ML19081A152
| ML19081A152 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 03/22/2019 |
| From: | Lisa Clark NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, RAS 54881, Holtec International | |
| Download: ML19081A152 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (Consolidated Interim Storage Facility)
NRC Staff Response to Don't Waste Michigan et al.'s Motion to Amend Contention 2
INTRODUCTION The Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to the motion of Dont Waste Michigan, et al. (DWM) 1 to amend its proposed Contention 2. 2 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 1
A consortium consisting of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, and Nuclear Issues Study Group.
2 Motion of Petitioners Dont Waste Michigan, et al. to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019)
(Motion). Appended to the Motion is a separately numbered document, Dont Waste Michigan Et Al.s Amended Contention 2, setting forth the proposed amended contention (Amended Contention).
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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. 3 On September 14, 2018, DWM filed a petition to intervene and proffered several contentions. 4 Among them was DWM Contention 2, which challenges Holtecs financial qualifications. 5 The NRC Staff 6 and Holtec 7 filed responses on October 9, 2018. On January 23-24, oral argument was held in Albuquerque, New Mexico.
On February 25, 2019, DWM sought leave to amend Contention 2 based on Holtecs statements at oral argument. 8 The proposed amendment appears to also incorporate the amendments DWM filed to Contention 2 on February 6, 2019. 9 The newly proposed amendment to Contention 2 would add the claim that Holtec has not demonstrated adequate financial qualifications or cost estimates for the scenario in which nuclear power plant licensees 3
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).
4 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) (Petition).
5 Id. at 62-63.
6 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).
7 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).
8 Motion.
9 On February 6, 2019, DWM moved to amend its Contention 2 to address revisions to Holtecs environmental report. In its response to that motion, the NRC staff stated that the amendment was filed timely and was admissible to the extent it challenged whether the application may propose a license condition that includes the potential for DOE ownership of spent fuel to be stored at the Holtec facility . . . [, but not] as a challenge to the likelihood or viability of the private ownership alternative.
NRC Staff Answer to Motions to Amend Contentions, at 2 (Feb. 19, 2019). That continues to be the Staff position, and the Staff does not repeat the details of that answer here.
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would contract with Holtec to store spent nuclear fuel (SNF) at the CISF. DWM also seeks to rely on an additional expert declaration, that of Robert Alvarez. 10 LEGAL STANDARDS I. Timeliness Standards for New and Amended Contentions 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. 11 To meet the standard, the information proffered must be more than a restatement of previously available information. 12 The information must also be more than a new interpretation of previously available information. 13 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. 10 Expert Report and Curriculum Vitae of Robert Alvarez (Feb. 23, 2019) (Alvarez Report). See Amended Contention at 5.
11 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).
12 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), LBP-09-10, 70 NRC 51, 142 (2009) (The fact that a party integrates, consolidates, restates, or collects previously available information into a new document, does not convert it into previously unavailable information.)
13 Id. (Nor can a person satisfy the previously unavailable standard by showing that, as a subjective matter, he or she only recently became aware of, or realized the significance of, public information that was previously available to all.).
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§ 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.
The contention admissibility requirements are strict by design 14 and do not permit . . . notice pleading, with details to be filled in later. 15 It is the petitioners burden to come forward with support for its contention. 16 A board must reject a contention that rests on an incomplete or inaccurate reading of the application or the Staffs review document. 17 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. 18 14 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001).
15 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 338 (1999).
16 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).
17 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).
18 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 4
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. 19 To demonstrate a genuine, material dispute, the petitioner must address the specific analysis in the document and explain how it is incorrect. 20 To show that a dispute is material, a petitioner must show that its resolution would make a difference in the outcome of the proceeding. 21 DISCUSSION I. DWM has not shown that the information on which it relies to amend Contention 2 satisfies the good cause criteria of 10 C.F.R. § 2.309(c)(1)
DWM asserts that the 10 C.F.R. § 2.309(c)(1) factors are satisfied with respect to its amendment for two reasons. First, it claims § 2.309(c)(1)(i) is met because the oral argument was the first time that Holtec unequivocally has admitted that there is no U.S. Department of Energy subsidy of CISF operations. 22 Second, it claims § 2.309(c)(1)(ii) is met because Holtecs statements at oral argument change the thrust of Holtecs application to investigation, analysis and disclosure of the details of the private financing scheme by which Holtec intends to build, operate and decommission the proposed CISF. 23 Because neither of these assertions 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).
19 Millstone, CLI-01-24, 54 NRC at 358.
20 10 C.F.R. § 2.309(f)(1)(vi).
