ML19179A328

Internationals Brief in Opposition to Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners Appeal of LBP-19-4

ML19179A328
Person / Time
Site:	HI-STORE
Issue date:	06/28/2019
From:	Connolly E, Fowler S, Michelle Hammond, Leidich A, Silberg J, Walsh T Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, RAS 55070, Holtec International
Download: ML19179A328 (25)

Text

4847-4919-5930.v8 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 FASKEN AND PERMIAN BASIN LAND AND ROYALTY OWNERS APPEAL OF LBP-19-4 Erin E. Connolly Corporate Counsel HOLTEC INTERNATIONAL Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 x 3712 e.connolly@holtec.com Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich Sidney L. Fowler Meghan C. Hammond PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8707 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com sidney.fowler@pillsburylaw.com meghan.hammond@pillsburylaw.com June 28, 2019 Counsel for HOLTEC INTERNATIONAL

i 4847-4919-5930.v8 TABLE OF CONTENTS Page I. Introduction................................................................................................................................1 II. Statement of the Case.................................................................................................................2 III.Standard of Review....................................................................................................................7 IV.Argument...................................................................................................................................8 A. The Board Correctly Rejected Faskens Motion to Dismiss...............................................8 B. The Board Incorrectly Found that Fasken Had Standing...................................................14 V. Conclusion...............................................................................................................................19

ii 4847-4919-5930.v8 TABLE OF AUTHORITIES Page(s)

Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 N.R.C. 111 (2006)..............................................................................................7 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),

LBP-01-09, 53 N.R.C. 370 (2001).............................................................................................7 CFC Logistics, Inc.,

LBP-03-20, 58 N.R.C. 311 (2003)...........................................................................................16 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-00-5, 51 N.R.C. 90 (2000)................................................................................................17 Consol. Edison Co. of N.Y. and Entergy Nuclear Indian Point 2 LLC, and Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2),

CLI-01-19, 54 N.R.C. 109 (2001)............................................................................................10 Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation),

CLI-07-19, 65 N.R.C. 423 (2007)............................................................................................17 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-691, 16 N.R.C. 897 (1982)..........................................................................................16 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)..............................................................................................7 Entergy Nuclear Operations Inc. (Palisades Nuclear Plant),

CLI-08-19, 68 N.R.C. 251 (2008)............................................................................................15 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 N.R.C. 377 (2012)..............................................................................................8 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12, 42 N.R.C. at 111 (1995)........................................................................................17 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-92-3, 35 N.R.C. 63 (1992)..................................................................................................7 Holtec International (HI-STORE Consolidated Interim Storage Facility),

LBP-19-4, __ N.R.C. __, slip op. (May 7, 2019)............................................................. passim Hydro Resources Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120),

CLI-98-16, 48 N.R.C. 119 (1998)............................................................................................13

iii 4847-4919-5930.v8 Louisiana Energy Servs., L.P. (National Enrichment Facility),

CLI-04-25, 60 N.R.C. 223 (2004)..............................................................................................7 Louisiana Energy Servs., L.P. (National Enrichment Facility),

CLI-04-35, 60 N.R.C. 619 (2004)..............................................................................................8 Ohngo Gaudedah Devia v. U.S. Nuclear Regulatory Commission, 492 F.3d 421 (D.C. Cir. 2007).................................................................................................12 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),

CLI-10-7, 71 N.R.C. 133 (2010)........................................................................................16, 17 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-01-09, 53 N.R.C. 232 (2001)............................................................................................12 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 N.R.C. 125 (2004)..............................................................................................8 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 N.R.C. 318 (1999)............................................................................................16 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 N.R.C. 261 (2000)..............................................................................................7 Pub. Serv. Co. of Okla., et al. (Black Fox Station, Units 1 and 2),

ALAB-573, 10 N.R.C. 775 (1979)..........................................................................................16 Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site),

CLI-94-12, 40 N.R.C. 64 (1994)........................................................................................16, 17 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 N.R.C. 499 (2007)..............................................................................................7 Skull Valley Band of Goshute Indians v. Davis, 728 F. Supp. 2d 1287 (D. Utah 2010)......................................................................................12 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

LBP-10-1, 71 N.R.C. 165........................................................................................................17 Texas Utilities Electric Co. et al. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192 (1993)..............................................................................................7 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)......................................................................................12, 18

iv 4847-4919-5930.v8 USEC, Inc. (American Centrifuge Plant),

CLI-05-11, 61 N.R.C. 309 (2005)............................................................................................17 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 N.R.C. 451 (2006)..........................................................................................7, 8 USEC, Inc. (American Centrifuge Plant),

CLI-06-9, 63 N.R.C. 433 (2006)................................................................................................7 Waste Control Specialists, LLC (Consolidated Interim Storage Facility),

