ML19179A326

Internationals Brief in Opposition to Dont Waste Michigan, Et Al.S Appeal of LBP-19-4

ML19179A326
Person / Time
Site:	HI-STORE
Issue date:	06/28/2019
From:	Connolly E, Fowler S, Leidich A, Lepre M, Silberg J, Walsh T Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 55069, Holtec International
Download: ML19179A326 (36)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

)

)

Docket No.

72-1051 Holtec International

)

)

(HI-STORE Consolidated Interim Storage

)

ASLBP No.

18-958-01 Facility)

)

HOLTEC INTERNATIONALS BRIEF IN OPPOSITION TO DONT WASTE MICHIGAN, ET AL.S APPEAL OF LBP-19-4 Erin E. Connolly Jay E. Silberg Corporate Counsel Michael G. Lepre HOLTEC INTERNATIONAL Timothy J. V. Walsh Krishna P. Singh Technology Campus Anne R. Leidich 1 Holtec Boulevard Sidney L. Fowler Camden, NJ 08104 PILLSBURY WINTHROP SHAW Telephone: (856) 797-0900 x 3712 PITTMAN LLP e.connolly@holtec.com 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8707 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com michael.lepre@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com sidney.fowler@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL June 28, 2019

i TABLE OF CONTENTS Page I.

Introduction......................................................................................................................... 1 II.

Statement of the Case.......................................................................................................... 2 III.

Standard of Review............................................................................................................. 4 IV.

Argument............................................................................................................................ 6 A.

The Board Correctly Rejected DWMs Contentions.............................................. 6 1.

Contention 1 (Cultural Resources Redaction)............................................ 6 2.

Contention 2 (Assurances of Financing)..................................................... 8 3.

Contention 3 (Low-Level Radioactive Waste)......................................... 11 4.

Contention 4 (Continued Storage Rule).................................................... 13 5.

Contention 7 (Start Clean/Stay Clean)...................................................... 15 6.

Contention 9 (Transportation Routes)...................................................... 17 7.

Contention 11 (Transportation and Storage Security Risks).................... 18 8.

Contention 14 (Alleged Material False Statement).................................. 20 B.

The Board Correctly Denied DWMs Standing.................................................... 21 1.

The Board Correctly Found DWM was not Entitled to Standing............. 21 2.

DWM Has Identified No Errors of Law or Abuse of Discretion that Require Redress........................................................................................ 25 3.

DWMs New Facts and Arguments Must be Rejected............................. 26 4.

DWMs Theory of Standing Lacks Particularity...................................... 27 V.

Conclusion........................................................................................................................ 29

ii TABLE OF AUTHORITIES Page(s)

Cases Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041),

CLI-94-6, 39 N.R.C. 285 (1994)..........................................................................................5, 14 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 N.R.C. 111 (2006)..............................................................................................4 Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station),

CLI-07-8, 65 N.R.C. 124 (2007)........................................................................................19, 20 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 N.R.C. 911 (2009)..............................................................................................4 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370 (2001)......................................................................................................................5 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)..............................................................................................4 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-01-35, 54 N.R.C. 403 (2001)...........................................................................................23 Edlow Intl. Co. (Agent for Government of India on Application to Export Special Nuclear Material),

CLI-76-6, 3 N.R.C. 563 (1976)................................................................................................28 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2),

CLI-16-5, 83 N.R.C. 131 (2016)..............................................................................................10 Envirocare of Utah, Inc. (Byproduct Material Waste Disposal License),

LBP-92-8, 35 N.R.C. 167 (1992).............................................................................................27 Flast v. Cohen, 392 U.S. 83 (1968)...................................................................................................................28 Frothingham v. Mellon, 262 U.S. 447 (1923).................................................................................................................28 General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2)

ALAB-926, 31 N.R.C. 1 (1990)..........................................................................................5, 14

iii Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-92-3, 35 N.R.C. 63 (1992)..................................................................................................5 Ex Parte Levitt, 302 U.S. 633 (1937).................................................................................................................28 Louisiana Energy Services (National Enrichment Facility),

CLI-04-25, 60 N.R.C. 223 (2004)..............................................................................................5 Louisiana Energy Services (National Enrichment Facility),

CLI-04-35, 60 N.R.C. 619 (2004)..............................................................................................6 N. States Power Co. (Pathfinder Atomic Plant),

LBP-90-3, 31 N.R.C. 40 (1990)...............................................................................................23 North Atlantic Energy Service Corp., et al. (Seabrook Station, Unit 1),

CLI-99-6, 49 N.R.C. 201 (1999)..............................................................................................13 Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991).........................................13 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),

CLI-10-7, 71 N.R.C. 133 (2010)..............................................................................................24 Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-15-21, 82 N.R.C. 295 (2015)............................................................................................12 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 N.R.C. 125 (2004)..............................................................................5, 6, 15, 16 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 N.R.C. 318 (1999)............................................................................................24 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 N.R.C. 261 (2000)..........................................................................................4, 5 United States v. Richardson, 418 U.S. 166 (1974).................................................................................................................28 Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974).................................................................................................................28 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 N.R.C. 499 (2007)..................................................................................4, 15, 19 Strata Energy, Inc. (Ross in Situ Uranium Recovery Project),

CLI-12-12, 75 N.R.C. 603 (2012)..............................................................................................4

iv Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192 (1993).................................................................................... passim U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii),

CLI-10-20, 72 N.R.C. 185 (2010)............................................................................................24 U.S. Department of Energy (Plutonium Export License),

CLI-04-17, 59 N.R.C. 357 (2004)............................................................................................24 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 N.R.C. 451 (2006)..........................................................................................5, 6 USEC Inc. (American Centrifuge Plant),

CLI-06-9, 63 N.R.C. 433 (2006)................................................................................................4 Warth v. Seldin, 422 U.S. 490 (1975).................................................................................................................28 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2),

ALAB-666, 15 N.R.C. 277 (1982)............................................................................................5 Rules and Regulations Code of Federal Regulations Title 10, Section 2.309(a)...........................................................................................................4 Title 10, Section 2.309(c).....................................................................................................9, 20 Title 10, Section 2.309(d)..........................................................................................................3 Title 10, Section 2.309(f)(1)..............................................................................................2, 4, 9 Title 10, Section 2.309(f)(1)(iii)................................................................................................9 Title 10, Section 2.309(f)(1)(vi).....................................................................................9, 10, 13 Title 10, Section 2.311.............................................................................................4, 15, 16, 19 Title 10, Section 2.311(b)..........................................................................................................1 Title 10, Section 2.311(c)...........................................................................................................4 Title 10, Section 2.335.............................................................................................................12 Title 10, Section 2.335(a).........................................................................................................12 Title 10, Section 51.23.............................................................................................................12 Title 10, Section 51.45(b)........................................................................................................19 Title 10, Section 71.47.......................................................................................................15, 16 Title 10, Section 71.47(b)........................................................................................................15 Title 10, Section 72.22.............................................................................................................11 Title 10, Section 72.30.............................................................................................................11 Title 10, Section 72.34.............................................................................................................11 Title 10, Section 72.40(a)(5)....................................................................................................19 Title 10, Section 72.40(a)(13)..................................................................................................19 Title 10, Section 72.90.............................................................................................................19 Title 10, Section 72.98.............................................................................................................19 Title 10, Section 72.122(b)......................................................................................................19

v Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel License Order of Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 32,919 (July 16, 2018)..........................................................................................................................................2 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel Docketing License Application, 83 Fed. Reg.

