ML19179A234

NRC Staff Answer in Opposition to Beyond Nuclear'S Appeal of LBP 19-4

ML19179A234
Person / Time
Site:	HI-STORE
Issue date:	06/28/2019
From:	Sara Kirkwood NRC/OGC
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 55061, Holtec International
Download: ML19179A234 (17)

Text

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)

NRC STAFF ANSWER IN OPPOSITION TO BEYOND NUCLEAR'S APPEAL OF LBP-19-4 Sara B. Kirkwood Counsel for NRC Staff June 28, 2019

TABLE OF CONTENTS Background................................................................................................................................. 1 Discussion ................................................................................................................................. 4 I. Applicable Legal Standards .................................................................................................. 4 A. Interlocutory Review of Petitions to Intervene under 10 C.F.R. § 2.311 ........................... 4 B. Legal Requirements for Contention Admissibility ............................................................ 5 II. Beyond Nuclear has not demonstrated a Legal Error in the Boards Decision ...................... 6 A. Beyond Nuclear Cannot Base Its Appeal on a Refutation of Its Own Description of the Contention Before the Board ...........................................................................................7 B. The cases on which Beyond Nuclear relies fail to demonstrate any legal error or abuse of discretion in the Boards analysis ............................................................................... 10 Conclusion ................................................................................................................................ 12 ii

TABLE OF AUTHORITIES Judicial Opinions Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004) ........................................................................ 11 In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013)....................................................................... 7, 10 Natl Assn of Regulatory Util. Commrs vs. U.S. Dept of Energy, 736 F.3d 517 (D.C. Cir 2013) ............................................................................................ 7, 10 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006) ............................................................................................ 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008) .............................................................................................. 4 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001).............................................................................................. 5 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328 (1999) .............................................................................................. 5 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2),

CLI-16-5, 83 NRC 131 (2016) ................................................................................................. 5 Fla. Power & Light Co. (Turkey Point Nuclear Generating Station, Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017) ............................................................................................4, 5 Intl Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001) .............................................................................................. 5 NextEra Energy Seabrook, LLC (Seabrook Station Unit 1),

CLI-12-5, 75 NRC 301 (2012) ................................................................................................ 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) .............................................................................................. 5 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010) ................................................................................................ 5 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-8, 74 NRC 214 (2011) ..............................................................................................4, 7 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 NRC 433 (2006) .............................................................................................. 5 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

CLI-96-1, 43 NRC 235 (1996).............................................................................................5, 9 Atomic Safety and Licensing Appeal Board Decisions Tenn. Valley Auth. (Hartsville Nuclear Power Plant, Units 1A, 2A,1B & 2B),

ALAB-463, 7 NRC 341 (1978) ............................................................................................... 9 iii

Atomic Safety and Licensing Board Decisions Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station),

LBP-06-14, 63 NRC 568 (2006) ............................................................................................ 5 Holtec Intl (Consolidated Interim Storage Facility),

LBP-19-4, 89 NRC __ (May 7, 2019) (slip op.) ............................................................. passim Regulations 10 C.F.R. § 2.311 ........................................................................................................................ 1 10 C.F.R. § 72.22 ....................................................................................................................... 8 Other Authorities Holtec Intl (HI-STORE Consolidated Interim Storage Facility) and Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), Order of the Secretary (Oct. 29, 2018) (unpublished) (ML18302A328) ...................................................................... 3 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018) ................................................. 2 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 32,919 (July 16, 2018) ............................................... 1, 2 iv

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)

NRC Staff Answer in Opposition to Beyond Nuclear's Appeal of LBP-19-4 Introduction Pursuant to 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Commission Staff (the Staff) submits its answer opposing the appeal filed by Beyond Nuclear of the Atomic Safety and Licensing Board (Board) Memorandum and Order LBP-19-4. 1 In LBP-19-4, the Board found that Beyond Nuclear had standing but had not submitted an admissible contention regarding Holtec Internationals (Holtec) license application to construct a consolidated interim storage facility (CISF) to store spent nuclear fuel pursuant to the NRCs regulations in 10 C.F.R. Part 72. 2 Because Beyond Nuclear has not shown that the Board committed an error of law or abused its discretion, the Commission should affirm the Boards decision.

Background

On March 30, 2017, Holtec submitted an application, including a Safety Analysis Report (SAR), Environmental Report (ER), and proposed license, requesting that the NRC grant a 1 Beyond Nuclears Brief on Appeal of LBP-19-04 (June 3, 2019) (ADAMS Accession no. ML19154A205)

(Beyond Nuclear Appeal); Holtec Intl (Consolidated Interim Storage Facility), LBP-19-4, 89 NRC __

(May 7, 2019) (slip op.).