CLI-17-10, 85 N.R.C. 221 (2017)............................................................................................10 Rules and Regulations 83 Fed. Reg. 12,0345 (Mar. 19, 2018).............................................................................................2 83 Fed. Reg. 32,919 (July 16, 2018)................................................................................................2 Code of Federal Regulations Title 10, Section 2.309.........................................................................................................3, 10 Title 10, Section 2.309(a)...........................................................................................................6 Title 10, Section 2.309(d)..........................................................................................................6 Title 10, Section 2.309(f)(1)......................................................................................................2 Title 10, Section 2.311...............................................................................................................7 Title 10, Section 2.311(b)..........................................................................................................1 Title 10, Section 2.311(c)...........................................................................................................7

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 FASKEN LAND AND MINERALS, LTD. AND PERMIAN BASIN LAND AND ROYALTY OWNERS 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 Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners (collectively Fasken) Notice of Appeal and Petition for Review filed in this proceeding on June 3, 2019 (Appeal).1 Fasken challenges the Atomic Safety and Licensing Boards (Board) May 7, 2019 Memorandum and Order (Ruling on Petitions for Intervention and Requests for Hearing)

(LBP-19-4)2 in the Nuclear Regulatory Commission (NRC or Commission) licensing proceeding for Holtecs proposed HI-STORE Consolidated Interim Storage Facility (CISF).

As set forth below, the Board properly denied Faskens motion in this proceeding.3 Holtec requests that the Commission deny the Appeal because it fails to identify any error or abuse of discretion in the Boards ruling. The Appeal lacks substantive explanation or argument as to how 1

Fasken and PBLRO Notice of Appeal and Petition for Review of LBP-19-4 (June 3, 2019) (NRC ADAMS Accession No. ML19154A455) (Appeal).

2 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, __ N.R.C. __, slip op.

(May 7, 2019) (NRC ADAMS Accession No. ML19127A026).

3 LBP-19-4 at 135.

2 the Board erred in its determination that, because Fasken did not proffer a contention of its own, much less an admissible contention, its request for an evidentiary hearing must be denied. In addition, Fasken failed to address how the issue presented in its motion satisfies the admissibility standards set forth in 10 C.F.R. § 2.309(f)(1). In addition, the Board erred in finding that Fasken had standing to intervene in this proceeding. For the reasons set forth in Section IV.B below, Holtec also requests that the Commission reverse the Boards determination on Faskens standing.

II.

Statement of the Case Holtec submitted its application (the Application) to construct and operate the CISF on March 30, 2017.4 The NRC Staff conducted a sufficiency review and found the Application acceptable for docketing.5 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, 2018.6 Faskens procedural posture in this case is somewhat unique. Instead of timely filing a hearing request and petition to intervene, on September 14, 2018, Fasken filed a Motion to Dismiss the proceeding.7 The Motion to Dismiss set out Faskens standing arguments and then incorporate[d] by reference the arguments and authorities in the Beyond Nuclear Inc. Motion to Dismiss at sections IV, V and VI.8 Holtec and the NRC Staff filed answers opposing the Motion to 4

The Holtec International HI-STORE CISF License Application (Mar. 30, 2017) (NRC ADAMS Accession No. ML17115A431) (Application).

5 Holtec Internationals HI-STORE CISF for Interim Storage of Spent Nuclear Fuel, Docketing License Application, 83 Fed. Reg. 12,034-35 (Mar. 19, 2018).

6 Holtec Internationals HI-STORE CISF for Interim Storage of Spent Nuclear Fuel, Order for Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 32,919-24 (July 16, 2018).

7 Motion of Fasken Land and Minerals and Permian Basin Land and Royalty Owners to Dismiss Licensing Proceedings for HI-STORE Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility (Sept. 14, 2018) (NRC ADAMS Accession No. ML18257A330) (Motion to Dismiss).

8 Id. at 7.

3 Dismiss on September 24, 2018,9 to which Fasken filed its replies.10 On October 9, 2018, Holtec filed an answer opposing Faskens motion for leave to reply.11 The NRC Staff did not address Faskens motion to dismiss in their consolidated response to other petitioners in the proceeding.12 On October 29, 2018, the Secretary of the Commission denied Faskens Motion to Dismiss on procedural grounds but referred the Motion to the Board to be considered under 10 C.F.R.

§ 2.309.13 Accordingly, on December 3, 2018, Holtec and the NRC Staff filed supplemental responses opposing Faskens standing and consideration of the issue presented in Faskens Motion to Dismiss.14 Fasken filed replies on December 10, 2018,15 as well as a motion for permission to file 9

Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion to Dismiss Licensing Proceeding for HI-STORE Consolidated Interim Storage Facility (Sept.

24, 2018) (NRC ADAMS Accession No. ML18267A402) (Holtec September 24 Answer); NRC Staffs Response to Motions to Dismiss Licensing Proceedings (Sept. 24, 2018) (NRC ADAMS Accession No. ML18267A313).

