ML19154A205

Beyond Nuclears Brief on Appeal of LBP-19-04

ML19154A205
Person / Time
Site:	HI-STORE
Issue date:	06/03/2019
From:	Curran D, Goldstein M Beyond Nuclear, Emory Univ School of Law, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Turner Environmental Law Clinic
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, Holtec International, LBP-19-04, RAS 55017
Download: ML19154A205 (18)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

)

)

Holtec International

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Docket No. 72-1051

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(HI-STORE Consolidated Interim Storage Facility )

)

BEYOND NUCLEARS BRIEF ON APPEAL OF LBP-19-04 Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Mindy Goldstein Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30307 404-727-3432 magolds@emory.edu June 3, 2019

TABLE OF CONTENTS Table of Contents...i Table of Authorities..ii I.

INTRODUCTION...1 II.

FACTUAL AND PROCEDURAL BACKGROUND.....2 A. Holtecs License Application, NRC Proceeding, and Motion to Dismiss....2 B. Beyond Nuclears Initial Hearing Request and Amended Hearing Request4 C. LBP-19-045 III.

ARGUMENT....7 A. LBP-19-04 Exceeds the NRCs Statutory Authority and Limitations, Lacks Statutory Right, and is Not in Accordance with Law.....8 B. Even Assuming for Purposes of Argument the Existence of an Exception to 5 U.S.C.

§706(2)(C), the ASLBs Rationalizations for the Unlawful License Provisions Are So Speculative as to Constitute Arbitrary and Capricious Decision-Making....9 IV.

CONCLUSION AND REQUEST FOR RELIEF....12

ii TABLE OF AUTHORITIES Judicial Decisions Indiana Mich. Power Co. v. Dept of Energy, 88 F.3d 1272 (D.C. Cir. 1996).......3 In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013).....9 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983)..11, 12 Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 736 F.3d 517 (D.C. Cir. 2013)...8, 11 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)..10 Administrative Decisions Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328 (1999).10 Statutes Administrative Procedure Act..1, 2, 3, 7, 9, 11, 12 5 U.S.C. § 706(2)(A)1, 3, 7, 9 5 U.S.C. § 706(2)(A)(C)..1, 3, 7 Atomic Energy Act3, 11 42 U.S.C. §2239(a)11 National Environmental Policy Act.3-4 Nuclear Waste Policy Act...1, 3, 7, 9, 11, 12 42 U.S.C. § 101313 42 U.S.C. § 101433 42 U.S.C. § 10222(a)(5)(A).3

iii Regulations 10 C.F.R. § 2.309(f)(1)(vi)...10 10 C.F.R. § 2.3111 10 C.F.R. § 51.101..4 10 C.F.R. § 72.404 Miscellaneous Final Rule, Rules of Practice for Domestic Licensing Proceedings -

Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989)....10 Holtec Proceeding Docketing Notice, 83 Fed. Reg. 12,034 (Mar. 19, 2018).....2 Holtec Proceeding Hearing Notice, 83 Fed. Reg. 32,919 (July 16, 2018)..2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

)

)

Holtec International

)

Docket No. 72-1051

)

(HI-STORE Consolidated Interim Storage Facility )

)

BEYOND NUCLEARS BRIEF ON APPEAL OF LBP-19-04 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311, Beyond Nuclear, Inc. (Beyond Nuclear) hereby appeals a Memorandum and Order by the Atomic Safety and Licensing Board (ASLB or Board) denying admission of Beyond Nuclears single contention in this proceeding. Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-04, _ N.R.C. _ (May 7, 2019) (LBP-19-04). In its contention, Beyond Nuclear asserts that Holtec Internationals (Holtecs) license application must be rejected because it contains provisions that violate the Nuclear Waste Policy Act (NWPA). In LBP-19-04, the ASLB found that the license provisions did indeed violate the NWPA; it also found that the Administrative Procedure Act (APA) requires the Nuclear Regulatory Commission (NRC or Commission) to act in accordance with the law. Id., slip op. at 34. Nevertheless, the Board refused to enforce the NWPA and the APA on the ground that it would be useless in the circumstances of this case.

