okay. But it is a 17 factor.
18 MR. WALSH: Yes, it is.
19 JUDGE TRIKOUROS: It's not --
20 MR. WALSH: Yes.
21 JUDGE TRIKOUROS: -- all, but it is a 22 factor.
23 MR. WALSH: Yes. But the certification for 24 the UMAX system is up to -- is capable of storing the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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292 MPC canisters. That is specifically stated in the 1
certification for the UMAX.
2 JUDGE TRIKOUROS: All right. So, in other 3
words, the -- that 65 or 69, depending on which 4
canister it is, can be accommodated safely and the 5
fact that the UMAX Table 5.0.1 calls that a design 6
basis assembly of 45 is not what goes into the 7
analyses?
8 The analyses are done to accommodate the 9
higher burnup, the highest burnup you can accommodate, 10 which apparently is 65, for the MPC --
11 MR. WALSH: Hold on one second, Your Honor.
12 We'll come back to this, Your Honor.
13 JUDGE TRIKOUROS: Okay. All right, that's 14 fine. Your ability to retrieve canisters under all 15 conditions of storage, I believe those are your words, 16 certainly, they're referenced by the staff at various 17 times and we just talked about
- that, your 18 environmental -- your onsite radiation protection 19 program is capable of accommodating any condition of 20 the canister, when it's retrieved for disposal? Is 21 that correct?
22 MR. WALSH: Yes.
23 JUDGE TRIKOUROS: That's correct?
24 MR. WALSH: Yes.
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293 JUDGE TRIKOUROS: So, no matter what 1
cracking you might see, no matter how much failed fuel 2
there may in a canister, you can retrieve it safely 3
and send it off for disposal?
4 MR. SILBERG: I assume that there's a 5
credibility issue here. One can postulate the 6
meteorite the hitting the cask dead-on --
7 JUDGE TRIKOUROS: Let me correct that. I'm 8
talking about all normal conditions of storage over a 9
long period of time.
10 MR. SILBERG: Correct.
11 JUDGE TRIKOUROS: Okay.
12 MR. SILBERG: That's correct.
13 JUDGE TRIKOUROS: Because we are -- we do 14 have the service life issue of -- or the defined 15 service life of 100 years --
16 MR. SILBERG: Yes.
17 JUDGE TRIKOUROS: -- or perhaps even more.
18 All right. Thank you. If a leak occurs in the 19 canister while it's in the UMAX enclosure, can it be 20 identified?
21 MR. SILBERG: We wouldn't expect any leaks, 22 but the aging management program is specifically in 23 the application to deal with those kinds of 24 circumstances.
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294 JUDGE TRIKOUROS: Okay. And I do believe, 1
from what I've seen, that you would lift the canister 2
out of the enclosure and inspect it as you bring it 3
out, at various levels, to see if there's any 4
cracking, is that correct?
5 MR. SILBERG: The monitoring would be 6
visual. There's an annulus between the canister and 7
the cask wall. And the monitoring would be done 8
visually, remotely visual --
9 JUDGE TRIKOUROS: Correct.
10 MR. SILBERG: -- we're not sending any 11 people down there, but we'll send equipment down 12 there.
13 JUDGE TRIKOUROS: Right. So, you'd be 14 lifting the canister out and visually inspecting the 15 canister?
16 MR. SILBERG: Well, I think you might 17 visually inspect it before you'd lift it.
18 JUDGE TRIKOUROS: So, you could send a 19 camera down --
20 MR. SILBERG: Yes.
21 JUDGE TRIKOUROS: -- and visually inspect 22 it? Okay. Can a leaking canister be repaired?
23 MR. SILBERG: The answer is that it's 24 outside the scope, because there are no credible leak 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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295 paths.
1 (Laughter.)
2 JUDGE TRIKOUROS: Okay. I take that as a 3
no.
4 MR. SILBERG: At the present time, it's not 5
within the scope of this license application.
6 JUDGE TRIKOUROS: Hypothetically, if a leak 7
did occur, could you put it inside another container?
8 MR. SILBERG: That's what we talked about 9
before, where you have the encapsulation and the 10 vertical casks have enough clearance to insert an 11 over-canister, over the canister and inside the 12 vertical module.
13 JUDGE TRIKOUROS: So, any assertion that 14 you had no way to handle a leaking canister is 15 incorrect?
16 MR. SILBERG: That's right. The question 17 was can you repair a cask? And that's really outside 18 the scope. But that's not to say that you can't take 19 steps to remedy a problem, even if something happens 20 that we don't consider credible, which is a leak 21 through the cask.
22 JUDGE TRIKOUROS: Right. Can you remove 23 the fuel from a cracked canister and put it in another 24 canister?
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296 MR. SILBERG: If you have the right 1
facility, yes. But that's not part of the design of 2
HI-STORE.
3 JUDGE TRIKOUROS: Okay. Well, I think 4
you've answered my next question, have you seen any 5
cracks in canisters in the past? And it sounds like 6
you said no.
7 MR. SILBERG: No, there have been none.
8 The question about removing fuel is the dry transfer 9
storage discussion we had yesterday. It is a 10 technique that is possible, but it is not part of the 11 design.
12 The design would have to go through a 13 licensing process. That's been stated very clearly in 14 the continued storage rule that adding any DTS would 15 be a license event.
16 JUDGE TRIKOUROS: Okay. I guess, the 17 problems at San Onofre, are they applicable here? The 18
-- I'm not very familiar with the problems at San 19 Onofre.
20 MR. SILBERG: Yes, the answer is, we 21 believe, no. The standoff pins are no longer being 22 used in current manufacture. There are all of, I 23 think, 42 casks that have those. The problems in San 24 Onofre, we do not think are relevant at this site.
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297 JUDGE TRIKOUROS:
Okay.
The aging 1
management program, not specifically the high burnup 2
fuel one, but the standard aging management program 3
does include testing of groundwater, and can you tell 4
me what that means?
5 Because we have an outstanding contention 6
that claims that there's groundwater there that you 7
have not -- that you don't know is there, so to speak.
8 MR. SILBERG: Well, we have existing wells 9
that have been monitored that have identified 10 groundwater. The results of that are set forth in the 11 application.
12 I don't know off the top of my head what 13 the aging management plan says on that specific topic, 14 we can certainly find that information and get it to 15 you.
16 JUDGE TRIKOUROS: Yes, it didn't have a lot 17 of details. It basically said you would be testing 18 the groundwater, it didn't identify -- I don't think 19 it identified specific wells or anything like that.
20 I don't even think it identified the 21 groundwater specifically, if it was talking about 22 aquifers or -- but again, we've been through so much 23 material, I can't remember the details of that.
24 But if there were near-surface 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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298 groundwater, do you believe that the aging management 1
program would capture that?
2 MR. SILBERG: We do.
3 JUDGE TRIKOUROS: Okay. And in terms of 4
cracking of the concrete support plate, the bottom 5
concrete support plate, if there were a crack in that, 6
water would get into the annulus between the canister 7
and the UMAX enclosure wall. Do you monitor that for 8
moisture?
9 MR. SILBERG: Well, first of all, my 10 understanding, and I stand to be corrected by our 11 technical experts, is that groundwater is not at the 12 level of the bottom of the vertical canister. I don't 13 know how far below it is -- okay. We don't have the 14 number, but it is not at the level or above the level.
15 So, A, there is no mechanism for getting 16 water. B, there is no mechanism for concrete 17 cracking. Whether or not we monitoring the bottom of 18 the annulus or the bottom of the vault for water -- we 19 don't currently monitor that.
20 JUDGE TRIKOUROS: You don't monitor that?
21 MR. SILBERG: No.
22 JUDGE TRIKOUROS: But you can put a camera 23 down there to look at the canister wall, so, 24 therefore, if you saw water, I assume that you would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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299 take action?
1 MR. SILBERG: We would indeed.
2 JUDGE TRIKOUROS: Okay.
3 MR. SILBERG: And to our knowledge, those 4
kind of requirements are not imposed on the current 5
in-operation UMAX systems at U.S. plants.
6 JUDGE TRIKOUROS: Okay. With respect to 7
the question of brine being in groundwater, I believe 8
that your aging management program groundwater testing 9
does include brine testing, is that correct?
10 MS. LEIDICH: Yes, that is correct.
11 JUDGE TRIKOUROS: Okay. If there were a 12 crack in a spent fuel storage canister, and I 13 understand there's never been one and you don't 14 anticipate one, would that result in the release of 15 radioactive material or would there be a need for 16 further fuel damage internal to the canister for a 17 serious release?
18 MS. LEIDICH: To the extent that there's 19 been allegations of a release that's liquid-based, we 20 don't believe there's any mechanism for there to be 21 such a release, given that there is no liquid stored 22 at the facility. In terms of -- I'm not sure, in 23 terms of dose, is that the other question?
24 JUDGE TRIKOUROS: Well, it's, if there were 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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300 moisture in the annular region and it caused the 1
corrosion of the canister and your canister cracked, 2
there would be no liquid release, there would only be 3
fission product gas release, correct?
4 MS. LEIDICH: That is correct, there are no 5
liquids.
6 JUDGE TRIKOUROS: Okay. The -- we have a 7
contention that talks about the near-surface 8
groundwater. Do you have anything more to add on 9
- that, regarding the presence of near-surface 10 groundwater?
11 MS. LEIDICH: In terms of near-surface 12 groundwater, we believe that the only groundwater that 13 has been located was in Well ELEA-2, I think is the 14 number. And it was first identified at a depth of 90 15 to 100 feet and, of course, it welled up to about 35 16 feet, I want to say.
17 But the other wells that were drilled, 18 including in the GEI report, did not encounter any 19 groundwater at those levels. They were looking for 20 groundwater as they went down.
21 As we detail in our response, they took 22 spoon samples, but there was no other groundwater at 23 or near surface level that was identified at the 24 facility.
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301 JUDGE TRIKOUROS: Okay. And I think your 1
answer to that contention, I think it's Contention 15, 2
Sierra Club Contention 15 --
3 MS. LEIDICH: Yes, we detailed that.
4 JUDGE TRIKOUROS: -- supports that, yes.
5 MS. LEIDICH: Yes.
6 JUDGE TRIKOUROS: Okay. There was a 7
discussion yesterday regarding hypothetical accident 8
conditions versus real-life accident conditions.
9 Can you address that, with respect to what 10 you've done for your canister and cask design? Do you 11 do any kind of computer code analyses? Is that part 12 of your design basis?
13 MR. SILBERG: Well, certainly, computer 14 code analyses are part of that basis.
15 JUDGE TRIKOUROS: Okay. That would be 16 hypothetical accident?
17 MR. SILBERG: For transportation casks, we 18 have physical tests, yes.
19 JUDGE TRIKOUROS: Okay. So, for what were 20 termed hypothetical accident conditions, you do 21 computer code analyses? For real-life accident 22 conditions, you put these canisters and casks through 23 physical testing requirements, as required by the 24 regulation?
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302 MR. SILBERG: That's correct.
1 JUDGE TRIKOUROS: Okay.
2 MR. SILBERG: And there are many, many 3
tests that have been done on canisters, casks, over 4
the years. That data is certainly included in the way 5
that these new casks are analyzed.
6 We don't necessarily test to failure every 7
cask design, but there have been those tests in the 8
past. And the results of those tests are certainly 9
incorporated in how casks are designed.
10 JUDGE TRIKOUROS: The thermal analyses that 11 you do to assure that you don't exceed the, I'll say 12 the high burnup fuel temperature limits, but I mean it 13 for both high burnup and non-high burnup fuel, those 14 analyses, are they computer code analyses or do you do 15 any actual testing?
16 MR. SILBERG: Computer analyses.
17 JUDGE TRIKOUROS: Okay. Do you do any kind 18 of data to capture when they're in the enclosure, to 19 make sure that your computer code is correct?
20 MR. SILBERG: We have benchmarked, in the 21 context of the UMAX design, there have been 22 benchmarking tests that are done.
23 JUDGE TRIKOUROS: Okay. So, you have 24 experimental data that you correlate your computer 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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303 codes against?
1 MR. SILBERG: Yes.
2 JUDGE TRIKOUROS: Okay.
3 MR. SILBERG: I apologize for turning 4
around, but I don't like to give those technical 5
answers, based on my technical knowledge.
6 JUDGE TRIKOUROS: Please, I'm happy to have 7
you turn around as much as you need to. The Sierra 8
Club Contention 21, that's dealing with this question 9
of transportation of high burnup fuel and that they 10 would be dealt with on a case-by-case basis. Can you 11 say anything regarding that, as it applies to your 12 storage facility?
13 MR. SILBERG: Well, as I understand it, the 14 certificates of compliance for
- UMAX, for the 15 transportation casks, and for the canister all include 16 high burnup fuel.
17 So, to that extent, they are currently 18 licensed, been approved by the NRC, obviously. And at 19 the present time, there's no more that is required.