21 Oconee, CLI-99-11, 49 NRC at 333-34.
22 Motion at 8. DWM also claims that 10 C.F.R. § 2.309(c)(1)(i) is satisfied because at the January oral arguments, Holtec also for the first time asserted as a proposition that there were no differences in environmental effects between the two financing schemes. Id. However, DWM does not explain how that observation represents any new informationlet alone materially different information regarding the contents of the application, that DWM could not have challenged at the outset of the proceeding.
23 Motion at 8.
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reflect new or materially different information, DWM fails to demonstrate the good cause required by 10 C.F.R. § 2.309(c)(1).
DWMs amendment to Contention 2 would add new claims about the applicants demonstration of reasonable assurance of funding under 10 C.F.R. § 72.22(e). 24 Specifically, DWM seeks to add a claim that financing by plant owners holding title to SNF is quite improbable. 25 However, as the staff pointed out in its original response to Contention 2, 26 the portion of the application addressing financial qualifications, including its proposed license condition, has always specifically included the option of private funding. 27 Although DWM asserts that [f]inally dispatching the DOE genie allows serious scrutiny of the sole remaining alternative, 28 that alternative was unquestionably in the original application and thus previously available. It is responsibility of petitioners to articulate at the outset the specific issues they wish to litigate. 29 DWM had the opportunity to litigate Holtecs option for private funding at the outset of these proceedings; DWM chose not to.
Furthermore, DWM does not explain how any of the referenced statements from the January oral argument, which relate solely to DOEs ability to take title, involve any new information about the viability of private ownership or funding, the issue at the heart of the amendments to Contention 2. DWM identifies no actual change to the applications provision for, and description of, the private ownership option as grounds for Holtecs demonstration of 24 Amended Contention at 1.
25 Id. at 4.
26 Staff Response at 32 (But the same key portions of the application that the Joint Petitioners quote make clear, to the contrary, that the Applicant may instead enter into contracts with nuclear plant owners, not necessarily with DOE.).
27 See Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISF - Financial Assurance
& Project Life Cycle Cost Estimates (ADAMS Accession No. ML18058A608).
28 Amended Contention at 5.
29 Millstone, CLI-01-24, 54 NRC at 359.
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financial assurance. 30 The amendment to Contention 2 also references statements from Mr.
Alvarezs report, 31 but beyond a passing reference to the January oral argument, Mr. Alvarez does not refer to any information that was not available well before DWM filed its initial contentions.
Accordingly, regarding Holtecs private funding option for its financial assurance, DWM has not demonstrated that the proposed amendment to Contention 2 is based on information that is new or materially different from what was previously available. Because the application has always provided for the option that Holtec would enter into contracts with reactor owners rather than DOE, the fact that DWM has only now opted to dispute that option does not constitute good cause. 32 For all these reasons, DWMs motion does not satisfy 10 C.F.R. § 2.309(c)(1) and must be denied.
B. DWM has not demonstrated that its amended Contention 2 meets the requirements of 10 C.F.R. § 2.309(f)(1)
Even if it had been timely filed, DWMs amended Contention 2 should be denied because it does not meet the standards of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi). 33 Contention 30 As DWM appears to acknowledge, similar financial assurance conditions for a Part 72 license were previously proposed and upheld in the Private Fuel Storage proceeding. See Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 31-32 (Aug. 1, 2000) (We therefore affirm . . . use of license conditions as part of [Private Fuel Storages] showing of financial assurance.); Amended Contention at 12 (The Commission allowed [Private Fuel Storage] to provide its financial assurance through license conditions[.]). This precedent only underscores that if DWM believed the private funding aspect of the license condition was deficient, it had the opportunity to do so at the time it challenged the viability of the applicants inclusion of DOE.
31 Amended Contention at 5-9.
32 See Levy County, LBP-09-10, 70 NRC at 142 (Nor can a person satisfy the previously unavailable standard by showing that, as a subjective matter, he or she only recently became aware of, or realized the significance of, public information that was previously available to all.).
33 The Staff explained in its response to the original DWM petition why Contention 2, as originally pled and supported by DWM, did not satisfy the contention admissibility requirements of 10 C.F.R.
§ 2.309(f)(1). Staff Response at 31-33. The Staff does not repeat its arguments here. Further, as the 7
2 seeks to challenge the applicants demonstration of reasonable assurance of funding under 10 C.F.R. § 72.22(e). 34 Most fundamentally, DWM does not specify how any of its claims regarding costs represent a dispute with the applicants financial assurance for Phase 1, the only Phase for which the application seeks approval. 35 DWM asserts that Holtecs cost assessments are incomplete because they do not include Phases 2 to 20. 36 Because Holtecs application does not include authorization for the Phase 2 to 20 expansion, DWMs claims about financial assurance for potential future Phases or for storage beyond the licensed term are outside the scope of this proceeding and do not meet 10 C.F.R. § 2.309(f)(1)(iii).