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

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license to Holtec for the construction and operation of a CISF for spent nuclear fuel. 3 The proposed CISF would be located in Lea County, New Mexico. In its license application, Holtec requests authorization to store up to 8,680 metric tons of uranium in up to 500 canisters for a license period of 40 years. 4 On March 19, 2018, the NRC published a notice in the Federal Register regarding the acceptance and docketing of Holtecs CISF license application. 5 The NRC subsequently published a notice of opportunity to request a hearing and to petition for leave to intervene in the Federal Register. 6 In response, Beyond Nuclear submitted a Motion to Dismiss the Proceeding. 7 The basis for Beyond Nuclears motion was its assertion that the central premise of Holtecs application (as well as a second CISF application, not at issue in this appeal) was that the DOE would be responsible for the spent fuel that would be stored at the proposed facility, and that the Nuclear Waste Policy Act (NWPA) prohibited the U.S. Department of Energy (DOE) from taking title to the fuel. 8 Beyond Nuclear requested that the Commission establish a separate proceeding for the consideration of its motion, asserting that, while this adjudication is limited in scope to whether the application satisfies the Atomic Energy Act and the National Environmental Policy Act, the issue Beyond Nuclear sought to resolve involved compliance with the Nuclear 3 Holtecs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/holtec-international.html. Unless otherwise specified, all the NRC Staffs citations to the ER are to Revision 5 (ML19095B800), all citations to the SAR are to Revision 0F (ML19052A379), and all citations to the Proposed License are to Revision 0A (ML17310A223).

4 Proposed License at 1.

5 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, 83 Fed. Reg. 12,034 (Mar. 19, 2018).

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

7 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 (Sept. 14, 2018) (ML18257A318).

8 Id. at 1.

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Waste Policy Act. 9 Simultaneously, Beyond Nuclear submitted a petition to intervene and requested a hearing. 10 In its hearing request, which raised as a proposed contention the same NWPA issue that was raised in its motion, Beyond Nuclear stated that it viewed its concern as outside the scope of the proceeding but was filing the contention in an abundance of caution, to preserve its claim in the event the Commission found that this adjudication was the venue in which the NRC would consider its claim. 11 The Staff filed a response to Beyond Nuclears hearing request and asserted that the contention was admissible to the extent that Beyond Nuclear had identified an inconsistency between the SAR and the ER. 12 The Secretary of the Commission denied the motion on procedural grounds, finding that NRC regulations do not provide for the filing of a threshold motion to dismiss a license application. 13 While intervention petitions were pending, Holtec amended its ER to reflect that it might enter into contracts with either DOE or private entities, thereby resolving the inconsistency. 14 Subsequently, Beyond Nuclear moved to amend its contention to assert that the revision to the ER did not make the application lawful, and, so long as the federal government was listed as a potential owner of the spent fuel, the application 9 Id.

10 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Sept. 14, 2018) (ML18257A324)

(Hearing Request).

11 Id. at 1-2.

12 The inconsistency concerned whether DOE would be the sole entity with whom Holtec would contract with for storage of fuel at the proposed facility, or whether it might also contract with private entities.

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), at 66 (ML18282A567).

13 Holtec Intl (HI-STORE Consolidated Interim Storage Facility) and Interim Storage Partners, LLC (WCS Consolidated Interim Storage Facility), Order of the Secretary (Oct. 29, 2018), at 2 (unpublished) (ML18302A328).

14 Environmental Report (Rev. 3) (ML19016A493).

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violates the NWPA. 15 The Staff did not oppose the amended contention insofar as it presented a challenge to 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. 16 On May 7, 2019, the Board issued its decision, in LBP-19-4, finding that Beyond Nuclear had standing but that its single proposed contention did not satisfy the requirements of 10 C.F.R. § 2.309(f)(1). 17 Beyond Nuclear has appealed the Boards decision to the Commission. As discussed below, the NRC Staff opposes Beyond Nuclears appeal.

Discussion I. Applicable Legal Standards A. Interlocutory Review of Petitions to Intervene under 10 C.F.R. § 2.311 The NRCs regulations at 10 C.F. R. § 2.311(c) provide an appeal as of right on the question of whether a petition to intervene and/or request for hearing should have been granted.

On threshold matters such as standing and contention admissibility, the Commission gives substantial deference to board rulings unless the appeal points to an error of law or abuse of discretion which might serve as grounds for reversal of the boards decision. 18 The Commission has maintained that [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient. 19 Rather, a valid appeal must 15 Motion by Petitioners Beyond Nuclear and Fasken to Amend their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019) at 8 (ML19037A127).