20 We have met the NRC's tests, we have met the 21 regulatory criteria.
22 JUDGE TRIKOUROS: Okay. The -- you also 23 answered earlier that all of the new research that's 24 going on, that you're plugged into that research and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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304 that you would be required to make changes as 1
indicated by that data?
2 MR. SILBERG: As necessary, the aging 3
management program will incorporate the results of the 4
DOE EPRI program on high burnup fuel. Those results 5
will be incorporated as appropriate.
6 JUDGE TRIKOUROS: You don't have your own 7
demonstration program for high burnup fuel?
8 MR. SILBERG: No.
9 JUDGE TRIKOUROS: All right. Okay.
10 MR. SILBERG: I think that the DOE EPRI 11 program is intended to be an industry-wide program, 12 with wide participation by the utility vendor 13 community, DOE, and EPRI.
14 I believe the NRC is an observer to that 15 program, or perhaps even a participant in it.
16 Certainly, they're aware, in detail, of what's going 17 on.
18 JUDGE TRIKOUROS: All right. The Interim 19 Staff Guidance seemed to imply that they had a fairly 20 active role in it, because they -- I think that's part 21 of the case-by-case basis discussion. But --
22 MR. SILBERG: That's right.
23 JUDGE TRIKOUROS: -- a number of these 24 questions are going to have to be asked again. What 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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305 about transportation within the facility, in terms of 1
Contention 21? Is that --
2 MR. SILBERG: Well, generally, I don't know 3
in this particular case, but transportation within a 4
facility, a Part 50 facility, where you're moving 5
casks from the reactor building out to the SOC, those 6
don't require Part 71 approval, is my understanding.
7 They're all done under the Part 72 8
license, the transportation down the hallway or using 9
the vertical crawlers, as appropriate, are reviewed by 10 the NRC. But I don't believe that it's part of a Part 11 71 program, if that's what the question is.
12 JUDGE TRIKOUROS: Yes, that was the 13 question. Part 71 does not apply?
14 MR. SILBERG: Correct, until you go 15 offsite.
16 JUDGE TRIKOUROS: Yes, correct. Okay. I 17 think I'm okay for now. Thank you very much.
18 MR. SILBERG: Thank you.
19 CHAIR RYERSON: Judge Arnold?
20 JUDGE ARNOLD: I do have some questions, 21 and I'll be asking some questions similar to Judge 22 Trikouros, too difficult to filter them out.
23 Having to do with Sierra Club Contention 24 2, the issue of safer and more secure, do you explain 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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306 in the environmental report what you mean by that?
1 MR. SILBERG: Yes, we do. We explain why 2
we believe, although at-reactor storage is safe, has 3
been designated by the NRC as safe, overall basis, the 4
HI-STORE facility will be safer and more secure. More 5
secure, because it's remote. It's safer because it's 6
underground, among other reasons.
7 JUDGE ARNOLD: Did you intend for that 8
statement to be inclusive of the transportation of 9
fuel, or just once it's at your facility?
10 MR.
SILBERG:
No, it includes 11 transportation. And for that, we rely on the generic 12 analyses that say, transportation of spent fuel is a 13 minor environmental impact.
14 JUDGE ARNOLD: Concerning Sierra Club 15 Contention 4, having to do with transportation from 16 the reactors to the CIS, they fault your dependence on 17 NUREG-1714, saying it is only for the regional 18 transportation, not across the whole country. You 19 state, in your --
20 MR. SILBERG: Is 1714, is that the PFS EIS?
21 JUDGE ARNOLD: Let me --
22 MR. SILBERG: I believe it is.
23 JUDGE ARNOLD: Let's see, an ISFSI in 24 Tooele County --
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307 MR. SILBERG: Yes. Tooele.
1 JUDGE ARNOLD: Tooele, okay.
2 MR. SILBERG: Close enough.
3 JUDGE ARNOLD: What exactly -- now, in your 4
response, you said that looked at more than just the 5
region.
6 MR. SILBERG: Yes. My recollection is the 7
contention said that that EIS only dealt with local 8
transportation, and that's incorrect.
9 JUDGE ARNOLD: Okay. Now, in this 10 contention, Petitioners appear to have a credible 11 analysis of the radiological consequence of a 12 transportation accident occurred while shipping spent 13 fuel.
14 On Page 25 of their petition, they 15 compared the results of that analysis to the results 16 of your analysis and find their results to be orders 17 of magnitude, 1,250 times the result that you have.
18 How can we not consider that a material 19 dispute of fact with the application?
20 MR. SILBERG: We believe you have to look 21 at the document that they rely on to determine whether 22 it is material to this proceeding. And we've had some 23 discussions about why we respectfully submit that it 24 is not.
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308 JUDGE ARNOLD: Okay.
1 MR. SILBERG: If they submit a material 2
document, even though, by a PhD, even though it looks 3
like a credible report and it may be a credible 4
report, if it's not material to this case, it can't 5
support the admission of a contention.
6 JUDGE ARNOLD: Okay. Concerning this 7
analysis, I think it was yesterday, you said, or maybe 8
it was today, the temperature in that tunnel was 9
greater than the temperature required for the 10 certification of the casks, correct?
11 MR. SILBERG: That's my recollection, yes.
12 JUDGE ARNOLD: And you said that, somehow, 13 using that fire would be a challenge to the rules?
14 MR. SILBERG: Using the temperature of that 15 fire to say that our transportation is inadequately 16 analyzed is a challenge to the rule. Also, the 17 conditions, as we discussed earlier, of that fire are 18 not relevant, for the reasons we discussed.
19 JUDGE ARNOLD: Okay. I'm more familiar 20 with the reactor world than spent fuel, but in the 21 reactor world, it's been demonstrated several times 22 now that actual accidents sometimes do exceed the 23 design accidents.
24 And so, it seems to me, we've got a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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309 historical fact that a fire on a railroad in a tunnel 1
can exceed the design temperature. Does acknowledging 2
historical fact constitute a challenge to a design 3
specification?
4 MR. SILBERG: Yes, and you have to also 5
look to see whether that event is relevant, as we 6
described earlier.
7 The magnitude of that fire was a result of 8
the combustibles. The combustibles in that tunnel on 9
that day are not what you would have with 10 transportation of spent fuel.
11 Whether the design is sometimes exceeded 12 in real-life, we nevertheless have an NRC regulation.
13 If the Petitioners thought that that regulation was 14 inadequate, they should have sought a waiver under the 15 Commission's procedures. They did not do that.
16 This is not new information. They've 17 known about the Resnikoff analysis. They've known 18 about the Baltimore tunnel fire. If they wanted to 19 challenge the applicability of the regulation in this 20 case, they had more than enough time to do so.
21 JUDGE ARNOLD:
Okay.
Concerning 22 Petitioner's claim that the railroad infrastructure is 23 deteriorating, when it comes time to move spent fuel, 24 will you be permitted to make use of any railroad 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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310 track that is in place and available? Or is there 1
some inspection, do they look to see if the tracks 2
have recently been certified?
3 MR. SILBERG: Yes. As we discussed in our 4
response, the Federal Railway Administration does that 5
function for transportation routes over the rail.
6 This will not be the first rail 7
transportation of spent nuclear fuel in this country.
8 Those procedures have been in place, they've been 9
exercised.
10 We've had, perhaps, hundreds of shipments 11 over rail of spent nuclear fuel in this country.
12 We've had thousands of shipments over the road in this 13 country. Worldwide, it's even greater.
14 But, yes, the rail infrastructure for a 15 particular route will be inspected at the time a route 16 is chosen and the time the shipments will take place.
17 JUDGE ARNOLD: Okay. So, a railroad track 18 that is today in excellent condition, but is in the 19 future, deteriorated, that could be okay for shipment 20 now, but not okay when you go to the Part 71 shipment 21 process, and it would be precluded from use?
22 MR. SILBERG: And vice versa.
23 JUDGE ARNOLD: So, yes. So, now is not a 24 good time to be determining the condition of railroad 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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311 tracks for future use?
1 MR. SILBERG: Now would be a very bad time 2
to do that.
3 JUDGE ARNOLD: Okay.
4 MR. SILBERG: In this context.
5 JUDGE ARNOLD: Sierra Club Contention 9, 6
the ER must examine the environmental impacts of the 7
containers being used beyond their approved service 8
life. Do you anticipate there will be any time where 9
you have spent fuel stored in a container whose 10 certification has expired?
11 MR. SILBERG: No, because we would apply to 12 extend that certification, at which point, it would be 13 reviewed by the Nuclear Regulatory Commission.
14 JUDGE ARNOLD: And you have a system in 15 place that will assure that's done?
16 MR. SILBERG: We are obligated to be -- our 17 license conditions, one, is when a license expires, we 18 will file in advance, because we want to take 19 advantage of the timely renewal doctrine.
20 Also, this brings into play the continued 21 storage rule, because we do not have to look at 22 environmental impacts beyond the license life.
23 JUDGE ARNOLD: Concerning Sierra Club 24 Contention 11, concerning the potential consequences 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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312 of an earthquake, does historic data account for the 1
possibility that recent and future oil and gas 2
drilling may affect earthquake frequency or severity?
3 MS. LEIDICH: We believe that it does.
4 There's been drilling in the area, as is mentioned in 5
the expert report used by Petitioners, for over 40 6
years, I think over 50 years.
7 There's no reason to believe that the 8
current historic data does not encompass drilling. In 9
fact, the expert report put forth by Petitioners does 10 not have any more recent earthquakes than the 2012 11 earthquake that we already analyzed for.
12 In addition, we believe that the report 13 put forth by Petitioners does not support that there 14 will be more earthquakes in that region going forward.
15 If you read it in a great level of detail, it actually 16 finds a low fault potential in the area of the Holtec 17 site. So, we don't believe it even supports their 18 assertions.
19 JUDGE ARNOLD: Does it support any increase 20 in the severity of ground motion of earthquakes?
21 MS. LEIDICH: No.
22 JUDGE ARNOLD: Okay. You have some sort of 23 design ground motion?
24 MS. LEIDICH: Yes. In fact, there is the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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313 design ground motion for the HI-STORM facility, which 1
is, I believe, between 0.7G and 1G, depending on the 2
acceleration and the orientation of the ground motion.
3 The bounding analysis for the site has 4
been referred to as 0.25 in every direction. That is 5
far greater than what the USGS returns for the site, 6
which is only 0.04 to 0.06G. So, the UMAX HI-STORM 7
design well bounds any potential impacts from the 8
site.
9 JUDGE ARNOLD: Okay. So, you're saying, 10 the design ground motion is not a close fit to 11 historical data, but it in fact has some margin?
12 MS. LEIDICH: It is significantly larger.
13 JUDGE ARNOLD: Okay.
14 CHAIR RYERSON: Judge Arnold and I have 15 agreed that this might be a good time for lunch.
16 We're obviously not going to finish this morning, I'm 17 very optimistic we will finish today.
18 So we'll take an early lunch again, I 19 think, because there's no cafeteria in this building, 20 people have to go out for lunch. We'll take about an 21 hour2.430556e-4 days <br />0.00583 hours <br />3.472222e-5 weeks <br />7.9905e-6 months <br /> and a half. So why don't we plan to reconvene 22 promptly at 1:15? Thank you.
23 (Whereupon, the above-entitled matter went 24 off the record at 11:42 a.m. and resumed at 1:15 p.m.)
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314 CHAIR RYERSON: Welcome back and please be 1
seated. Almost there. A couple of items before Judge 2
Arnold continues his questioning of Holtec.
3 I wanted to alert the NRC staff of the 4
questions I will have, when we get to you, in case you 5
need to either think about them or look them up. My 6
principal area of questioning pertains to the filing 7
that you made on October 9.
8 I believe the staff either would have 9
admitted, in whole or in part, or at least would not 10 have opposed the admission of six contentions, two of 11 which are essentially the same.
12 And we've talked a little bit over the 13 last two days about possible changes of position on 14 some of those.
15 And I think it would be useful to go 16 through, not now, but when we get to you, go through 17 exactly what your position is today on the 18 admissibility of those six contentions, and if you've 19 changed on any others as well.
20 But we'll do that later, I just wanted you 21 to know we're going to ask about that. And then, I 22 think before Judge Arnold continues, there was an 23 answer Holtec was going to give to Judge Trikouros on 24 one point.
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315 MR. WALSH: Yes, thank you, Your Honor.
1 Before the lunch break, Judge Trikouros asked a 2
question about the design basis fuel analysis from the 3
UMAX FSAR and the HI-STORE FSAR.
4 And you quoted the numbers from Table 5
5.0.1 of the UMAX and Table 7.1.1 from the HI-STORE.
6 So, the -- and that this was tied into the high burnup 7
fuel, if I understand your question correctly.
8 The design basis in those documents did 9
use a 45 gigawatt day burnup for the calculations.