Id.

The ASLBs decision is legally erroneous because there are no exceptions to the clear mandates of the NWPA and APA. NRC must make its decisions in accordance with the law. 5 U.S.C. §§ 706(2)(A), (C). Beyond Nuclear therefore seeks reversal of LBP-19-04. Because there is no dispute between the parties regarding the facts asserted in Beyond Nuclears contention,

2 Beyond Nuclear also respectfully requests the Commission order immediate denial of Holtecs license application to the extent that it violates the NWPA.

II.

FACTUAL AND PROCEDURAL BACKGROUND A. Holtecs License Application, NRC Proceeding, and Motion to Dismiss This appeal relates to Holtecs application to the NRC for a license to build and operate a consolidated interim storage facility (CISF) for spent nuclear reactor fuel in Lea County, New Mexico. The NRC docketed the proceeding in March 2018 (83 Fed. Reg. 12,034 (Mar. 19, 2018)) and issued a hearing notice in July 2018 (83 Fed. Reg. 32,919, 32,920 (July 16, 2018)).

The proposed Holtec CISF would initially store 500 canisters or 8,680 metric tons of uranium in the CISF and eventually store up to 10,000 canisters in the CISF. 83 Fed. Reg. at 32,920. See also LBP-19-04, slip op. at 4. Ultimately, Holtec proposed to store a total quantity of 173,600 MTUs of spent fuel, over twice the capacity limit of the Yucca Mountain repository. HI-STORE CIS Safety Analysis Report (Report No. HI-2167374) (SAR), Table 1.0.1 at 1-4 (Mar.

27, 2017).1 Holtec proposed to operate the facility for as long as 120 years (40-year license term plus 80 years of extensions). LBP-19-04, slip op. at 4.

In its license application, Holtec proposed to build and manage the Holtec CISF as a private company. Holtec SAR at 1-1. Nevertheless, Holtecs initial Environmental Report revealed that Holtec did not plan to begin construction of the facility until after Holtec successfully enters into a contract for storage with the U.S. Department of Energy (DOE).

Holtec Environmental Report, Rev. 0 at 1-1 (Report No. HI-2167521) (Dec. 2017). Holtec also 1 In the oral argument on January 24, 2019, counsel for Holtec stated that the number 173,000 is wrong because some canisters are expected to have less fuel than others. Tr. 263 (Silberg). But counsel did not deny the potential that the number of tons of spent fuel stored at the facility could be as high as 173,000 metric tons, nor did Holtec revise its SAR.

3 assumed that ownership of spent fuel would be transferred to the DOE before it is shipped to the CISF. See Holtec Environmental Report, Rev. 0 at 3-104 (DOE would be responsible for transporting SNF from existing commercial nuclear power reactor storage facilities to the CIS Facility.). Thus, Holtecs entire operation depended on the assumption that DOE would take responsibility for the spent fuel that is transported to the CISF and stored there.

On September 14, 2018, Beyond Nuclear submitted to the Commission a motion to dismiss the Holtec licensing proceeding. Beyond Nuclear, Inc.s Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Motion to Dismiss).2 Beyond Nuclear argued that the NRCs conduct of the licensing proceeding violated the NWPA (42 U.S.C. §§ 10222(a)(5)(A) and 10143) and APA (5 U.S.C. §§ 706(2)(A) and (C)) because the license application assumed, as a key condition, that the federal government would take title to the spent fuel during transportation and storage. Under the NWPA, spent fuel may not be transferred to the federal government until after a permanent repository has opened. See 42 U.S.C. §§ 10131, 10143, 10222(a)(5)(A); Indiana Mich. Power Co. v. Dept of Energy, 88 F.3d 1272, 1273 (D.C. Cir. 1996) (holding that the federal obligation to take title to spent fuel does not begin until a repository is opened). By considering an application that required violation of the NWPA, Beyond Nuclear asserted, the NRC violated both the NWPA and the APA.

