ML19074A152

NRC Staff Response to Sierra Club Motion to Amend Contention 16

ML19074A152
Person / Time
Site:	HI-STORE
Issue date:	03/15/2019
From:	Alana Wase NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 54860, Holtec International
Download: ML19074A152 (13)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL (Consolidated Interim Storage Facility)

Docket No. 72-1051 NRC STAFF RESPONSE TO SIERRA CLUB MOTION TO AMEND CONTENTION 16 INTRODUCTION The Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to the motion of Sierra Club to amend its proposed Contention 16.1 For the reasons set forth below, the Atomic Safety and Licensing Board (Board) should deny the proposed amended contention because it fails to meet the requirements of both 10 C.F.R. § 2.309(c)(1) and (f)(1), and is therefore inadmissible.

BACKGROUND On March 30, 2017, Holtec International (Holtec) submitted an application, including a Safety Analysis Report (SAR) and Environmental Report (ER), requesting a license for the construction and operation of a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF). On July 16, 2018, the NRC published a notice of opportunity to request a hearing and to petition for leave to intervene in the Federal Register.2 On September 14, 2018, Sierra 1 Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019) (Motion).

2 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018) (Holtec Hearing Notice).

2 Club filed a petition to intervene and proffered several contentions.3 Among them was Sierra Club Contention 16, which challenges the adequacy of the ERs consideration of subsurface movement of brine under the proposed CISF site.4 The NRC Staff5 and Holtec6 filed responses on October 9, 2018. On January 23-24, oral argument was held in Albuquerque, New Mexico.

On February 18, 2019, Sierra Club sought leave to amend Contention 16 based on Staff Requests for Additional Information (RAIs)7 and Holtecs responses to these RAIs.8 Holtecs RAI responses became publicly available on January 17, 2019. The proposed amendment to Contention 16 would add the claims that Holtec has not properly accounted for mechanisms that could allow corrosive material to reach cavity enclosure containers (CECs) and/or spent fuel canisters and that Holtecs aging management program (AMP) is insufficient to address groundwater impacts to the integrity of the spent fuel containers. Sierra Club also seeks to rely on an additional expert declaration, that of Dr. Gordon Thompson.9 LEGAL STANDARDS I.

Timeliness Standards for New and Amended Contentions 3 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) (Petition).

4 Id. at 62-63.

5 NRC Staffs Consolidated Response to Petitions to Intervene and Requests for Hearing Filed by: Alliance for Environmental Strategies, Beyond Nuclear, Inc., Dont Waste Michigan, et al., NAC International Inc.,

and the Sierra Club (Oct. 9, 2018) (Staff Response).

6 Holtec Internationals Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application, (Oct. 9, 2018) (Answer).

7 Letter to K. Manzione, Holtec International's Application for Specific ISFSI License for the HI-STORE Consolidated Interim Storage Facility for Spent Nuclear Fuel - First Request for Additional Information, Part 2 (Sept. 13, 2018) (ADAMS Accession No. ML18257A240).

8 Letter to J. Cuadrado, Holtec International HI-STORE CIS (Consolidated Interim Storage Facility)

License Application Responses to Requests for Supplemental Information, Attachment 1, Responses to Requests for Additional Information - Non-Proprietary (Nov. 30, 2018) (RAI Response) (ADAMS Accession No. ML18345A151).

9 Motion at 9; Gordon Thompson Declaration (Feb. 12, 2019) (Declaration).

3 New or amended contentions submitted after the initial date for hearing requests must meet the requirements of 10 C.F.R. § 2.309(c)(1). To do so, a party must demonstrate good cause by showing that the following three conditions are met:

(i)

The information upon which the filing is based was not previously available; (ii)

The information upon which the filing is based is materially different from information previously available, and (iii)

The filing has been submitted in a timely fashion based on the availability of the subsequent information.

The petitioner has the burden of demonstrating that any new or amended contention meets the standards in 10 C.F.R. § 2.309.10 II.