16 NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) at 2 (ML18282A567).

17 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 2, 10-12, 26-34).

18 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214, 220 (2011); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

19 Fla. Power & Light Co. (Turkey Point Nuclear Generating Station, Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017) (citations omitted).

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point out the errors in the [b]oards decision. 20 In addition, an argument made before the board but not reiterated or explained on appeal is considered abandoned. 21 Finally, the Commission will not entertain an argument that is raised for the first time on appeal. 22 B. Legal Requirements for Contention Admissibility 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 23 The Commission has strictly applied these contention admissibility requirements in NRC adjudications. 24 Failure to comply with any one of these criteria is grounds for the dismissal of a contention. 25 The Commission has also emphasized that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. 26 20 Id.

21 Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001). See generally Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010).

22 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 235, 260 (1996) (rejecting an argument raised for the first time on appeal, which did not satisfy the factors for admission of late-filed contentions, on that basis alone).

23 Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 571-72 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

24 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), pet. for recons. denied, CLI-02-1, 55 NRC 1 (2002)).

25 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999). See also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

26 NextEra Energy Seabrook, LLC (Seabrook Station Unit 1), CLI-12-5, 75 NRC 301, 307 (2012)

(emphasis in original) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328, 335 (1999)).

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II. Beyond Nuclear has not demonstrated a Legal Error in the Boards Decision The fundamental premise of Beyond Nuclears contention, and the sole remedy that Beyond Nuclear has consistently placed before the Board to redress that concern, is that because the application violates the NWPA the NRC must dismiss Holtecs license application and terminate this proceeding. 27 The Boards analysis and resulting ruling on the admissibility of the contention was appropriately directed to the legal issue as Beyond Nuclear presented it.

Specifically, the Board held that Beyond Nuclear had not identified a genuine dispute with Holtecs license application because the inconsistency between Holtecs ER and its SAR had been resolved, and that Beyond Nuclear, Holtec and the Board agreed that DOE may not lawfully take title to spent nuclear fuel under the NWPA. 28 The Board disagreed with Beyond Nuclears assertion that the mere mention of DOE rendered the Holtec application unlawful, since Holtec represented that it would not enter into a contract with DOE that was unlawful, and the Board afforded a presumption of regularity to DOEthat it would not enter into any unlawful contracts. 29 The Board found that Holtec sought a license that would allow it to enter into lawful customer contracts today, but also would permit it to enter into additional customer contracts of and when they become lawful in the future. 30 Thus, the Board saw no purpose that would be served by requiring Holtec to file a new or amended license application or by the NRC providing a fresh opportunity to request a hearing. 31 27 See, e.g., Hearing Request at 10; Motion by Petitioners Beyond Nuclear and Fasken to Amend their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019), at 10-11 (ML19037A127).

28 Holtec Int'l, LBP-19-4, 89 NRC at __ (slip op. at 32).

29 Id. at __ (slip op. at 32-33).

30 Id. at __ (slip op. at 34) .

31 Id. (slip op. at 34) .

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On appeal, Beyond Nuclear seeks not to challenge the Boards decision, but to take a second bite at the apple by reformulating its contention and proposing a different remedy than it has sought throughout the proceeding. In contrast to its claims before the Board, Beyond Nuclear now asserts that that all provisions that violate the NWPA must be removed from the application. 32 In so doing, Beyond Nuclear seeks to reframe its contention in the very manner that it previously disclaimed. 33 Because Beyond Nuclear may not base its appeal on a theory that it declined to advance before the Board, Beyond Nuclears appeal reveals no legal error in the Boards decision.

Moreover, in any event, the two cases on which Beyond Nuclears appeal relies on to challenge the Boards conclusion regarding the NWPA fail to demonstrate any legal error or abuse of discretion. Because those cases, NARUC v. NRC and In re Aiken County, concerned whether DOE and the NRC, respectively, were required to take specific actions under the NWPA, they are inapposite to the contingent manner in which the application describes the potential for DOE involvement. 34 Each of these reasons, discussed further below, provides sufficient basis to affirm the Boards decision.

A. Beyond Nuclear Cannot Base Its Appeal on a Refutation of Its Own Description of the Contention Before the Board Beyond Nuclears initial contention stated as follows:

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 32 Beyond Nuclear Appeal at 12.