10 Motion of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners for Leave to Reply to NRC Staffs Response and Holtec Internationals Answer and Opposition to Motions to Dismiss (Sept. 28, 2018) (NRC ADAMS Accession No. ML18271A243); Reply of Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners to Holtec Internationals Response to Motion to Dismiss (Sept. 28, 2018) (NRC ADAMS Accession No. ML18271A239); Reply of Movants Fasken and PBLRO to Staffs Response to Motion to Dismiss (Sept. 28, 2018) (NRC ADAMS Accession No. ML18271A238).

11 Holtec Internationals Answer Opposing Fasken Land and Minerals, Ltd.s and Permian Basin Land and Royalty Owners Motion for Leave to Reply to Holtec International and NRC Staff Responses to Motion to Dismiss (Oct. 9, 2018) (NRC ADAMS Accession No. ML18282A449).

12 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 at 66 (Oct. 9, 2018) (NRC ADAMS Accession No. ML18282A567).

13 Holtec International & Interim Storage Partners LLC, Order of the Secretary (Oct. 29, 2018) (NRC ADAMS Accession No. ML18302A328) (Order of the Secretary).

14 Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion/Petition to Intervene on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Dec. 3, 2018) (NRC ADAMS Accession No. ML18337A443); NRC Staffs Supplemental Response to Motion to Dismiss by Permian Basin Land and Royalty Organization and Fasken Land and Minerals (Dec. 3, 2018) (NRC ADAMS Accession No. ML18337A415) (NRC Staff December 3 Response).

15 Reply of Fasken and PBLRO to Holtecs Answer Opposing Movants Motion to Dismiss/Petition to Intervene (Dec. 10, 2018) (NRC ADAMS Accession No. ML18344A682); Reply of Fasken and PBLRO to NRC Staffs Supplemental Response and Opposition to Motion to Dismiss (Dec. 10, 2018) (NRC ADAMS Accession No. ML18344A683).

4 a supplemental declaration of standing.16 Holtec filed an answer on December 17, 2018, opposing Faskens motion to file a supplemental declaration of standing.17 The Board, complying with the Order of the Secretary, treated the following text from the Motion to Dismiss as Faskens contention.

The NRC lacks jurisdiction over the [application] because [it is] premised on the proposition that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that would be transported to and stored at the proposed [facility]. This premise is prohibited under the NWPA [Nuclear Waste Policy Act] because the DOE is precluded from taking title to spent fuel until a permanent repository is available.

The NRCs acceptance and processing of the application[] conflicts with the essential predicate that a permanent repository be available before licensure of a [consolidated interim storage facility]. Further, processing the subject applications implies that the NRC disregards the NWPAs unambiguous requirement that spent fuel remain owned by and is the responsibility of reactor licensees until a permanent repository is available. The logic that underpins the plain language of the NWPAs requirement for a functioning permanent repository is effectively vitiated by processing the[]

application[]. [Fasken] contend[s] the [consolidated interim storage facility]

applicant[] should be required to show cause why [its] application[] do[es] not constitute a violation of the NWPA since no permanent repository for spent nuclear fuel exists in the United States. Processing the[] application[] to licensure under the present circumstances invites the situation Congress was attempting to avoid because licensure of a CISF without an available permanent repository contradicts the NWPAs objective to establish a permanent repository. The prospect that any CISF will become a de facto permanent repository is precisely what the NWPA intends to avoid.18 The Board then notes that Fasken relies solely on Beyond Nuclears petition and fails to provide any basis of its own but instead incorporates by reference Beyond Nuclears arguments and authorities.19 Thus, Faskens contention is based on the erroneous claim that the Application is 16 Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor (Dec. 10, 2018) (NRC ADAMS Accession No. ML18344A681) (Fasken Supplemental Standing Motion).

17 Holtec Internationals Answer Opposing Fasken Land and Minerals and Permian Basin Land and Royalty Owners Motion for Permission to File Supplemental Standing Declaration of Tommy E. Taylor (Dec. 17, 2018)

(NRC ADAMS Accession No. ML18351A372) (Holtec Answer Opposing Supplemental Standing).

18 LBP-19-4 at 123-24.

19 LBP-19-4 at 124.

5 premised on the proposition that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that would be transported to and stored at the proposed [facility].20 Despite Faskens claim, however, the original Application stated that ownership of spent fuel to be stored at the CISF may rest with either the nuclear plant owners or DOE.21 While there were some instances in Holtecs original Environmental Report (ER) which inadvertently omitted reference to the nuclear plant owners, in November 2018, Holtec submitted to NRC Revision 3 of the ER correcting the inconsistencies between the ER and the rest of the Application.22 Revision 3 became available to Fasken on January 17, 2019.23 The Board heard oral argument on January 23 and 24, 2019 in Albuquerque, New Mexico.

At the hearing, the Holtec discussed the provisions in the original Application that were the subject of Beyond Nuclears contention (and presumably adopted by Fasken) and explained that it had amended the Application to remove any inconsistencies.24 Holtec further stated that, with very 20 Id. at 123-24. Beyond Nuclears original contention was based on the same argument, but subsequently had to acknowledge that the amended Environmental Report removed that argument. See Motion by Petitioners Beyond Nuclear and Fasken to Amend their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application at 8 (Feb. 6, 2019) (NRC ADAMS Accession No. ML19037A127) (Motion to Amend).