General Requirements for Contention Admissibility In addition to meeting the requirements of 10 C.F.R. § 2.309(c)(1), new or amended contentions must also satisfy the six contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1). That section requires that each contention:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue... ; and (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

10 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

4 The contention admissibility requirements are strict by design11 and do not permit... notice pleading, with details to be filled in later.12 It is the petitioners burden to come forward with support for its contention.13 A board must reject a contention that rests on an incomplete or inaccurate reading of the application or the Staffs review document.14 Finally, if a petitioner provides a document as a basis for a contention, the petitioner must explain the significance of the document and how it supports the contention.15 Further, a petitioner must do more than assert generally that there are deficiencies in the application. A petitioner must identify all pertinent portions of the document it is challenging and state both the challenged position and the petitioners opposing view.16 To demonstrate a genuine, material dispute, the petitioner must address the specific analysis in the document and 11 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).

12 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 338 (1999).

13 Oyster Creek, CLI-09-7, 69 NRC at 260-61; see also Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (August 11, 1989) (final rule).

14 Cf. Georgia Institute of Technology (Georgia Tech Research Reactor), LBP-95-6, 41 NRC 281, 300 (1995) (rejecting a contention based on mistaken reading of the Safety Analysis Report).

15 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (references to articles or correspondence, without explanation or analysis of their relevance, [do] not provide an adequate basis for admitting a contention); id. at 457 (it is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves; boards may not simply infer unarticulated bases of contentions); Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 204-05 (2003) (stating that it is insufficient to refer generally to voluminous documents with no further analysis and supporting evidence showing why particular sections of those documents provide the basis for a contention).

16 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-01, 55 NRC 1 (2002).

5 explain how it is incorrect.17 To show that a dispute is material, a petitioner must show that its resolution would make a difference in the outcome of the proceeding.18 DISCUSSION In Contention 16, Sierra Club asserted that [t]he ER does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site.19 Sierra Club now seeks to amend Contention 16 by asserting for the first time that Holtec has not appropriately accounted for mechanisms that could allow corrosive material to reach CECs and/or spent fuel canisters particularly due to increased flooding from climate change and that the AMP is insufficient to address groundwater concerns.20 In doing so, Sierra Club seeks to rely on information it had not previously raised to support Contention 16the Staff RAIs 17-12 and 17-14; Holtecs response to these RAIs; and the Declaration of Dr. Gordon Thompson.21 Sierra Clubs motion should be denied because it does not demonstrate that the information on which it relies is new or materially different from previously-available information, as required by 10 C.F.R. § 2.309(c)(1)(i) and (ii). In addition, Contention 16 is inadmissible because Sierra Club fails to provide adequate support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v), and fails to raise a genuine dispute with the applicant, as required by 10 C.F.R. § 2.309(f)(1)(vi).22 I.

Amended Contention 16 17 10 C.F.R. § 2.309(f)(1)(vi).

18 Oconee, 49 NRC at 333-34.

19 Petition at 62.

20 Motion at 9.

21 Id. at 9-18.

22 The Staff explained in the Staff Response to the Petition why Contention 16, as originally pled by Sierra Club, does not satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). Staff Response at 98-100. The Staff does not repeat its arguments here; this Response focuses on the newly-raised arguments and information proffered by Sierra Club in the present motion to amend Contention 16.

6 A.

Sierra Club has not shown that the information on which it relies satisfies the good cause criteria of 10 C.F.R. § 2.309(c)(1)

In Sierra Clubs motion to amend Contention 16, Sierra Club asserts that the 10 C.F.R.

§ 2.309(c)(1) factors are satisfied for several reasons. First, Sierra Club asserts that it could not have known about the NRC Staffs confirmation of Sierra Clubs groundwater concerns and Holtecs Responses until [January 17, 2019].23 However, the Staff letter issuing the RAIs was made publicly available on September 17, 2018, five months before Sierra Clubs motion. As such, the existence of the RAIs and the NRC Staff perspective set forth24 in them is not new information, and Sierra Clubs arguments related to this information were not submitted in a timely fashion, as required by 10 C.F.R. § 2.309(c)(1)(iii).