12,034 (Mar. 19, 2018)..............................................................................................................2 12,035 (Mar. 19, 2018)..............................................................................................................2

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

)

)

Docket No.

72-1051 Holtec International

)

)

(HI-STORE Consolidated Interim Storage

)

ASLBP No.

18-958-01 Facility )

)

HOLTEC INTERNATIONALS BRIEF IN OPPOSITION TO DONT WASTE MICHIGAN, ET AL.S APPEAL OF LBP-19-4 I.

Introduction Pursuant to 10 C.F.R. § 2.311(b), Holtec International (Holtec) submits this brief in opposition to the Notice of Appeal of LBP-19-4 and Brief In Support Of Appeal (Appeal) filed in this proceeding by 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 (collectively DWM) on June 3, 2019.1 DWM challenges the Atomic Safety and Licensing Boards (Board) May 7, 2019 Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing) (LBP 4) in the Nuclear Regulatory Commission (NRC or Commission) licensing proceeding for Holtecs proposed HI-STORE Consolidated Interim Storage Facility (CISF).

As set forth below, LBP-19-4 properly denied the petition to intervene and request for hearing submitted by DWM.2 Holtec requests that the Commission reject the Appeal because it fails to identify any error or abuse of discretion in the Boards ruling. The Appeal merely repeats the claims 1

Notice of Appeal of LBP-19-4 by [DWM] and Brief in Support of Appeal (June 3, 2019) (NRC ADAMS Accession No. ML19154A764) (the Appeal).

2 LBP-19-4 at 15.

2 made in DWMs earlier pleadings and oral argument before the Board, attempts to introduce new facts and arguments not presented before the Board, and lacks substantive explanation or argument as to how the Board erred in its determinations that DWM lacked standing and that DWMs proposed contentions failed to satisfy the admissibility standards set forth in 10 C.F.R. § 2.309(f)(1).

II.

Statement of the Case Holtec submitted its application to construct and operate the CISF on March 30, 2017.3 The NRC Staff conducted a sufficiency review and found the Application acceptable for docketing.4 On July 16, 2018, the NRC published notice in the Federal Register of an opportunity to request a hearing and petition to intervene by September 14, 2018.5 On September 14, 2018, DWM filed its Petition to Intervene and Request for Adjudicatory Hearing (Petition to Intervene).6 On October 9, 2018, Holtec and the NRC Staff filed answers to the Petition to Intervene.7 Holtec and NRC Staff opposed the standing of DWM and opposed the admission of all DWMs 3

The Holtec International HI-STORE Consolidated Interim Storage Facility License Application (Mar. 30, 2017)

(NRC ADAMS Accession No. ML17115A431) (the Application).

4 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel Docketing License Application, 83 Fed. Reg. 12,034, 12,035 (Mar. 19, 2018).

5 Holtec Internationals HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel License Order of Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg.

32,919-24 (July 16, 2018).

6 Petition of [DWM] to Intervene and Request for an Adjudicatory Hearing (Sept. 14, 2018) (NRC ADAMS Accession No. ML18257A334).

7 Holtec Internationals Answer Opposing the 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 Petition to Intervene and Request for an Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018) (NRC ADAMS Accession No. ML18282A509) (Holtec Oct. 9 Answer); 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) (NRC ADAMS Accession No. ML18282A567) (NRC Staff Oct. 9 Answer).

3 contentions. DWM filed its reply on October 16, 2018.8 Following its reply, DWM filed a number of other motions with the Board,9 to which Holtec and/or NRC Staff replied.10 The Board heard oral argument on January 23 and 24, 2019, in Albuquerque, New Mexico.

On May 7, 2019, the Board issued LBP-19-4. The Board found that DWM failed to demonstrate standing in accordance with 10 C.F.R. § 2.309(d), and also found that it had failed to proffer any 8

Combined Reply 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 to Holtec and NRC Answers (Oct. 16, 2018) (NRC ADAMS Accession No. ML18289B319) (DWM Oct. 16 Reply).

9 Joint Motion to Establish Hearing Procedures by Sierra Club, [DWM] (Jan. 3, 2019) (NRC ADAMS Accession No. ML19003A279); Motion of [DWM] to Adopt and Litigate Sierra Club Contentions (Jan. 11, 2019) (NRC ADAMS Accession No. ML19011A158); Motion by Petitioners Beyond Nuclear, Fasken, the Sierra Club, and

[DWM], to Amend their Contentions to Address New Information Confirming that Holtecs License Application Contains False or Misleading Statements and Motion by Petitioners to Strike Unreliable Statements from Holtecs Responses to Petitioners Hearing Requests (Jan. 15, 2019) (NRC ADAMS Accession No. ML19015A066); Motion by Petitioners [DWM] for Leave to File a New Contention (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A348); Motion by [DWM] to Amend their Contention 2 Regarding Federal Ownership of Spent Fuel in the Holtec International Revised License Application (Feb. 6, 2019) (NRC ADAMS Accession No. ML19037A501); Motion of [DWM] to Amend their Contentions 4 and 7 Regarding Holtecs Decision to have no Dry Transfer System Capability and Holtecs Policy of Returning Leaking, Externally Contaminated or Defective Casks and/or Canisters to Originating Reactor Sites (Feb. 18, 2019) (NRC ADAMS Accession No. ML19049A024); Reply of [DWM] to Holtec and NRC Staff Opposition Filings to DWM Proposed Contention 14 (Feb. 20, 2019) (NRC ADAMS Accession No. ML19051A095); Motion of [DWM] to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Feb. 25, 2019) (NRC ADAMS Accession No. ML19056A001); Reply of [DWM] in Support of Motion to Amend Their Contentions 4 and 7 (Mar. 18, 2019); Combined Reply of [DWM] in Support of Motion to Amend Their Contention 2 Regarding Holtecs Proposed Means of Financing the Proposed Consolidated Interim Storage Facility (Mar. 25, 2019) (NRC ADAMS Accession No. ML19084A009).

10 NRC Staff Response to Joint Motion to Establish Hearing Procedures (Jan. 9, 2019) (NRC ADAMS Accession No. ML19009A100); Holtec Internationals Answer Opposing [DWM] and Sierra Clubs Joint Motion to Adopt Hearing Procedures (Jan. 14, 2019) ( NRC ADAMS Accession No. Ml19014A224); Holtec Internationals Answer Opposing Motions by Sierra Club and [DWM] to Adopt the Others Contentions (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A178); NRC Staffs Consolidated Response to [DWM] and the Sierra Clubs Motions to File New Contentions (Feb. 19, 2019) (NRC ADAMS Accession No. ML19051A017); Holtec Opposition to Late-Filed Sierra Club Contention 26 and [DWM] Contention 14 (Feb. 19, 2019) (NRC ADAMS Accession No. ML19050A454) (Late-filed Sierra Club Contention 16 and DWM Contention 14); NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) (NRC ADAMS Accession No. ML19050A376); Holtec Opposition to [DWM] Motion to Amend Contention 2 (Feb.

