ML19179A330

Internationals Brief in Opposition to Sierra Clubs Appeal of LBP-19-4

ML19179A330
Person / Time
Site:	HI-STORE
Issue date:	06/28/2019
From:	Connolly E, Fowler S, 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 55071, Holtec International
Download: ML19179A330 (36)

Text

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)

)

HOLTEC INTERNATIONALS BRIEF IN OPPOSITION TO SIERRA CLUBS 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 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 June 28, 2019 Counsel for HOLTEC INTERNATIONAL

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 Sierra Clubs Contentions...................................................6

1. Contention 1 (NRC Authority to License HI-STORE CISF)........................................6

2. Contention 4 (Transportation Environmental Risks).....................................................9

3. Contention 8 (Decommissioning Funding)..................................................................13

4. Contention 9 (Canister Life)........................................................................................15

5. Contention 11 (Earthquake Potential)..........................................................................18

6. Contentions 15-19 (Groundwater Impacts).................................................................20

7. Contention 26 (Material False Statements)..................................................................24 B. The Board Incorrectly Found that Sierra Club Has Standing............................................27 V. Conclusion...............................................................................................................................30

ii TABLE OF AUTHORITIES Page(s)

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

CLI-06-24, 64 N.R.C. 111 (2006)..............................................................................................5 United States v. Armstrong, 517 U.S. 456 (1996)...................................................................................................................8 Bullcreek v. Nuclear Regulatory Commn, 359 F.3d 536 (D.C. Cir. 2004)...................................................................................................8 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),

CLI-01-11, 53 N.R.C. 370 (2001)........................................................................................9, 13 United States v. Chem. Found, Inc.,

272 U.S. 1 (1926).......................................................................................................................8 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-00-5, 51 N.R.C. 90 (2000)..........................................................................................29, 30 Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation),

CLI-07-19, 65 N.R.C. 423 (2007)............................................................................................29 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-691, 16 N.R.C. 897 (1982)..........................................................................................28 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)..............................................................................................5 Exelon Generation Co. (Oyster Creek Nuclear Generating Station),

CLI-19-06, ___ N.R.C. ____, slip op. at 11 (June 18, 2019).............................................12, 15 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 N.R.C. 195 (2003)............................................................................................12 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

LBP-95-6, 41 N.R.C. 281 (1995).......................................................................................12, 29 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

CLI-92-3, 35 N.R.C. 63 (1992)..................................................................................................5 Holtec International (HI-STORE Consolidated Interim Storage Facility),

LBP-19-4, __ N.R.C. __, slip op. (May 7, 2019)............................................................. passim

iii Louisiana Energy Servs., L.P. (National Enrichment Facility),

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

CLI-04-35, 60 N.R.C. 619 (2004)..............................................................................................5 Private Fuel Storage, L.L.C (Independent Spent Fuel Storage Facility),

CLI-04-22, 60 N.R.C. 125 (2004)......................................................................................21, 24 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 N.R.C. 261 (2000)..............................................................................................5 Pub. Serv. Co. of Okla., et al. (Black Fox Station, Units 1 and 2),

ALAB-573, 10 N.R.C. 775 (1979)..........................................................................................28 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

LBP-82-106, 16 N.R.C. 1649 (1982).......................................................................................12 Sequoyah Fuels Corp. & Gen. Atomics ((Gore, Oklahoma Site),

CLI-94-12, 40 N.R.C. 64 (1994)........................................................................................28, 29 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 N.R.C. 499 (2007)..............................................................................................5 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site),

LBP-07-3, 65 N.R.C. 237 (2007).......................................................................................12, 22 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192 (1993)..............................................................................................5 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)........................................................................................9, 30 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 N.R.C. 451 (2006)..................................................................................5, 15, 18 USEC, Inc. (American Centrifuge Plant),

CLI-06-9, 63 N.R.C. 433 (2006)................................................................................................5 Statutes and Codes Atomic Energy Act of 1954 (AEA)

Section 182...............................................................................................................................27 Section 186....................................................................................................................... passim

iv National Environmental Policy Act (NEPA) 42 U.S.C. § 4321 et seq......................................................................................................10, 13 Nuclear Waste Policy Act of 1982 (NWPA) 42 U.S.C. § 10101 et seq..............................................................................................6, 7, 8, 26 Rules and Regulations Code of Federal Regulations Title 10, Part 2, Subpart G.........................................................................................................3 Title 10, Section 2.309(a)...........................................................................................................4 Title 10, Section 2.309(c).........................................................................................................25 Title 10, Section 2.309(f)(1)..............................................................................................1, 4, 6 Title 10, Section 2.309(f)(1)(v)................................................................................................12 Title 10, Section 2.311...........................................................................................................4, 5 Title 10, Section 2.311(b)..........................................................................................................1 Title 10, Section 2.311(c)...........................................................................................................4 Title 10, Section 2.335.........................................................................................................8, 16 Title 10, Section 2.335(a)-(b)...................................................................................................16 Title 10, Section 51.23.............................................................................................................16 Title 10, Section 51.23(b)........................................................................................................16 Title 10, Section 72.30(a)...................................................................................................14, 15 Title 10, Section 72.30(c)(3)..............................................................................................14, 15 Title 10, Section 72.103(f)(1)..................................................................................................19 Federal Register 52 Fed. Reg. 49,362, 49,363-65 (Dec. 31, 1987).....................................................................27 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989)..........................................................................12 60 Fed. Reg. 34380 (June 30, 1995)........................................................................................27 83 Fed. Reg. 12,034-35 (Mar. 19, 2018)...................................................................................2 83 Fed. Reg. 32,919-24 (July 16, 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 SIERRA CLUBS 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 Sierra Clubs Appeal1 of the Atomic Safety and Licensing Boards (the Board) May 7, 2019 Memorandum and Order LBP-19-42 in the Nuclear Regulatory Commission (NRC or Commission) licensing proceeding for Holtecs proposed HI-STORE Consolidated Interim Storage Facility (CISF). The Board properly denied Sierra Clubs petition to intervene and request for hearing in this proceeding.3 The Commission should reject Sierra Clubs Appeal because Sierra Club fails to identify any error or abuse of discretion in the Boards ruling. The Appeal merely repeats claims made in Sierra Clubs earlier pleadings and oral argument before the Board, and lacks substantive explanation or argument as to how the Board erred in determining that none of Sierra Clubs contentions is admissible under the standards set forth in 10 C.F.R. § 2.309(f)(1).4 1

Sierra Clubs Petition for Review of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (June 3, 2019) (NRC ADAMS Accession No. ML19154A166)

(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) (LBP-19-4).

3 LBP-19-4 at 2.

4 As discussed in Section IV.B below, the Board incorrectly determined that Sierra Club had standing. Sierra Clubs intervention petition and request for hearing should also have been denied for this reason.

2 II.

Statement of the Case Holtec submitted its application (the Application) to construct and operate the CISF on March 30, 2017.5 The NRC Staff conducted a sufficiency review and found the Application acceptable for docketing.6 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, 2018.7 On September 14, 2018, Sierra Club filed its petition to intervene and request for hearing in this proceeding.8 On October 9, 2018, Holtec and the NRC Staff filed answers to Sierra Clubs Petition to Intervene.9 Holtec opposed Sierra Clubs standing and opposed the admission of all of Sierra Clubs contentions.10 The NRC Staff did not oppose Sierra Clubs standing and opposed admission of all of Sierra Clubs contentions except for portions of Sierra Club Contentions 1, 4, and 8.11 Sierra Club replied to Holtecs Answer to Sierra Club and the NRC Staff Response on October 16, 2018.12 On January 3, 2019, Sierra Club, along with Petitioner Dont Waste Michigan, et al., filed a Joint Motion to Establish Hearing Procedures asking the Board to adopt the formal adjudication 5

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

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

7 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).

