ML19085A152
| ML19085A152 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 03/26/2019 |
| From: | Taylor W Law Offices of Wallace L. Taylor, Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, RAS 54886, Holtec International | |
| Download: ML19085A152 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF:
)
) Docket No. 72-1051 HOLTEC INTERNATIONAL
)
) March 26, 2019 (Consolidated Interim Storage Facility
)
Project)
)
SIERRA CLUBS REPLY TO OPPOSITION AND RESPONSE OF HOLTEC AND NRC STAFF TO SIERRA CLUB CONTENTIONS 27, 28 AND 29 Comes now Sierra Club and for its Reply to Opposition and Response of Holtec and NRC Staff to Sierra Club Contentions 27, 28, and 29, states as follows:
INTRODUCTION Contentions 27, 28 and 29 are based on information that was presented at the ASLB hearing on January 24, 2019. At the hearing Holtec raised the existence of its Aging Management Program as a defense for the first time to the issues of the impacts of high burnup fuel and impacts concerning groundwater. Also at the ASLB hearing, for the first time, Holtec was forced to admit that DOE cannot legally take title to the radioactive waste to be stored at the Holtec site, and therefore, the private nuclear reactor operators would have to retain title to the waste and bear financial responsibility.
CONTENTION 29 TIMELY FILED Sierra Club raised the issue that DOE could not legally own the waste in its Contention 1. At that time the ER stated that the proposal was that DOE would take title to the waste. There was no mention in the ER that nuclear reactor owners would take title to the waste or have financial responsibility. Even though other portions of Holtecs 1
application documentation proposed that either DOE or private reactor owners would be financially responsible, Holtec continued to keep the pea under the shell and still pretend that DOE might take title to the waste, even though Holtec knew that would be illegal. A revised ER was placed in ADAMS less than a week before the ASLB hearing. That revised ER still listed DOE as the first alternative to owning the waste, which of course, is illegal. On January 24, Holtec finally admitted that illegality after consistently challenging Sierra Clubs contention alleging that illegality.
Thus, Holtecs admission at the ASLB hearing that DOE could not legally take title to the waste was new information. That admission put the facts in an entirely new light. Now, rather than the proposal that the reactor owners retain title being a charade to give the impression that perhaps DOE would not be involved and to give Holtecs application a patina of credibility, Holtec must now substantiate that the reactor owners will accept that responsibility. Holtec has avoided that showing previously.
This new scenario requires Holtec to justify the financial assurance that the reactor owners will finance the project. Previously, Holtec was able to shrug off this issue by declining to say whether DOE or the reactor owners would be financially responsible for the CIS project.
The new information justifying a new contention can be related to an issue that was the subject of a previous contention as long as the new contention is based on new information. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), 44 NRC 8 (1996). As the licensing board said in Yankee:
Generally, a good cause finding based on new information can be resolved by a straightforward inquiry into when the information at issue was available to the 2
petitioner. In this instance, however, the answer to the good cause factor involves more than looking at the dates on the various documents submitted by the Petitioners. Instead, as the Petitioners suggest, the inquiry turns on a more complex determination about when, as a cumulative matter, the separate pieces of the decontamination information puzzle were sufficiently in place to make the particular concerns they now espouse reasonably apparent. (emphasis added).
Id. at 26. Likewise, in this case Holtec has created a puzzle regarding whether DOE or reactor owners are expected to take title to the waste. Holtecs admission at the January 24 hearing was an important piece of the puzzle that Holtec had been hiding until then.
This is a proper showing of good cause justifying the filing of Contention 29.
CONTENTIONS 27 AND 28 ARE TIMELY FILED Contention 27 relates to to the impacts of high burnup fuel. Although Sierra Club Contentions 14 and 20-24 had alleged that the impacts of high burnup fuel had not been adequately discussed in Holtecs application documentation, there was no indication at that time that Holtecs Aging Management Program would be raised as a defense to those contentions.
The Aging Management Program, SAR Chapter 18, does not directly discuss high burnup fuel. The only reference to high burnup fuel in Chapter 18 of the SAR is to Appendix D of NUREG-1927. As noted in Contention 27, it is doubtful that Appendix D even applies to this issue in the context of this case. So Sierra Club had no reason to believe that the Aging Management Program was relevant or material to the impacts of high burnup fuel. Holtec had not raised the Aging Management Program as a defense in its Answer to Contentions 14 and 20-24. A petitioner does not have to anticipatorily guess what an applicant will rely on in defense of a contention.
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As described in the quote above from Yankee, the Aging Management Program is a separate piece of the puzzle that was not apparent until it was relied upon at the ASLB hearing on January 24. This puzzle consists of over 1,000 pages of documentation filed with Holtecs application, as well as numerous other voluminous documents referred to in the application documents. The Yankee decision makes it clear that a petitioner is not required to guess how all of the puzzle pieces fit together at the outset. In this case, the Aging Management Program was not reasonably apparent as a defense to the concerns about high burnup fuel. Yankee, supra.
CONTENTION 27 IS ADMISSIBLE The impact of high burnup fuel is clearly material to the decision the ASLB must make in this case. There were numerous questions from the ASLB panel at the hearing on January 23 and 24 regarding high burnup fuel. It was these inquiries that led to Holtecs counsels reliance on the Aging Management Program for the first time.