Beyond Nuclear also argued that its NWPA and APA claims could not be resolved in the licensing proceeding because the scope of such proceedings is limited to considering whether an application satisfies the Atomic Energy Act (AEA), the National Environmental Policy Act 2 The Motion to Dismiss included a request to dismiss a similar proceeding for review of a CISF application by Interim Storage Partners (ISP) for a site in Andrews, Texas. Like Holtec, ISP assumed federal ownership of spent fuel during transportation and storage.

4 (NEPA), and NRCs regulations for implementing those statutes. 10 C.F.R. §§ 72.40, 51.101.

Questions regarding compliance with the NWPA and APA are not considered licensing issues by the Commission and therefore are beyond the ASLBs regulatory purview. Accordingly, Beyond Nuclear requested a proceeding before the Commission (separate from the licensing proceedings) to consider its Motion to Dismiss. Motion to Dismiss at 2.

In an abundance of caution, and to preserve its claims, Beyond Nuclear also filed a hearing request and petition to intervene in the Holtec licensing proceeding. Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018) (Hearing Request)

(ML18257A324). The Hearing Request contained a single contention, incorporating by reference the Motion to Dismiss.

On October 29, 2018, in an unpublished order, the Commission denied the Motion to Dismiss on the procedural grounds that NRC regulations for consideration of hearing requests and petitions to intervene do not... provide for the filing of threshold motions to dismiss a license application; instead, interested persons must file petitions to intervene and be granted a hearing. Order at 2. Without reaching the merits of Beyond Nuclears claims, the Commission referred the matter to the Holtec licensing proceeding.

B. Beyond Nuclears Initial Hearing Request and Amended Hearing Request Beyond Nuclears initial contention, submitted September 14, 2018, asserted that:

The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of Holtecs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facilities - violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.

Hearing Request at 10.

5 In late 2018, Holtec amended its application to state, in the alternative, that either the DOE or private licensees would own the fuel during transportation and storage. Environmental Report on the Hi-Store CIS Facility, Rev. 3 (Nov. 2018) (ML19016A266).

On January 23 and 24, 2019, the ASLB held an oral argument on the issues of standing and contention admissibility. During the oral argument, counsel for Holtec conceded that DOE ownership of spent fuel generated by commercial nuclear power plants violates the NWPA:

I will agree with you that, on their current legislation, DOE cannot take title to spent nuclear fuel from commercial nuclear power plants, under the current statement of facts, but that could change, depending on what Congress does.

Tr. 250 (Silberg); see also Tr. 251-252 (exchange between Ryerson and Silberg).

Based on Rev. 3 of the Environmental Report and counsels statements at the oral argument, Beyond Nuclear amended its contention to include an additional statement:

Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful. As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.

Motion by Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application at 8 (Feb. 6, 2019) (Motion to Amend Contentions).

C. LBP-19-04 On May 7, 2019, the ASLB issued LBP-19-04. The ASLB held that Beyond Nuclear had standing and granted Beyond Nuclears motion to amend its contention, but it denied admission of the amended contention on the ground that Beyond Nuclear had failed to raise a genuine dispute with Holtec. Id., slip op. at 2. The ASLB reviewed the current circumstances surrounding spent reactor fuel disposal: the federal governments failure to license or build a repository, accumulation of spent fuel at reactor sites, and the resultant commonplace awards

6 of contract damages to nuclear reactor licensees for DOEs failure to dispose of the spent fuel.

As a result, the ASLB concluded:

[B]oth DOE and the nuclear power plant owners potentially have an interest in contracting to use Holtecs proposed interim storage facility. DOE might want to take responsibility for the nuclear plants spent fuel, pay Holtec to store it, and stop paying out damages. The nuclear plant owners, on the other hand, might be willing to apply their ongoing damage payments toward paying Holtec to store their spent fuel, so that it would be off their sites and no longer their responsibility to keep secure.

Id., slip op. at 26. But the ASLB recognized that [b]ecause the NWPA was drafted on the assumption that DOE would not accept title to spent nuclear fuel until a permanent repository becomes operational, however, it appears... that in general only the second possibility would be consistent with the terms of the statute. Id., slip op. at 26-7. And the ASLB noted that Holtec itself had acknowledged that its application violates the NWPA. Id., slip op. at 27. Thus, the ASLB conceded that Holtecs application violated the NWPA.