19, 2019) (NRC ADAMS Accession No. ML19052A361); NRC Staffs Response to [DWM] Motion to Amend Contentions 4 and 7 (Mar. 14, 2019) (NRC ADAMS Accession No. ML19073A307); Holtec Opposition to

[DWM] Motion to Amend Contentions 4 and 7 (Mar. 15, 2019) (NRC ADAMS Accession No. ML19074A137);

Holtec Opposition to [DWM] Motion to Amend Contention 2 (Mar. 22, 2019) (NRC ADAMS Accession No. ML19081A112); NRC Staff Response to [DWM] Motion to Amend Contention 2 (Mar. 22, 2019) (NRC ADAMS Accession No. ML19081A152).

4 admissible contention meeting the requirements of 10 C.F.R. § 2.309(f)(1). 11 Therefore, in accordance with 10 C.F.R. § 2.309(a), the Board denied the Petition to Intervene and either granted or denied DWMs other motions.12 III.

Standard of Review As noted in LBP-19-4, 10 C.F.R. § 2.311 provides that a licensing board order wholly denying a petition to intervene or request for hearing is appealable under 10 C.F.R. § 2.311(c), which provides:

An order denying a petition to intervene, and/or request for hearing... is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.13 The Commission regularly affirm[s] Board decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.14 The Commission gives a Boards ruling on standing substantial deference... [and] defers to the Boards rulings on standing absent an error of law or abuse of discretion.15 As such, [p]ointing out the errors in the Boards decision is a basic requirement for an appeal,16 and a mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with a decisions results 11 LBP-19-4 at 135.

12 Id. at 135-36.

13 10 C.F.R. § 2.311(c).

14 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 N.R.C. 111, 121 (2006)

(internal quotation marks omitted) (quoting USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 439 n.32 (2006)); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004) (Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion. (quoting Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-00-21, 52 N.R.C. 261, 265 (2000))).

15 Strata Energy, Inc. (Ross in Situ Uranium Recovery Project), CLI-12-12, 75 N.R.C. 603, 604 (2012) (quoting Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 N.R.C. 911, 914 (2009).

16 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 N.R.C. 499, 503 (2007) (regarding appeal of denied intervention petitions under 10 C.F.R. § 2.311) (citing AmerGen Energy, CLI-06-24, 64 N.R.C. at 121).

5 is no substitute for a brief that identifies and explains the errors of a Licensing Board in the order below.17 It is a petitioners responsibility to point to the errors in the boards ruling. Licensing board rulings are affirmed where the brief on appeal points to no error of law or abuse of discretion that might serve as grounds for reversal of the Boards decision.18 A failure to illuminate the bases for an exception to the boards decision is sufficient grounds to reject it as a basis for appeal.19 The Commission has held that:

The appellant bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims.20 Further, a petitioner is limited to the contentions as initially filed and may not rectify its deficiencies through an appeal. 21 The Commission has explained that, absent extreme circumstances, [it] will not consider on appeal either new arguments or new evidence supporting the contentions, which the Board never had the opportunity to consider.22 New claims on appeal 17 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192, 198 (1993) (quoting Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-92-3, 35 N.R.C. 63, 66 (1992)). Moreover, [o]n a petition for review, [a petitioner] must adequately call the Commissions attention to claimed errors in the Boards approach.... [the Commission] deem[s] waived any arguments not raised before the Board or not clearly articulated in the petition for review. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370, 383 (2001) (internal citations omitted).

18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 N.R.C. 261, 265 (2000).

19 Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 N.R.C. 285, 297 (1994).

20 Id., citing General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 N.R.C. 1, 9 (1990) (emphasis added); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277, 278 (1982).

21 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 N.R.C. 451, 458 (2006); cf. Louisiana Energy Servs. (National Enrichment Facility), CLI-04-25, 60 N.R.C. 223, 225 (2004) (In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief. (footnote omitted)).

22 USEC, CLI-06-10, 63 N.R.C. at 458 (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 N.R.C. 125, 140 (2004)).

6 are prohibited because [a]llowing petitioners to file vague, unsupported contentions, and later on appeal change or add contentions at will would defeat the purpose of [the NRCs] contention-pleading rules.23 Moreover, [t]he purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board.24 IV.

Argument A.

The Board Correctly Rejected DWMs Contentions

1.

Contention 1 (Cultural Resources Redaction)

In Contention 1, DWM claimed that the redaction of pages from Appendix C of Holtecs Environmental Report (ER) violated the National Environmental Policy Act and the National Historic Preservation Act.25 According to DWM, due to the Appendix C redactions, Holtecs ER failed to disclose details relevant for allowing the public to ascertain whether the cultural resources are eligible for nomination to the National Register of Historic Places, to determine whether required consultations have occurred and whether there are mitigation measures available if the properties are destroyed. 26 DWM also claimed that the Appendix C redactions made public involvement regarding these issues impossible.27 In its Answer to Contention 1, Holtec pointed out that the redactions were made by the NRC (not Holtec), and that the NRC offered to make the redacted information publicly available through 23 Id. (citing Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 N.R.C. 619, 622-23 (2004)).

24 USEC, CLI-06-10, 63 N.R.C. at 458.

25 Petition to Intervene at 26.

26 Id.

27 Id. at 27.

7 its SUNSI procedures, which DWM failed to utilize.28 In its Reply, DWM argued that the SUNSI process is protracted and cloyed.29 It added that the SUNSI process is:

incapable of yielding the result sought by [DWM], who at all times have sought public disclosure of details that would allow the public to ascertain for themselves whether the two unidentified cultural resources that would be directly affected by the project are eligible for nomination to the National Register of Historic Places, to determine whether required consultations have occurred; and to ascertain whether there are mitigation measures available if the properties have been destroyed and advocate for mitigation or preservation.30 In its Appeal, DWM again claims that SUNSI access to the redacted information would not resolve Contention 1 because the SUNSI process is protracted and cloyed.31 DWM also again adds:

[The] SUNSI process will not yield public disclosure of the details that would allow the public to decide for themselves whether the two unidentified cultural resources that would be directly affected by the project are eligible for nomination to the National Register; to determine whether required consultations have occurred; and to ascertain whether there are preservation or mitigation measures available if the properties will be destroyed and advocate for mitigation or preservation.32 Accordingly, rather than allege that the Board erred or abused its discretion, as is required to sustain an appeal,33 DWM merely repeats the same arguments it made before the Board, even using nearly identical language. For that reason alone, the Appeal should be denied.

DWM not only merely reiterates the arguments it raised below - it also fails to show how the Board erred. The Board found Contention 1 inadmissible because (1) the NRC Staff will make 28 Holtec Oct. 9 Answer at 25-28.

29 DWM Oct. 16 Reply at 24.

30 Id. (emphasis in original).

31 Appeal at 20-21.

32 Id. at 21 (emphasis in original).

33 See Texas Utilities Electric Co., CLI-93-10, 37 N.R.C. at 198.

8 available to the public any information that would not harm potential historic properties; and (2)

DWM (and therefore also the public) had two opportunities to request the redacted information through the SUNSI process but failed to do so.34 DWM has not addressed these findings. Nor has it even attempted to show, nor could it show, how the public lacks access to information that was publicly available through the SUNSI process and that the NRC Staff has said it will release to the public.

For these reasons, the Commission should reject DWMs Appeal of the Boards ruling dismissing Contention 1.

2.