8 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) (NRC ADAMS Accession No. ML18257A228) (Petition to Intervene).

9 Holtec Internationals Answer Opposing Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing on Holtec Internationals HI-STORE Consolidated Interim Storage Facility Application (Oct. 9, 2018)

(NRC ADAMS Accession No. ML18282A500) (Holtec Answer to Sierra Club Petition); 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 Response).

10 Holtec Answer to Sierra Club Petition at 1.

11 NRC Staff Response at 67, 74, and 79.

12 Sierra Clubs Reply to Answers Filed by Holtec International and NRC Staff (Oct. 16, 2018) (NRC ADAMS Accession No. ML18289B064) (Sierra Club Reply).

3 procedures of 10 C.F.R. Part 2 Subpart G.13 On January 9, 2019, and January 14, 2019, the NRC Staff and Holtec, respectively, filed responses in opposition.14 On January 15, 2019, four petitioners, including Sierra Club, filed a joint motion to amend certain of their respective contentions (in Sierra Clubs case, Contention 1) to address a statement issued by Holtec in a January 2, 2018 press release.15 On January 17, 2019, Sierra Club moved to file late-filed Contention 26, based on the same press release, which Holtec and NRC Staff opposed.16 The Board heard oral argument on January 23 and 24, 2019 in Albuquerque, New Mexico.

In accordance with the Boards January 31, 2019, scheduling Order,17 Sierra Club moved to re-amend Sierra Club Contention 1 on February 6, 2019, which Holtec opposed.18 On February 18, 2019, Sierra Club moved to amend its Contention 16, which Holtec and NRC Staff opposed.19 On 13 Joint Motion to Establish Hearing Procedures by Sierra Club, Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Nuclear Issues Study Group, San Luis Obispo Mothers for Peace, and Public Citizen (Jan. 3, 2019) (NRC ADAMS Accession No. ML19003A279).

14 NRC Staff Response to Joint Motion to Establish Hearing Procedures (Jan. 9, 2019) (NRC ADAMS Accession No. ML19009A100); Holtec Internationals Answer Opposing Dont Waste Michigan, et al., and Sierra Clubs Joint Motion to Adopt Hearing Procedures (Jan. 14, 2019) (NRC ADAMS Accession No. Ml19014A224).

15 Motion by Petitioners Beyond Nuclear, Fasken, the Sierra Club, and Dont Waste Michigan, et al. 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).

16 Sierra Clubs Motion to File a New Late-Filed Contention (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A340) (Sierra Clubs New Late-Filed Contention 26); Holtec Opposition to Late-Filed Sierra Club Contention 26 and Dont Waste Michigan Contention 14 (Feb. 19, 2019) (NRC ADAMS Accession No. ML19050A454) (Holtec Opposition to Late-Filed Sierra Club Contention 26 and DWM Contention 14); NRC Staffs Consolidated Response to Dont Waste Michigan, et al., and the Sierra Clubs Motion to File New Contentions (Feb. 19, 2019) (NRC ADAMS Accession No. ML19051A017). On February 25, 2019, Sierra Club filed the Sierra Clubs Reply to Holtecs Opposition to Sierra Club Contention 26. Sierra Clubs Reply to Holtecs Opposition to Sierra Club Contention 26 (Feb. 25, 2019) (NRC ADAMS Accession No. ML19057A257).

17 Order (Granting Request to Modify Schedule for Responses to Amended and New Contentions) (Jan. 31, 2019)

(NRC ADAMS Accession No. ML19031B871).

18 Sierra Clubs Motion to Amend Contention 1 (Feb. 6, 2019) (NRC ADAMS Accession No. ML19037A178)

(Sierra Clubs Motion to Amend Contention 1); Holtec Opposition to Sierra Club Motion to Amend Contention 1 (Feb. 19, 2019) (NRC ADAMS Accession No. ML19052A360). The NRC Staff did not oppose the amended contentions. NRC Staff Answer to Motions to Amend Contentions Regarding Federal Ownership of Spent Fuel (Feb. 19, 2019) (NRC ADAMS Accession No. ML19050A376).

19 Sierra Clubs Motion to Amend Contention 16 (Feb. 18, 2019) (NRC ADAMS Accession No. ML19049A019);

Holtec Internationals Opposition to Motion by Sierra Club to Amend Contention 16 (Mar. 11, 2019) (NRC ADAMS Accession No. ML19070A358); NRC Staff Response to Sierra Club Motion to Amend Contention 16

4 February 25, 2019, Sierra Club moved to file late-filed Contentions 27, 28, and 29, which Holtec and NRC Staff opposed.20 On May 7, 2019, the Board issued LBP-19-4. Although the Board found that Sierra Club had demonstrated standing, it also found that Sierra Club had failed to proffer any contention meeting the admissibility requirements of 10 C.F.R. § 2.309(f)(1).21 Therefore, in accordance with 10 C.F.R.

§ 2.309(a), the Board denied the Petition to Intervene; because LBP-19-4 also denied the other petitioners requests for hearing and petitions for leave to intervene, the Board terminated the proceeding.22 On June 3, 2019, Sierra Club filed its Appeal, in which it challenges the Boards rulings denying the admissibility of eleven of its Contentions: 1, 4, 8, 9, 11, 15, 16, 17, 18, 19, and 26.

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 by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.23 The Commission regularly affirm[s] Board decisions on the admissibility of contentions where the appellant points (Mar. 15, 2019) (NRC ADAMS Accession No. ML19074A152). Sierra Club filed its Reply to Holtecs Opposition to Sierra Clubs Motion to Amend Contention 16 on March 18, 2019 and its Reply to NRC Staffs Response to Sierra Clubs Motion to Amend Contention 16 on March 21, 2019. Sierra Clubs Reply to Holtecs Opposition to Sierra Clubs Motion to Amend Contention 16 (Mar. 18, 2019) (NRC ADAMS Accession No. ML19077A022); Sierra Clubs Reply to NRC Staffs Response to Sierra Clubs Motion to Amend Contention 6 (Mar. 21, 2019) (NRC ADAMS Accession No. ML19080A039).

20 Sierra Clubs Motion to File New Late-Filed Contentions 27, 28, and 29 (Feb. 25, 2019) (NRC ADAMS Accession No. ML19056A051); Holtec Opposition to Late-Filed Sierra Club Contentions 27, 28, and 29 (Mar.

21, 2019) (NRC ADAMS Accession No. ML19080A200); NRC Staff Responses to Sierra Clubs Motion to Admit Contentions 27, 28, and 29 (Mar. 22, 2015) (NRC ADAMS Accession No. ML19081A154). On March 26, 2019, Sierra Club filed its Reply to Opposition and Response of Holtec and NRC Staff to Sierra Club Contentions 27, 28, and 29. Sierra Clubs Reply to Opposition and Response of Holtec and NRC Staff to Sierra Club Contentions 27, 28 and 29 (Mar. 26, 2019) (NRC ADAMS Accession No. ML19085A152).

21 LBP-19-4 at 2.

22 Id.

23 10 C.F.R. § 2.311(c).