DWM also claims that Holtecs cost assessments are inadequate because they do not account for cost differences between a DOE and private ownership approach, 37 including for accidents, emergencies, and potential future DOE disposal requirements. 38 DWM also asserts that Holtecs cost estimates for storage and management of HBF are inadequate, and that Staff explained in its response to the original DWM petition, DWM has not demonstrated that it has standing, and therefore, its hearing request should be denied. Id. at 14-17.
34 Amended Contention at 1.
35 See id. at 6 (Holtec will build the first of 20 phases with its own money).
36 Id. Holtecs application seeks a license to allow storage of up to 500 casks. Proposed License at 1.
Holtec describes this as Phase 1. Holtec International & Eddy Lea Energy Alliance (ELEA) CIS Facility - Decommissioning Cost Estimate and Funding Plan, at 5 (Decommissioning Cost Estimate) (ADAMS Accession No. ML18058A607). In addition, Holtec subsequently anticipates requesting an amendment to the license to request authorization to possess and store an additional 500 canisters for each of 19 subsequent expansion phases. Id. at 3.
37 DWM claims that a privately-financed Holtec is a vapid and wholly unlikely alternative due to the vagaries of private sector capital ebbs and flows compared to the continuity of governmental funding, and also because a privately financed Holtec would present a different cost model, but makes no more than a passing reference to Holtecs financial qualifications document. Amended Contention at 5.
38 DWM also asserts that Holtec has promised to accept the gamut of canisters. Holtecs application permits storage of canisters approved for storage in Holtec casks. See Proposed License and Technical Specifications, at 1 (ADAMS Accession No. ML17310A223) (Storage is authorized only in casks designed in accordance with Certificate of Compliance No. 1040, Amendments 0, 1 and 2, for the HI-STORM UMAX Canister Storage System.).
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Holtec has failed to account for repackaging costs. 39 The application includes Holtecs description of its financial qualifications. 40 But DWM does not explain how any information in the Alvarez Report specifically controverts Holtecs estimates for Phase 1 or renders it deficient. 41 General speculation about potential sources of future costs, without specifying how they make the Phase 1 figures in the application incorrect, does not demonstrate a genuine dispute with the application as required by 10 C.F.R. § 2.309(f)(1)(vi). 42 DWM also asserts Holtecs application is deficient because it does not discuss liability coverage and the Price-Anderson Act will not cover all conceivable radiological events. DWM appears to assume that liability coverage is part of the 10 C.F.R. § 72.22(e) financial qualifications requirements. However, § 72.22(e) requires only that the applicant either possesses, or has reasonable assurance of obtaining the necessary funds to cover (1) construction costs; (2) operating costs; and (3) estimated decommissioning costs. 43 The plain language of the regulation does not speak to liability coverage. Thus, regardless of whether Price-Anderson will cover Holtecs activities, DWM has not explained why this issue is material to the review of the application or even relates to Contention 2s stated concern with financial qualifications, contrary to 10 C.F.R. § 2.309(f)(1)(iv).
39 Amended Contention at 7-9.
40 See Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISF - Financial Assurance
& Project Life Cycle Cost Estimates (ADAMS Accession No. ML18058A608).
41 Although DWM expresses concerns with the absence of cost information for Phases 2 to 20, Amended Contention at 6, it fails to make clear how any of these concerns demonstrate a deficiency for Phase 1 rather than solely for future Phases.
42 Any contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be dismissed, as a failure to raise a genuine dispute with the application on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi). Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 433 (2008).
43 See 10 C.F.R. § 72.22(e).
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Finally, DWM asserts that Holtecs environmental cost-benefit analysis is inadequate because it does not include the other cost considerations raised in Contention 2. 44 Similarly, DWM asserts that Holtec should have considered different alternatives in the ER. 45 Yet DWM does not, for either of these claims, cite the ERs cost-benefit analysis or discussion of alternatives, let alone specify why the analyses in those sections are inadequate. Nor does DWM explain why any of its proffered alternatives are reasonable, let alone legally required.
Because DWM has failed to identify and directly controvert the portions of the ER it implies are inadequate, DWM has not demonstrated that its challenge to the ERs analysis of cost-benefit or alternatives is a genuine material dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).
CONCLUSION For the reasons described above, the Board should deny DWMs motion to amend Contention 2.
Respectfully submitted,
/Signed (electronically) by/
L. Sheldon Clark Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-2189 E-mail: Sheldon.Clark@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 22th day of March 2019 44 Amended Contention at 12-13.
45 Id. at 13-14.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL Docket No. 72-1051 (Consolidated Interim Storage Facility)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC Staff Response to Don't Waste Michigan et al.'s Motion to Amend Contention 2, dated March 22, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 22th day of March 2019.
/Signed (electronically) by/
L. Sheldon Clark Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-2189 E-mail: Sheldon.Clark@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 22th day of March 2019