21 See, e.g., Holtec International & Eddy Lea Energy Alliance (ELEA) Underground CISF - Financial Assurance and Project Life Cycle Cost Estimates, Rev. 0 at 3 (Feb. 23, 2018) (NRC ADAMS Accession No. ML18058A608) (Additionally, as a matter of financial prudence, Holtec will require the necessary user agreements in place (from the USDOE and/or the nuclear plant owners). (emphasis added); Holtec Internationals License for Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste at 2 (NRC ADAMS Accession No. ML17310A223) ([T]he 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 the HI-STORE CIS has been established.) (emphasis added); Licensing Report on the HI-STORE CIS Facility, Rev. 0C at 26 (May 2018) (NRC ADAMS Accession No. ML18254A413) (In accordance with 10CFR72.22, 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.) (emphasis added).

22 Environmental Report on the HI-STORE CIS Facility, Rev. 3 (Nov. 2018) (NRC ADAMS Accession No. ML19016A493); see also Holtec International HI-STORE CIS (Consolidated Interim Storage Facility) License Application Responses to Requests for Supplemental Information (Nov. 30, 2018) (NRC ADAMS Accession No. ML18345A151).

23 Motion to Amend at 12.

24 Transcript of Oral Argument at 247, Docket No. 72-1051-ISFSI (Jan. 23 & 24, 2019) (Transcript) (The environmental report has been amended.).

6 limited exceptions not relevant here, DOE cannot take title to nuclear plant owners spent fuel under the NWPA as currently written.25 On February 6, 2019, Fasken and Beyond Nuclear filed a motion to amend their contention based on these changes.26 On February 19, 2019, Holtec file its opposition to the motion to amend.27 The NRC Staff filed an answer supporting the amendment as 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, but cautioned to the extent the amended contentions are intended as a challenge to [a] private ownership alternative, they are inadmissible.28 The NRC Staff took no position on the underlying merits of the contention.29 On May 7, 2019, the Board issued LBP-19-4. The Board found that Fasken had demonstrated standing in accordance with 10 C.F.R. § 2.309(d), but found that Fasken did not submit an admissible contention, and could not incorporate Beyond Nuclears arguments and authorities in the absence of its own admissible contention.30 In any event, the Board further explained, the procedural point is moot because the Board rules that Beyond Nuclears contention, as amended, is not admissible.31 Therefore, in accordance with Commission precedent and the Order of the Secretary to consider Faskens Motion to Dismiss under 10 C.F.R. § 2.309, the Board determined not to admit Faskens contentions and denied Faskens Motion to Dismiss and its contention from this proceeding.32 25 Transcript at 250. As Holtec established during the oral argument, the DOE already holds title to some civilian spent nuclear fuel, under authority other than the NWPA. Transcript 249-250.

26 See Motion to Amend.

27 Holtec Opposition to Beyond Nuclear and Fasken Motion to Amend Their Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals License Application (Feb. 19, 2019) (NRC ADAMS Accession No. ML19052A359).

28 NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) (NRC ADAMS Accession No. ML19050A376).

29 Id.

30 LBP-19-4 at 34 n.172, 125.

31 Id. at 34 n.172.

32 Id. at 34 n.172, 125.

7 III.

Standard of Review 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):

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.33 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.34 As such, pointing out the errors in the Boards decision is a basic requirement for an appeal,35 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 is no substitute for a brief that identifies and explains the errors of a Licensing Board in the order below.36 A petitioner is limited to the contentions as initially filed and may not rectify its deficiencies through an appeal.37 The Commission has explained that, absent extreme circumstances, [it] will 33 10 C.F.R. § 2.311(c).

34 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) ([T]he 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)).

35 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).

36 Texas Utilities Electric Co. et al. (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).

37 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 N.R.C. 451, 458 (2006); cf. Louisiana Energy Servs, L.P.(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).

8 not consider on appeal either new arguments or new evidence supporting the contention[s], which the Board never had the opportunity to consider.38 Such new claims on appeal 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.39 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.40 Absent an error of law or abuse of discretion, the Commission generally defers to the licensing boards rulings on contention admissibility.41 IV.

Argument A.

The Board Correctly Rejected Faskens Motion to Dismiss The Board properly rejected Faskens Motion to Dismiss for failing to proffer its own contention in this proceeding. To the extent that Fasken argues the Boards decision is outside the NRCs jurisdiction and to the extent that its arguments incorporate those of Beyond Nuclear, they are unavailing. Beyond Nuclears contention as amended claims that because the Application states that ownership of spent nuclear fuel may rest with either the nuclear plant owners or DOE, it violates sections 10222(a)(5)(A) and 10143 of the NWPA. Specifically, Beyond Nuclears contention states that [a]s long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.42 According to Beyond Nuclear, the mere inclusion of the illegal DOE option requires the Application to be rejected in total. This is not the case. As the Board 38 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)).