Contention 2 (Assurances of Financing)

As originally filed, Contention 2 alleged that Holtec failed to provide reasonable assurance that it could finance the costs of constructing, operating, maintaining, and decommissioning the CISF.35 Contention 2 was initially based on the argument that Holtec will not construct the CISF without financial guarantees from the U.S. Department of Energy. 36 DWM twice amended Contention 2. The second of those two amendments is relevant to the Appeal.

Specifically, more than five months after filing its original Petition to Intervene, DWM moved for a second time to revise Contention 2s basis by replac[ing] their five-page basis statement for Contention 2 with a fifteen-page statement accompanied by a fourteen-page expert

[declaration].37 The Board found this amendment to be inadmissible for failing to satisfy the 34 LBP-19-4 at 91-92.

35 Petition to Intervene at 31-32.

36 Id. at 32.

37 LBP-19-4 at 93; see 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)

(NRC ADAMS Accession No. ML19056A001).

9 Commissions criteria for admitting late-filed contentions under 10 C.F.R. § 2.309(c).38 The Board added that, even if the second amendment had satisfied the late-filing criteria, Contention 2 was nevertheless inadmissible under 10 C.F.R. 2.309(f)(1)(vi) for failing to raise a genuine dispute with the Application.39 The Board also rejected the second amendment as outside the scope of the proceeding under 10 C.F.R. § 2.309(f)(1)(iii).40 The Appeal only challenges the Boards finding that the second amendment to Contention 2 was outside the scope of the proceeding.41 The Commission, however, need not even reach that issue. As described above, the Board found the second amendment inadmissible under 10 C.F.R. 2.309(c) because it failed to meet the Commissions criteria for admitting late-filed contentions. The Appeal does not challenge that ruling. Accordingly, the Boards ruling dismissing the amended contention as out of time controls, and the Commission need not consider on appeal DWMs challenges to the Boards superfluous dismissal of Contention 2 on other grounds.

But even if the Commission decides to address the substance of DWMs untimely arguments, the Appeal must still be dismissed. DWM does not challenge the Boards ruling that the second amendment to Contention 2 was inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) for failing to raise a genuine dispute with the Application. It only challenges the Boards ruling that the second amendment was outside the scope of the proceeding under 10 C.F.R. § 2.309(f)(1)(iii). Of course, failure to satisfy any one of the contention admissibility requirements in § 2.309(f)(1) renders a 38 LBP-19-4 at 98.

39 Id. at 98-100.

40 Id. at 98.

41 Appeal at 22.

10 contention inadmissible.42 Accordingly, notwithstanding DWMs Appeal, Contention 2 remains inadmissible for failing to raise a genuine dispute with the application under § 2.309(f)(1)(vi) - an independent basis on which the Board dismissed the Contention and which DWM has not challenged.

Finally, even if the Commission decides to address the arguments in the Appeal, DWM still has shown no error or abuse of discretion. DWMs argument rests entirely on its notion that the Board profoundly misunder[stood] the scope of the licensing proceeding when the Board stated that DWMs allegations regarding financial assurances for later phases of the project are outside the scope of this proceeding because the Application seeks approval of only the first of twenty potential phases.43 It is clear on its face, however, that the Board correctly understood the scope of this proceeding. The ER expressly states that the Application seeks a license only for the first phase of the CISF project, and that Holtec may request license amendments for 19 subsequent expansion phases to be completed over the course of 20 years:

Holtec is proposing to construct and operate Phase 1 of the CIS Facility within an approximately 1,040 acre parcel. Holtec is currently requesting authorization to possess and store 500 canisters of SNF containing 8,680 metric tons of uranium (MTUs), which includes spent uranium-based fuel from commercial nuclear reactors as well as a small quantity of spent mixed-oxide fuel. If the requested license is issued by the NRC, Holtec anticipates subsequently requesting an amendment to the license to request authorization to possess and store SNF containing an additional 500 canisters for each of 19 subsequent expansion phases to be completed over the course of 20 years.44 42 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 N.R.C. 131, 136 (2016) (Our case law makes clear that these [2.309(f)(1)] standards are strict by design and that failure to fulfill any one of these requirements renders a contention inadmissible. (footnote omitted)).

43 Appeal at 21.

44 HI-STORE CIS Facility Environmental Report, Rev. 3 at 14 (Nov. 2018) (NRC ADAMS Accession No. ML19016A493).

11 Given this express statement by Holtec, DWM cannot plausibly sustain an argument on appeal that the Board erred when it found that Holtecs license application seeks approval of only the first of twenty potential phases.45 Finally, DWMs arguments regarding NEPA46 do not support the Appeal. DWM is appealing the Boards ruling regarding what financial assurances Holtec is required to provide. Financial assurance is a safety issue, not a NEPA issue.47 DWMs NEPA discussion relates to the type of environmental impacts that must be considered.

For these reasons, the Commission should reject DWMs Appeal with respect to Contention

2.

3.

Contention 3 (Low-Level Radioactive Waste)

In the portions of Contention 3 relevant to the Appeal, DWM claimed that the ER underestimated, and therefore failed to consider, the environmental impacts of used metal canisters that would have to be disposed of as low level radioactive waste (LLRW) and LLRW created in the event leaking or otherwise damaged casks carrying spent fuel are delivered to the CISF site.48 The Board dismissed the Contention, finding that the ER appropriately relies on the Continued Storage GEIS and, therefore, DWMs complaint amounts to an impermissible attack on the NRCs regulations.49 45 LBP-19-4 at 98.

46 Appeal at 24-25.

47 Compare 10 C.F.R. §§ 72.22 and 72.30 with § 72.34.

48 Petition to Intervene at 37-38.

49 LBP-19-4 at 102.

12 The Appeal challenges the Boards finding that Holtec properly relied on the Continued Storage GEIS to address the topics of spent fuel repackaging and disposal of spent fuel casks after repackaging.50 DWMs entire argument is that the Continued Storage Rule expressly allows consideration of environmental effects in a ISFSI licensing proceeding that will occur during the license term.51 First, that argument merely recites the position that DWM took before the Board, even to the extent of quoting the same section (10 C.F.R. § 51.23) of the Continued Storage Rule that it quoted to support its position below.52 Reciting earlier positions, without more, is insufficient to sustain an appeal.53 Second, DWM fails to allege an error, because it misses the point of the Boards ruling. The Board did not find that environmental impacts cannot be considered in individual licensing proceedings. Instead, the Board found that the ER in this proceeding appropriately relies on the Continued Storage GEIS to address environmental impacts relating to repackaging and the disposal of spent fuel casks after repackaging that DWM raised.54 Indeed, as Holtec showed in its Answer -- and as the Board agreed55 -- the detailed evaluation in the Continued Storage GEIS directly discusses the environmental impacts of all the information that DWM claims was not evaluated.56 Third, the Board clearly did not err in applying well-settled legal precedent to conclude that Commission regulations, such as the Continued Storage Rule, cannot be challenged in an adjudicatory proceeding.57 50 Appeal at 24.

51 Id.

52 See DWM Oct. 16 Reply at 34, 39.

53 See Texas Utilities Electric Co., CLI-93-10, 37 N.R.C. at 198.

54 LBP-19-4 at 102.

55 Id.

56 Answer at 37-39.

57 See 10 C.F.R. § 2.335; Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI 21, 82 N.R.C. 295, 302 (2015) (Contentions that challenge an agency rule or regulation without a waiver, in addition to being expressly prohibited by 10 C.F.R. § 2.335(a), are outside the scope of the proceeding.)