33 See Vogtle, CLI-11-8, 74 NRC at 221 (rejecting alteration or amendment of a contention on appeal).

34 See Beyond Nuclears Brief on Appeal of LBP-19-04 (June 3, 2019) at 8-9; Natl Assn of Regulatory Util. Commrs vs. U.S. Dept of Energy, 736 F.3d 517 (D.C. Cir 2013); In re Aiken Cty., 725 F.3d 255, 260 (D.C. Cir. 2013).

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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. 35 Holtec then updated its ER to mirror the language found in its proposed license condition: In accordance with 10 C.F.R. § 72.22, the construction program will be undertaken only after a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear plant owner) at HI-STORE CIS has been established. 36 In response to Holtecs submission of its revised ER, Beyond Nuclear moved to amend its contention to add an additional statement that 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. 37 This proposed amendment left the central premise of Beyond Nuclears contention and its requested remedy unchanged: for the NRC to even entertain the application was illegal, and the only permissible solution was to dismiss the application. Holtec would then presumably resubmit it without the DOE provision, and the application would be re-noticed with a fresh opportunity to request a hearing. 38 Indeed, Beyond Nuclear appears to concede that it is relying on a different argument on appeal, stating, This question is related to, but distinct from, the central question raised in Beyond Nuclears Motion 35 Hearing Request at 10.

36 Proposed License at 1-2, Condition 17 (ML17310A223).

37 Motion of Petitioners Beyond Nuclear and Fasken to Amend Their Contentions Regarding Federal Ownership of Spent Fuels to Address Holtec Internationals Revised License Application (Feb. 6, 2019), at 7-8 (ML19037A127) (Beyond Nuclear Motion to Amend). Environmental Report, Rev. 3, at 1-1 (ML19016A493). The Board granted Beyond Nuclears motion to amend. Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 27, 31).

38 See, e.g., Beyond Nuclear Motion to Amend at 7-8, 10-11. (The NRC must dismiss Holtecs license application and terminate this proceeding because the application violates the NWPA. . . . As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA. And [t]he only appropriate remedy . . . requires rejection of Holtecs application because it violates the NWPA.).

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to Dismiss: whether the APA [Administrative Procedure Act] prohibits the NRC from even entertaining an application that violates the NWPA on its face. 39 In its appeal, Beyond Nuclear asserts that the [Board] grossly erred in concluding there would be no [discernible] purpose in requiring Holtec to remove portions of its application that refer to federal ownership of spent fuel during transportation and storage. 40 Here, Beyond Nuclear misapprehends the Boards decision, which actually states that there would be no discernible purpose in requiring Holtec to file a new or amended license application for its storage facility or [in] the NRC entertaining a fresh opportunity to request a hearing, since the Board assumed that Holtec and DOE would not enter into a contract that was prohibited by the NWPA. 41 In other words, the Board explicitly limited its conclusion to the ultimate issue (and remedy) that Beyond Nuclear had advocated from the outset.

Beyond Nuclear now appears to seek to litigate the contention that it specifically disavowed before the Board, having claimed it would be legal error to admit it. 42 Ordinarily, an issue raised for the first time on appeal will not be entertained. 43 The Board appropriately directed its analysis to the precise issue to which Beyond Nuclears insisted its contention was directed, that the application must be dismissed. The Board concluded that such a result would serve no purpose and is not required by law. By recasting its position on appeal (all provisions in Holtecs license application that violate the NWPA must be removed from the application) 39 Beyond Nuclear Appeal at 7 fn.3.

40 Id. at 12 (citing Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 34)).

41 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 34).

42 Reply by Petitioners Beyond Nuclear and Fasken to Holtecs and NRC Staffs Responses to Petitioners Motion to Amend Their Contentions (Feb. 28, 2019), at 1-2 (ML19059A148).

43 See Yankee Nuclear, CLI-96-1, 43 NRC at 260; Tenn. Valley Auth. (Hartsville Nuclear Power Plant, Units 1A, 2A,1B & 2B), ALAB-463, 7 NRC 341, 348 (1978).

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Beyond Nuclear fails to confront, let alone articulate any error in, the Boards analysis of the issue Beyond Nuclear actually presented, and its appeal should be rejected on this ground. 44 B. The cases on which Beyond Nuclear relies fail to demonstrate any legal error or abuse of discretion in the Boards analysis In any event, the cases that Beyond Nuclear invokes to challenge the Boards conclusion do not demonstrate an error in the Boards reasoning. In particular, Beyond Nuclear relies on National Association of Regulatory Utility Commissioners v. U.S. Department of Energy 45 to support its view that the APA prohibits the NRC from issuing a license that would, in its view, violate the NWPA. However, NARUC is inapposite to the current situation. In NARUC the court found that DOE acted contrary to law when DOE failed to make a determination about spent fuel nuclear contract fees, when such a determination was required by law.