Nevertheless, the ASLB concluded that the issue of NWPA compliance raised by Beyond Nuclears contention was not admissible because it did not raise a genuine dispute with Holtec:

Beyond Nuclears contention now raises this fundamental question: May the NRC license Holtecs storage facility to enter into lawful contracts with potential customers, including those that may later become lawful? Or, if Congress were to expand the category of lawful contracts (specifically, to include most contracts with DOE), would it be necessary (as Beyond Nuclear claims) for Holtec to re-submit its license application and for the NRC to re-notice a new opportunity for a hearing? We conclude that, to implement the will of Congress in such circumstances, the NRC need not require Holtec to begin the licensing process all over again.

Id., slip op. at 28. As the ASLB further explained:

If Congress decides to amend the NWPA to allow DOE to take title to spent nuclear fuel before a national nuclear waste repository becomes operational, the only difference would be that DOE could then lawfully contract with Holtec to store the same spent fuel that presently belongs to the nuclear power plant owners.

Id., slip op. at 34. In the meantime, the ASLB concluded, both Holtec and the DOE could be relied on not to violate the NWPA. Id., slip op. at 32, 33. As a result, the ASLB concluded that

7 no discernable purpose... would be served, in such circumstances, by requiring Holtec to file a new or amended license application for its storage facility or by the NRC entertaining a fresh opportunity to request a hearing. Id., slip op. at 34. For these reasons, the ASLB denied admission of Beyond Nuclears amended contention for failure to satisfy 10 C.F.R.

§2.309(f)(1)(vi).

III.

ARGUMENT The Administrative Procedure Act prohibits, and requires reviewing courts to hold unlawful and set aside, federal agency action that is not in accordance with law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. §§ 706(2)(A), (C). This appeal poses a purely legal question regarding the proper interpretation of the APA and NWPA: whether, under the APA, the NRC may approve a license application containing provisions that would violate the NWPA if implemented.3 As conceded by the ASLB,

[n]either the facts nor the law... remain in dispute. LBP-19-04, slip op. at 34. Holtecs application must be rejected for the simple reason that approving it would be in excess of the NRCs statutory jurisdiction, or limitations, short of statutory right, and not in accordance with law. 5 U.S.C. § 706(2)(C). While the ASLB claims authority to disregard the NWPA and the APA if requiring compliance would be useless (LBP-19-04, slip op. at 34), neither statute creates such an exception. And, even assuming for purposes of argument that an exception could be found, the ASLBs rationalization of the unlawful license provisions requires such speculation as to be unreasonable, arbitrary, and capricious. 5 U.S.C. § 706(2)(A).

3 This question is related to, but distinct from, the central question raised in Beyond Nuclears Motion to Dismiss: whether the APA prohibits the NRC from even entertaining an application that violates the NWPA on its face.

8 A. LBP-19-04 Exceeds the NRCs Statutory Authority and Limitations, Lacks Statutory Right, and is Not in Accordance with Law.

Under the APA, the NRC may not exceed the statutory authority or limits granted to it by the NWPA. The most the NRC can do is to anticipate minor statutory additions to fill gaps.

Nat'l Ass'n of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, 736 F.3d 517, 519-20 (D.C. Cir.

2013). Here, there is no dispute that Holtecs license application contains provisions which, if implemented, would violate the NWPA. By permitting license provisions that would allow federal ownership of potentially all of the massive tonnage of spent fuel to be stored at the CISF, the ASLB is not proposing minor statutory additions or the filling of gaps, but rather the wholesale reversal of a statutory scheme. Such a determination is flatly unreasonable. Id.