13 For these reasons, the Commission should reject the Appeal regarding Contention 3.

4.

Contention 4 (Continued Storage Rule)

As to Contention 4, DWM claimed that the ERs reliance on the Continued Storage GEIS was improper because: (1) the CISF as proposed does not have a dry transfer system (DTS); and (2) Holtec is proposing a return to sender approach to address potentially faulty containers.58 DWM also claimed that Holtecs environmental analysis should have been more detailed and site-specific, because Holtec allegedly [did] not qualify for treatment under the GEIS.59 The Board rejected Contention 4, finding that its claims do not demonstrate a genuine dispute with the application on a material issue of law or fact as required under 10 C.F.R. § 2.309(f)(1)(vi).60 The Board found that site-specific evaluations, such as the one performed by Holtec in its ER, do not need to reanalyze the impacts of continued storage because that is already covered by the [Continued Storage] GEIS and requires a waiver to challenge.61 The Board added that Holtecs ER contained the necessary site-specific impact analysis for the period of the proposed activity.62 The Board also found that the Continued Storage GEIS did not require an analysis of a DTS system at this time because Holtec does not intend to build one during the initial license term.63 The Appeal fails to demonstrate how the Board erred or abused its discretion. Although DWM claims that the ASLB must be reversed with respect to Contention 4, it does not challenge (footnote omitted); N. Atl. Energy Serv. Corp., et al. (Seabrook Station, Unit 1), CLI-99-6, 49 N.R.C. 201, 217 n.8 (1999) (We wish to make clear, however, that a petitioner in an individual adjudication cannot challenge generic decisions made by the Commission in rulemakings. (citing Massachusetts v. NRC, 924 F.2d 311, 330 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991))).

58 Petition to Intervene at 47-48.

59 Id. at 49.

60 LBP-19-4 at 104.

61 Id.

62 Id.

63 Id. at 104-05.

14

- or even cite - any particular aspect of the Boards ruling. The Appeal makes no specific claims or allegations as to how the Board was incorrect when it found that Contention 4 failed to raise a genuine material issue. It does not claim that the Board erred in finding that site-specific evaluations need not re-analyze impacts already analyzed by the Continued Storage GEIS, nor does it challenge the Boards finding that a waiver was necessary for DWM to make such claims in this proceeding.

Finally, the Appeal does not address the Boards conclusion that a DTS need only be addressed if Holtec pursues a DTS in a separate action.

Instead of clearly specifying an error in the Boards decision,64 the Appeal merely vaguely claims that the Board may not segment consideration of environmental effects.65 But DWM does not cite supporting precedent, nor does it explain what analysis the Board allegedly improperly segmented. The Appeal also cites the general principle that a NEPA analysis must analyze environmental impacts that are not remote and speculative,66 but fails to raise a specific challenge as to how the Boards decision regarding Contention 4 erred in applying that principle. Finally, the Appeal claims that Holtec cannot consider the probability of leaking or contaminated canisters arriving at the CISF to be zero; it cannot discount the need for a DTS well before the end of the first 100 years of operations....67 Again, DWM provides no basis to support its claims regarding the probability of leaking or contaminated canisters or what Holtec allegedly cannot do. DWM is 64 65 66 67 See Advanced Medical Systems, Inc., CLI-94-6, 39 N.R.C. at 297-98, citing General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 N.R.C. 1, 9 (1990) (emphasis added) (The appellant bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims.).

Appeal at 24.

Id. at 25.

Id.

15 merely making statements rather than challenging with specificity some aspect of the Boards ruling regarding contention admissibility that it asserts was in error.

For these reasons, the Commission should deny the Appeal regarding Contention 4.

5.

Contention 7 (Start Clean/Stay Clean)

Contention 7 claimed that the ER should contain an analysis of Holtecs start clean/stay clean policy, alleging that the policy could pose a risk of harm to the public and citing the need for a DTS at the Holtec facility.68 The Board rejected Contention 7 as lacking sufficient factual or expert support, consistent with the Commission decision in Private Fuel Storage, CLI-04-22, 60 N.R.C.

125, at 136-37 (2004) (PFS).69 On appeal, DWM argues that in PFS, the NRC had already generically determined that an accidental canister breach was not credible, unlike Holtecs situation. Holtec believes a breach scenario is sufficiently credible that it intends to have a start clean/stay clean policy with return to sender as an option. Notably, the Holtec ER does not mention 10 C.F.R. § 71.47, which provides external radiation standards for all packages. That regulation itself cautions that [e]ven this radiation limit is not absolute; it can be exceeded if certain additional conditions are met. 10 C.F.R. § 71.47(b).70 This argument falls short of the basic requirements for an appeal and fails to point out any errors in the Boards decision.71 The Board determined that DWM failed to provide any factual or expert support establishing that there could be a risk of harm from the transport of damaged canisters.72 Specifically, DWM had failed to show how (1) the spent fuel would leave the reactor site leaking or damaged (given NRC-68 See Petition to Intervene at 62-64; Appeal at 25-26.

69 LBP-19-4 at 113-14.

70 Appeal at 26.

71 Shieldalloy Metallurgical Corp., CLI-07-20, 65 N.R.C. at 503 (regarding appeal of denied intervention petitions under 10 C.F.R. § 2.311) (citing AmerGen Energy, CLI-06-24, 64 N.R.C. at 121).

72 LBP-19-4 at 113.

16 approved quality assurance programs); (2) the spent fuel canister would become credibly damaged during transport, such that dose limits would be exceeded; and (3) the sequestration sleeve would be an inadequate remedy in the event of damage.73 In its Appeal, DWM fails to show how Contention 7 contained the requisite factual or expert support such that the Boards decision would amount to an error or abuse of discretion.

DWM first attempts to distinguish Holtecs Application from PFS by alleging that there is no generic NRC determination that a cask breach is not credible for Holtec.74 However, the generic determination in PFS was not specific to PFSs facility. Rather, that determination applies to a number of different storage systems. 75 Additionally, in Holtecs specific case, the NRC has approved the HI-STAR 190 package based on Holtecs showing that the casks maintain structural integrity after a variety of hypothetical accident tests.76 DWM then argues that the mere existence of Holtecs start clean/stay clean policy shows that a breach is credible.77 However, PFS also had a start clean/stay clean policy,78 and DWM does not explain why Holtecs policy should warrant different treatment than PFSs policy. Finally, DWM mentions that the ER does not reference 10 C.F.R. § 71.47.79 However, DWM does not explain how this provides the missing factual or expert support for the possible existence of damaged canisters or any subsequent risk of harm.

For these reasons, the Commission should deny the Appeal regarding Contention 4.

73 Id.

74 Appeal at 26.

75 See PFS, CLI-04-22, 60 N.R.C. at 137 n.45.

76 See HI-STAR 190 Package Safety Evaluation Report, Rev. 0 at 23 §2.9 (Aug. 8, 2017) (NRC ADAMS Accession No. ML17222A083).

77 Appeal at 26.

78 See PFS, CLI-04-22, 60 N.R.C. at 133.

79 Appeal at 26.

17

6.