39 Id. (citing Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 N.R.C. 619, 622-23 (2004)).

40 Id.

41 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 N.R.C. 377, 379-80 (2012).

42 Motion to Amend at 8 (emphasis added).

9 correctly ruled, Beyond Nuclears arguments did not raise a genuine dispute on a material issue of law or fact.43 Faskens Appeal merely incorporates these arguments, recites its prior position in this proceeding, and does not substantively challenge the Boards conclusion. That alone is sufficient to deny the Appeal. Equally important is the fact that Faskens legal assertionto the extent it relies on Beyond Nuclearis fatally flawed. Inclusion in the Application of a potential route to facility operation which is currently not available, does not call into question the legality of the Application itself, particularly where the Application includes an alternative, currently available, and unchallenged pathway to facility operation. The Appeal should therefore be denied.

Ultimately, the Board did not admit Faskens issue in this case because it found that Fasken did not proffer a contention of its own.44 Fasken does not dispute thisindeed, it agree[s] with this determination.45 Here, Fasken merely incorporated by reference the arguments and authorities in the Beyond Nuclear Inc. Motion to Dismiss at sections IV, V and VI.46 Notably, Fasken did not incorporate by reference Beyond Nuclears sole contention contained in its petition to intervene and request for hearing, only its motion to dismiss. As the Commission has previously stated it will not permit wholesale incorporation by reference by a petitioner who, in a written submission, merely establishes standing and attempts, without more, to incorporate the issues of other petitioners.47 That is precisely the situation which Fasken has created here, and which the Board properly deemed inadmissible.

43 LBP-19-4 at 32.

44 LBP-19-4 at 125.

45 Appeal at 3.

46 Motion to Dismiss at 7.

47 Consol. Edison Co. of N.Y. and Entergy Nuclear Indian Point 2 LLC, and Entergy Nuclear Operations, Inc.

(Indian Point, Units 1 and 2), CLI-01-19, 54 N.R.C. 109, 132-33 (2001).

10 Faskens argument in its Appeal, rather, appears to be directed at the October 29, 2018 Order of the Secretary directing the Board to consider Faskens Motion to Dismiss as a contention.48 Fasken claims that it never intended for its Motion to Dismiss to be analyzed as a contention, or that it could not have anticipated such an analysis, are unavailing. Fasken states that it made clear in

[its] response to Holtec and Staff that [Fasken] never intended for [its] Motion to Dismiss to be analyzed as a contention under 10 C.F.R. § 2.309, but rather, that the Motion to Dismiss should have been presented to the Commission and analyzed under the [Administrative Procedures Act (APA)] and NWPA.49 However in 2017, the Commission unequivocally stated that a petition to intervene is the appropriate place to raise concerns with a license application, including the legal argument that the application is inconsistent with the NWPA.50 Faskens Motion to Dismiss was not filed until September 2018, and it should have therefore been on notice of the NRCs precedent with respect to motions to dismiss for want of jurisdiction. Therefore, the Board properly found that Faskens Motion to Dismiss was not admissible in this proceeding.

Faskens allegations that the Application violates NWPA fundamentally misunderstands the Application, the NRC licensing process, and DOE contracting. First, the Application contemplates throughout that Holtec would contract either with private utilities or with DOE for spent nuclear fuel to be stored at the CISF.51 The Application states that ownership may rest with either the utilities or the DOE, including the references in the HI-STORE CIS Facility Financial Assurance and Project Life Cycle Cost Estimates, License Condition 17 of the Proposed License, and the Licensing Report (a/k/a the Safety Analysis Report). Fasken points to nothing in the Application stating that only DOE 48 Order of the Secretary at 2-3.

49 Appeal at 2.

50 Waste Control Specialists, LLC (Consolidated Interim Storage Facility), CLI-17-10, 85 N.R.C. 221, 223 (2017).

51 Most of the references in the original Application were written in consideration of either the DOE or the utilities taking title to spent nuclear fuel. The Application was amended in November 2018 so that all references are to either the DOE or the utilities having title to the spent fuel.

11 could hold title to spent fuel stored at the CISF. Second, all parties agree that the current statutory scheme (with limited exceptions) does not authorize DOE to take title to commercial spent fuel, because no permanent repository exists.52 Thus, in order to allege the Application is unlawful, Fasken must assume that both the DOE and Holtec will violate existing law by contracting to store spent nuclear fuel at the CISF prior to operation of a repository. This assumption that the parties will proceed in direct violation of the law is the same allegation that undergirded Faskens Motion to Dismiss and that the Board correctly rejected. Fasken relies on the same arguments in its Appeal.

An NRC license cannot authorize DOE to enter into a contract that would violate the NWPA.

Nor does Fasken claim that the NRC licensing process can authorize DOE to perform what the NWPA may prohibit. Identifying DOE as one potential owner of spent nuclear fuel in an application for an NRC license does not violate the NWPA.