Further, Beyond Nuclears reference to In re Aiken County is inapposite because, much like NARUC, Aiken County involved the failure on the part of the NRC to issue a decision approving or disapproving the Yucca Mountain application within three years of its submission, a decision that the court found was expressly required of the NRC by statute. 46 Assuming arguendo the Board is correct that the NWPA prohibits DOE from taking title, the issue Beyond Nuclear now seeks to raise is whether the NRC can issue a license including an option that is 44 Beyond Nuclear Appeal at 12. In asserting that Beyond Nuclears contention was admissible in part, the NRC Staff took no position on whether the NWPA prohibits DOE from taking title to spent fuel stored at a facility such as the proposed Holtec facility, nor, in light of the ongoing Staff review, has it determined whether the inclusion of the option of DOE as the customer for the Holtec application is a violation of the NWPA. In the Staffs view, even if one assumes that the NWPA today prohibits DOE from taking title to the spent fuel, it would not necessarily follow a license condition that includes the option of DOE as a customer violates the NWPA. However, because Beyond Nuclear has articulated no error in the Boards conclusion that inclusion of the option of DOE does not require rejection or renoticing of the entire application the remedy that has consistently been the basis of Beyond Nuclears contention the Staff agrees that the Boards contention admissibility decision should be affirmed.

45 736 F.3d 517, 519-20 (D.C. Cir. 2013).

46 In re Aiken Cty., 725 F.3d 255, 257-58 (D.C. Cir. 2013).

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not currently allowed by law, where the application also explicitly provides for an alternative (private entities as customers) that is unquestionably viable under the Atomic Energy Act. 47 Assuming the NRC ultimately granted a license to Holtec, for nuclear waste titled to DOE to be stored at the Holtec facility, DOE would have to decide that entering into a contract with Holtec for the storage of nuclear waste was both legal and desirable for the DOE. The Nuclear Waste Policy Act does not prohibit the NRC from licensing private off-site storage facilities. 48 Thus, consistent with the Boards analysis, the application is not contingent on future congressional action or ignor[ing] the mandates of the NWPA now, and Beyond Nuclear has not shown how NARUC supports its view that the Board erred in refusing to admit the contention. 49 Finally, Beyond Nuclear asserts that the Board decision allows the NRC to rely on speculative future changes to the NWPA. 50 However, the Board decision does not rely on potential future revisions to the NWPA. Rather, the Board observed that Holtec seeks a license that would allow it to enter into lawful customer contracts today, but also permit it to enter into additional customer contracts if and when they become lawful in the future. 51 Beyond Nuclear attempts to argue that the scope of the NRC review of the Holtec application would be dramatically different if DOE were the owner of the spent fuel, but does not support this argument with anything more than conclusory assertions. 52 Beyond Nuclear points to the environmental review, and asserts that were DOE to contract with Holtec, DOE would be required to conduct a much larger-scope environmental process encompassing the entire U.S.

47 See Bullcreek v. NRC, 359 F.3d 536, 543 (D.C. Cir. 2004).

48 Id.

49 Beyond Nuclear Appeal at 9-10.

50 Id. at 10.

51 Holtec Intl, LBP-19-4, 89 NRC at __ (slip op. at 34).

52 Beyond Nuclear Appeal at 12. n.4.

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strategy for storage and disposal of spent fuel. 53 Whether or not DOE would at some future time have to conduct the type of analysis that Beyond Nuclear suggests is not material to the site-specific licensing action before the NRC, which is not a governmental proposal to carry out a nation-wide scheme for storage and disposal of spent fuel. 54 Rather, the action before the NRC is to license a private off-site storage facility that would be constructed and operated by a private applicant, Holtec. Thus, Beyond Nuclear has not identified a legal error in the Boards reasoning.

Since Beyond Nuclear has not demonstrated a legal error in the Boards decision and has not asserted (or otherwise demonstrated) that the Board abused its discretion, the decision of the Board should be upheld.

Conclusion For the reasons above, the Commission should affirm the Boards decision.

Respectfully submitted,

/Signed (electronically) by/

Sara B. Kirkwood Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 28th day of June 2019 53 Id.

54 Id. at 12 n.4.

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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)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC Staff Answer in Opposition to Beyond Nuclear's Appeal of LBP-19-4, dated June 28, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 28th day of June 2019.

Respectfully submitted,

/Signed (electronically) by/

Sara B. Kirkwood Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 28th day of June 2019