Second, Sierra Club asserts that Holtecs Responses to the RAIs... present new information which Holtec had not asserted in its Answer to Contention 16.25 However, Sierra Club errs in its characterization of what constitutes new information.26 The legal standard is not whether Holtecs RAI responses differ from the arguments it raised in its Answer to the Petition, but whether the factual information underpinning Holtecs RAI responses was previously availablefor example, in the SAR or ER. Put differently, new or amended contentions must be based on new facts not previously available.27 Here, Sierra Club cannot demonstrate that its amended contention is based on any facts not previously available.

23 Motion at 6.

24 Id.

25 Id. at 3.

26 See also id. at 6 (Neither of these allegations [in RAIs 17-12 and 17-14] were made in Holtecs Answer to Contention 16 as it was presented in Sierra Clubs Petition to Intervene. Therefore, these new arguments constitute new information that was not previously available.); id. at 4 (However, in its Answer to Contention 16, Holtec never mentioned its aging management program.).

27 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n. 70 (2012) (affirming denial of contention challenging enhancement to an aging management program). See also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), LBP-15-11, 81 NRC 401, 429

7 For example, in its response to RAI 17-12, Holtec begins by restating the facilitys design features to sequester the canisters from salt.28 This information exists in SAR Revision 0A at 17-24, 1-11 and 1-14.29 RAI 17-12 then states Holtec is implement[ing] a full aging management program, as described in [SAR] Chapter 18.30 As evidenced by the RAI response itself, the AMP was discussed in the SAR, and indeed is the subject of an entire chapter of the SAR.31 To the extent Sierra Club now disputes the adequacy of the AMP,32 with respect to asserted brine-related corrosion or otherwise, it could have made these arguments in its Petition and did not do so. As such, these arguments are untimely.

Sierra Club also references RAI 17-14 as a source of new information and asserts that Holtec makes admissions regarding the potential of CEC wall thinning due to corrosion and/or pitting of the internal surfaces of the CEC which appear nowhere in the Holtec documentation.33 This is incorrect. SAR Revision 0A states, the risk of [stress corrosion cracking (SCC)] cannot be entirely ruled out and the AMP must provide for a way to anticipate (2015) (rejecting a proposed contention where the purported new information was only carried forward from an application).

28 RAI Response at 19 (The salts in the surrounding area are not expected to be transported to the canisters due to the design of the system. The canisters are stored within vaults, surrounded by a large amount of solid subgrade. Each canister is also surrounded by a steel CEC, which prevents intrusion through the subgrade to the canister.).

29 See e.g., SAR Revision 0A at 17-24 (SAR Rev. 0A) (ADAMS Accession Nos. ML17310A221 and ML17310A222) (It should be noted that, although the CEC is a buried steel structure it is substantially sequestered from the native soil through two engineered features: a. A thick reinforced concrete Enclosure Wall surrounds the [Vertical Ventilated Modules] array and, along with the Support Foundation pad, provides a physical separation (water intrusion protection) to the CECs.). For simplicity, where possible, all references are made to SAR Revision 0A.

30 RAI Response at 19 (emphasis added).

31 See also SAR Rev. 0A at 18-1 (An effective AMP is considered an imperative for an ISFSI.... to thwart gradual weakening of the safety margins.... [and] [a]t HI-STORE CIS, Holtec International plans to implement a state-of-the-art AMP....).

32 See e.g., Motion at 13-15 (quoting Declaration at 23-26) (Discussion here shows that Holtec lacks a capability to perform credible inspections of SNF canisters or CECs.).

33 Motion at 7.

8 it. Accordingly, the method for the canister proposed in this SAR assumes that the threat of SCC is real and possible.34 Additionally, SAR Section 10.3.4 notes that In-service inspection for long-term interior and below grade degradation shall be performed by visual inspection of accessible areas of the HI-STORM UMAX VVM.35 It further specifies, Additional in-service inspection activities will include more thorough inspections for foreign material accumulation, corrosion (CEC wall thinning) and insulation degradation.36 Contrary to Sierra Clubs assertion, the SAR contains numerous references to the potential of CEC wall thinning due to corrosion and Petitioner identifies no other new information in that RAI response.