10 It's important to note, first of all, that the burnup 11 level of the fuel isn't necessarily bounding. And 12 that's the purpose of the design basis calculation, to 13 get us a bounding number that will reasonably 14 approximate a high dose rate.
15 And so, we used the design basis numbers 16 in the calculations, the high burnup number, the 17 number of years of cooling, and the enrichment level 18 of the fuel, as the basis for our calculations.
19 We need to look at multiple parameters of 20 the fuel in order to give us what we think is a 21 reasonably conservative dose estimate for these 22 purposes.
23 At the end of the day, the NRC found the 24 analysis that we performed to meet the requirements 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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316 that are stated in the certifications for both the 1
UMAX and the -- in the UMAX FSAR, which is three years 2
minimum cooling time, 68 gigawatt days burnup, and 3
five percent max enrichment.
4 The key phrase in the NRC's conclusion in 5
the certification is that the analyses we performed, 6
and this is from Section 6.4.4 of the staff's safety 7
evaluation report, is that with the analyses that we 8
performed and the conservative loading assumptions 9
that we use, i.e., the canister is always going to be 10 inside a system, we meet the requirements as stated in 11 the certification. And therefore, we met the 12 regulations set forth in 10 CFR 72.104.
13 JUDGE TRIKOUROS: So, the analyses in the 14 SAR, the two SARs, are conservative, with respect to 15 the certification? In other words, the 68 gigawatt 16 days per metric ton fuel comes into the facility, it 17 meets the requirements of the SAR?
18 MR. WALSH: Correct.
19 JUDGE TRIKOUROS: Okay. That's what I 20 needed to know. And that included the three-year 21 cooling time, the --
22 MR. WALSH: Yes, it has --
23 JUDGE TRIKOUROS: -- five percent enrich --
24 MR. WALSH: -- to meet the combination of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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317 the parameters, yes, Your Honor.
1 JUDGE TRIKOUROS: Right. Okay. Thank you.
2 CHAIR RYERSON: Judge Arnold?
3 JUDGE ARNOLD:
Okay.
Contention 12 has to do with the dunes sagebrush 5
lizard. Now, on Page 50 of the petition, the Sierra 6
Club states, the 2007 report 2.6.1.1 lists the sand 7
dune lizard as likely to be present at the site and 8
vicinity.
9 Now, that's a report that you referenced.
10 Could you explain this in the context of your 11 conclusion that that lizard is not present on your 12 site?
13 MR.
WALSH:
- Yes, Your Honor.
My 14 understanding of the report was that it found that it 15 had not been observed, but also that the habitat that 16 the lizard would seek out was also not present at the 17 site, as well, too.
18 So it wasn't just based on a no-sighting 19 criteria, it was we don't have the type of habitat 20 that that lizard would prefer on the site.
21 JUDGE ARNOLD: Okay. Concerning Sierra 22 Club Contention 18, the Holtec ER has not adequately 23 determined and discussed the possibility that waste 24 contaminated groundwater would reach the Santa Rosa 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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318 formation.
1 Now, does -- is it the certification of 2
the HI-STORM system that states there is no plausible 3
scenario for the release of radioactive material?
4 MS. LEIDICH: I believe that that occurs in 5
several different locations in the application, 6
including in the SAR for the HI-STORE facility itself.
7 JUDGE ARNOLD: Okay.
8 MS. LEIDICH: But I'll have -- I can get 9
you a specific reference, if you would like.
10 JUDGE ARNOLD: Yes, please.
11 MS. LEIDICH: It might take me a moment.
12 JUDGE ARNOLD: All of this spent fuel 13 that's going to be stored there is in the form of 14 unprocessed, straight from the reactor spent fuel?
15 MS. LEIDICH: That is correct.
16 JUDGE ARNOLD: Okay. Could you briefly 17 describe what material the greater-than-Class-C waste 18 is? I mean, this is storage of spent fuel, greater-19 than-Class-C.
20 MR. SILBERG: Typically, greater-than-21 Class-C waste would include activated metal components 22 of reactor vessel belt region, typically. Also, might 23 have resins that are above the low level waste Class 24 C. I think people tend to down-blend that now, so 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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319 that's much less significant.
1 JUDGE ARNOLD: Okay. And will any of the 2
stored waste be in liquid form?
3 MR. SILBERG: No.
4 JUDGE ARNOLD: No?
5 MR. SILBERG: Let me also note that this 6
phase, Phase 1 of the application, does not include 7
GTCC.
8 JUDGE ARNOLD: Oh, okay. Thank you.
9 MR. SILBERG: GTCC is greater-than-Class-C 10 waste.
11 JUDGE ARNOLD: Let's see, concerning Sierra 12 Club Contention 20, it's a high burnup fuel question.
13 Appendix B of the certificate for the MPC-37 says that 14 it's an average burnup of 68.2 gigawatt day per metric 15 ton. I assume, then, that there would be some higher 16 burnup and some lower burnup to come up with that 17 average?
18 MR. WALSH: That's my understanding, 19 correct.
20 JUDGE ARNOLD: Okay. And concerning Sierra 21 Club Contention 21, having to do with no experimental 22 support for the safe transportation and storage of 23 high burnup fuel.
24 Let's see. Actually, what I want to get 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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320 into is what is the actual meaning to us of the 1
certification of the HI-STAR 190?
2 MR. WALSH: The certification of the HI-3 STAR 190 means that it has been certified by the NRC 4
to be capable of transporting fuel at the burnup level 5
specified in the certification.
6 So, it's -- and this certification is 7
based on extensive analyses and tests, which go into 8
that process:
criticality, shielding, thermal 9
evaluations, effective vibrations on the fuel, on the 10 structural integrity.
11 And the certification essentially says 12 that there's not expected to be any damage in normal 13 or accident conditions because of those.
14 JUDGE ARNOLD: Now, we already know that 15 the certification includes some limitation on the 16 burnup. Are there other limitations in this 17 certification on use of that?
18 MR. WALSH: For the HI-STAR 190?
19 JUDGE ARNOLD: Yes.
20 MR. WALSH: They are nearly identical to 21 the ones we've just discussed. And give me a moment.
22 I think they're essentially identical.
23 Minimum cooling time of three years, 24 maximum gigawatt days of 68, I think that's for the --
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321 if you're transporting MPC-37, which is the 1
pressurized water reactor fuel assemblies. And I 2
think it's a little bit lower for the BWR. And 3
maximum five percent enrichment.
4 JUDGE ARNOLD: Is there a limit on the mass 5
of material in it?
6 MR. WALSH: I think it's limited by the 7
number of fuel assemblies that can be transported, 37 8
for the MPC-37 and 89 BWR for the MPC-89.
9 JUDGE ARNOLD:
Okay.
Is the safe 10 transportation of high burnup fuel dependent upon the 11 cladding remaining intact?
12 MR. WALSH: I do not believe so, but let me 13 double-check that, Your Honor. First of all, there is 14
-- the design and the analyses supporting the 15 certification demonstrate, and the temperature 16 limitations also apply as well, too, which is the 17 primary driver for cladding degradation, show that 18 they're going to -- the expectation that there will be 19 no integrity issues for the cladding during transport.
20 So, the basis for the confidence in that 21 is the underlying designs. But at the end of the day, 22 you can still transport it if the fuel, if something 23 happens to the fuel while in transport.
24 JUDGE ARNOLD: Okay.
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322 MR. SILBERG: Let me add a little bit to 1
that. Transportation of solid fuel is permitted. In 2
fact, it's specifically called out in the standard 3
contract for high level waste and spent fuel between 4
the utilities and DOE.
5 JUDGE ARNOLD: Thank you.
6 MS. LEIDICH: Your Honor, I have a 7
reference also for the SAR, where it says that there 8
are no liquid effluents. That's on Page 193.
9 JUDGE ARNOLD: Okay, 193. This might have 10 been asked already. Sierra Club Contention 23, Holtec 11 has not described how degradation that leads to gross 12 ruptures in the fuel would be detected. Do you have 13 the capability to detect a gross failure of the 14 cladding? Of the fuel?
15 MR. WALSH: The answer to that question is 16 that we demonstrate that we can't have degradation for 17 the cladding of the fuel. And we certified the design 18 to maintain the temperatures below which cladding is 19 expected to occur.
20 And in addition, the design basis heat 21 load and the ambient temperatures for the facility 22 itself are below those certified for the UMAX system.
23 Therefore, we expect, at the facility itself, there 24 will be more margin protecting against such 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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323 temperature.
1 JUDGE ARNOLD: You earlier talked about the 2
aging management plan. To what extent could that 3
affect it or just can't?
4 MR. WALSH: My understanding of the aging 5
management plan is that it's going to be based on 6
research ongoing with the Department of Energy and 7
EPRI, and the results of that research, we will take 8
whatever actions are deemed necessary to address the 9
findings from that research. That's the basis of the 10 aging management plan for high burnup fuel.
11 JUDGE ARNOLD: Joint Petitioners Contention 12 2 has to do with reasonable assurance for funds to 13 cover the cost of construction, operation, 14 maintenance, and decommissioning.
15 You talk about the $840 per metric ton.
16 Is there any way that you could end up receiving any 17 spent fuel without having assurance of receiving that 18
$840 per metric ton?
19 MR. SILBERG: That would be a part of the 20 contractual agreement between the owners of the fuel 21 and Holtec. Stuff would not get on the road until 22 that contract was in force.
23 JUDGE ARNOLD: This has to do with Joint 24 Petitioners -- again, about the -- I'm a little lost.
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324 JUDGE TRIKOUROS: While you're searching, 1
can I ask a quick question?
2 JUDGE ARNOLD: Go ahead.
3 JUDGE TRIKOUROS: Your answer about the 4
fuel won't move unless there's a contract in place, 5
does that include the plants you own?
6 MR. SILBERG: We would be on the hook for 7
that, whether there's a contract or not, since it's 8
our fuel.
9 JUDGE TRIKOUROS: Okay.
10 MR. SILBERG: I think the answer would be 11 yes.
12 JUDGE TRIKOUROS: Yes, thank you.
13 JUDGE ARNOLD: Okay. This concerns Joint 14 Interveners Contention 3, the environmental report is 15 incorrect, in that it contains a gross underestimation 16 of the volume of low level radioactive waste.
17 I looked in the environmental report and 18 I couldn't find a quantification of the weight, of the 19 mass of low level waste. All I found was small 20 quantities of it. Did you provide a number in the ER?
21 MR. SILBERG: No, we did not. But I would 22 note that the assumption that all the tons of concrete 23 and steel that are used in the facility will become 24 contaminated by low level waste is without any 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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325 substance.
1 JUDGE ARNOLD: Well, they challenged your 2
underestimation of the volume, and you're saying you 3
never gave the volume.
4 MR. SILBERG: Well, we said it was small, 5
and they said it's everything. And it's clearly not 6
everything.
7 JUDGE ARNOLD: Okay. Well, for an 8
industrial facility, what is a small volume? Is it 9
cubic feet, cubic yards?
10 MR. SILBERG: I guess you could -- the 11 units of measurement would depend, but --
12 JUDGE ARNOLD: For an industrial activity, 13 what can -- how big can it be and still be considered 14 small?
15 MR. SILBERG: I guess it depends on the 16 industrial activity. How much it would be in this --
17 if you're asking us to quantify it at this point in 18 time, I can't do it on the fly.
19 JUDGE ARNOLD: Okay.
20 MR. SILBERG: But I will say, experience 21 with decommissioning nuclear facilities indicates that 22 not every cubic yard of concrete and piece of steel 23 that's in the reactor building becomes contaminated as 24 low level waste.
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326 JUDGE ARNOLD: Concerning Joint Petitioners 1
Contention 5, about the mineral interests below the 2
site, on Page 54 and 55 of their petition, the 3
Petitioners claim that you have failed to include in 4
the ER information required by 10 CFR 72.90 and 94.
5 On Page 56 of your answer, you addressed 6
the first of these and you stated where you had the 7
72.90 information, but I didn't see any answer to the 8
Petitioners' claim on 72.94 in your reply.
9 In fact, 72.94 requires the region must be 10 examined for both past and present manmade facilities 11 and activities that might endanger the proposed ISFSI 12 and the information concerning the potential 13 occurrence and severity of such events must be 14 collected and evaluated for reliability, accuracy, and 15 completeness.
16 MS. LEIDICH: That's correct. And we 17 believe that we have evaluated the past and present 18 activities that would endanger the proposed facility, 19 as we have stated before.
20 There is no danger to the proposed 21 facility, at least not that's been established by 22 Joint Petitioners, and the facility itself has been 23 designed such that it can withstand significant 24 earthquakes.
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327 JUDGE ARNOLD: Would that information be in 1
the environmental report or the safety analysis 2
report?
3 MS. LEIDICH: There was a comparison of the 4
ground acceleration for the site and the UMAX facility 5
in the safety analysis report.