5 to no error of law or abuse of discretion.24 As such, [p]ointing out the errors in the Boards decision is a basic requirement for an appeal,25 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.26 A petitioner is limited to the contentions as initially filed and may not rectify their deficiencies through an appeal.27 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.28 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.29 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.30 24 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)).

25 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).

26 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)).

27 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.).

28 Id. at 458.

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

30 Id. at 458 (footnote omitted).

6 IV.

Argument The Board correctly declined to admit Sierra Club as an intervenor in this proceeding because none of Sierra Clubs proffered contentions is admissible under the standards set forth in 10 C.F.R.

§ 2.309(f)(1).31 The Commission should uphold the Boards ruling here. In addition, the Commission should uphold the Boards ruling rejecting the Sierra Club Petition to Intervene on the independent ground that Sierra Club has failed to demonstrate standing.

A.

The Board Correctly Rejected Sierra Clubs Contentions Sierra Club appeals several of the Boards contention admissibility determinations, but fails to identify any error of law or abuse of discretion by the Board. The Commission should affirm all of the Boards admissibility rulings and find that none of Sierra Clubs contentions is admissible.

1.

Contention 1 (NRC Authority to License HI-STORE CISF)

The Board correctly ruled that Sierra Club Contention 1 is inadmissible, and the Commission should uphold that ruling. Sierra Club Contention 1 initially alleged that the NRC has no authority to license the Holtec CIS facility under the [Nuclear Waste Policy Act (NWPA)] nor the [Atomic Energy Act (AEA)]. Holtec has said that DOE must take title to the waste, but the NWPA does not authorize DOE to take title to spent fuel in an interim storage facility. The AEA has no provision for licensing a CISF.32 Sierra Club subsequently moved to amend Contention 1 in the same fashion as another petitioner, Beyond Nuclear, so that amended Sierra Club Contention 1 alleged that Language in Rev. 3 of Holtecs Environmental Report, which presents federal ownership as a possible alternative to private ownership of spent fuel, does not render the application lawful. As long as the federal government is listed as a potential owner of the spent fuel, the application violates the NWPA.33 31 LBP-19-4 at 2.

32 Petition to Intervene at 10-11.

33 Sierra Clubs Motion to Amend Contention 1 at 11.

7 The Board rejected the amended version of Sierra Club Contention 1 on the same grounds at it rejected Beyond Nuclears similarly amended contention.34 In ruling Beyond Nuclears amended contention inadmissible, the Board explained that Holtecs Application (including the revised Environmental Report (ER) and Safety Analysis Report (SAR)) (1) consistently says that its customers will be either DOE or the nuclear power plant owners, and (2) construction of the CISF would not commence until Holtec has entered into contracts with the prospective user/payer for storing the spent nuclear fuel (either the DOE or nuclear power plant owners).35 In addition, the Board noted that all participants were in agreement that, with limited exceptions, DOE currently may not lawfully take title to spent nuclear fuel under the NWPA.36 Contrary to Sierra Clubs theory, the Board ruled that the mere mention in the Application of DOE as a potential customer for the CISF does not render the Application unlawful. One reason is because DOE presently does hold title to spent nuclear fuel that could lawfully be stored at the CISF without violating the NWPA.37 Further, the Board said it would assume that (1) Holtec would not

[] contract unlawfully with DOE to store any other spent nuclear fuel, and (2) DOE would not be complicit in any such unlawful contracts.38 Furthermore, if Congress did amend the NWPA to permit DOE to take title to additional spent nuclear fuel, the Board noted that the only difference would be that DOE could lawfully contract with Holtec to store the same spent fuel that presently belongs to the nuclear power plant owners.39 Thus, under such circumstances no discernable purpose would be served... by requiring Holtec to file a new or amended license application for its 34 LBP-19-4 at 35-36.

35 Id. at 32.

36 Id.

37 Id.

38 Id. at 32-33.

39 Id. at 34 (emphasis added).

8 storage facility or by the NRC entertaining a fresh opportunity to request a hearing.40 Indeed, under such circumstances, nothing concerning the safety or environmental impacts of the spent fuel storage would change. Only its ownership would.

The Board also ruled inadmissible Sierra Clubs additional claim that an away-from-reactor interim storage facility is unlawful under the AEA or NWPA because (1) the Commissions regulations expressly permit the licensing of such facilities, and any challenge to those regulations is precluded by 10 C.F.R. § 2.335; and (2) controlling precedent from the U.S. Court of Appeals for the D.C. Circuit holds that the NRC has authority under the AEA to license private interim storage facilities, and that the NWPA did not repeal or supersede that authority.41 Sierra Club identifies no error of law or any abuse of discretion in the Boards rulings. First, Sierra Club nowhere disputes the Boards finding that DOE presently possesses title to small quantities of spent nuclear fuel that could lawfully be stored at the CISF. This undisputed fact alone makes it more than appropriate and absolutely legal for the Application to reference DOE as a potential customer. Second, Sierra Clubs Appeal merely repeats its unsupported arguments before the Board that an activity cannot be licensed where one potential aspect of that activity may require further future authorization.42 Sierra Club nowhere addresses, let alone shows error in, the Boards ruling that it may not assume that DOE would be complicit in a violation of the NWPA, relying on the presumption of regularity [that] applies to federal agencies, which should be assumed to act properly in the absence of evidence to the contrary.43 Nor is there any error, because the Boards ruling is consistent with Commission case law that the Commission will not assume that [a federal 40 Id.

41 Id. at 35-36 (citing Bullcreek v. Nuclear Regulatory Commn, 359 F.3d 536, 538, 543 (D.C. Cir. 2004).

42 Appeal at 8-9.

43 LBP-19-4 at 33 n. 168 (citing United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem.

Found, Inc., 272 U.S. 1, 14-15 (1926).

9 agency] will act contrary to applicable law, guidance, or the strictures of its license in the future.44 Finally, Sierra Club nowhere addresses, and therefore waives any challenge to, the Boards ruling that the Commission has authority under the AEA to license private, away from reactor storage facilities under the Commissions regulations and as upheld by the DC Circuit.45 The Commission should reject Sierra Clubs Appeal of the Boards ruling on Contention 1.

2.

Contention 4 (Transportation Environmental Risks)

Sierra Club Contention 4 relies on a declaration from Dr. Marvin Resnikoff (and a report he co-authored) to assert that Holtecs ER underestimates the consequences and likelihood of severe accidents involving rail shipment of spent nuclear fuel to the CISF.46 Contention 4 essentially claims that a 2001 report prepared by Dr. Resnikoff and Matthew Lamb, based on the 2001 Baltimore Tunnel Fire, shows a substantially higher estimate of impacts due to spent nuclear fuel transportation accidents compared to estimates provided in the ER.47 The Board correctly rejected Contention 4 for failing to raise a genuine dispute on a material issue. The Board ruled that Holtecs analysis took into account the Lamb and Resnikoff estimates, which were deemed unrealistic for reasons that Sierra Club does not address or dispute.48 The ERs analysis of transportation accidents relies on and references the DOEs Final Supplemental Environmental Impact Statement for Yucca Mountain (the FSEIS).49 The FSEIS considered the very same accident estimates from Lamb and Resnikoff and concluded that they were unrealistic and 44 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, 186-87 (2010) (citation omitted).

45 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370, 383 (2001)

(On a petition for review, [a petitioner] must adequately call the Commission's attention to claimed errors in the Board's approach.... We deem waived any arguments not raised before the Board or not clearly articulated in the petition for review) (citations omitted).