Fasken contends that because the application includes that possibility that DOE would be the owner of spent nuclear fuel to be stored at the CISF and that such ownership is currently not permitted, the application must be dismissed. This is directly contrary to unchallenged practices in NRC licensing. For example, at the time the NRC issues a license, permits from other agencies are often yet to be issued. Thus, carrying out the licensed activities absent such permits would violate other laws. For example, in the Private Fuel Storage (PFS) proceeding, Bureau of Land Management (BLM) approval was required for either of the two alternative rights-of-way and neither of those were approved as of the time the license was issued.53 Had that licensee proceeded to build on either of the rights-of-way without the requisite BLM permission, it would have been in 52 As Holtec established during the oral argument, the DOE already holds title to some civilian spent nuclear fuel, under authority other than the NWPA. Transcript at 249-250; see also LBP-19-4 at 32.

53 In the PFS proceeding, the Environmental Impact Statement acknowledged that BLM would approve of only one of the PFS right-of-way applications, leaving at least one potential right-of-way illegal. Yet, both right-of-way options were analyzed in detail in the EIS. See NUREG-1714 at 1-17, 2-40.

12 violation of BLM requirements. Similarly, because approval from the Bureau of Indian Affairs was required before the lease between the Skull Valley Band of Goshute Indians and the licensee could take effect, the facility if constructed would have been in violation of the laws governing that agency if construction had started without lease approval. Despite this, the NRC licensed the Private Fuel Storage facility notwithstanding the fact that neither the rights-of-way nor the lease had been authorized.54 In a similar case, the Commission held that a petitioners assertions that a licensee may violate the law are unavailing.55 In U.S. Army Installation Command, the NRC declined a petitioners request for a hearing with respect to the U.S. Armys application for a license to possess depleted uranium at a training facility where the petitioner claimed the Army might use high-explosive munitions on-site in contravention of Department of Defense Directive 4715.11.56 In so holding, the Commission stated, [w]e decline to assume that the Army will act contrary to applicable law, guidance, or the strictures of its license in the future.57 Indeed, the Commission typically issues facility operating licenses even though the projects at the time lacked the necessary permits from other agencies. The Commission explicitly recognized this practice, holding that:

Whether non-NRC permits are required is the responsibility of bodies that issue such permits, such as the Federal Environmental Protection Agency, the Navajo nation, or state and local authorities. To find otherwise would result in duplicate regulation as both the NRC and the permitting authority would be resolving the same question, i.e.,

whether a permit is required. Such a regulatory scheme runs the risk of Commission 54 See, generally, Skull Valley Band of Goshute Indians v. Davis, 728 F. Supp. 2d 1287 (D. Utah 2010); Ohngo Gaudedah Devia v. U.S. Nuclear Regulatory Commission, 492 F.3d 421 (D.C. Cir. 2007); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-09, 53 N.R.C. 232, 235 (2001) ([I]n the absence of evidence to the contrary, the NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.).

55 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).

56 Id. at 193.

57 Id. at 194.

13 interference or oversight in areas outside its domain. Nothing in our statute or rules contemplates such a role for the Commission.58 Thus, granting Faskens requested relief to dismiss this proceeding would be directly inconsistent with NRC precedent.

To the extent Fasken argues that the Application violates the Administrative Procedures Act, the argument is also without merit. Under the NWPA as currently written, DOE may not take title to spent nuclear fuel until there is a permanent repository in place. However, by stating in the Application that either a private owner or the DOE will have title, Holtec is not asking that the NRC step outside the bounds of its jurisdiction. Nowhere has Congress prohibited or discouraged NRC from assuming that at some point in the future DOE might be able to take title.

Faskens Appeal also asserts that Holtec had made a concession that its proposal to establish a CISF cannot advance absent an amendment to the NWPA.59 Fasken is simply wrong. Even the oral argument transcript that Fasken cites60 to support this erroneous claim, on its face shows Faskens mistake. Faskens quote of Holtecs counsel states I will agree with you that, on their current legislation, DOE cannot take title to spent nuclear fuel from commercial nuclear plants...

.61 Because Holtecs proposal provides for commercial utilities to take title if DOE cannot, this statement is certainly not the concession touted by Fasken.

58 Hydro Resources Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-98-16, 48 N.R.C. 119, 120 (1998).

59 Appeal at 3-4. Fasken makes a similar unfounded assumption by referring to an application that even Holtec concedes requires an act of Congress to be viable. Id. at 5.

60 Id. at 4 n.17.

61 Id. (emphasis added).

14 Fasken also criticizes the Board for allegedly giving [b]usiness [a]dvice to Holtec.62 Putting aside Faskens inaccurate characterization of the Boards statement, Faskens argument provides no basis for an admissible contention. The argument is simply irrelevant.

Thus, the Application does not violate NWPA because nothing in the Application mandates, authorizes or even suggests that Holtec would enter into a contract with DOE that involved DOE having title to spent nuclear fuel to be stored at the CISF absent authority to do so. Fasken has no basis to claim that DOE could enter into a contract that would violate NWPA and certainly has provided nothing to suggest that DOE would do so.