6 JUDGE ARNOLD: Joint Petitioner Contention 7
3, your future reprocessing facility, what plans do 8
you have to reprocess the spent fuel?
9 MS. LEIDICH: We have no plans to reprocess 10 the spent fuel.
11 JUDGE ARNOLD: Joint Petitioner Contention 12 9, potential transportation routes. Actually, we've 13 covered that adequately already.
14 Joint Petitioners Contention 11 has to do 15 with transportation routes and it touches on 16 terrorism. Do you anticipate that your facility might 17 accept spent fuel from San Onofre or Diablo Canyon or 18 any place within the jurisdiction of the Ninth 19 Circuit?
20 MR. SILBERG: It's certainly possible.
21 JUDGE ARNOLD:
Should this
- happen, 22 hypothetical, will you rely on the current ER for that 23 transportation or will you be addressing the Ninth 24 Circuit requirement somewhere else?
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328 MR. SILBERG: Well, we don't think the 1
Ninth Circuit applies. I do believe we have addressed 2
terrorism, either directly or by reference to other 3
reports, many of whom have talked about terrorism.
4 This is a facility that's located not in 5
the Ninth Circuit and we think that the appropriate 6
circuit to look at would be the circuit in which the 7
facility is located or the D.C. Circuit, as provided 8
for by the Atomic Energy Act and other statutes.
9 JUDGE ARNOLD: And you believe that for 10 spent fuel that's being transported within the 11 jurisdiction of the Ninth Circuit?
12 MR. SILBERG: Because the facility and the 13 licensing action involves a facility that is not in 14 the Ninth Circuit.
15 MS. BONINE: Could you repeat that answer?
16 MR. SILBERG: Sure. This facility is not 17 in the Ninth Circuit and therefore, the appropriate 18 circuit law to look at is the law of this circuit.
19 The NRC has said that, but for the Ninth 20 Circuit, it will apply the court decisions primarily 21 out of the U.S. Court of Appeals for the Third 22 Circuit, and that will be the ones that NRC applies, 23 except as to those facilities, and the NRC Policy 24 Statement specifically says facilities, as do cases 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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329 that have referred to that Policy Statement. We're 1
not licensing a facility in the Ninth Circuit.
2 JUDGE ARNOLD: I'm done with my questions.
3 CHAIR RYERSON: Judge Trikouros, did you 4
have any more questions for Holtec?
5 JUDGE TRIKOUROS: No.
6 CHAIR RYERSON: Thank you. NRC staff, did 7
you want to make a brief opening?
8 MS. KIRKWOOD: We do not, Your Honor.
9 CHAIR RYERSON: You do not? Okay. Well, 10 let me get back to the questions I tried to alert you 11 to. You have a microphone? No, you're getting one.
12 Okay.
13 MS. KIRKWOOD: And, Your Honor, if it's 14 okay, we were planning to do the same thing that 15 Holtec did.
16 CHAIR RYERSON: I'm sorry?
17 MS. KIRKWOOD: We were going to do the same 18 that Holtec did and pass our --
19 CHAIR RYERSON: Pass, yes, that's fine.
20 Well, I have in front of me your filing on October 9, 21 and I think we've asked you some of these questions 22 yesterday or earlier today, but it would be helpful to 23 run through, one final time, what the NRC staff's 24 position now is on the admissibility of contentions.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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330 I think, on October 9, I believe there 1
were six contentions that you either thought were 2
admissible, in whole or in part, or at least you 3
weren't opposing the admissibility of them. And let 4
me run through them.
5 I think, NAC -- and also, the NAC 6
contention you addressed, but in effect, you said it 7
was moot from your standpoint, because you would not 8
find NAC as having standing.
9 MS. KIRKWOOD: Correct.
10 CHAIR RYERSON: But you, nonetheless, you 11 independently looked at the admissibility of its 12 contentions.
13 And NAC Contention 3, I believe relates to 14 the adequacy of the analysis of alternative designs.
15 And do you still think that that contention is at 16 least potentially admissible?
17 MS. KIRKWOOD: We do, Your Honor.
18 CHAIR RYERSON: You do? Okay. Then, on 19 the two contentions that are really very similar, at 20 least in part, Beyond Nuclear's sole contention and at 21 least the first portion of Sierra Club Contention 1.
22 I believe you felt that those were 23 admissible, again, in part, the Sierra Club in part, 24 and have -- in view of the corrections, as Mr. Silberg 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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331 has described them, to the ER or otherwise, have you 1
changed your position on that?
2 MS. KIRKWOOD: It's not so much, I would 3
say, that we've changed our position, Your Honor, but 4
I think it may have been overtaken by events, because 5
with the revision to the ER, the portion of the 6
contention we had found admissible appears to be moot.
7 CHAIR RYERSON: Okay.
8 MS. KIRKWOOD: But I know that -- I believe 9
Beyond Nuclear is planning to, then, amend the 10 contention.
11 CHAIR RYERSON: I'm sorry?
12 MS. KIRKWOOD: I understood that they were, 13 then, going to file an amendment, based on that change 14 to the ER --
15 CHAIR RYERSON: Oh, they're going to --
16 MS. KIRKWOOD: -- to the contention.
17 CHAIR RYERSON: Okay.
18 MS. KIRKWOOD: Which is what we talked 19 about yesterday.
20 CHAIR RYERSON: So, your position is, if 21 there's an inconsistency, it would be admissible, but 22 at the moment, you don't see an inconsistency in view 23 of the change? In a -- your position is the same, but 24 events have transpired?
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332 MS. KIRKWOOD: Yes. Our position on that 1
contention is, other than the inconsistency, the 2
Petitioners have not identified how the issue they are 3
raising is material to a finding that the NRC must 4
make.
5 CHAIR RYERSON: Right. And your position 6
on the lawfulness of what we've been calling Option A 7
or Option 1, I believe you used the word premature to 8
address that, but that apparently is no longer 9
necessary to address. Is that -- am I wrong?
10 MS. KIRKWOOD: There's still an option 11 contained in the application, option -- just certain 12 13 CHAIR RYERSON: Correct, but --
14 MS. KIRKWOOD: -- Option 1 being that DOE 15 would take title.
16 CHAIR RYERSON: Correct.
17 MS. KIRKWOOD: Correct.
18 CHAIR RYERSON: But counsel for Holtec 19 International has represented, and correct me if I'm 20 misrepresenting what you represented, but has now 21 represented that Holtec International's position is 22 that, at the present time, DOE could not, consistent 23 with the Nuclear Waste Policy Act, take possession of 24 the nuclear waste, except with an exception, narrow 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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333 exception, fairly narrow, for research materials.
1 MS. KIRKWOOD: Yes, I did hear them say 2
that.
3 CHAIR RYERSON: Okay.
4 MS. KIRKWOOD: That option is still 5
contained in their application.
6 CHAIR RYERSON: Right. I -- we understand, 7
but the -- you were initially concerned, the staff was 8
initially concerned about an apparent inconsistency 9
between the language in the environmental report and 10 in the rest of the application.
11 And that appears to have been, we'll hear, 12 perhaps, one last time from Beyond Nuclear, but that 13 appears to have been cured for the present time. Is 14 that correct?
15 MS. KIRKWOOD: Yes.
16 CHAIR RYERSON: You're not disagreeing with 17 that?
18 MS. KIRKWOOD: No, I --
19 CHAIR RYERSON: Okay.
20 MS. KIRKWOOD: -- believe that that has --
21 CHAIR RYERSON: Okay.
22 MS. KIRKWOOD: -- been cured.
23 CHAIR RYERSON: Let's move to Sierra Club 24 Contention 4, and if I characterize you correctly, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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334 staff thought that that contention would be admissible 1
in part.
2 It would be admissible in so far as it 3
dealt with the potential consequences of a nuclear 4
accident in transportation, but not as to the 5
likelihood of such an accident. And has your position 6
changed at all on that?
7 MR. GILLESPIE: No, Your Honor, our 8
position has not changed.
9 CHAIR RYERSON: Not changed? Okay. And I 10 think there was only one more contention that the 11 staff would have argued is at least admissible in 12 part.
13 And that was Sierra Club Contention 8, the 14 decommissioning
- plan, based upon an apparent 15 inconsistency between the numbers, between how many 16 metric tons of uranium would be multiplied by the 17 amount that Holtec was proposing. And has your 18 position changed on that?
19 MS. KIRKWOOD: Yes, Your Honor. We are no 20 longer taking a position --
21 CHAIR RYERSON: Right.
22 MS. KIRKWOOD: -- on that contention.
23 CHAIR RYERSON: So, you're no longer --
24 that's right, you said that earlier today. No longer 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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335 a position, you're not opposing --
1 MS. KIRKWOOD: Right.
2 CHAIR RYERSON: -- but you're not taking a 3
position.
4 MS. KIRKWOOD: We're not taking a position.
5 CHAIR RYERSON: Okay. And I'm sure you 6
would have told me if this were the case, but of the 7
40 or so other contentions, or the total of 40 8
contentions, you haven't changed your position, the 9
staff's position on any other contentions as a result 10 of the filings or the arguments today?
11 MS. KIRKWOOD: No. The Sierra Club and 12 Beyond Nuclear both added a final contention regarding 13 adopting one another's contentions, and I think that's 14
-- I don't know.
15 It's not really a standalone contention.
16 We don't have any objection, based on their latest 17 filing, to the adoption, if they each had contentions 18 admitted.
19 CHAIR RYERSON: Right. There was some 20 filings about that, there were motions about that. I 21 think, from the Board's standpoint, yes, the Board has 22 the power to tell them that, one, we'll be pursuing 23 certain contentions and the other contentions -- I 24 think a major reason that a party would want to adopt 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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336 another party's contentions is that one party may not 1
be here, for whatever reason. The Board decides they 2
don't have standing, potentially, or that they drop 3
out.
4 And I take it that, in that situation, the 5
NRC staff doesn't see any problem with someone who has 6
previously adopted the contentions of the other 7
participant or party, pursuing those contentions, to 8
the extent, of course, they're admissible.
9 MS. KIRKWOOD: Correct.
10 CHAIR RYERSON: Okay.
11 MS. KIRKWOOD: Correct.
12 CHAIR RYERSON: All right. I think that is 13 all I have. Judge Arnold, do you have questions for 14 the staff?
15 JUDGE ARNOLD: Sure, a few. I've asked 16 some of the Petitioners here, and I'll ask you too, to 17 your knowledge, does the Department of Energy 18 currently hold title to spent fuel and greater-than-19 Class-C waste?
20 MS. KIRKWOOD: Yes, Your Honor.
21 JUDGE ARNOLD: Is it a significant amount?
22 Do you know about how much?
23 MS. KIRKWOOD: May I have a moment to 24 confer with my -- yes, we would consider it a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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337 significant amount, both Fort St. Vrain and TMI.
1 JUDGE ARNOLD: Okay. So, the condition in 2
the application that they accept waste from the DOE 3
would permit them to accept this waste that the DOE 4
currently holds, correct?
5 MS. KIRKWOOD: The condition in the 6
application --
7 JUDGE ARNOLD: In the application, they say 8
they'll either take it from the DOE or from the 9
individual plants. This part one, taking it from the 10 DOE, would allow them to take the significant spent 11 fuel and greater-than-Class-C waste that currently DOE 12 holds title to, correct?
13 MS. KIRKWOOD: Just one moment. Your 14 Honor, neither of those are stored in UMAX designs, so 15 they're outside of this application, because this 16 application would only allow them to take waste or 17 spent fuel that is stored in a UMAX design.
18 JUDGE ARNOLD: Okay. Concerning Sierra 19 Club Contention 2, the issue of safer and more secure 20 versus safe and secure. In order to grant the 21 license, does the staff have to find that this 22 facility is safer and more secure or do you only need 23 to know it's safe and secure?
24 MS. KIRKWOOD: We don't need to find it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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338 safer and more secure, no. I'll just go with that.
1 CHAIR RYERSON: This has to do with safe 2
transportation of high burnup field, Sierra Club 3
Contention 21.
4 On Page 71 of their petition, the Sierra 5
Club references Interim Staff Guidance ISG-11 for 6
support for their assertion that the NRC staff is 7
still working on the safety question concerning high 8
burnup fuel and its transportation.
9 But this staff guidance is dated 2003. Do 10 you know if this is the latest word from the NRC 11 concerning high burnup fuel?
12 MR. GILLESPIE: Your Honor, it's not the --
13 well, it is the latest finalized guidance, I believe, 14 on this subject. There's ISG-11, that was issued in 15 the time frame that you mention.
16 There was also a draft RIS that was 17 published, that I think Legal has referenced as part 18 of the HI-STAR application. And there's a draft 19 NUREG, 2224, that finalizes some of this guidance, but 20 it's currently not in final form.