Contention 9 (Transportation Routes)

Contention 9 claimed that the discussion of transportation routes in Holtecs ER was inadequate and incomplete, and that NEPA and the Commissions regulations require additional disclosures of probable transportation routes, whether by barge, highway or rail.80 The Board, however, properly rejected Contention 9 for failing to raise a genuine dispute with the Application.81 As the Board correctly pointed out, DWM did not demonstrate how NEPA or the Commissions regulations require a specific assessment of possible transportation routes, noting that [n]one of the legal authority cited by [DWM]... specifies that a certain number of transportation routes must be analyzed in an applicants Environmental Report, let alone every conceivable [] route.82 The Board added that Holtecs evaluation of three representative routes was consistent with past NRC practice in similar cases.83 The Appeal does not allege any error or abuse of discretion. It simply recites DWMs prior arguments that Contention 9 is a contention of omission84 and that NEPA and the Commissions regulations require an analysis of the environmental impacts of transportation. 85 The mere recitation of [DWMs] prior positions in [this] proceeding and stat[ing] [its] general disagreement with the Boards decision is no substitute for a brief that identifies and explains the errors in the Boards ruling.86 80 Petition to Intervene at 66-68.

81 LBP-19-4 at 115-16.

82 Id.

83 The Board also found outside the scope of this proceeding DWMs additional argument that public and emergency response officials need unconditional disclosure of probable transportation routes. LBP-19-4 at 116.

84 See Petition to Intervene at 67; Appeal at 26.

85 See Petition to Intervene at 67; Appeal at 26.

86 Texas Utilities Electric Co., CLI-93-10, 37 N.R.C. at 198.

18 While the Appeal describes the Boards rulings,87 it fails to challenge their substance. For example, DWM does not show - nor could it - that NEPA or the Commissions regulations require an assessment of a specific number of transportation routes. Nor does DWM claim that the Board incorrectly applied prior NRC practice when it concluded that the ERs analysis of three representative transportation routes was sufficient.

Rather than challenging the Boards actual rulings, the Appeal cites a number of cases allegedly supporting the proposition that [s]eparating consideration of the transportation component from the storage component of the Holtec project segments a single project into smaller projects and defies effective analysis and public understanding as required by NEPA.88 That proposition (even if accurate, which it is not) is wholly unrelated to the Boards findings regarding Contention 9, and incorrectly describes the Boards actions. Far from separating consideration of the transportation component from the storage component, the Board recognized that Holtecs ER evaluated three representative transportation routes - and concluded that this was both sufficient to satisfy NEPA and consistent with Commission precedent. The Appeal makes no specific argument as to why those conclusions were in error.

For these reasons, the Commission should deny the Appeal regarding Contention 9.

7.

Contention 11 (Transportation and Storage Security Risks)

Contention 11 claimed that the ER should contain an analysis of terrorist attacks as an environmental impact.89 In addition, DWM alleged 28 sub-contentions on a variety of additional 87 Appeal at 27.

88 Appeal at 27.

89 Petition to Intervene at 70; Appeal at 28.

19 issues,90 purportedly supported by a report from Dr. James Ballard.91 The Board rejected Contention 11 as outside the scope of this proceeding and failing to raise a genuine dispute with the Application.92 On appeal, DWM argues that NEPA and AEA regulations require far greater security consciousness than is evidenced in the Holtec application. 10 C.F.R.§ 72.122(b); 10 C.F.R.

§ 72.40(a)(5); 10 C.F.R. § 72.40(a)(13); 10 C.F.R. § 72.90; 10 C.F.R. § 72.98; 10 C.F.R. § 51.45(b) and (c). This argument falls short of the basic requirements for an appeal and fails to point out any errors in the Board decision.93 Nor could DWM point to any such errors, as the Board correctly rejected Contention 11. The claim that the ER should analyze terrorist attacks ignores Commission precedent that limits the NEPA analysis of terrorist attacks to states within the Ninth Circuit.94 The Appeal does not show how the Boards adherence to this precedent constitutes an error or law or abuse of discretion.

Additionally, because the sub-contentions failed to address or challenge the Application, the Board found that the sub-contentions failed to raise a genuine dispute with the Application. The Appeal does not even attempt to show any error in this decision by demonstrating how its original contentions challenged the Application.

For these reasons, the Commission should deny the Appeal regarding Contention 11.

90 Petition to Intervene at 79-88.

91 James D. Ballard, Ph.D., Expert Report, Holtec HI-STORM UMAX Interim Storage Facility (a.k.a. CISF):

Human Initiated Events (HIE), Transportation of the Inventory and Storage of Highly Radioactive Waste Materials (Sept. 14, 2018) (NRC ADAMS Accession No. ML18257A335).

92 LBP-19-4 at 119-120.

93 Shieldalloy Metallurgical Corp., CLI-07-20, 65 N.R.C. at 503 (regarding appeal of denied intervention petitions under 10 C.F.R. § 2.311) (citing AmerGen Energy, CLI-06-24, 64 N.R.C. at 121).

94 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 N.R.C. 124, 129 (2007).

20

8.

Contention 14 (Alleged Material False Statement)

Late-filed Contention 14 alleged that Holtec made a material false statement in the Application that title to the waste to be stored at the CIS facility would be held by DOE and/or the nuclear plant owners.95 According to DWM, the material false statement was revealed by a January 2, 2019 Holtec press release entitled Reprising 2018.96 The Board granted DWMs motion to file Contention 14 out of time, but rejected it as inadmissible on the same grounds as it did Sierra Club Contention 26, given that the two contentions were essentially identical.97 Although the Board incorrectly found that DWM had demonstrated good cause for its untimely filing,98 the Board correctly ruled Contention 14 is inadmissible. The Board found that any violation of Section 186 requires a willful misrepresentation, and that [n]othing in Reprising 2018 demonstrates a misrepresentation in Holtecs license application, willful or otherwise.99 The Board added that it 95 DWMs Contention 14 at 1 (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A349).

96 Id.

97 LBP-19-4 at 123.

98 Applying the same analysis used to grant Sierra Clubs late contention, the Board granted the motion to file DWMs late Contention 14 because the Board interpret[ed] materially different new information from the standpoint of a reasonable petitioner, and that the statement in Reprising 2018 appears to contradict information in the application. LBP-19-4 at 82. The Commission should reverse the Boards ruling here.

First, the Board cites to no precedent for its holding that it should evaluate materially different information from the standpoint of a reasonable petitioner. But even if that were an appropriate standard to apply, DWM interpretation of the statement in the article is anything but reasonable. Holtec argued that DWM failed to demonstrate that the information presented in the Reprising 2018 article was either previously available or materially different from information previously available. Late-filed Sierra Club Contention 16 and DWM Contention 14 at 3-4. The Reprising 2018 article said nothing about DOE taking title to the spent nuclear fuel, and DWM can not manufacture materially different information by mischaracterizing the article. Id. at 4.

Indeed, the good cause standards in 10 C.F.R. 2.309(c) would be rendered meaningless if a petitioner could claim the existence of new information based only on its wild imagination. Id. Holtec also noted that that the claims raised in Contention 14 were the same allegations that DWM had been making throughout the proceeding, and therefore were anything but new. Id. at 4-5. Finally, the statement cited by DWM from the Reprising 2018 article was consistent with information present in the Holtec application (at SAR Rev. 0C at PDF p. 21) that the HI-STORE CIS will be built in several stages of storage system groups to correspond to the (expected) increasing need from the industry and the U.S. government. Id. at 5 (emphasis added). DWM could have previously challenged this statement, and provided no good cause for its failure to do so. Id. at 5.