46 Petition to Intervene at 22-25; LBP-19-4 at 39.

47 Petition to Intervene at 24-25; LBP-19-4 at 39.

48 LBP-19-4 at 40.

49 Holtec Answer to Sierra Club Petition at 28 (citing Environmental Report at 4-34).

10 did not represent the reasonably foreseeable consequences of severe transportation accidents.50 Sierra Club does not address these criticisms of its alleged basis for Contention 4, criticisms that long predated Sierra Clubs petition and were cited in Holtecs opposition to the contention.51 And it is hard to credit Sierra Clubs criticism that the Yucca Mountain FSEIS is not accurate and is out of date, when the Lamb and Resnikoff study relied on by Sierra Club is years older than the FSEIS.52 The Board noted that Dr. Resnikoff is Sierra Clubs expert on Contention 4 and therefore should be familiar with DOEs criticism of his own work.53 Because Sierra Club and Dr. Resnikoff failed to address or dispute the criticisms of the Lamb and Resnikoff study contained in the FSEIS, the Board ruled that Sierra Club failed to raise a genuine dispute on a material issue with the Application, which relied on the FSEIS. The Board also ruled that the Lamb and Resnikoff study represented a worst case analysis of environmental impacts that is not required under the National Environmental Policy Act (NEPA).54 As the Board explained, the Baltimore Tunnel Fire was exacerbated by the flammable contents of the rail cars, circumstances which will not be present for the dedicated spent nuclear fuel shipments to the CISF; and thus the Board ruled that a scenario similar to the 2001 Baltimore Tunnel Fire would be extremely unlikely.55 The Board also appropriately rejected any Sierra Club challenges to Holtecs estimate of the likelihood of a spent nuclear fuel transportation accident. The Board held that Sierra Club provided no facts or expert opinions to support its assertion that Holtec was relying on outdated data on rail fires and expanded traffic of oil tankers.56 50 LBP-19-4 at 40 (citing FSEIS).

51 Holtec Answer to Sierra Club Petition at 28-29.

52 Compare Petition to Intervene at 24 (Lamb and Resnikoff study dated 2001) with Holtec Answer to Sierra Club at 28 (DOE FSEIS dated 2008).

53 LBP-19-4 at 40.

54 Id. at 40-41.

55 Id. at 41.

56 Id. at 41-42 (citing Petition to Intervene at 25-26).

11 On appeal, Sierra Club fails to identify any error of law or abuse of discretion. Sierra Club merely claims that Dr. Resnikoff shows that the [FSEIS], which Holtec essentially relies on, is not accurate and is out of date. This is not true. The Commission will search the Sierra Club Petition to Intervene and its accompanying Resnikoff Declaration in vain for any explanation of how the FSEIS is out of date or inaccurate. The Petition to Intervene asserts that, according to Dr. Resnikoff, DOEs 2008 risk estimate does not incorporate recent information about rail fires and expanded traffic of oil tanker cars. This increased traffic of crude oil on rails has resulted in numerous derailments and fires. DOE and Holtec risk estimates need to take into account this new reality.57 But Sierra Club provided no information on increased rail traffic or derailments or fires. Nor did Dr.

Resnikoff provide any such information in his declaration, which merely states that he has reviewed Sierra Club Contentions 4, 14, 20, 21, 22, 23, and 24. All of those contentions are based on opinions that I provided to Sierra Club based on my research and analysis and on my training and experience, and I support all of those contentions.58 Other than bald assertions, neither Sierra Club nor Dr. Resnikoff provide any information supporting the allegations in Contention 4. The Boards ruling was clearly correct, well within its discretion, and completely aligned with Commission case law holding that neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention,59 and [u]nsupported claims of insufficient information do not establish a genuine, material dispute with the application.60 57 Petition to Intervene at 25-26.

58 See Sierra Club Standing Declarations and Expert Declarations in Support of Petition to Intervene, Declaration of Marvin Resnikoff at 33, ¶3 (Sept. 13, 2018) (NRC ADAMS Accession No. ML18257A229).

59 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 N.R.C. 237, 253 (2007)

(citing Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 N.R.C. 195, 203 (2003)).

60 Exelon Generation Co. (Oyster Creek Nuclear Generating Station), CLI-19-06, ___ N.R.C. ____, slip op. at 11 (June 18, 2019) (NRC ADAMS Accession No. ML19169A106) (footnote omitted).

12 Sierra Club also claims that it raised a genuine dispute on a material issue because it identifie[d] the section of the ER which it disputes and states the reasons for that disagreement and that [a]ll that is required for [contention] admissibility is that intervenor state the reasons for its concerns.61 This claim shows no error in the Boards ruling. The 1982 Seabrook decision on which Sierra Club relies addressed obsolete contention admissibility standards. The Commissions current admissibility standards require a petitioner to [p]rovide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue.62 Under these standards, Sierra Club was obligated to provide the [technical] analyses and expert opinion showing why its bases support its contention,63 but failed to do so.

Sierra Club also claims that Dr. Resnikoff did not need to respond to any criticism of his analysis in the FSEIS because he can be cross-examined at a hearing.64 Sierra Club cites no support for the proposition that it can defer satisfying its affirmative obligation to meet the admissibility requirements until its witness is cross-examined at hearing.65 Finally, Sierra Club does not appeal, and therefore waives any challenge to,66 the Boards rulings that Sierra Club (1) sought to raise worst-case scenario not required by NEPA, or (2) failed 61 Appeal at 10-11 (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1654 (1982).

62 10 C.F.R. § 2.309(f)(1)(v) (emphasis added).

63 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 N.R.C. 281, 305 (1995), vacated in part and remanded on other grounds, CLI-95-10, 42 N.R.C. 1, affd in part, CLI-95-12, 42 N.R.C. 111 (1995).

64 Appeal at 11.

65 Compare Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989) (a contention is not to be admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts.).

66 Carolina Power & Light Co., CLI-01-11, 53 N.R.C. at 383.

13 to adequately support its claims regarding the likelihood of a spent nuclear fuel transportation accident. In sum, Sierra Club has shown no reversible error or abuse of discretion by the Board.

3.

Contention 8 (Decommissioning Funding)

The Board appropriately ruled Sierra Club Contention 8 inadmissible,67 and the Commission should uphold that ruling. Contention 8 purported to challenge Holtecs decommissioning funding plan for the proposed CISF, alleging that the amount of funds Holtec says it will collect over the anticipated life of the project fall way short of what Holtec says are necessary for decommissioning.68 Sierra Club asserted that the $840 Holtec intended to set aside for each of the 5,000 Metric Tons of Uranium (MTU) to be stored at the facility (according to Section 1.3 of the Holtec Environmental Report) in the first year of operation was insufficient.69 In its Answer, Holtec explained that 8,680 MTU was the correct amount to be stored and corrected the Environmental Report to conform to the 8,680 MTU used elsewhere in the Application.70 The Board ruled Contention 8 inadmissible for failing to raise a genuine dispute on a material issue in light of Holtecs revision to its ER because the decommissioning funding calculation is [now]... based on the limits of licensed material that will be permitted under the initial license.71 The Board also rejected other arguments raised by Sierra Club. The Board ruled that Sierra Clubs claim that the decommissioning fund would be completely inadequate had simply overlook[ed] Holtecs assumption that its annual payments would earn a reasonable rate of return of not greater than a 3 percent real rate of return over the 40-year license life of the facility.72 The 67 LBP-19-4 at 47-48.