B.

The Board Incorrectly Found that Fasken Had Standing Holtec opposed the admission of Fasken as a party based on its failure to establish that it had the requisite standing to intervene. Faskens initial claim to standing was based on its blanket statement that its unnamed members and employees live, work, and travel on or along transportation routes that Holtec will use to transport spent nuclear fuel and its claims that the CISF could result in potential, but unspecified, negative impacts to members property values.63 However, the only declaration Fasken provided did not support these statements. Holtec argued that such unsubstantiated and general claims... [were] unsupported and insufficient to demonstrate standing.64 NRC Staff also opposed standing, arguing Faskens allegations of harm are too generalized to establish standing, did not identify any specific individuals who might be affected by 62 Id. at 4-5.

63 Holtec September 24 Answer at 7.

64 Id. at 9.

15 the CISF,65 and that Faskens conclusory statements of harm are especially inadequate given the passive nature of the CISF as opposed to a reactor.66 Fasken responded by filing a motion to supplement its standing and a supplemental standing declaration from its member Tommy E. Taylor.67 However, Mr. Taylors Supplemental Declaration still lacked any specificity regarding contacts with the Fasken property. Instead, his Supplemental Declaration only stated that Fasken employees, including myself, routinely go to this area for work related purposes. Fasken employees make routine checks on oil and gas production equipment and inspect and conduct maintenance and/or repairs as needed.68 Concerning potential for injury or offsite consequences, Mr. Taylors Supplemental Declaration stated only that he was concerned that these visits will expose [Fasken employees] and myself to radiation from the proposed [CISF].69 Holtec argued that, even considering the Supplemental Declaration, Fasken nevertheless failed to demonstrate standing. 70 The Supplemental Declaration lacked any details as to the nature, length, frequency, or timing of visits to the Fasken property. Holtec pointed out that Mr. Taylors claims of routine[] or regular[] visits in no way implied such visits were frequent. In addition, Holtec argued that Fasken failed to identify any allegedly affected employees or to demonstrate that such employees had authorized Fasken or Mr. Taylor to represent them, and therefore Fasken could 65 As NRC Staff noted, Fasken did mention a D.K. Boyd, but Mr. Boyd lived close to a different proposed storage facility in Andrews, Texas, not near the CISF. See NRC Staff December 3 Response at 7.

66 NRC Staff December 3 Response at 8.

67 Fasken Supplemental Standing Motion.

68 Supplemental Declaration of Tommy E. Taylor (Dec. 10, 2018).

69 Id.

70 See Holtec Answer Opposing Supplemental Standing at 5-6; see also id. at 3 (citing Entergy Nuclear Operations Inc. (Palisades Nuclear Plant), CLI-08-19, 68 N.R.C. 251, 261-62 (2008) ([It] is not acceptable in NRC practice for a petitioner to claim standing based on vague assertions, and when that fails, to attempt to repair the defective pleading with fresh details offered for the first time... [in] authorization affidavits filed with replies.

(quotation omitted)).

16 not rely on such employees for standing.71 Accordingly, the Supplemental Declaration entirely fell short of providing the required specificity to demonstrate standing.72 While the Board correctly rejected intervenor status for Fasken based on its failure to submit an admissible contention, the Board erred in granting Fasken standing. Even considering the additional information provided in the Supplemental Declaration, Faskens standing allegations are woefully inadequate. Holtec believes that the Commission should find that the Board erred in granting Fasken standing in this proceeding and find (as Holtec argued below)73 that Faskens Motion to Dismiss should have been denied because Fasken failed to demonstrate standing. Although parties not adversely affected by the ultimate outcome of a licensing board decision may not appeal that decision, they may defend a result in their favor on any ground presented in the record, including one rejected below.74 To avail itself of the Commissions proximity-plus presumption,75 Fasken was required to 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 sufficient basis to reject a claim 71 Holtec Answer Opposing Supplemental Standing at 5 & n.21.

72 Holtec Answer Opposing Supplemental Standing at 6.

73 Id. at 5-6.

74 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 N.R.C. 897, 908 n.8 (1982) (quoting Pub.

Serv. Co. of Okla., et al. (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 789 (1979)); see also Black Fox, ALAB-573, 10 N.R.C. at 789 (1979), vacated in part on other grounds, CLI-80-8, 11 N.R.C. 433 (1980) (It is correct that parties satisfied with the result on an issue may not themselves appeal. But if the other side appeals they are free to defend a result in their favor on any ground presented in the record, including one rejected below.).

75 While Holtec generally herein refers to this as the Commissions proximity-plus presumption, Petitioners and others at times refer to this same concept as the Commissions proximity presumption or proximity standing. However, both terms refer to the same theory of standing - e.g. a petitioner demonstrating standing by showing their proximity to a source of radiation plus an obvious potential for offsite consequences.

Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 N.R.C. 64, 75 n.22 (1994). See also CFC Logistics, Inc., LBP-03-20, 58 N.R.C. 311, 318 (2003) (How close a petitioner must live to the source for this proximity plus presumption to come into play depends on the danger posed by the source at issue. (quoting Sequoya Fuels, CLI-94-12, 40 N.R.C. at 75 n.22)).

17 of standing.76 A petitioners claim that he routinely pierces the proximity radius around a reactor has been found insufficient to demonstrate proximity-plus standing, even where the petitioner alleged visits to the area on a weekly basis.77 In contravention, here the Board granted Fasken standing despite the complete absence of details as to Faskens contacts with the area surrounding the CISF.

This holding was an abuse of direction. Despite having two bites at the apple, Faskens pleadings below do not explain the nature, extent, and duration, of its employees contacts with the Fasken site. Fasken does not even make the general claim that visits to the site will be frequent.78 Faskens employees might routinely visit the site for thirty minutes twice a year, or for eight hours every week. Fasken fell short of its burden to provide facts sufficient to establish standing,79 thereby denying Holtec an opportunity to meaningfully challenge Faskens claims. The Board accordingly abused its discretion by granting Fasken standing, and its decision as to standing should be reversed.

Similarly, Holtec argued below that under the Commissions proximity-plus presumption, Fasken had the burden to demonstrate how the CISF posed a radiological risk to its members.80 In a materials licensing case, proximity standing must be determined on a case-by-case basis...

76 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.).

77 Bell Bend, CLI-10-7, 71 N.R.C. at 140.

78 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-10-1, 71 N.R.C. 165, 179 (discussing that regular contacts with a site do not necessarily mean frequent contacts with a site sufficient to give rise to standing).

79 Bell Bend, CLI-10-7, 71 N.R.C. at 139 (footnote omitted).

80 Holtec Answer Opposing Supplemental Standing at 6 (Using any proximity presumption to demonstrate standing in non-reactor licensing proceedings requires a showing that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences at a particular distance frequented by a petitioner. (quoting USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 N.R.C. 309, 311-12 (2005) (emphasis omitted)). As the Board correctly noted, it is the petitioners burden to demonstrate that standing requirements are met. LBP-19-4 at 8 (citing Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 N.R.C. 90, 98 (2000)). Standing will be denied when the threat of injury is too speculative. Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 N.R.C. 64, 72 (1994).

18 considering the obvious potential for offsite radiological consequences... and specifically taking into account the nature of the proposed action and the significance of the radioactive source.81 Faskens pleadings below lacked any meaningful explanation addressing how the nature of the activity being conducted at the CISF creates an obvious potential for consequences to Mr. Taylor or Faskens other employees.82 Despite this, the Board held that Mr. Taylors and other Fasken employees occasional contacts near the site were in themselves enough to grant Fasken standing.83 The Board did not address Faskens claims of injuries other than to quote Mr. Taylors statement that he was concerned that the close proximity of Faskens oil and gas properties and the necessity for Faskens employees and myself to regularly attend to such will expose them and myself to radiation from the proposed

[CISF].84 The Board ruled that the extreme closeness of the Fasken site,despite Faskens closest land being two miles from the CISFcoupled with a reasonable expectation of regular visitsdespite the fact that Fasken never explained the frequency of these visitsare sufficient to justify a presumption of standing.85 This holding was clear error. Controlling Commission precedent holds that, [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.86 Accordingly, Fasken was 81 Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation), CLI-07-19, 65 N.R.C.

423, 426 (2007) (quotation omitted) (emphasis added); see also Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 N.R.C. at 111, 116-17 (1995) (Whether and at what distance a petitioner can be presumed to be affected must be judged on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.).

82 Holtec Answer Opposing Supplemental Standing at 6.

83 LBP-19-4 at 12 (If Ms. Hatley lacks standing to challenge the storage of much of the nations spent nuclear fuel (potentially up to 100,000 metric tons) one mile from her home, one has difficulty imagining who would have standing.).

84 LBP-19-4 at 16.

85 Id. at 17.

86 U.S. Army Installation Command, CLI-10-20, 72 N.R.C. at 188-89 (emphasis added) (footnote omitted).

19 obligated to explain how radionuclides or radiation from the CISF might affect Mr. Taylor or other Fasken employees,87 which it failed to do. The Boards grant of standing was therefore clear error and should be reversed.

V.

Conclusion For the foregoing reasons, Holtec respectfully quests that the Commission deny Faskens Appeal.

Erin E. Connolly Corporate Counsel HOLTEC INTERNATIONAL Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 x 3712 e.connolly@holtec.com Respectfully submitted,

/Signed electronically by Timothy J. V. Walsh/

Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich Sidney L. Fowler Meghan C. Hammond PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8707 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com sidney.fowler@pillsburylaw.com meghan.hammond@pillsburylaw.com June 28, 2019 Counsel for HOLTEC INTERNATIONAL 87 Holtec Answer Opposing Supplemental Standing at 6.

June 28, 2019 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 )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Brief in Opposition to Fasken and Permian Basin Land and Royalty Owners 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