For all of these reasons, the Commission should reject Contention 14 for the independent reason that DWM failed to show good cause for its untimely filing.

99 LBP-19-4 at 83.

21 would not assume that Holtec would try to contract directly with DOE to store spent fuel, which would be unlawful... under the NWPA as currently in effect, and nor would it assume that DOE would be complicit in a violation of the NWPA.100 On appeal, DWM shows no error or abuse of discretion by the Board, and merely repeats the arguments it made before the Board.101 The only aspect of the Boards ruling cited in the Appeal is the Boards statements that it would not assume that (1) Holtec would try to contract directly with DOE to store spent fuel, which would be presently unlawful under the NWPA; or (2) that DOE would be complicit in any violation of the NWPA. DWM merely asserts that the Boards ruling allows Holtec to escape with an astonishingly belated admission of its counsel, Holtec admitted that which was obvious to all, and [t]his matter should be remanded for adjudication.102 Nowhere does DWM confront, let alone show any error in, the multiple bases on which the Board ruled Contention 14 inadmissible. DWMs mere recitation of [its] prior positions in [this] proceeding and stat[ing]

[its] general disagreement with the Boards decision is no substitute for a brief that identifies and explains the errors in the Boards ruling.103 For these reasons, the Commission should deny the Appeal regarding Contention 14.

B.

The Board Correctly Denied DWMs Standing

1.

The Board Correctly Found DWM was not Entitled to Standing As discussed below, DWM is unable to point to any error of law or abuse of discretion in LBP-19-4s denial of DWMs standing and heavily relies on new facts and arguments introduced on 100 Id. at 84-85 (footnote omitted).

101 Appeal at 29-30.

102 Id. at 30.

103 Texas Utilities Electric Co., CLI-93-10, 37 N.R.C. at 198 (quoting Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-92-3, 35 N.R.C. 63, 66 (1992)).

22 appeal. This alone is fatal to DWMs Appeal. However, beyond these defects, the Commission should affirm LBP-19-4 because the Boards denial of DWMs standing was correct and consistent with Commission precedent.

In its pleadings, DWM based standing on a number of substantively identical form letters from the members of its constituent groups, each declaring, with slight variation, that their home/place of work/place of recreation is some number of miles from a rail trackage/highway transport route or barge shipment which the member believes is likely to be used to transport radioactive waste based on the members stud[y] [of] Department of Energy maps of rail and highway transportation routes.104 These declarations do not identify the routes to which they refer, specify what maps were examined or their relevance, nor explain why they believed these routes are likely to be used.105 Holtec and the NRC Staff both opposed standing, arguing that such vague and speculative pleadings failed to show a concrete injury-in-fact sufficient for traditional standing, that licensing board and Commission decisions have consistently denied standing where based exclusively on proximity to transportation routes, and that DWM did not explain why the unspecified transport routes might be used to ship waste to the CISF.106 Holtec additionally argued that DWM failed to demonstrate any [obvious] potential for offsite consequences at its members respective distances 104 See Member Declarations of Citizens Environmental Coalition, Decl. of Thomas Ellis at 2, ¶ 4 (Sept. 6, 2018).

105 In its Reply, DWM attempted to rehabilitate these declarations by explaining that it had relied on routing maps prepared by the State of Nevada for the Yucca Mountain proceeding, and reasoned that due to the overweight nature of SNF casks in transport, only the highest class, best-maintained trunk railroad lines would be used for SNF shipments. DWM Oct. 16 Reply at 8. However, DWM still did not specify any particular routes, explain the relevance of the DOE maps, nor justify their presumption as to why only trunk railroad lines would be used.

106 Holtec Oct. 9 Answer at 13-22; Staff Oct. 9 Answer at 14-18.

23 from the potential transport routes.107 NRC Staff also noted that DWMs claims were insufficiently particularized.108 The Board correctly denied DWM standing, holding that proximity to potential transportation routes... [was] too remote and speculative an interest on which to establish standing. 109 Citing extensive Commission precedent, the Board held that mere geographic proximity to radioactive material transportation routes has consistently been found insufficient to demonstrate standing.110 The Board explained that, as other licensing boards have found, the fact that additional radioactive waste will be transported if the NRC licenses a project does not ipso facto establish that there is a reasonable opportunity for an accident to occur at any location, or for the radioactive materials to escape because of accident or the nature of the substance being transported.111 The Boards finding should be upheld. First, DWMs claims of standing are too vague to satisfy the Commissions requirements. To avail oneself of the Commissions proximity-plus presumption, a petitioner must provide specificity concerning the nature, extent, and duration of

[its] contacts with the area surrounding the proposed site and the lack of such specificity is a 107 Holtec Oct. 9 Answer at 20.

108 NRC Staff Oct. 9 Answer at 16-17 (explaining that generalized grievance[s] shared by all people or a large class of people are insufficient to support standing).

109 LBP-19-4 at 14.

110 Id. at 14-15. While DWM relies heavily on the boards finding in Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 N.R.C. 403 (2001), which found standing based on the possibility of injuries resulting from transportation of mixed oxide fuel, that case did not involve geographic proximity to transportation routes, but involved physical proximity to shipments during transport.

In Savannah River, the petitioner was able to show, with specificity, a reasonable possible they could be stuck in close proximity to a shipment during transport and was able to show the specific dose they would receive in such a situation, including showing the specific routes over which they and MOX fuel shipments would both travel regularly. Here, DWM has made no such showing. Moreover, the Board appropriately distinguished Savannah River and cited more recent precedent which cast it into question.

111 Id. at 15 (quoting N. States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 N.R.C. 40, 43 (1990)

(quotations omitted)).

24 sufficient basis to reject a claim of standing.112 Furthermore, [i]n a materials licensing case... a petitioner must show more than that he lives or works within a certain distance of the site where materials will be located - he must show a plausible mechanism through which those materials could harm him.113 DWMs generic allegations that its members live/work/recreate some number of miles from an unnamed likely transport route, and could be injured by a variety of generic accident scenarios, fall far short of this standard. This in itself is sufficient justification for the Board to deny standing.

Further, as the Board correctly noted, geographic proximity to potential radioactive waste transportation routes is insufficient to demonstrate standing. The Commission has explained that mere geographical proximity to potential transportation routes is insufficient to confer standing; instead,... Petitioners must demonstrate a causal connection between the licensing action and the injury alleged.114 The pleadings below lack such a causal connection. The fact that DWM, without basis, merely described threats of harm of both a routine as well as non-routine sort from the radioactive materials in the canisters,115 was not enough to show that its standing claim was based on more than just proximity to transport routes.116 Accordingly, under both the Commissions traditional standing principles and the proximity-plus presumption, LBP-19-4 correctly held that DWM lacks standing.

112 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 N.R.C. 133, 139 (2010); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 N.R.C. 318, 325 (1999)

([I]ntervenors who fail to provide specific information regarding either the geographic proximity or timing of their visits will only complicate matters for themselves.).

113 U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 N.R.C. 185, 188-89 (2010) (emphasis added) (footnote omitted).

114 U.S. Department of Energy (Plutonium Export License), CLI-04-17, 59 N.R.C. 357, 364 n.11 (2004) (citations and quotations omitted) (emphasis added).