Natl Assn of Regulatory Util. Commrs is particularly instructive. There, DOE made a determination about spent nuclear fuel contract fees, and based its determination on the assumption that DOE could construct a temporary spent fuel storage facility before the NRC issued a license for a permanent repository. Id. The court found that DOE acted contrary to law by making an assumption inconsistent with the obvious[] design of the NWPA, which requires an operating repository before DOE builds a temporary spent fuel storage facility. Id. Here, the ASLB is flouting the same mandates and obvious design of the NWPA, by accepting a license application that is based on the unlawful assumption that the DOE will take title to spent fuel before a repository is licensed and operating. As in Nat'l Ass'n of Regulatory Util. Comm'rs, the ASLB has proceeded on the premise of a wholesale reversal of the NWPA. 736 F.3d at 519-

20. And as in Nat'l Ass'n of Regulatory Util. Comm'rs, the APA prohibits such conduct.

9 B. Even Assuming for Purposes of Argument the Existence of an Exception to 5 U.S.C.

§706(2)(C), the ASLBs Rationalization for the Unlawful License Provision is So Speculative as to Constitute Arbitrary and Capricious Decision-Making.

As discussed above, the APA precludes the NRC from accepting license provisions that violate the NWPA, because such license provisions exceed the NRCs statutory authority to grant. Even assuming for purposes of argument that the APA would countenance the ASLBs disregard of the NWPA, the ASLBs rationalization that Congress may change the NWPA in the future is unreasonable, unfair, arbitrary, and capricious, and therefore fails to satisfy 5 U.S.C. § 706(2)(A).

The ASLBs denial of Beyond Nuclears contention rests on a possibilit[y]: that Congress may one day change the NWPA to allow the now-unlawful license provisions proposed by Holtec. LBP-19-04, slip op. at 27. NRCs previous attempts to speculate about future congressional action, however, have been firmly rejected by the courts. For example, when the NRC refused to process DOEs license application for Yucca Mountain as required by the NWPA because it speculated that Congress, in the future, will not appropriate the additional funds necessary for the Commission to complete the licensing process, the D.C. Circuit Court of Appeals warned:

A judicial green light for such a stepallowing agencies to ignore statutory mandates and prohibitions based on agency speculation about future congressional actionwould gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive's power at the expense of Congress.

In re Aiken Cty., 725 F.3d 255, 260 (D.C. Cir. 2013); see also id. at 267 (It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission.). The court refused to allow the NRC to ignore the statutory mandates or prohibitions of the NWPA as it was currently drafted. Id. at

10 260. By the same token, it is arbitrary, capricious, and unreasonable to assume the NRC can ignore the mandates of the NWPA now.

Moreover, allowing the NRC to rely on speculative changes to the law would lead to unpredictable and unreasonable outcomes. There would be no limit to the fantasies that license applicants could spin based on hypothetical scenarios. This would not only be wasteful of the governments time in reviewing applications, but would be unfair to the public. The NRCs regulations for contention admissibility require petitioners to show the existence of a genuine dispute with the license applicant on a material issue of fact or law. 10 C.F.R. § 2.309(f)(1)(vi). It is a hallmark of NRC procedural rules that in order to participate in agency licensing proceedings, members of the public have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 338 (1999). See also Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug.

11, 1989). As the Commission held in Duke Energy Corp., the NRCs procedural rules work to bar ill-defined anticipatory contentions. Id. The NRCs strict requirement for petitioners to base their hearing requests in actual fact rather than supposition presupposes an application that is based on actual fact rather than supposition.

The NRC must take the bitter with the sweet in interpreting the hearing requirements of the Atomic Energy Act. Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443 (D.C. Cir.

1984) (If [Atomic Energy Act] section 189(a)'s precise language controls when intervenors attempt to obtain a hearing on a proposed amendment or to expand a proceeding to cover

11 alternatives to the NRC's proposed amendment, it also controls when the NRC or an intervenor tries to limit the hearing requirement to less than the issues the NRC has itself defined as part of the licensing proceeding specified in 189(a).) (emphasis in original). Otherwise, to allow licensees to file hypothetical applications, with no basis in actual fact, while simultaneously requiring the public to limit its responses to supportable, real-time facts would place a grossly unfair and arbitrary burden on public participation. See also Nat'l Ass'n of Regulatory Util.