As shown in Contention 17, the Aging Management Program provides scant assurance that the impacts of high burnup fuel will be adequately addressed. Chapter 18 of the SAR, with respect to high burnup fuel, simply refers to Appendix D of NUREG-1927. Contention 27 explains why this reference is inadequate. Beyond that, Holtecs Opposition is a dispute with the facts, which is beyond the scope of the admissibility determination. The ASLB should not address the merits of a contention when determining its admissibility. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 28 NRC 440, 446 (1988); Sierra Club v. NRC, 862 F.2d 222, 228 (9th Cir.
1988). What is required is that the intervenor state the reasons for its concerns. Public 4
Service Co. of New Hampshire, (Seabrook Station, Units 1 & 2), 16 NRC 1649, 1654 (1982). The contention rules require only that contentions have at least some minimal factual and legal foundation in support and are not to be a fortress to deny intervention. U.S. Dept. of Energy (High Level Waste Repository), LBP-09-06 (May 11, 2009).
Holtec claims that Sierra Club should have known that relevant information regarding high burnup fuel and the Aging Management Program were contained in a document referenced in the application documents, but not discussed in the documents, Holtec Report 2167378. But that document was withheld as proprietary. Holtec claims that the SUNSI procedure should have been used to obtain the document. That is a hollow argument. First, there was no way Sierra Club could have known if the document contained relevant information. Second, the SUNSI procedure is not an adequate means to obtain such information.
The SUNSI procedure requires that the request be made within 10 days after the Federal Register Notice by sending a letter to several places within the NRC. The request must contain specific information as to the need for the information and why a publicly available version will not suffice. Furthermore, the NRC will decide at that point if the requester, as a petitioner to intervene, is likely to establish standing in the licensing proceeding and that the requester has established a legitimate need for the information.
Then, only if those two conditions have been established to the NRCs satisfaction, will consideration be given to disclosing the information. Even if disclosure is granted, the requester must then be subject to whatever conditions the NRC places on 5
disclosure, including the requester signing a non-disclosure agreement or a protective order. And, of course, all of this occurs while the 60-day time period for preparing a petition to intervene and contentions is running.
Furthermore, the information was in Holtecs possession, so a SUNSI request to the NRC would not necessarily have provided the information to Sierra Club in any event.
This is not meaningful access to the information under the circumstances. Courts have found that the burden for contention admissibility may be lower where the information needed for the contention was in the hands of the licensee or NRC staff and was not made available to the petitioner. See, e.g., York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n. 12 (D.C. Cir. 1975)(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the burden of going forward on petitioners appears inappropriate.)
It must also be emphasized that Holtec Report 2167378 is only one of many documents, or portions of documents, related to Holtecs application that Holtec has withheld as proprietary. It would be virtually impossible for Sierra Club to effectively use the SUNSI procedure to obtain all of these documents in the limited time frame imposed by the SUNSI procedure. Therefore, it should be no defense to Sierra Clubs contentions that Sierra Club was not able to obtain the information.
Contention 27 therefore raises specific, germane, substantial, and material factual issues that are relevant to the... request for a license... and create[s] a basis for calling 6
on the [licensee] to satisfy the ultimate burden of proof. Northeast Nuclear Energy Co.
(Millstone Nuclear Power Station, Unit 3), 53 NRC 22, 27 (2001).
CONTENTION 28 IS ADMISSIBLE The impact of groundwater is clearly material to the decision the ASLB must make in this case. There were numerous questions from the ASLB panel at the hearing on January 23 and 24 regarding groundwater. It was these inquiries that led to Holtecs counsels reliance on the Aging Management Program for the first time.
Holtec raises basically the same arguments regarding the admissibility of Contention 28 that were asserted with respect to Contention 27. For all of the reasons set forth above regarding Contention 27, Contention 28 satisfies the requirements for contention admissibility.
CONTENTION 29 IS ADMISSIBLE The point of Contention 29 is that, now that Holtec has finally admitted that it would be illegal for DOE to take title to the waste, it is imperative that this licensing proceeding focus on the assurance that private reactor owners will take title to the waste and be financially responsible for it.
Contrary to Holtecs assertions, the issues in this proceeding are not the same whether DOE or private reactor owners hold title to the waste. A project in which an agency of the federal government, DOE, is financially responsible is far different than the undefined prospect of private entities maybe, or maybe not, being financially responsible.
Holtec has provided no indication, let alone assurance, that private reactor owners would want to retain title to the waste and be financially responsible. DOE would be subject to 7
safety regulations and would have the protection of the Price-Anderson Act. Private entities, on the other hand, would be motivated to cut costs and take short cuts on safety and environmental impacts.
Contention 29 explains in detail why it is important to require Holtec to justify the safety and environmental implications of private reactor owners being financially responsible. As Robert Alvarez stated in his declaration, reactor owners will have budget constraints and economic priorities that are different - and to affect timing of moving fuel around - from a scenario where DOE is the contractor.
The crux of Contention 29, then, is that with the clear focus now on private reactor owners, not DOE, being financially responsible, it is incumbent on Holtec to provide a showing of financial assurance in that context. As determined in Private Fuel Storage LLC (Independent Spent Fuel Storage Installation), 52 NRC 23 (2000), the Commission will not issue a license to an applicant of dubious financial qualifications. This determination must be made on a case-by-case basis after a hearing on the merits.
Therefore, Contention 29 is admissible.
/s/ Wallace L. Taylor WALLACE L. TAYLOR AT0007714 Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF: )
) Docket No. 72-1051 HOLTEC INTERNATIONAL )
)
(Consolidated Interim Storage Facility ) March 26, 2019 Project) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Sierra Clubs Reply to Opposition and Response of Holtec and NRC Staff to Sierra Club Contentions 27, 28, and 29 were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.
/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com 9