21 JUDGE ARNOLD: So, would you say the 22 Interim Staff Guidance is currently behind the state 23 of the art?
24 MR. GILLESPIE: Your Honor, I would not go 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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339 that far. With respect to transportation, the Interim 1
Staff Guidance 11 states that it would be done on a 2
case-by-case basis, and that's still the current 3
state.
4 JUDGE ARNOLD: Thank you.
5 MS. BONINE: Could you repeat his answer?
6 It's really hard to understand what he's saying.
7 MR. GILLESPIE: Okay, I apologize.
8 MS. BONINE: Speak slower, if you could 9
talk slower.
10 CHAIR RYERSON: Okay. We'll try to do 11 that, everyone, okay? Thank you.
12 MS. BONINE: Are you going to repeat the 13 answer?
14 MR. GILLESPIE: I can repeat the answer.
15 CHAIR RYERSON: Go ahead.
16 MS. BONINE: Thank you.
17 MR. GILLESPIE: The question was whether 18 Interim Staff Guidance 11 was currently behind the 19 state of the art. But the Interim Staff Guidance 11 20 states that it will be evaluated on a case-by-case 21 basis and that is still currently how things are done.
22 MS. BONINE: And that's according to ISG-11 23 or this draft --
24 CHAIR RYERSON: Excuse me, ma'am?
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340 MS. BONINE: I'm sorry.
1 CHAIR RYERSON: No --
2 MS. BONINE: It's just hard to hear, he's 3
still mumbling.
4 CHAIR RYERSON: Maybe if you went for the 5
6 MS. BONINE: And these --
7 CHAIR RYERSON: Excuse me. Excuse me.
8 Thank you for alerting us that you're having 9
difficulty hearing, but the participants are only the 10 ones who are here. Would you try the podium? Perhaps 11 that will work better, to repeat the answer.
12 MR. GILLESPIE: Yes. So, the question that 13 was received was whether Interim Staff Guidance 11 was 14 behind the state of the art.
15 Currently, Interim Staff Guidance 11, the 16 guidance that is in there states that it will be 17 evaluated on a case-by-case basis, and that is still 18 the method in which the NRC is doing these reviews.
19 CHAIR RYERSON: Thank you.
20 MS. BONINE: So, the answer is yes?
21 JUDGE ARNOLD: This -- okay. A question on 22 Joint Petitioners Contention 11. Once again, this is 23 about transportation of fuel and terrorism.
24 And do you believe that transportation of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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341 spent fuel through the jurisdiction of the Ninth 1
Circuit Court will require further environmental 2
evaluation?
3 MR. GILLESPIE: Your Honor, no, the 4
facility itself is located outside the Ninth Circuit.
5 Licensees already have a general license to ship fuel 6
throughout the country, under the provisions of the 7
general license in Part 71 and approved COCs and 8
approved packages.
9 CHAIR RYERSON: Judge Trikouros, do you 10 have further questions for the staff?
11 JUDGE TRIKOUROS: I do. In many cases, 12 you heard the questions and answers that Holtec 13 provided. So I just want to make sure. Where you 14 never identified any problem with those answers, I'm 15 going to assume that you're okay and agree with them.
16 Is that a fair assumption? Or should I ask questions 17 over again?
18 MS. WASE: Your Honor, Alana Wase. If 19 you're referring at least to the geological 20 groundwater questions, the technical questions, we 21 agree with Holtec's responses.
22 JUDGE TRIKOUROS: Okay. That's fine.
23 I'll make that assumption and I'll only ask you the 24 questions that I want to hear you actually say yes to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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342 separately. All right. Let me start --
1 MS. KIRKWOOD: Wait. Just -- sorry. I 2
don't want to interrupt you. I just want to be clear.
3 We don't agree with every word they said in general.
4 JUDGE TRIKOUROS: All right. Let's 5
proceed and I'll try and get through as many of these 6
as I can directly to you. All right. With respect to 7
what happens if a canister doesn't pass the receipt 8
and inspection criteria when it arrives at Holtec, 9
namely that the canister is contaminated or damaged in 10 some way or whatever the receipt and inspection 11 requirements are as provided in the SAR, it doesn't 12 meet them.
13 And I had asked the question and the 14 answer was that it would be shipped back to the 15 sender. And I'd asked the question, I believe, well, 16 what would happen if, in fact, it was unable to meet 17 the transportation requirements for shipment back to 18 the center? And the answer was that it would be 19 placed in a transportation canister that was available 20 for that purpose and would then be able to be shipped 21 back. Do you have any problem with that?
22 MR. GILLESPIE: No, Your Honor.
23 JUDGE TRIKOUROS: Okay.
24 JUDGE ARNOLD: Would the NRC be notified 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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343 if they received something that they could not store?
1 MR. GILLESPIE: I'm not sure. It would 2
depend on the details of the technical specifications, 3
I believe. Whether that would trigger a reporting 4
requirement, I'm not familiar with the exact terms of 5
that. But otherwise they would also be -- there's 6
requirements before shipping that we have to approve 7
routes. And that may also trigger some sort of 8
approval if they intend to ship a return that they 9
hadn't expected to.
10 JUDGE TRIKOUROS: Okay. With respect to 11 burn up -- and again, I apologize for having to repeat 12 questions to you that I had already asked Holtec. But 13 I have no other way of doing this. But I'm going to 14 summarize.
So the certificate of compliance 15 requirements for fuel that can be shipped to Holtec 16 was provided in Appendix B of the certificate of 17 compliance as I had said earlier. I referenced the 18 table that provided burn ups the size of 68.5 19 gigawatt-days, I believe, and noted that the SAR 20 analyses or at least the SAR indicated number was 45 21 gigawatt-days.
22 The answer came back that the analyses 23 that were done did utilize 45. But they were rather 24 conservatisms in the analysis such that the results 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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344 would be applicable to the certificate of compliance 1
table requirements including 68.5. Do you agree with 2
that?
3 MR. GILLESPIE: Your Honor, I can't speak 4
to the exact details that were done as part of the 5
application. But I would note that with respect to 6
this application, as we say in our brief, the safety 7
and the review of the transportation package designs 8
that we see as outside of the scope of this hearing.
9 But I don't know with respect to the details of the 10 SAR for the HI-STAR 190 system.
11 Okay. So you're saying that you don't 12 whether or not -- you personally right now do not know 13 if 68.5 gigawatt-days can be accommodated in the 14 facility
- safely, safely meaning within the 15 acceptability of the analyses that were done in 16 support in the SAR itself?
17 MR. GILLESPIE: Well, I should clarify if 18 that's the case if that's okay. The COC represents 19 what the staff found acceptable. And so long as 20 something that's transported in accordance with the 21 COC or stored within the UMAX system. Within that 22 COC, if it permits storage of higher burner fuel, then 23 the staff sees that as sufficient.
24 JUDGE TRIKOUROS: All right. Holtec said 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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345 they took that all into account. And do you have any 1
reason to think that's not correct?
2 MR. GILLESPIE: No, Your Honor. And 3
looking at the petitions, there's not a clear 4
allegation of what that stands at, identifying exactly 5
which portion is in scope that they're alleging a 6
deficiency with. And then also things like could 7
potentially be in scope is unclear exactly what 8
dispute they have that they raised.
9 JUDGE TRIKOUROS: All right. Now actually 10 I don't personally know if there are any fuel 11 assemblies in the United States that are greater than 12 68.5. But clearly, they would not be able to be 13 shipped to the Holtec facility if they were. Is that 14 a correct statement?
15 MR. GILLESPIE: Your Honor, I think based 16 on what is currently available, I believe that's 17 correct. But regardless of whether something does now 18 or later, the issue of having a Part 71 license is 19 already been issued under the general license. So if 20 a package was approved in the future, they could 21 transport that. That could be transported. Whether 22 they could accept that at the site under their 23 proposed license, they may ultimately require an 24 amendment to accept it.
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346 JUDGE TRIKOUROS: And clearly, all the 1
paperwork says that it couldn't be shipped. And if 2
have a nod from Holtec, and you have no problem with 3
that. So that's it. Holtec indicated that they 4
haven't seen any cracks in canisters and that the San 5
Onofre experience no longer -- doesn't apply because 6
of modifications that have been made. Do you agree 7
with that?
8 MR. GILLESPIE: Your Honor, I'm not 9
familiar enough with the facts of what occurred in San 10 Onofre to make a judgment on that here.
11 JUDGE TRIKOUROS: All right. With respect 12 to contention 15, Sierra Club contention 15, this is 13 the contention where -- okay. I was going to 14 summarize it for you, but that's all right. All 15 right. Well, I'll summarize it anyway. This is a 16 contention that basically asserts that there's 17 near-surface groundwater that was not identified in 18 the environmental report.
19 And also the next contention, I believe 20 Sierra Club contention 16, it's the same sort of thing 21 but with respect to the presence of brine in a shallow 22 groundwater area. And the staff answer basically was 23 we don't need to worry about that. It's inadmissible 24 because there won't ever be a leak.
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347 MS. KIRKWOOD: Your Honor, I would not 1
characterize our response as such. It was rather that 2
the petitioners have a burden to controvert statements 3
in the ER and the SAR. There were numerous statements 4
in the ER and the SAR which establish that there is no 5
credible pathway for a leak from the facility. And we 6
identified those. I can run through them if you like, 7
but they're in the brief.
8 JUDGE TRIKOUROS: Okay. I agree with 9
respect to the fact that there's no liquid release.
10 So from that point of view, I understand that. But 11 the contention was somewhat broader in the sense that 12 it was trying to identify potential cracking 13 mechanisms if groundwater were to get in contact with 14 the canister and that sort of thing.
15 I had asked the question if you ignore the 16 transport of radioactivity part of that of those two 17 contentions and you just look at them as, is the ER 18 adequate, those contentions are claiming that the ER 19 is not adequate, just ending it right there. No more, 20 no discretion of liquid pathways or anything. Do you 21 agree with that, that the -- from that point of view, 22 their contention is that the ER is not adequate. Do 23 you agree with that?
24 MS. KIRKWOOD: Your Honor, staff is still 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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348 reviewing the ER. As we discussed the RAI is ongoing.
1 It's normal course of business. So we do not yet have 2
a position on the merits of the ER.
3 JUDGE TRIKOUROS: Okay. And I guess this 4
proceeding and the staff review has come to a point of 5
contact in another contention. Let me just ask one 6
question on this point. I believe the 10 CFR 51 7
requirement is for the applicant to describe the 8
affected environment. If there's no leakage path, is 9
any of the ground affected by this installation?
10 MS. KIRKWOOD: Your Honor, our argument 11 could be made. But nonetheless, it's staff's position 12 to describe the site characteristics generally to 13 establish a baseline.
14 JUDGE TRIKOUROS: And we also discussed 15 and that's why I don't want to spend too much time 16 going over things that we discussed. But we also 17 discussed that the aging management program in the SAR 18 requires groundwater testing. And I can't imagine 19 that they wouldn't use the ER as a basis for 20 identifying why groundwater is there and what 21 potential corrosive material might be in the 22 groundwater and therefore having an ER that doesn't 23 have the correct groundwater identified and the 24 correct sources of, say, brine identified could be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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349 problematic from that point of view.
1 I can't imagine in the aging management 2
program they're going to go do some environmental 3
analysis to try and find new groundwater. They're 4
just going to use whatever knowledge they have of 5
where groundwater is. I would assume that. And I had 6
no basis for not assuming that based on the 7
conversation we had on this yesterday. So from that 8
-- from the point -- so you're telling me that you're 9
not ready to answer that question --
10 MS. KIRKWOOD: We are not --
11 JUDGE TRIKOUROS: -- with respect to 12 whether the contention as it applies to just the 13 adequacy of the ER is --
14 MS. KIRKWOOD: Well, Your Honor, it's the 15 petitioners' burden also to establish materiality.
16 And our position is, is that because a credible 17 pathway for the leaks has not been established, 18 they've not shown the materiality of the contention, 19 how it would affect conclusions in the ER.
20 JUDGE TRIKOUROS: Well, contention 16 was 21 with the brine discussion was really talking about 22 brine affecting the facility. Contention 15 with 23 respect to the presence of groundwater was identifying 24 that as a pathway to the environmental if there's a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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350 leak. So they're not exactly -- but both of them have 1
the one thing in common, that they're claiming that 2
the environmental report is not adequate.
3 MS. KIRKWOOD: That is correct that that 4
is their claim.
5 JUDGE TRIKOUROS: Okay. All right. Let's 6
see. I'll still ask this one again. There's a claim 7
that a crack in the canister or in the UMAX cask 8
enclosure is not credible and that there has been no 9
experience of crack in the canister. I don't know if 10 we just covered this. I don't remember. But could 11 you just -- do you agree with that?