Comm'rs, 736 F.3d at 520 (finding it quite unfair to force petitioners to pay fees for a hypothetical option). This unfairness cannot be cured by an assumption that the unlawful provisions will not be acted upon. See LBP-19-04, slip op. at 32-33.

Finally, agency decisions must be based on relevant factors. A decision is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining when an agency rule violates the APA). Here, the ASLB is speculating as to the changes Congress may make to the NWPA, and approving the issuance of a license based on that speculation. In particular, the ASLB presumes that the NWPA will be amended to allow for DOE ownership of nuclear fuel at the CISF, but will not contain any additional requirements.

Thus, the ASLB views private licensees and the DOE as easily swappable as owners of the spent fuel:

If Congress decides to amend the NWPA to allow DOE to take title to spent nuclear fuel before a national nuclear waste repository becomes operational, the only difference would be that DOE could then lawfully contract with Holtec to store the same spent fuel that presently belongs to the nuclear power plant owners. The NRC Staff assures us that it is reviewing Holtecs application in light of both possibilities: [T]he Staff bases its safety and environmental reviews on the application as presented, which seeks a license on the basis that either DOE or private entities may hold title to the waste.

12 LBP-19-04, slip op. at 34. Without a crystal ball, however, the ASLB cannot predict how Congress may amend the NWPA and what factors it may require the NRC to consider before issuing a license. If these relevant factors are unknown, the NRC has no way of making a rational determination now. See, Motor Vehicle Mfrs. Ass'n of U.S., 463 U.S. at 43.4 For these reasons, the ASLB grossly erred in concluding there would be no discernable purpose in requiring Holtec to remove portions of its application that refer to federal ownership of spent fuel during transportation and storage. LBP-19-04, slip op. at 34.

IV.

CONCLUSION AND REQUEST FOR RELIEF For the foregoing reasons, the Commission should reverse the ASLBs decision refusing to apply the NWPA and APA to Holtecs license application. However, Beyond Nuclear does not seek a remand of its contention to the ASLB; instead, Beyond Nuclear requests the Commission to rule that all provisions in Holtecs license application that violate the NWPA must be removed from the application. This relief is appropriate because there is no dispute between the parties on the facts underlying Beyond Nuclears contention, and thus no purpose would be served by a remand.5 4 For example, the NRC Staffs environmental review, referred to in LBP-19-04, slip op. at 34, could change significantly if the DOE were the owner of the spent fuel. Instead of an NRC environmental review to support a single private business proposal, the DOE - as the federal agency with ultimate responsibility for disposal of spent fuel - would be required to conduct a broad and comprehensive environmental review that covered the entire U.S. strategy for storage and disposal of spent fuel. There is simply no comparison between the scale of environmental analysis and range of alternatives for an EIS prepared by the NRC for a single private spent fuel storage facility, and an EIS for a government proposal to carry out a nation-wide scheme for storage and disposal of spent fuel.

5 Beyond Nuclear also contends that the issue of Holtecs non-compliance with the NWPA and the APA is inappropriate for consideration by the ASLB because it is beyond the scope of the ASLBs adjudicatory proceeding and is not material to the findings the NRC must make to issue a license to Holtec. See Hearing Request 10-11, Motion to Dismiss at 2. Neither the ASLB nor the Commission has addressed the issue, however.

13 Respectfully submitted,

__/signed electronically by/___

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com

__/signed electronically by/___

Mindy Goldstein Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30307 404-727-3432 magolds@emory.edu June 3, 2019

14 UNITED STAES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

)

)

Holtec International

)

Docket No. 72-1051

)

(HI-STORE Consolidated Interim Storage Facility )

)

CERTIFICATE OF SERVICE I hereby certify that on June 3, 2019, I posted a copy of BEYOND NUCLEARS NOTICE OF APPEAL OF LBP-19-04 and BEYOND NUCLEARS BRIEF ON APPEAL OF LBP-19-04 on the NRCs Electronic Information Exchange System.

__/signed electronically by/___

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com