115 Appeal at 16.

116 Id. 16-17.

25

2.

DWM Has Identified No Errors of Law or Abuse of Discretion that Require Redress The Commission should affirm the Boards finding that DWM lacks standing because the Appeal fails to identify any error or abuse of discretion which might justify the Commission overruling the Boards decision. As discussed supra, the Boards case-by-case analysis appropriately characterized the facts set forth by DWM and correctly applied prior Commission precedent in denying standing.117 The Appeal challenges LBP-19-4 on the grounds that it is based on a defective grasp of the scope of Holtecs present and projected customer base, a labored reading of standing principles, and the unwarranted rejection of precedent conducive to a finding of [DWMs] standing.118 DWM goes on to repeat its prior standing arguments, criticizes the Board for not considering evidence not actually presented in DWMs initial pleadings, and disputes the weight to be given to the orders upon which the Board relied. However, DWM nowhere points out the errors in the Boards decision to any error of law or abuse of discretion or illuminate[s] the bases for an exception to the Boards decision.

Further, even if DWM had sufficiently explained its members proximity to potential transport routes (which, as discussed, it did not), it was still within the Boards discretion to find that this proximity was insufficient to create an obvious potential for offsite consequences. DWM has not shown that the Boards analysis strayed outside the discretion afforded to a licensing board in evaluating proximity-plus standing. Accordingly, DWM gives no reason for the Commission to revisit the Boards findings, and the Commission should reject DWMs Appeal.

117 LBP-19-4 at 14.

118 Appeal at 5.

26

3.

DWMs New Facts and Arguments Must be Rejected As discussed, DWM did not describe their members activities or contacts with the alleged transportation routes, explain why the routes might be used to transport SNF, and did not specify what routes were referenced. On appeal, DWM attempts to rehabilitate its deficient pleadings by presenting new facts. For example, DWM claims that several Dont Waste Michigan members attested that they reside from 2.5 to 6 miles from the only existing trunk rail line for transport of SNF from the Fermi 2 nuclear plant, identified by DOE near Monroe, Michigan.119 However, these members attested no such thing. Only one even mentioned the Fermi plant, and that was to state the distance from his home and drinking supply to the plant.120 Regarding transport routes, this member provided the same generic reference as everyone else (i.e. rail transport route is within six (6) miles of my home).121 Similarly, DWM argues that had the Board review[ed] and appreciate[d] the significance of the routes appearing on the maps the Board would have realized that one of Nuclear Energy Information Services members home in Glenview, Illinois, is due south of the Port of Milwaukee which is a likely point of delivery of HLRW barges from Point Beach and Kewaunee nuclear plants, and so the rail line running north-south near Glenview... will see considerable SNF transport.122 DWM presumably believes the Board should have deduced this based solely on the 119 Id. at 10 (emphasis in the original) (footnote omitted).

120 See Member Declarations of Dont Waste Michigan, Citizens for Alternatives to Chemical Contamination, and Nuclear Energy Information Service, Decl. of Michael J. Keegan at 2, ¶ 4 (Sept. 13, 2018).

121 Id.

122 Appeal at 11.

27 members address and footnotes with hyperlinks to 65 pages of railroad maps prepared for an unrelated proceeding, as DWMs declarations and initial pleadings lack any of these other facts.123 Finally, DWMs argument that Holtec [h]as [e]stablished [c]ustomer [r]elationships is also entirely new and was never presented below. This argument is surprising, given that DWM complained that the lack of routing maps in the ER prevented it from identifying the rail lines, and in fact insinuated that the lack of maps indicates that Holtec does not and will not have any customers.124 Now DWM claims the Board should have known the specific rail lines over which SNF will travel based on Holtecs ownership of certain sites for decommissioning.125 If Holtecs customer relationships are established, DWM has no excuse for not presenting this argument below where the Board could have considered it. Having failed to do so, this argument should be rejected.

4.

DWMs Theory of Standing Lacks Particularity Finally, consistent with the argument made below by NRC Staff, standing should be denied because DWMs alleged injuries are too generalized to support standing.126 As noted by NRC Staff a generalized grievance shared in substantially equal measure by all or a large class of citizens is insufficient for standing.127 The Commission has explained that if petitioners asserted harm is a 123 For example, the Petition to Intervene and the Reply both lack any mention of the Port of Milwaukee, the Kewaunee or Point Beach nuclear plant, or a claim that SNF from these plants will be moved by barge across Lake Michigan.

124 See, e.g., DWM Oct. 16 Reply at 7-8 (Perhaps the real reasons that only two specific routes have been identified are that... utilities are hesitant to sign a contract to transport waste to [the CISF].). Indeed, while DWM quotes the Board as stating that Holtec has no customers, Appeal at 7, what the Board actually said is that Holtecs proposed facility as yet has no customers. LBP-19-4 at 15. There is obviously a difference between Holtec having customers and the CISF having customers.

125 Appeal at 6-7.

126 NRC Staff Oct. 9 Answer at 16-17.

127 Envirocare of Utah, Inc. (Byproduct Material Waste Disposal License), LBP-92-8, 35 N.R.C. 167, 174 (1992).

28 generalized grievance shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.128 That is the case hereif DWMs theory of standing were accepted, it would mean that practically anyone, anywhere, would have standing in any licensing proceeding that might involve transportation of radioactive materials, so long as they lived within several miles of a highway or railroad. For example, if a licensing proceeding were commenced for a new plant in the Northeast, petitioners in the Midwest could claim standing on the theory that one day spent fuel from that plant might travel near their home on the way to an interim or permanent repository. DWMs claims therefore violate the requirement that grievances be particularized. Accordingly, the Commission should reject DWMs claims for standing.

128 Edlow Intl. Co. (Agent for Government of India on Application to Export Special Nuclear Material), CLI-76-6, 3 N.R.C. 563, 576 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975) (quotations omitted); citing Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974); Ex Parte Levitt, 302 U.S. 633 (1937); Frothingham v. Mellon, 262 U.S. 447, 488 (1923); Flast v. Cohen, 392 U.S. 83, 114 (1968)).

29 V.

Conclusion For the foregoing reasons, Holtec requests that the Commission deny Dont Waste Michigan et al.s Appeal.

Respectfully submitted,

/Signed electronically by Jay E. Silberg/

Erin E. Connolly Jay E. Silberg Corporate Counsel Michael G. Lepre HOLTEC INTERNATIONAL Timothy J. V. Walsh Krishna P. Singh Technology Campus Anne R. Leidich 1 Holtec Boulevard Sidney L. Fowler Camden, NJ 08104 PILLSBURY WINTHROP SHAW Telephone: (856) 797-0900 x 3712 PITTMAN LLP e.connolly@holtec.com 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8707 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com michael.lepre@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com sidney.fowler@pillsburylaw.com June 28, 2019 Counsel for HOLTEC INTERNATIONAL

June 28, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

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Docket No.

72-1051 Holtec International

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(HI-STORE Consolidated Interim Storage

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ASLBP No.

18-958-01 Facility )

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Brief in Opposition to Dont Waste Michigan et al.s Appeal of LBP-19-4 has been served through the EFiling system on the participants in the above-captioned proceeding this 28th day of June, 2019.

/signed electronically by Timothy J. V. Walsh/

Timothy J. V. Walsh