12 MS. WASE: Could I confer with staff for 13 a second?
14 JUDGE TRIKOUROS: Yes.
15 MS. WASE: Your Honor, that's correct.
16 There is no evidence of any NRC licensed canisters 17 cracking.
18 JUDGE TRIKOUROS: Okay. So with respect 19 to subsidence possible the possibility of 20 subsidence in the site vicinity, you heard the answer 21 that Holtec gave. But I'm going to ask that one again 22 specifically. Do you agree that there is no 23 possibility of subsidence at the Holtec site?
24 MS. WASE: Your Honor, we are conducting 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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351 our review currently of the potential for subsidence 1
at the site. I would point out you mentioned the ER.
2 And I believe your citation was to the possibility of 3
regional subsidence. I'd like to provide you with 4
citations to ER 4-5 as well as ER 3-14 which they both 5
noted -- the ER notes that there's no evidence of 6
local subsidence actually at the site as opposed to in 7
the area.
8 JUDGE TRIKOUROS: Right. And that is 9
consistent with what Holtec has --
10 MS. WASE: Correct.
11 JUDGE TRIKOUROS: -- told us?
12 MS. WASE: Correct.
13 JUDGE TRIKOUROS: Okay.
14 MS. WASE: And also if I could, Your 15 Honor, the SMU study that was referenced yesterday for 16 evidence of subsidence, I believe it's in footnote 26 17 of the petition. The closest subsidence that the 18 study references is approximately 75 miles from the 19 site.
20 JUDGE TRIKOUROS: Okay. And by the way, 21 this is a Don't Waste Michigan contention 12, I 22 believe --
23 MS. WASE: That was referencing --
24 JUDGE TRIKOUROS: -- and also 5.
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352 MS. WASE: Yes, that was -- my response 1
referenced footnote 26 of contention 5.
2 JUDGE TRIKOUROS: Okay. Yes, so 5 and 12 3
were really -- as we said yesterday, they're dealing 4
with the same thing. But one is human activity and 5
the other is geologic activity. So one natural, one 6
human.
7 MS. WASE: If I could point out with 8
respect to Don't Waste Michigan contention 12, our 9
position is that contention is not admissible as the 10 petition did not reference the SAR or the ER.
11 JUDGE TRIKOUROS: I understand.
12 MS. WASE: Okay.
13 JUDGE TRIKOUROS: I understand that.
14 MS. WASE: Thank you.
15 JUDGE TRIKOUROS: Okay. With respect to 16 hydraulic fracturing below 5,000 feet, does the staff 17 agree that totally precludes the possibility of 18 subsidence effects?
19 MS. WASE: Staff's review is still ongoing 20 on that as well.
21 JUDGE TRIKOUROS: Okay. But you heard the 22 answers that were provided in a positive way that if 23 you drill below -- and I think they said 3,000 feet.
24 But certainly if you drill below 5,000 feet or 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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353 hydraulic fracture below 5,000 feet, there will not be 1
a subsidence effect?
2 MS. WASE: Yes, and, Your Honor, staff has 3
not yet made a conclusion on that.
4 JUDGE TRIKOUROS: So you're still working 5
on that?
6 MS. WASE: Correct.
7 JUDGE TRIKOUROS: Okay. And with respect 8
to this issue that came up, your answer to contention 9
- 23. If you're worrying about defects that might occur 10 during the service life -- 100-year service life --
11 well, I guess your answer did not address the time 12 period up to the service life. I think you were 13 addressing the license life.
14 And we discussed yesterday that any 15 extension beyond the license life at each stage would 16 be required to be reviewed as a license renewal which 17 would include an environmental review and a safety 18 review. So one could not get to even the design life 19 without having to go through a series of reviews; is 20 that correct?
21 MR. GILLESPIE: Yes, Your Honor.
22 JUDGE TRIKOUROS: So we don't need to 23 worry about 100 years right this minute, and that's 24 consistent with the guidance as well?
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354 MR. GILLESPIE: Yes, Your Honor. Based on 1
the canisters that could go in the facility as 2
proposed and the 40-year license term, there'd be no 3
way to reach 100 years without another renewal.
4 JUDGE TRIKOUROS: Okay. I pointed out 5
earlier again that a cursory look at the Schafersman 6
report, it seemed to me it was in direct dispute, if 7
you will, with part of the ER, specifically Section 8
3.3.3 of the ER and Section 2 of the Schafersman 9
report with respect to cost geology formations. Do 10 you have any comment on the adequacy of Section 3.3.3 11 of the ER?
12 MS. WASE: One minute, Your Honor.
13 JUDGE TRIKOUROS: Thank you.
14 MS. WASE: As a preliminary matter, Your 15 Honor, if I could note the Schafersman report is only 16 relied on for contention 12. It's not mentioned as a 17 basis for contention 5.
18 JUDGE TRIKOUROS: And Holtec had an 19 elaborate answer to this as well. But I'm asking you 20 separately.
21 MS. WASE: We're not going to take a 22 position on that at this time as our review is still 23 ongoing.
24 JUDGE TRIKOUROS: All right. I had asked 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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355 the question, would subsidence on the site potentially 1
cause damage to the UMAX system? Do you have an 2
answer to that?
3 MS. WASE: No, Your Honor. May I confer 4
with staff?
5 JUDGE TRIKOUROS: Yes.
6 MS. WASE: Your Honor, that is an area 7
that is under review currently. So we are not taking 8
a position.
9 JUDGE TRIKOUROS: Okay. All right. That 10 is my last question. I've had -- all my other 11 questions have been answered throughout the 12 proceeding. So thank you very much.
13 CHAIR RYERSON: Judge Arnold, any further 14 questions? All right. Well, we're now either 15 virtually done or almost done. We did suggest the 16 possibility in our order that if there's an interest 17 in them, we could have very brief final statements 18 from the various participants. Perhaps I could just 19 ask for a show of hands. There is interest.
20 MS. CURRAN: Voting.
21 CHAIR RYERSON: You're voting. What we'll 22 do then, we'll take another break. And we'll go 23 through in the same order. Do not feel you need to 24 say anything if you don't want to. Do not feel you 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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356 need to use all five minutes. We will limit these to 1
five minutes maximum. And we'll go through in the 2
order. I think we'll try to restrain ourselves from 3
any questions. But we will provide that opportunity.
4 One thing I will mention too. I am sorry 5
if there was some problem with the audio. It sounded 6
like it's now working or at least when the podium is 7
used. But I should alert people. If you really have 8
an interest, there will be a written transcript of 9
this proceeding which is being prepared. I'm not sure 10 exactly when we get that, possibly three working days 11 or something like that. And that will, fairly 12 promptly, be posted on the NRC website. So if you go 13 to the NRC public website and you go to the electronic 14 hearing docket and find this case, it will be there in 15 its entirety within a reasonable period of time. I'm 16 not sure exactly how long.
17 MS. BONINE: Is that NRC.gov?
18 CHAIR RYERSON: Correct. And there is a 19 public -- the staff may know better than I. But there 20 is a public access to the electronic hearing docket 21 that virtually all of the documents are available on.
22 PARTICIPANT: Your Honor, I'm happy to --
23 I may have turned the mic off -- I'm happy to show any 24 member of the public, if they have internet access, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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357 how to get to the electronic records.
1 CHAIR RYERSON: Great, they can see on the 2
break then. But thank you very much. All right.
3 Let's resume at 20 of 3:00, 2:40. And we will finish 4
up then. Thank you.
5 (Whereupon, the above-entitled matter went 6
off the record at 2:23 p.m. and resumed at 2:42 p.m.)
7 CHAIR RYERSON: All right. So what we are 8
going to do as we said earlier, we're going to have 9
very brief final statements from those who wish to 10 make them, no more than five minutes. You do not have 11 to make one. You do not have to take five minute.
12 But we would begin with Ms. Curran --
13 MS. CURRAN: Thank you.
14 CHAIR RYERSON: -- for Beyond Nuclear.
15 MS. CURRAN: Yes. At the end of these two 16 days, it is safe to say that everyone agrees that DOE 17 cannot currently take title to privately owned spent 18 fuel except in a few narrow exceptions. And everyone 19 agrees that the purpose of the Holtec project is to 20 take spent fuel from privately owned nuclear reactor 21 sites.
22 I would like to respond to two statements 23 by Mr. Silberg to the effect that this doesn't matter.
24 First, Mr. Silberg said that having an option that DOE 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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358 may take title to spent fuel which we've been calling 1
Option 1 that may currently violate the law is okay 2
because that option could be severable. He referred 3
to severability clauses and contracts that can save 4
contracts from such illegal options.
5 But severability clauses work by allowing 6
for the illegal provisions to be struck from the 7
contract. If Holtec is willing to strike the illegal 8
provisions from its application, removing Option 1, 9
and then refile the application, this could, of 10 course, negate our legal claims.
11 In the meantime, we continue to maintain 12 that an application that would allow for DOE ownership 13 of spent fuel, whether it is characterized as 14 alternative or contingent is unlawful under the 15 Nuclear Waste Policy Act and the Administrative 16 Procedure Act.
17 In fact, what Holtec is asking the NRC to 18 do is the very type of action the APA prohibits as the 19 District Court held in State of New York, et al v.
20 U.S. Department of Commerce. And those numbers of the 21 docket, it's still a slip opinion, are 18-CV-2921 and 22 18-CV-5025, January 15th, 2019. Agencies are not 23 above the law and they cannot do more than Congress 24 allows.
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359 As the court recognized in the State of 1
New York, the APA is meant to protect the integrity of 2
legal proceedings like this one. As the court 3
explained -- and I just want to read this to you 4
because I think it's very eloquent language. Although 5
some may deride its requirements as red tape, the APA 6
exists to protect core constitutional and democratic 7
values. It ensures that agencies exercise only the 8
authority that Congress has given them, that they 9
exercise that authority reasonably, and that they file 10 applicable procedures. In sort, it ensures that 11 agencies remain accountable to the public they serve.
12 Here by even entertaining Holtec's license 13 application, the NRC has shown a serious lack of 14 accountability to the public, not to mention a lack of 15 consistency with its own standards. As Judge Ryerson 16 noted earlier, any member of the public taking issue 17 with a license application that's been filed with the 18 NRC has an iron clad obligation to contest the 19 application with specificity and support. License 20 applications are thus treated as real and serious and 21 not hypothetical.
22 Here, as is demonstrated by two days of 23 oral argument, petitioners have spent precious time 24 and treasure analyzing an application that is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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360 fundamentally hypothetical. We are not just chasing 1
a rabbit that may disappear down a hole. We're 2
chasing the white rabbit, a fictional creature.
3 Second, I want to respond to Mr. Silberg's 4
suggestion that it doesn't really matter whether the 5
owner of the spent fuel at the Holtec facility turns 6
out to be the DOE or a private licensee because the 7
impact analysis of the environmental report will not 8
change if DOE were the owner of the spent fuel.
9 Setting aside the illegality of Holtec's 10 license application under the APA, Mr. Silberg is 11 wrong as a practical matter. If DOE becomes the owner 12 of spent fuel to be transported from reactors to the 13 Holtec facility and stored there, that would need to 14 be done by federal legislation.
15 As Mr. Silberg said in his opening 16 statement, the issue of what to do with spent reactor 17 fuel is a huge national problem. Congress effectively 18 will be crafting a temporary alternative to the 19 national repository. In that event, it is very 20 reasonable to assume that Congress would put DOE in 21 charge of such a national project and not Holtec.
22 And as the driver of the project, DOE 23 would likely be responsible for the environmental 24 analysis. It is not hard to imagine that the range of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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361 alternatives examined in a DOE prepared draft EIS for 1
a national spent fuel storage program would include 2
more than one type of cask and more than one type of 3
facility design.
4 In all likelihood, Holtec's proposal would 5
become an alternative for DOE to consider in its own 6
EIS, not necessarily the proposed alternative. This 7
is a huge difference. As Mr. Silberg stated today, 8
the purpose of this project is to deploy Holtec casks, 9
not NAC casks. The purpose of a national spent fuel 10 storage program would be to solve the national spent 11 fuel storage problem, not to advance one company's 12 spent fuel management business in preference to 13 another's.
14 Under the APA, the NRC may not continue to 15 entertain an application that could require federal 16 participation in the ownership of the spent fuel to be 17 stored. Holtec's application should be dismissed, and 18 Holtec can refile after the Congress has taken the 19 necessary action. In the alternative, if Holtec 20 wishes to continue to pursue this license application 21 now, it must drop from the application any reference 22 to the DOE as a potential owner of the spent fuel.
23 Thank you very much.
24 CHAIR RYERSON: Thank you, Ms. Curran.
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362 Next we have, I believe, Mr. Taylor for the Sierra 1
Club.
2 MR. TAYLOR: Thank you. As the Board 3
reviews the admissibility of the contentions, I ask 4
that you keep in mind the standards for admissibility 5
of contentions. At this point, we are not required to 6
prove our case. In fact, the burden of proof is 7
always on the applicant. We've tried to draft our 8
contentions narrowly and specifically so they are 9
focused on definite facts and issues.