68 Petition to Intervene at 35.

69 Id. at 36.

70 HI-STORE CIS Facility Environmental Report, Rev. 3 at 20 (Nov. 2018) (NRC ADAMS Accession No. ML19016A493).

71 LBP-19-4 at 47.

72 Id. at 48.

14 Board also rejected Sierra Clubs argument that the decommissioning costs are calculated for only the first phase of the project. Citing the Commissions decommissioning funding regulation in 10 C.F.R. § 72.30(c)(3), the Board found that Sierra Club once again had overlook[ed] the fact that the pending application only covers the first phase of the project. Holtec will be required to update its decommissioning plan in response to any changes in the authorized possession limits.73 The Board also found unpersuasive two arguments that Sierra Club advances belatedly in its reply and thus ruled them inadmissible as well as impermissibly late.74 Sierra Club belatedly asserted that there is no assurance that the decommissioning fund would earn a 3 percent rate of return, which assertion the Board rejected as baseless speculation and without evidence. Sierra Club also belatedly challenged Holtecs alleged failure to provide specificity for its surety method for providing additional decommissioning funding assurance. The Board found that Sierra Club had overlooked the reference to a surety method in Holtecs application and now merely speculates as to the suretys feasibility, providing no facts or expert opinion to support its position.75 In its Appeal, Sierra Club merely repeats arguments rejected by the Board and identifies no error or abuse of discretion. Sierra Club claims that Holtec was required to provide decommissioning funding assurance for all 20 phases of the project because 10 C.F.R. § 72.30(a) requires such assurance for the useful life of the project, and [a]t the end of its useful life, the Holtec project will have all 20 phases of waste....76 This claim shows no error by the Board. First, Sierra Club never argued before the Board that the useful life language in Section 72.30(a) means all potential phases must be addressed, whether or not Holtec has applied for them.77 This argument is therefore 73 Id. (quoting 10 C.F.R. § 72.30(c)(3)).

74 Id. at 48.

75 Id. at 48-49.

76 Appeal at 13.

77 See Petition to Intervene at 35-37; Sierra Club Reply at 27-30; Transcript of Oral Argument at 50-51, 73-75, 258-64, 268-69 (discussing Contention 8), Docket No. 72-1051-ISFSI (Jan. 23 & 24, 2019) (Transcript).

15 impermissibly tardy on appeal.78 Even if Sierra Club had timely raised this argument, Sierra Club does not explain why the Board was incorrect to rely on Section 72.30(c), which requires an updated decommissioning plan to address changes in the authorized possession limits that would occur when Holtec applies for new phases. This makes sense, because Holtec has yet to decide if it will apply for a license amendment to expand the facility, or if any such future amendment(s) will include all 20 phases.79 In addition, the Boards ruling is consistent with the recent Commission decision in the Oyster Creek license transfer proceeding, which states, [t]he NRCs review of the adequacy of decommissioning and spent fuel management funding is not a one-time look but instead part of a continuous, long-term process and the NRCs oversight of a licensees decommissioning funding is an ongoing process that begins with licensing and continues through license termination.80 Sierra Club also appeals the Boards ruling on Holtecs use of a 3 percent rate of return, but merely repeats its unsupported arguments that the Board rejected.81 The Board ruled that Sierra Cub provided its own speculation and offer[ed] no evidence that a 3 percent annual rate of return over 40 years is unrealistic.82 Sierra Club presents nothing beyond what it alleged before the Board and nowhere disputes that it failed to present any information that 3 percent is unrealistic. The Commission should affirm the Boards ruling that Contention 8 is inadmissible.

4.

Contention 9 (Canister Life)

The Board correctly ruled Contention 9 inadmissible.83 On appeal, Sierra Club merely repeats arguments rejected by the Board, and shows no error or abuse of discretion by the Board.

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

79 As Sierra Club acknowledges in its Reply, there is no assurance that the Holtec facility will actually receive even 5,000 MTU in the first or any subsequent phase. Sierra Club Reply at 28.

80 Oyster Creek, CLI-19-06, ___ N.R.C. ____, slip op. at 11, 13.

81 Appeal at 12-13.

82 LBP-19-4 at 48.

83 Id. at 51.

16 The bulk of Sierra Club Contention 9 asserted that the ER must examine the environmental impact of the [spent nuclear fuel storage] containers being used beyond their approved service life,84 which the Board correctly rejected as an impermissible challenge to the Commissions Continued Storage Rule in 10 C.F.R. § 51.23.85 The Continued Storage Rule provides that an ISFSI applicants environmental report is not required to discuss environmental impacts following the proposed license term, and incorporates the environmental impact determinations from the Generic Environmental Impact Statement (GEIS) into the environmental impact statement that will be prepared by the NRC Staff.86 10 C.F.R. § 2.335 bars any challenge to the NRC rules in NRC proceedings, unless a participant submits a petition for waiver supported by affidavit making a prima-facie showing that special circumstances with respect to the subject matter of the proceeding are such that applying the rule would not serve the purposes for which the rule was adopted, and the Commission grants the waiver.87 The Board correctly found that Contention 9 impermissibly challenged the Continued Storage Rule, and Sierra Club submitted no such waiver petition.88 Sierra Clubs Appeal merely repeats arguments that were considered and rejected by the Board with no explanation of how the Board erred or abused its discretion. Sierra Club asserts that the Continued Storage Rule does not apply because the GEIS assumes an ISFSI will employ a dry transfer system to repackage waste that needs repackaging, but the CISF will not have one.89 The Board considered this claim, and ruled it outside the scope of this proceeding absent a waiver of the 84 Petition to Intervene at 38.

85 LBP-19-4 at 50-51.

86 10 C.F.R. § 51.23(b).

87 10 C.F.R. § 2.335(a)-(b).

88 LBP-19-4 at 50-51.

89 Petition to Intervene at 40-41; Appeal at 14.

17 rule, for which Sierra Club failed to petition.90 Sierra Club nowhere addresses its failure to petition for waiver of the rule, and for that reason alone the Boards ruling must be affirmed.

With respect to the safety aspects of Contention 9, Sierra Clubs Appeal merely repeats its concerns regarding statements made (1) by Holtecs Chief Executive on the practicability of repairing a damaged canister, and (2) by the NRC Staff on cracks forming in a canister and causing a leak within 16 years.91 The Board had considered these same claims below and correctly ruled that Sierra Club (1) ha[d] not pointed to deficient parts of the SAR and thus has not demonstrated a genuine dispute with Holtecs application, and (2) had ignore[d] the SARs discussion of retrievability, inspection, and maintenance activities, and instead challenge[d] statements made by other sources outside of the application, including statements made years before the Application was filed.92 On appeal, Sierra Club merely states that the Board was wrong to dismiss its claims.93 It nowhere disputes or shows error in the Boards rulings that Sierra Club ignored information in the Application concerning retrievability, inspection, and maintenance activities, or that it inappropriately relied on statements made outside the Application.

Sierra Club also asserts that the SAR is not subject to the Continued Storage Rule, so it can properly address impacts beyond the license term.94 Sierra Club never made this argument before the Board,95 and therefore it is impermissible on appeal.96 Furthermore, Sierra Club provides no support for this assertion, or otherwise explains why the Continued Storage Rule (which concerns environmental impacts) would apply to the SAR (which concerns safety analysis), or specifies what 90 LBP-19-4 at 50-51.

91 Id. at 50; Appeal at 14.

92 LBP-19-4 at 51 (citing SAR at 1-39, 10-18 to -19, 15-3, 18-29 to 30).

93 Appeal at 14.

94 Id.

95 Petition to Intervene at 38-42; Sierra Club Reply at 30; Transcript at 75-77 (discussing Contention 9).

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

18 impacts are to be addressed in the SAR. Because Sierra Club shows no Board error or abuse of discretion, the Commission must reject Sierra Clubs Appeal.