Likewise, Sierra Club cannot demonstrate that the claims raised by Dr. Thompson rely on any new information. In his explanation for how brine may come into contact with a canister, Dr. Thompson references in passing RAI responses 17-12 and 17-14, and notes that they exhibit unwarranted optimism.37 However, Dr. Thompsons arguments are all ultimately based on information that was available well before the initial intervention deadline. He references a 2017 report and asserts that climate change will cause increased flooding which could bring the brine in contact with the canister.38 He then raises concerns with the adequacy of SAR Section 2.3 and its discussion on meteorology and SAR Sections 6.5.2.6 and 2.4.3 for its discussion of the estimated maximum flood and the Design Basis Flood.39 However, all of this information was available at the time the original Petition was filed, and therefore these arguments are untimely.

34 SAR Rev. 0A at 18-12. See also id. at 18-14 (The monitored conditions include, but are not limited to:

Localized corrosion pits, stress corrosion cracking, etching, or deposits).

35 Id. at 10-18.

36 Id. Emphasis added.

37 Declaration at 22.

38 Declaration at 22 (referencing the US Global Change Research Program report dated from 2017); see id. at 16 n. 40).

39 Id. at 22.

9 Because Sierra Club has not shown that its proposed amendment to Contention 16 stems from any new or materially different information, its motion should be denied. The failure to meet the criteria of 10 C.F.R. § 2.309(c)(1) is sufficient grounds to reject the amended contention. However, as discussed below, the amended contention also does not meet the admissibility criteria of § 2.309(f)(1).

B.

Sierra Club has not provided adequate support for its claims and has not raised a genuine dispute with the applicant, as required by 10 C.F.R. §§ 2.309(f)(1)(v) and (vi)

Sierra Club does not address the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) in its motion to amend Contention 16. Petitioner appears to point to the RAIs as de facto evidence that the new contention is admissible.40 However, the Commission has made clear that the existence of an RAI in and of itself is not evidence that a contention is admissible. Petitioners must independently show how an application is materially deficient.41 As discussed below, because the amended contention does not meet the standards of 10 C.F.R. § 2.309(f)(1)(v) and (vi), Sierra Clubs motion to amend Contention 16 should be denied.

Most crucially, Sierra Club fails to provide information to support the threshold assumption that brine could come into contact with the canister and cause corrosion, let alone to an extent that could cause leaks. Even if Dr. Thompsons arguments were not untimely, the amended contention fails to identify and controvert SAR analyses which assert that the site is equipped to handle flooding or subsurface migration such that brine would not come into 40 See Motion at 4 (This acknowledgement by the Staff is new information that adds significant credibility to Contention 16.).

41 Oconee, 49 NRC at 332-33, 336-37; see also Baltimore Gas & Electric Co (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), 48 NRC 325, 349 (1998) (RAIs are a standard and ongoing part of NRC licensing reviews. Questions by the NRC regulatory staff simply indicate that the staff is doing its job:

making sure that the application, if granted, will result in safe operation of the facility.).

10 contact with the canisters.42 SAR revision 0A analyzed the impacts of 7.5 inches of rain during a 24-hour period, as opposed to the 4.8 inches analyzed in SAR Rev 0 and referenced by Dr.

Thompson.43 SAR Revision 0A states that the Project site will not flood during a 24-hour/7.5 inch rain event even with 50% reduction in the soil saturation capacity/depth to restriction which was added into this model as a conservative measure.44 Dr. Thompson does not dispute this statement nor does he provide any information to suggest that the applicants analysis would be exceeded by any increased precipitation from climate change (much less a basis for inferring why such a scenario would plausibly result in brine-induced corrosion).45 Additionally, to the extent Dr. Thompsons arguments relating to climate change are intended to assert that the application must analyze impacts beyond the proposed license term, such an argument is outside of the scope of this licensing proceeding.46 Similarly, the portion of the amended contention concerning the AMP is also inadmissible, because Sierra Club has not shown that a genuine dispute exists with the applicant on a material issue of law or fact as required by 10 C.F.R. 2.309(f)(1)(vi). Dr.

Thompson states that Holtec lacks... capability to perform credible inspections of SNF 42 See e.g., SAR Rev. 0A at 2-70 (As discussed in Section 2.4.2, drainages on the Site would be able to accept a one day severe storm total within the 7.5 inch range with excess free board space. Because the Sites drainage areas can handle a greater maximum flood height than what the [Probable Maximum Flood] has been determined to be, the site can be considered to be flood-dry.); id. at 1-15 (noting that the design of the ISFSI pad acts as a barrier against gravity-induced seepage of rain or floodwater around the VVM body so rainwater will not accumulate but run off).