10 The Commission has said that a petitioner 11 needs to only come forward with factual issues and not 12 merely conclusory statements and vague allegations as 13 cited in Northeast Nuclear Energy Company at 53 NRC 14
- 22. In other words, the contention should make enough 15 of a showing to require reasonable minds to inquire 16 further as said in Vermont Yankee v. NRDC, a U.S.
17 Supreme Court case at 435 U.S. 519. We have tried to 18 comply with those admissibility standards.
19 I suggest that Holtec in the answers of 20 the NRC staff are attempting to impose an improperly 21 high standard on contention admissibility. They are 22 claiming that Sierra Club must set forth in great 23 detail the facts, often very technical in nature and 24 with pinpoint specificity, argue exactly where the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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363 Holtec documentation is in error or inadequate.
1 As I explained a moment ago, that is not 2
the standard. Furthermore, it seems as if Holtec can 3
make unsupported conclusory statements in its 4
documentation, and then it's up to a petitioner to 5
refute those statements with detailed facts supported 6
by expert testimony or irrefutable authority. That 7
improperly shifts the burden of proof. In fact, as we 8
saw here today, I would suggest that Holtec was 9
basically allowed to orally amend its application 10 documents by responding to the Board's questions.
11 With respect to a few of the issues that 12 Ms. Curran suggested, the idea that DOE would take 13 title as we now see Holtec admitting is purely 14 hypothetical. And a license cannot or should not be 15 issued on the basis of a hypothetical.
16 If, in the alternative, we go with Option 17 2 as you described it with a private reactor owners 18 retaining title, there is absolutely nothing in the 19 Holtec documentation that would infer at all that the 20 plant owners would want to retain title. So again, 21 it's a hypothetical.
22 With respect to the service life of the 23 containers, the safety of the containers on into the 24 future, the aging management plan that Holtec is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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364 relying on, although it may be a requirement of the 1
license, there's absolutely no assurance beyond that 2
license period that the AMP will be carried out. It 3
is purely voluntary from that perspective, and there's 4
no oversight.
5 Holtec imagines that they'll keep getting 6
extensions apparently. But in their documentation, 7
they've only expressed the intent to get the initial 8
license and perhaps a 40-year extension. That's only 9
60 years. So they have not shown any indication as to 10 what assurance we have of the safety of the containers 11 beyond that 60-year period.
12 CHAIR RYERSON: And I think we're going to 13 have to ask you to wrap up --
14 MR. TAYLOR: Okay.
15 CHAIR RYERSON: -- over the next minute, 16 Mr. Taylor.
17 MR. TAYLOR: Okay. Thank you. I didn't 18 realize I'd gone that long already. So we would ask 19 that the Board find that Sierra Club has standing and 20 that our contentions are admissible. Thank you.
21 CHAIR RYERSON: Thank you, Mr. Taylor. Do 22 we have anyone here today for Alliance for 23 Environmental Strategies? Is Ms. Simmons here?
24 MS. BONINE: Ms. Simmons is not here.
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365 CHAIR RYERSON: Is not here? Well, again, 1
it is not necessary to make this final statement. So 2
the Alliance petition stands on the record that we 3
have.
4 MS. BONINE: As a member of AFES, could I 5
speak briefly?
6 CHAIR RYERSON: Actually, it's clear in 7
our order that today we're only hearing from people 8
who have filed appearances with the NRC. But we've 9
heard from Ms. Simmons yesterday. We have your 10 pleading, so thank you very much.
11 Next we have Mr.
Lodge for joint 12 petitioners.
13 MR. LODGE: Thank you very much. And 14 thank you for the Board's presence and the attention 15 and rigor and preparation that clearly has been 16 reflected on the last couple of days on your part.
17 There's a number of points I want to make.
18 I was very troubled this morning by the Holtec 19 statement that remediation concerns are outside the 20 scope of the proposal. And I think it's a little bit 21 difficult for that point of view to be sustained given 22 the revelation in the last approximate ten days of 23 November, RAI responses from Holtec that indicate a 24 slight change in the return to sender policy whereby 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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366 Holtec now says that if there are nonconforming casks 1
with contamination, leakage, whatever, they will 2
either returned to the originating reactor site or 3
devoted to a facility with loading capability.
4 Loading capability, of course, being code for some 5
type of dry transfer system or some type of means of 6
being able to unload fuel or otherwise work with very 7
dangerous radioactive casks.
8 So remediation is quite within the scope.
9 And in fact, remediation and the apparent indifference 10 on the part of Holtec to the need to have the 11 capability then and there on site is a major issue and 12 is within the scope.
13 Some of the realities that are being 14 avoided with magical thinking include the NRC staff's 15 admission some months ago that 29 storage canisters at 16 San Onofre are damaged. So we start out with the 17 potential, and I, of course, cannot guarantee that 18 Holtec will be taking those canisters. But in the 19 event that they do, we start out with unknowns that 20 there already are, in effect, damaged canisters that 21 are going to be coming. And they're going to have to 22 be dealt with in some way. There will have to be 23 reality based thinking in the acceptance plan.
24 One of the points that my petitioners were 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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367 attempting to make through Dr. Ballard's report and 1
remonstrance was precisely that this is -- there's a 2
mission creep potential here that Holtec could become 3
a de facto permanent -- not repository but a permanent 4
place where all of this garbage stays essentially 5
forever.
6 Part of the psychology that I fear and 7
suggest may come to pass if this plan is somehow 8
approved is that Holtec will also become the 9
destination for a lot more waste than simply 10 commercial nuclear reactor waste. There is still 11 defense. There's military waste out there. As we 12 have heard and discussed, there's DOE waste that was 13 taken off the hands of commercial operators.
14 And one of the reactors that hasn't been 15 mentioned that we believe DOE probably has possession 16 of their waste is Fermi 1 which was, of course, a fast 17 breeder reactor which generated during its thankfully 18 limited lifetime a great deal of plutonium laden 19 radioactive waste. So just to designate and limit and 20 see the limitations that are binding on the part of 21 Holtec would be a welcome and necessary event.
22 Another point that I'd like to make is 23 that to get back into the 173,600 ton work is footnote 24 137 in the answer that was filed -- oh, I hope I can 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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368 find it in time. Footnote 137, basically I'll 1
summarize it.
2 In the Holtec answer to the Don't Waste 3
Michigan petitioner's initial petition states 4
essentially that 173,000 -- the 173,600 figure may be 5
what they call an overstatement of the likely waste to 6
be delivered. But they essentially admit that it 7
creates or that they have taken some liberty to 8
overestimate because there is probably going to be 9
more than 100,000 tons of waste. So today we still 10 don't know. It's an unknown knowable.
11 Finally, I'd like to talk about standing.
12 The calculations that were performed using the U.S.
13 EPA's online environmental justice population 14 demographic tool suggests that the known rail routes, 15 the mainline routes across Texas that are very, very 16 likely to be used at some point for delivery to 17 Holtec, that within 800 meters on either side of those 18 railroad lines. In the aggregate, 2010 data -- census 19 data suggests that approximately 930,000 Texans live 20 within a half mile of a rail line where literally 21 hundreds, if not thousands of loads of cargos will be 22 delivered.
23 In New Mexico, the figure is approximately 24 132,000 people live within a half mile either side of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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369 the likely rail delivery routes. That is the 1
equivalent in New Mexico of -- pardon me.
2 CHAIR RYERSON: We're going to have to ask 3
you to wrap up in a minute, Mr. Lodge.
4 MR. LODGE: I'm getting there. Thank you, 5
sir. It is the equivalent of twice the 2010 6
population of Santa Fe living within a half mile.
7 It's 132,000 is more than the combined populations of 8
Hobbs, Carlsbad, and Roswell combined. And it's 9
greater than the population of Las Cruces and Hobbs 10 combined.
11 Standing has been established. It's been 12 established by our declarations, and it is a bogus 13 argument against standing that somehow the rail routes 14 are unknown.
15 My final point is this, regarding mostly 16 the rail routes since that's approximately 95 percent 17 of the delivery. I keep seeing the suggestion that 18 the rail routes will be chosen by the Federal Railway 19 Administration. They're out of our hands. They 20 cannot be known. It's years away, et cetera, et 21 cetera. That's false.
22 If there's another federal agency that may 23 or indeed must be included in consultation for NEPA, 24 then let's bring them in with the NRC acting as the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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370 lead NEPA preparer. But you don't just say we can't 1
do anything. It's another agency. It's another turf.
2 We can't talk about it. There are environmental 3
justice concerns. There are very distinct standing --
4 there's considerable evidence of standing.
5 And that raises the other final problem 6
which is that we are as interveners required to have 7
our contentions projected out 120 years. We are 8
required -- and more than 30,000 comments in 9
opposition to this plan are essentially calling upon 10 the NRC to consider the largest maximal picture 11 possible. That's what NEPA requires. That is the 12 obligation and the charge upon the Commission.
13 Thank you very much.
14 CHAIR RYERSON: Thank you, Mr. Lodge. Mr.
15 Desai for NAC International.
16 MR. DESAI: Thank you very much for having 17 us here this week. I'll start the closing, and then 18 the general counsel with NAC International, Mr.
19 Helfrich, will finish. We've timed it, we've 20 established.
21 I will start with the environmental issues 22 as you expected. But I'm just going to repeat a few 23 lines of NUREG-1748 which is referenced as the NEPA 24 standard in Section 1.0 of the ER and discussed 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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371 throughout. Section 5.25 is core and states that 1
failure to address an alternative -- and in order to 2
fail to address an alternative, you have to have a 3
brief discussion of the reasons for rejecting the 4
alternative.
5 Holtec provides a reason that is incorrect 6
and not been disavowed, its universal system failing 7
NEPA requirements. The NRC staff agrees with us here.
8 Section 5.2.4 states reasonable alternatives include 9
those that are practical or feasible from the 10 technical and economic standpoint and using common 11 sense rather than simply desirable from the 12 applicant's point of view.
13 We've discussed a lot this week on 14 reasonable alternatives including the open alternative 15 being built down the road. Keep in mind when reading 16 Holtec statements about alternatives and the last few 17 comments of our exchange about alternatives in 18 competitions.
19 Now as to timing, the whole facility is 20 getting its NEPA review here, all 20 phases. The 21 amendment that is always being advocated as this cure 22 all is for cask use. Look at the cases. We can't 23 relitigate the facility design later on. Think of it 24 this way. If a power plant gets a license amendment 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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372 for another fuel type, it can't at that time 1
relitigate the alternatives to building the power 2
plant.
3 And they say their amendment may come 4
sooner or later. That's the point. They can do it 5
whenever, including after the facility is built.
6 Recall a facility can't get built under NEPA unless 7
the NEPA review is done. They're getting that 8
facility level review here so they can build the 9
facility. And then we can't litigate a NEPA issue on 10 a facility design after it's been NEPA approved and 11 built.
12 So when Holtec takes the position that we 13 have participation, please take a hard look to make 14 sure we actually have hearing rights. And those 15 hearing rights are the same as we would get now.
16 Thank you very much.
17 CHAIR RYERSON: Thank you. Welcome, sir.
18 And I think I recall seeing that you have entered an 19 appearance.
20 MR. HELFRICH: Yes, I have. Thank you, 21 Your Honors. Thank you all. I'm Bob Helfrich, NAC 22 Senior Vice President and general counsel.
23 As we said yesterday, with respect, NAC is 24 not opposed to a consolidated interim storage facility 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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373 in principle including this CISF. We narrowed our 1
contentions out of consideration for that. Please 2
assume for a moment that universal is not just a term 3
that relates to size, you know, like a diameter or a 4
volume of a UMAX underground receptacle.
5 But is there any so called universal cask 6
such as described in the UMAX COC amendment 3 and in 7
the environmental report which is feasible for NRC 8
approval under Part 72 today and where the applicant 9
does not have access to the original proprietary 10 design of the vendor who is the COC holder of the 11 canister.
12 We had noticed the difficulty in the UMAX 13 COC amendment 3 docket where the NRC questioned 14 Holtec's lack of original proprietary design 15 information to address standard functions such as 16 criticality, shielding, thermal design, cooling, and 17 structural integrity.
18 But that is just the licensing aspect of 19 the term universal which is Holtec's term used in the 20 environmental report, for example, at Section 2.2.2.1 21 stating UMAX is the only licensed technology with the 22 universal capability, et cetera. The phrase was not 23 universal capacity.
24 But either way, it's not yet licensed.
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374 This is an assertion by Holtec, an assumption that is 1
an essential element of this application as explained 2
in the NAC's George Carver's affidavit with our 3
petition.
4 Without the original design information 5
for the other non-Holtec canisters available, how will 6
Holtec as the ISFSI licensee owner respond, diagnose, 7
safely manage, and correct for an incident or an 8
operational event? Something involving mishandling, 9
for
- example, where realistic and accurate 10 calculations, not just founding, are needed. NAC 11 wants to know, is a Holtec UMAX universal cask 12 feasible for NRC approval for this facility? If it 13 is, we need to be involved now.