5.

Contention 11 (Earthquake Potential)

Sierra Club Contention 11 purports to challenge information in the ER and SAR concerning earthquakes. The gravamens of Contention 11 are two-fold: (1) the earthquake information presented in the ER and the SAR is historical data that does not take into account the recent increase in drilling for oil and natural gas in the area that creates induced earthquakes, and (2) a recent article by Stanford University researchers documenting the existence of prior earthquakes in southeast New Mexico, and more importantly, the existence of numerous faults in the area in and around the proposed Holtec site.97 The Board correctly rejected these arguments for failing to show a genuine dispute on a material issue.98 With respect to Sierra Clubs first issue, the Board ruled that Sierra Club had fail[ed] to explain how or where the use of the 2016 United States Geologic Survey (USGS) data in the Environmental Report section 3.3.2.1 and figure 3.3.4 does not account for recent fracking activity around the proposed storage facility.99 The Board noted that Section 3.3.2.1 specifically discusses the seismic events southeast of the site in West Texas that may be due to fluid pressure build-up from fluid injection (i.e., fracking) as well as recent seismic activity from the late 1990s to the mid-2000s fifty miles west of the site from DOEs Waste Isolation Pilot Plant due to injection of waste water from natural gas production (i.e., fracking).100 The Board explained, Holtec used the most current information available when it filed its application in 2017, and its analysis did evaluate seismic events related to fracking. Sierra Club has not put forth any information that fracking has caused significant seismic events around the proposed project site in the years since the 2016 USGS report. Therefore, 97 Petition to Intervene at 44-46.

98 LBP-19-4 at 54.

99 Id.

100 Id.

19 Sierra Clubs claim challenging the Environmental Report fails. And Sierra Clubs challenge to SAR Section 2.6.2s use of USGS 2016 historical data and its claims of noncompliance with 10 C.F.R. § 72.103(f)(1) fails for the same reason.101 Sierra Clubs Appeal merely asserts that the information it provided show[s] an increase in fracking activity in the area of the Holtec facility and details the impact of fracking, especially in the last few years, and that recent revisions to the ER did not include the more current information.102 Absent from Sierra Clubs Appeal is any summary, discussion, or reference to the more current information purportedly put forward by Sierra Club that would call into question the Boards ruling. Having failed to specifically identify information allegedly overlooked by the Board, Sierra Club fails to demonstrate how the Board any erred or abused its discretion.

With respect to Sierra Clubs second issue that the Stanford Report contradicts the SARs assertion that there are no surface faults at the Holtec site, the Board ruled that claim to be without merit and agreed with Holtec that there is no dispute between the Stanford Report and the SARs seismic analyses.103 The Board explained that, When identifying the proposed storage facilitys location on Figure 1 of the Stanford Report, it shows that the nearest Quaternary fault is approximately 75 miles from the project site. Moreover, Figure 3 of the Stanford Report shows that the nearest fault of any kind is approximately 40 miles from the site.104 Therefore, Sierra Club had failed to raise a genuine dispute with the Application on a material fact.

On appeal, Sierra Club provides no information calling into question the Boards ruling.

Sierra Club merely asserts that the faults are becoming more numerous and approaching the Holtec site, which information [] should have been in the ER, at least in the revised version of the ER.105 But this information was considered by the Board. And as to Sierra Clubs repetition of its Stanford 101 Id. at 54-55.

102 Appeal at 15-16.

103 LBP-19-4 at 55.

104 Id.

105 Appeal at 16.

20 Report claims, the Board agreed with Holtecs explanation of why there is no dispute between Holtecs data and the Stanford Report.106 Sierra Club nowhere identifies any error in this ruling, or otherwise explains what specific information was overlooked by the Board allegedly showing that more numerous faults are occurring and are approaching the Holtec site. Nor does Sierra Club show how this information would result in any different environmental impact conclusions in the ER.

For the foregoing reasons, the Commission should reject Sierra Clubs Appeal of the Boards ruling that Contention 11 is inadmissible.

6.

Contentions 15-19 (Groundwater Impacts)

The Board correctly ruled inadmissible Sierra Club Contentions 15, 16, 17, 18, and 19 concerning groundwater impacts for failing to raise a genuine dispute on a material issue and for lack of adequate support.107 Sierra Club consolidates its appeal of the five contentions into a single discussion.108 None of Sierra Clubs arguments on appeal shows any error or abuse of discretion in the Boards rulings.

Contention 15 alleged that the ER did not adequately determine whether shallow groundwater exists at the site, which determination Sierra Club claimed was important to make... in order to assess the impact of a radioactive leak from the facility on groundwater.109 In its reply to the answers opposing admission of Contention 15, Sierra Club pointed to Contentions 9, 14, 20, and 23 as examples of issues that create a risk of leaks during storage.110 The Board ruled Contention 15 inadmissible, explaining that it did not admit Contentions 9, 14, 20, and 23, and did not find them to be adequate support for Sierra Club Contention 15. The 106 LBP-19-4 at 55 and Holtec Answer to Sierra Club Petition at 63.

107 LBP-19-4 at 61-71.

108 Appeal at 16-18.

109 Petition to Intervene at 60.

110 Sierra Club Reply at 37-38.

21 Board ruled that Sierra Club fail[ed] to explain why the [ER] is wrong to conclude that [t]here is no potential for a liquid pathway because the [spent nuclear fuel] contains no liquid component and the casks are sealed to prevent any liquids from contacting the [spent nuclear fuel] assemblies and the interim storage facilitys HI-STORM UMAX system would not release any radioactive material even when subjected to the effects of all credible and hypothetical accident conditions and natural phenomena.111 In so ruling, the Board relied on controlling Commission precedent from the Private Fuel Storage proceeding that [t]o show a genuine material dispute, [a petitioners]

contention would have to give the Board reason to believe that contamination from a defective canister could find its way outside of the cask, which Sierra Club did not do.112 Contention 16 alleged that the ER does not contain any information as to whether brine continues to flow in the subsurface under the Holtec site.113 The Board ruled Contention 16 inadmissible for lack of an adequate basis because (1) information provided by Sierra Clubs own expert George Rice showed that the proposed facility would be located above the interface between the alluvium/Dockum, where Mr. Rice suggests that shallow groundwater may exist, and (2) the SAR describes how the spent nuclear fuel will be contained in a steel canister with a steel [cavity enclosure containers (CEC)] that is a closed bottom, open top, thick walled cylindrical vessel that has no penetrations or openings. Thus, groundwater has no path for intrusion into the interior space of the CEC.114 The Board found that Sierra Club does not dispute these conclusions or provide 111 LBP-19-4 at 63.

112 Id. (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-04-22, 60 N.R.C. 125, 138-39 (2004).

113 Petition to Intervene at 62. On February 18, 2019, Sierra Club filed a late amendment to Contention 16 purportedly based on Holtecs answers to NRC Requests for Additional Information. Holtec and the NRC Staff opposed the amendment as impermissibly late. The Board agreed, ruling that Sierra Club had failed to show good cause for its late amendment because it has not shown any materially different or new information in Holtecs RAI responses, and the challenges Sierra Club sought to make in the amended contention could have been made at the outset of this proceeding. LBP-19-4 at 65. On Appeal, Sierra Club does not challenge the Boards rejection of its impermissibly late amendment of Contention 16. See Appeal at 16-18.