43 Compare SAR Rev. 0A at 2-67 to 2-70, with SAR Rev. 0 at 2-43 to 2-44 (ADAMS Accession No. ML17116A106).

44 SAR Rev. 0A at 2-69.

45 Nor does Dr. Thompson dispute the design features which Holtec asserts provide water intrusion protection. See supra n. 28 and 29; see also Staff Response at 99.

46 The scope of the proceeding is defined by the Commission in its initial hearing notice. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985). The Holtec Hearing Notice specifies that the application is for a 40-year license term. 83 Fed. Reg. at 32,919. Any contention that falls outside the specified scope of the proceeding must be rejected. See Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979).

11 canisters or CECs and repeats his statement that RAI responses 17-12 and 17-14 exhibit unwarranted optimism.47 However, he fails to point to any specific deficiencies with the Applicants AMP presented in Chapter 18. Aside from a single vague reference to Section 18.14, which Dr. Thompson asserts calls into question the applicants faith in its zero-effluent assertion, Dr. Thompson does not reference the AMP or explain with any specificity how the AMP is insufficient. [G]eneralized assertions, without specific ties to NRC regulatory requirements, or to safety in general... do not provide adequate support demonstrating the existence of a genuine dispute of fact or law.48 Because Petitioner fails to provide adequate support for its claims, as required by 10 C.F.R. § 2.309(f)(1)(v), and fails to raise a genuine dispute with the applicant, as required by 10 C.F.R. § 2.309(f)(1)(vi), the amended contention is inadmissible.

II.

Additional Arguments in Thompson Declaration Sierra Club refers to the Thompson Declaration to support amended Contention 16.

The Thompson Declaration is 35 pages long, of which only 6 pages concern the referenced RAIs.49 The majority of the claims and information raised in the declaration does not appear to relate in any way to the asserted topic of Contention 16, either as originally pled, or as amended; in addition, several of Dr. Thompsons arguments appear to challenge matters beyond the scope of the licensing action. For example, a large portion of the declaration 47 Declaration at 25.

48 U.S. Department of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009). Dr.

Thompson also states that proprietary information is unavailable to him concerning the AMP. However, the parties had the opportunity to seek access to proprietary information as part of the initial notice of opportunity to request a hearing, and Sierra Club did not do so. See Staff Response at 95 n. 424, 121-

22.

49 See Declaration at 20-23, 25-26. See also NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301, 332 (2012).

12 appears to be an attempt to challenge the NRCs conclusions in the Continued Storage Rule.50 Other portions of the declaration pertain to the History of Nuclear Power and note

[u]njustified optimism, weak regulation, and the ignoring or suppression of inconvenient information and political influence within the industry.51 Such issues are beyond the scope of the licensing action and the arguments raised in Sierra Club Contention 16; accordingly, they do not support the admissibility of amended Contention 16, because they do not satisfy 10 C.F.R. § 2.309(f)(1)(iii).

CONCLUSION For the reasons described above, the Board should deny Sierra Clubs motion to amend Contention 16.

Respectfully submitted,

/Signed (electronically) by/

Alana M. Wase Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 15th day of March 2019 50 See, e.g., id.at 5-14 (discussing among other things the feasibility of a permanent repository for SNF, the assumption of the existence of institutional controls, potential attacks to ISFSIs and assumed doses).

51 Id. at 17-20. These are not permissible bases for contentions, as the adjudicatory process is not the proper venue for a petitioner to set forth any contention that merely addresses his or her own view regarding the direction regulatory policy should take. Louisiana Energy Servs. LP (National Enrichment Facility), LBP-04-14, 60 N.R.C. 40, 55 (2004) (citing Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 21 (1974).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL (Consolidated Interim Storage Facility)

Docket No. 72-1051 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC Staff Response to Sierra Club Motion to Amend Contention 16, dated March 15, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 15th day of March 2019.

/Signed (electronically) by/

Alana M. Wase Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Wase@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 15th day of March 2019