14 As a final point, NAC respectfully 15 suggests as a first step if Holtec does not want to 16 address any non-Holtec canisters in this application, 17 then perhaps Holtec would eliminate the term universal 18 in the application as it refers to the UMAX cask and 19 limit the application to only Holtec canisters for 20 which licensing approvals exists. The use of the term 21 universal, with all respect, is causing confusion.
22 Thank you.
23 CHAIR RYERSON: Thank you, sir. Let's 24 see. We next move to Fasken, Mr. Eye.
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375 MR. EYE: Thank you, Mr. Chairman. A few 1
brief comments to close.
2 To the extent that the license application 3
continues to use the either-or in terms of the 4
alternatives as to who would have title or the right 5
to take title, that raises a hypothetical that we 6
think is improperly considered in the context of this 7
license application. And I support that with asking 8
-- by asking the panel to consider how far a 9
petitioner's contention would get raising a
10 hypothetical and asking the Board to consider it.
11
- Likewise, Holtec
- infers, suggests, 12 implies, states flat out that there's a legislative 13 fix for this. That is pure conjecture and 14 speculation. Nobody knows what kind of bill might 15 come out of a committee, what marked up version it 16 would be, what amendments get offered and adopted on 17 the floor, whether it would be signed by the 18 President.
That's complete conjecture and 19 speculation.
20 And I would suggest again that approach by 21 a petitioner would be unsuitable and rejected by 22 licensing boards of the NRC. Hence, if there's going 23 to be essentially, more or less, fair treatment of the 24 parties, Holtec should not be allowed to engage in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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376 speculation, conjecture to support its license 1
application.
2 Finally, there's a suggestion this morning 3
by Mr. Silberg that while there's -- his suggestion is 4
that this facility is safer than counterparts in urban 5
areas because it's in a sparsely populated zone. That 6
conflates safety with potential for the number of 7
injuries or harm, the kind of harm that might result.
8 If, in fact, these facilities are as safe 9
as Holtec suggests, they could be put anywhere. They 10 could be put in West Chester County if they're that 11 safe. But that's not what's being proposed here.
12 Instead, the burden of the harm is shifted to an area 13 that's sparsely populated just because it's sparsely 14 populated. No other quality would support that. That 15 is not a fair way to evaluate whether this facility is 16 safe.
17 So with those comments, I would thank the 18 panel for its attention.
19 CHAIR RYERSON: Thank you, Mr. Eye.
20 Holtec International, Mr. Silberg.
21 MR. SILBERG: Thank you, Mr. Chairman. I 22 hope you'll give me a little leeway because I'm 23 responding to --
24 CHAIR RYERSON: Five and a half to one.
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377 MR. SILBERG: Five and a half to one.
1 First, and I wasn't planning to give a closing 2
statement. But since everyone is, I think it's 3
appropriate.
4 The case that the Board and the audience 5
here were able to listen to the strong local support 6
from the folks from Eddy and Lea County and ELEA 7
yesterday and today from Carlsbad. It's unfortunate 8
that yesterday's presentations for people who were 9
listening remotely when the audio link went out while 10 they were speaking. And we hope that their 11 presentations will be clearly on the record so that 12 the strong local support that we have will be 13 reflected.
14 Let me try to go through some of the 15 comments that we just heard. The issue of the DOE 16 presentation is that is it hypothetical that DOE will 17 participate? We don't know. There was legislation on 18 the floor of Congress to do that. That legislation 19 did not pass.
20 Mr. Eye said all this is hypothetical. On 21 the other hand, Mr. Lodge said we ought to assume that 22 there's going to be federal legislation. We ought to 23 further assume that that federal legislation will 24 result in taking the site from private ownership. We 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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378 should further assume that that federal legislation 1
will force other casks besides Holtec on that site.
2 When we talk about hypothetical and speculative, 3
that's about as much as I've ever heard.
4 Do we need to show a basis? Sierra Club's 5
counsel said that they shouldn't be required to prove 6
their case. That's correct. They should not. Their 7
obligation is to show that there's a basis for their 8
contentions that is material to the contention. We 9
don't expect a determination whether those bases are 10 factually correct or better science and technology 11 than ones we might have. But we do urge the Board to 12 take a look at those documents to see whether they 13 meet the test of materiality.
14 We don't require detailed facts. We don't 15 require a refutable authority, and we're not urging 16 that on the Board. But we do need to make sure that 17 the Commission's rules on contention and admissibility 18 are adhered to. And we hope you'll take a hard look 19 at the filings of both sides.
20 In terms of DOE taking title, it's clear 21 that from an environmental standpoint DOE's presence 22 as an option has no impact on the environment.
23 Whether we identify it as an option down the road 24 certainly doesn't make the application illegal in any 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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379 sense.
1 We recognize that the current state of the 2
Nuclear Waste Policy Act does not permit except with 3
respect to spent fuel that's already owned by DOE. It 4
does not require that they be a party to this. On the 5
other hand, if in the future they should become a 6
party to that, it is an obvious fact. But it does not 7
change any of the environmental consequences.
8 There's a question raised about the role 9
of the AMP beyond the licensing period and that that's 10 voluntary. I think we had testimony clearly that it 11 is not voluntary. And beyond the license period for 12 that part of the license application or any part of 13 the license application, it's clearly set aside by the 14 continue storage rule.
15 I still don't understand the continued 16 reference to the 173,000 tons. That's been fully 17 explained. I also don't think it's terribly relevant 18 to this Board's rulings. I don't think it provides a 19 basis because I don't think there is a basis for that 20 number.
21 In terms of the railroads, whether or not 22 there are 900,000 or 132,000 people on a half mile on 23 either side of railroads and whether that's an 24 environmental justice issue, I do note that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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380 consolidated petitioners, Don't Waste Michigan and 1
others, have not raised an environmental justice 2
contention. So I don't think it's appropriate for 3
them to raise that in their closing statements.
4 With respect to the NAC statements, I 5
would note that they are incorrect in saying that 6
there are no cases in which one vendor's cask is 7
stored in another vendor's -- one vendor's canister is 8
stored in another vendor's cask. In fact, at this 9
very time at the Trojan Plant, there are Holtec 10 canisters that are stored in TranStore casks. It is 11 something that happens. It is not a violation of law.
12 It's not inappropriate, and it certainly doesn't 13 create additional environmental consequences.
14 The issue that we ought to consider NAC 15 canisters on our site violates the very basis of our 16 purpose and needs statement. The purpose of this 17 facility is to deploy the Holtec UMAX system. It is 18 not to bring other people's casks on the site. We 19 don't need to do that. We've explained why that is 20 not required as part of the design alternatives 21 consideration.
22 We are not surprised and we're glad to 23 hear that NAC is not opposed to this facility. They 24 are apparently opposed to the word "universal". In 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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381 the context of an environmental report and talking 1
about phases that are not before this Board for the 2
license, we think that that concern is not a relevant 3
basis for a contention.
4 If the NRC should license the storage of 5
NAC canisters in the Holtec UMAX, then it will be 6
appropriate if the NRC is able to do that. Without 7
access to NAC's proprietary information, we believe 8
that they will be able to do so. Then storage should 9
be perfectly fine. If NAC is unable to license that 10 system without the access to NAC proprietary 11 information, and if that proprietary information does 12 not become available, then the NAC canisters will not 13 be stored on the Holtec site and their concerns are 14 moot.
15 In any event, we don't need access. We 16 don't believe we need access to proprietary 17 information. And if we do and we can't get it, their 18 concern is moot.
19 With respect to the legislative fix that 20 Mr. Eye said being a purely hypothetical, we don't 21 know what will happen in Congress. We don't know a 22 lot of what will happen tomorrow. However, if it does 23 happen, it's perfectly appropriate for a document 24 which is intended to look out to the future to say, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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382 this might happen.
1 In this case, if it does happen, it 2
doesn't affect the environmental consequences of this 3
action. And therefore, even if it does happen, we 4
think the presence of Option 1 in the environmental 5
report is of no materiality and therefore not the 6
basis for the contention.
7 We really appreciate the Board's clearly 8
intense scrutiny of the application documents. We 9
were pleased to be able to provide answers to the 10 extent we can. We think we did. And we look forward 11 to the next phase of this proceeding.
12 Thank you very much.
13 CHAIR RYERSON: Thank you, Mr. Silberg.
14 Does the NRC staff want to say anything?
15 MS. KIRKWOOD: No, Your Honor.
16 CHAIR RYERSON: That's what I guessed.
17 All right. Well, thank you all. That concludes what 18 we intended to cover at this proceeding. Now our job 19 now is to take all the information we've received and 20 that includes the hundreds of pages of pleadings that 21 I referred to yesterday and everything that we've 22 heard today and render a decision on the standing of 23 the various participants, the petitioners, and on the 24 admissibility of their individual contentions of which 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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383 there are approximately 40, I believe.
1 It's our intention to rule at the same 2
time on the local government petitions which again 3
stand unopposed and all pending motions of which I 4
described the first day. We have all sorts of pending 5
motions that are related to those major issues.
6 The NRC has certain milestones for us 7
which we always try to comply with. Basically, we 8
should try to render a decision within 45 days of the 9
argument or 45 days of the last pleadings that were 10 filed.
11 This has gotten a little complicated here 12 because last week there were I believe two sets of 13 motions for new or amended contentions. And the 14 briefing on those will not be completed until well 15 past the middle of February. So just considering 16 those, it looks like our timing which would've been 17 around March 11, I think, will probably push back to 18 early April or so.
19 There's a little further complication in 20 that there may be further filings. And at some point, 21 I think we have to make a decision that we're going to 22 decide based on the briefing that has been completed 23 and that we will defer to a second decision --
24 additional motions.
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384 I think the motions we received last week 1
are sufficiently closely related to the Sierra Club's 2
contention and contention 1 and the Beyond Nuclear 3
contention. It really doesn't make much sense to try 4
to sever those in any way. I think they are part of 5
the same types of arguments, and so we will deal with 6
those together.
7 We'll have to see the filings that may be 8
coming in, in the next couple weeks whether we really 9
have to sever those or just push the whole decision 10 back a little bit. So that's where we are. Most 11 likely, a decision on everything in very late March or 12 early April but possibly even later than that. If we 13 can't meet the milestones for any reason, we will 14 issue a notice to that effect.
15 Let's see. Now on behalf of the Board, I 16 want to personally thank all of the counsel who've 17 spoken today and as well as the representatives of the 18 local governments. I think everybody has been 19 extremely professional, and this has been extremely 20 helpful to us as we make our decision.
21 Also as most of you know, this forum, the 22 Bar of the State of New Mexico was a place we had to 23 come to on relatively short notice. We were all set 24 up to uses the federal court -- the older federal 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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385 court building, the historic one. And apparently 1
there's some funding problems in the federal 2
government at the moment, and they were unable to 3
ensure us at some point that they could support us.
4 So we made a relatively sudden decision to 5
come here to the Bar of the State of New Mexico, and 6
the staff here could not have been more cooperative 7
and helpful. And it's been wonderful for us and a 8
wonderful opportunity to make a quick shift and what 9
I hope has been, from all standpoints, a successful 10 two-day event.
11 Do I have any comments from other judges?
12 Judge Arnold? Judge Trikouros?
13 JUDGE ARNOLD: I think you've said it.
14 Thank you.
15 CHAIR RYERSON: We have one. Mr. Lodge is 16 standing up. Mr. Lodge?
17 MR. LODGE: Your Honor, I wonder if I may 18 make a very brief request to the panel.
19 CHAIR RYERSON: You may make a request.
20 MR. LODGE: All right. It's a start. We 21 request on behalf of the joint petitioners a 14-day 22 period for the Board to hold open the record of this 23 proceeding for the purpose of providing some 24 documentation related to the Baltimore tunnel fire 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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386 colloquy that was discussed this morning. We would 1
like to respond to the issue of whether or not there 2
were maps and the implications.
3 CHAIR RYERSON: Well, let me say this.
4 We're certainly not going to decide anything in 14 5
days. The new contentions go beyond that for the 6
briefing. Whether what you submit is something that 7
we can appropriately consider is another issue. But 8
you may submit something within 14 days.
9 MR. LODGE: Thank you, Your Honor.
10 MR. TAYLOR: The Sierra Club joins in that 11 request.
12 CHAIR RYERSON: Fair enough. Fair enough.
13 Again, no assurances that we will consider that that 14 is something that was required or permissible or 15 appropriate in view of what's been said here. But 16 we're not doing anything for the next 14 days. We're 17 working, I hope, for the next 14 days but not issuing 18 any decisions.
19 All right. We stand adjourned. Thank you 20 again.
21 (Whereupon, the above-entitled matter went 22 off the record at 3:28 p.m.)
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