114 LBP-19-4 at 66.

22 any other reason for how brine could affect the canisters, and ruled that neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention.115 Contention 17 claimed that the ER and the SAR do not discuss the presence and implications of fractured rock beneath the Holtec site, which allegedly could allow radioactive leaks from the CIS facility to enter groundwater or for the brine described in Contention 16 to corrode the containers contain[ing] the radioactive material.116 The Board ruled Contention 17 inadmissible for lack of adequate support for the same reasons as Contention 16. As summarized by the Board,117 the ER concluded that environmental impacts would not occur to the groundwater because of its depth below the facility and the lack of a credible leak pathway, and the SAR concluded that the spent nuclear fuel will be stored in sealed canisters within a closed CEC. The Board found that Sierra Club does not explain why these conclusions are false or questionable, such that contaminants could be conveyed to underlying groundwater, and ruled that mere speculation to the contrary is insufficient to support an admissible contention.118 Contention 18 alleged that the ER has not adequately determined and discussed the possibility that waste-contaminated groundwater could reach the Santa Rosa Formation, an aquifer near the Holtec site.119 Just as with Contentions 16 and 17, the Board ruled Contention 18 inadmissible because Sierra Club has not demonstrated any support for its claim that waste-contaminated groundwater from the CISF would reach that formation and does not provide any rationale to support its experts conclusory statements or explain why the Environmental Report is 115 Id. (quoting Southern Nuclear Operating Co., LBP-07-3, 65 N.R.C. at 253).

116 Petition to Intervene at 63-64.

117 LBP-19-4 at 67-68.

118 Id. at 68.

119 Petition to Intervene at 65.

23 wrong to conclude that [t]here is no potential for a liquid pathway because the spent fuel contains no liquid component and the casks are sealed to prevent any liquids from contacting the spent fuel assemblies.120 Contention 19 alleged that the ER was inadequate because packer tests conducted in the Santa Rosa formation to estimate hydraulic conductivity were not conducted properly.121 The Board ruled Contention 19 inadmissible for failing to raise a material issue because Sierra Club has failed to show how the results of the packer tests would make a difference in the outcome of the licensing proceeding.122 The Board noted Sierra Clubs experts own admission that, even when packer tests are done properly, the values obtained are only semi-quantitativewithin an order of magnitude of the actual value.123 While Sierra Club alleged that site permeability is an important consideration, it never describe[d] how the permeability is material or how the asserted departures from the U.S. Bureau of Reclamations recommendations would have significance for any analysis or conclusion in the Environmental Report.124 As in Contentions 15-18, the Board ruled that Sierra Club never links its concern about groundwater with an explanation for how groundwater could possibly come into contact with any contaminant from the storage facility, and Sierra Clubs experts speculation was insufficient to support an admissible contention.125 The Boards well-founded rulings should be upheld. On appeal, Sierra Club merely claims that it had adequately raised the issue of the adequacy of the description of the affected environment in the ER, and that the Board incorrectly rejected reliance on Contentions 9, 14, 20, and 23 only because it found those contentions inadmissible, and did not conclusively [find]

120 LBP-19-4 at 69 (citing Environmental Report at 4-13, 4-56, 4-57, and 7-1).

121 Petition to Intervene at 66.

122 LBP-19-4 at 70.

123 Id.

124 Id. at 71.

125 Id.

24 Contentions 9, 14, 20, and 23 to be incorrect.126 These claims merely rehash information considered by the Board and fail to show any error or abuse of discretion. Nowhere does Sierra Club identify any alleged inadequacies in the Application that the Board did not consider. Nor does Sierra Club confront, let alone show error in, the multiple Board rulings that Sierra Club had failed to show how contamination from a defective canister could find its way outside of the cask, as required by the Commissions Private Fuel Storage decision. Nor does Sierra Club identify any information supporting Contentions 15-19 that was overlooked by the Board, or otherwise show how any of its claims would make a material difference in this proceeding. Thus, the Commission should reject Sierra Clubs Appeal and of the Boards rulings that Contentions 15-19 are inadmissible.

7.

Contention 26 (Material False Statements)

The Board correctly ruled that late-filed Sierra Club Contention 26 inadmissible, which should be upheld. Contention 26 alleges that Holtec made a material false statement in its Application, stating that Holtec might rely on nuclear plant owners to retain title to the radioactive waste destined for storage at the CIS facility.127 Sierra Club alleged that the material false statement was revealed by a January 2, 2019 Holtec press release entitled Reprising 2018, which states in relevant part that the deployment of the Holtec CISF in New Mexico will ultimately depend on the DOE and the U.S. Congress.128 Sierra Club claimed that this statement meant that Holtec (contrary to the Application) would rely on DOE to take title to the waste.129 Sierra Club claimed that such a material false statement in the Application was grounds for denying Holtec a license for the CISF under Section 186 of the Atomic Energy Act (AEA).130 126 Appeal at 17-18.

127 Sierra Clubs New Late-Filed Contention 26 at 1.

128 Sierra Club Contention 26 at 1 (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A341).

129 Sierra Clubs New Late-Filed Contention 26 at 2.

130 Sierra Club Contention 26 at 1 (Jan. 17, 2019) (NRC ADAMS Accession No. ML19017A341).

25 Although the Board incorrectly found that Sierra Club had demonstrated good cause for its untimely filing of Contention 26,131 the Board correctly ruled Contention 26 is inadmissible. The Board ruled 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.132 The Board explained that (1) Holtecs revised application unambiguously states that construction will be undertaken only after it has established a definitive agreement with the prospective user/payer for storing the used fuel (USDOE and/or a nuclear power plant owner); (2)

Holtecs application describes two alternative types of customers: DOE and the nuclear plant owners themselves; (3) Holtec readily acknowledges that it hopes Congress will change the law, and allow it in most instances to contract directly with DOE to store spent fuel; and (4) the eventual development of a permanent national nuclear waste repository, as contemplated by the NWPA, might eliminate the need for some or all of the planned stages of Holtecs proposed interim storage facility.133 The Board correctly concluded that, [n]othing in Reprising 2018 is inconsistent with 131 The Board granted Sierra Clubs motion to late-file Contention 26 because it interpret[ed] materially different new information from the standpoint of a reasonable petitioner, and because the statement in Reprising 2018 appears to contradict information in the application. LBP-19-4 at 82. The Commission should reverse the Boards ruling. 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, Sierra Clubs interpretation of the statement in the article is anything but reasonable. Holtec argued that Sierra Club had failed to demonstrate that the information presented in the Reprising 2018 article was previously unavailable or materially different from information previously available. See Holtec Opposition to Late-Filed Sierra Club Contention 26 and DWM Contention 14 at 3. The Reprising 2018 article said nothing about DOE taking title to the spent nuclear fuel, and Sierra Club cannot 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 Sierra Club could claim the existence of new information based only on its wild imagination.

Id. Holtec also noted that that the claims raised in Contention 26 were the same allegations that Sierra Club had been making throughout the proceeding, and therefore were anything but new. Id. at 4-5. Finally, the statement cited by Sierra Club in the Reprising 2018 article was consistent with information present in the 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). Sierra Club could have previously challenged this statement, and provided no good cause for its failure to do so. Id. at 5. Accordingly, the Commission should reject Contention 26 for the independent reason that Sierra Club failed to show good cause for its untimely filing.

132 LBP-19-4 at 83.

133 Id. at 84.

26 this state of affairs.134 The Board further stated that it would not assume that Holtec would try to contract directly with DOE to store spent fuel, if that would be unlawful... under the NWPA as currently in effect, or assume that DOE would be complicit in a violation of the NWPA.135 Sierra Club has not shown how the Board errored or abused its discretion. Sierra Club asserts that the Board misinterpret[ed] Sierra Clubs contention in stating that the Reprising 2018 statement was not a willful misrepresentation because [i]t is not the Reprising 2018 statement that is the materially false statement. It is the claim that Holtec intends for nuclear plant owners to possibly retain title to the waste that is the false statement.136 But LBP-19-4 makes clear that the Board understood that Sierra Club alleged the material false statement was in the Application. The Board stated (1) Contention 26, therefore, claims Holtec made a material false statement in its license application when it said title to the spent fuel stored in the facility would be held either by DOE or by the nuclear plant owners; and (2) Nothing in Reprising 2018 demonstrates a misrepresentation in Holtecs license application, willful or otherwise.137 This basis for Sierra Clubs appeal is simply incorrect.

Sierra Club asserts that the Board misinterpreted Contention 26 because it never accused Holtec of any intent to violate the law.138 Rather, Sierra Club claims that Holtec is attempting to obtain a license on the false premise that nuclear plant owners will retain title to the waste. Then, once Holtec obtains the license, it will use that fact as leverage to persuade Congress to change the law to allow DOE to hold title to the waste.139 Sierra Club nowhere explains how this scenario, even if true, would show any error in the Boards ruling.

134 Id.

135 Id. at 84-85.

136 Appeal at 20.

137 LBP-19-4 at 83 (emphasis added).

138 Appeal at 20.

139 Id. at 20-21.

27 Finally, Sierra Club claims that irrespective of Holtecs intent, a material false statement precludes issuance of a license.140 This appears to challenge the Boards ruling that, assuming arguendo AEA Section 186 applies to the circumstances here,141 a 1987 Commission rulemaking announced that violations of Section 186 would be limited to egregious situations involving willful misrepresentations.142 This rulemaking overruled the standard used in the pre-1987 cases on which Sierra Club relied.143 Sierra Club nowhere asserts (nor can it show) that the Board improperly relied on the explicit policy adopted by the Commission rulemaking and continued to this day.

The Commission should affirm the Boards decision ruling Contention 26 inadmissible.

B.

The Board Incorrectly Found that Sierra Club Has Standing Holtec opposed the admission of Sierra Club as a party to this proceeding based on Sierra Clubs failure to establish that it had the requisite standing to intervene. As Holtec argued, in order to avail itself of standing under the Commissions proximity-plus presumption,144 Sierra Club was required to provide some showing as to how the CISF could potentially harm its members at their particular distance from the CISF.145 Sierra Club failed to present any such explanation, relying instead on conclusory statements of harm, despite Commission precedent establishing that, in a 140 Id. at 21.

141 The Board assumed arguendo that AEA Section 186 applied to license applications, although Holtec argued that Section 186 applies only to existing licenses, whereas AEA Section 182 applied prior to issuance of a license. See Holtec Opposition to Late-Filed Sierra Club Contention 26 and DWM Contention 14 at 12.

142 LBP-19-4 at 84 n. 447 (citing Completeness and Accuracy of Information, 52 Fed. Reg. 49,362, 49,363-65 (Dec. 31, 1987) (amending 10 C.F.R. Part 2 App. C, General Statement of Policy and Procedure for NRC Enforcement Actions). Because App. C was a policy statement and not a regulation, the Commission subsequently removed it from the Code of Federal Regulations. Policy and Procedure for Enforcement Actions; Removal, Policy Statement, 60 Fed. Reg. 34380 (June 30, 1995). The current version of the Policy Statement continues to include the same language that was added in 1987. See, NRC Enforcement Policy (May 28, 2019)

(NRC ADAMS Accession No. ML19123A129).

143 LBP-19-4 at 84 n. 447.

144 The Commissions proximity-plus presumption, is sometimes referred to as a proximity presumption or proximity standing. 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).

145 Holtec Answer to Sierra Club Petition at 14-15.

28 materials licensing case, a petitioner who invokes proximity-plus presumption standing must show how those materials might affect them or their members.146 While the Board correctly rejected intervenor status for Sierra Club based on its failure to submit an admissible contention, the Commission should find that the Board erred in (1) ruling that Sierra Club was not required to articulate any means by which the CISF presented a risk of offsite radiological consequences, and (2) granting Sierra Club standing (as Holtec argued below).147 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.148 Sierra Club asserted standing under the Commissions proximity-plus presumption. Sierra Club noted its members geographic proximity to the site, including one whose declaration stated he lived less than 10 miles from the site,149 and discussed the amount of radioactive material to be stored at the site.150 However, Sierra Clubs pleadings lacked meaningful explanation as to how the activities at the CISF might lead to a release which could affect any of their members.

Under the Commissions proximity-plus presumption, Sierra Club had the burden to demonstrate why it was entitled to proximity standing.151 In a materials licensing case, proximity 146 Id.

147 Id. at 12-17.

148 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.).

149 See Sierra Club Standing Declarations and Expert Declarations in Support of Petition to Intervene, Declaration of Danny Berry at 2 (Sept. 13, 2018) (NRC ADAMS Accession No. ML18257A229).

150 Petition at 5-6.

151 Holtec Answer to Sierra Club Petition at 14. 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

29 standing must be determined on a case-by-case basis... 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.152 Sierra Clubs pleadings below lacked any plausible explanation supporting this case-by-case analysis and did not meaningfully address how the nature of the activity being conducted at the CISF created an obvious potential for consequences to its members.153 Therefore, Holtec argued that the Board should deny Sierra Club standing.

The Board granted standing (essentially for the same reasons it found Beyond Nuclear had standing) because it incorrectly concluded that Sierra Clubs members proximity to the site was in itself enough to grant Sierra Club standing.154 The Board ruled that Sierra Club did not need to provide a plausible explanation for how its members might be affected by the CISF based on the Boards belief that an individual who lives sufficiently close to the CISF did not need to demonstrate with specificity just how radiation might reach them.155 This ruling 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 locatedhe must show a plausible mechanism through which those materials could harm him.156 Accordingly, Sierra Club was obligated to explain how radionuclides or radiation from the CISF might affect its members,157 which it failed to do. The Boards grant of standing should be reversed.

threat of injury is too speculative. Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 N.R.C. 64, 72 (1994).

152 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 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.).

153 Holtec Answer to Sierra Club Petition at 14.

154 LBP-19-4 at 12-13.

155 Id. at 13.

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

157 Holtec Answer to Sierra Club Petition at 14-15.

30 Further, to the extent that the Board granting standing to Sierra Club was based on other aspects of its ruling granting standing to Beyond Nuclear, the Board also erred by contravening the Commissions requirement that it is the petitioners burden to demonstrate standing under the proximity-plus presumption.158 The question before the Board was not whether anyone might have standing,159 but instead whether Sierra Club sufficiently demonstrated that it had standing. As Sierra Club fell short of this standard, the Board clearly erred.

V.

Conclusion For the foregoing reasons, Holtec requests that the Commission deny the Sierra Clubs 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 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 June 28, 2019 Counsel for HOLTEC INTERNATIONAL 158 Commonwealth Edison Co., CLI-00-5, 51 N.R.C. at 98 (The petitioners bear the burden to allege facts sufficient to establish standing).

159 LBP-19-4 at 12 (emphasis added).

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 Sierra Clubs 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