ML19198A218
| ML19198A218 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 07/10/2019 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| Shared Package | |
| ML19198A217 | List: |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, NRC-0430, RAS 55092 | |
| Download: ML19198A218 (208) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Oral Arguments In the Matter of Interim Storage Partners, LLC Docket Number: 72-1050-ISFSI Location: Midland, Texas Date: July 10, 2019 Work Order No.: NRC-0430 Pages 1-207 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 ORAL ARGUMENTS 7 ----------------------x 8 In the Matter of: : Docket No.
9 INTERIM STORAGE : 72-1050-ISFSI 10 PARTNERS LLC : ASLBP No.
11 (WCS Consolidated : 19-959-01-ISFSI-BD01 12 Interim Storage :
13 Facility) :
14 ----------------------x 15 Wednesday, July 10, 2019 16 17 Commissioner's Courtroom 18 Midland County Courthouse 19 500 N. Loraine Street 20 Midland, Texas 21 BEFORE:
22 PAUL S. RYERSON, Chair 23 NICHOLAS G. TRIKOUROS, Administrative Judge 24 DR. GARY S. ARNOLD, Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 3 Counsel for the Applicant 4 Timothy Matthews, Esq.
5 Ryan Lighty, Esq.
6 Paul Bessette, Esq.
7 of: Morgan, Lewis & Bockius, LLC 8 Washington, DC 20004 9 timothy.matthews@morganlewis.com 10 ryan.lighty@morganlewis.com 11 paul.bessette@morganlewis.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of the Nuclear Regulatory Commission 2 Joe Gillespie, Esq.
3 Sara Kirkwood, Esq.
4 Thomas Steinfeldt 5 Alana Wase, Esq.
6 of: U.S. Nuclear Regulatory Commission 7 Office of the General Counsel 8 Mail Stop O-14A44 9 Washington, DC 20555-0001 10 301-287-9111 11 joe.gillespie@nrc.gov 12 sara.kirkwood@nrc.gov 13 thomas.steinfeldt@nrc.gov 14 alana.wase@nrc.gov 15 16 ALSO PRESENT FOR NRC:
17 John-Chau Nguyen 18 James Park 19 John McKirgan 20 Christopher Regan 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 1 On Behalf of Beyond Nuclear 2 Diane Curran, Esq.
3 of: Harmon, Curran, Spielberg and Eisenberg 4 1725 DeSales Street, NW, Suite 500 5 Washington, DC 20036 6 dcurran@harmoncurran.com 7 Mindy Goldstein, Esq.
8 of: Emory University School of Law 9 Turner Environmental Law Clinic 10 1301 Clifton Road 11 Atlanta, Georgia 30322 12 magolds@emory.edu 13 14 15 On Behalf of Fasken Land and Oil and 16 Permian Basin Land and Royalty Owners 17 Robert V. Eye, Esq.
18 Timothy Laughlin 19 of: Robert V. Eye Law Office, LLC 20 4840 Bob Billings Parkway, Suite 1010 21 Lawrence, Kansas 66049 22 bob@kauffmaneye.com 23 tijay1300@gmail.com 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 1 On behalf of Sierra Club 2 Wallace Taylor 3 4403 1st Avenue, SE, Suite 402 4 Cedar Rapids, Iowa 52402 5 wtaylorlaw@aol.com 6
7 On behalf of Joint Petitioners 8 Don't Waste Michigan 9 Citizens Environmental Coalition 10 Citizens for Alternatives to Chemical 11 Contamination 12 Nuclear Energy Information Service 13 Public Citizen, Inc.
14 San Luis Obispo Mothers for Peace 15 Sustainable Energy and Economic 16 Development Coalition 17 Leona Morgan 18 Terry Lodge, Esq.
19 316 N. Michigan Street, Suite 520 20 Toledo, Ohio 43604 21 tjlodge50@yahoo.com 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 P R O C E E D I N G S 2 8:30 a.m.
3 JUDGE RYERSON: Well, again welcome.
4 Welcome again. We're here on the matter of an 5 application by Interim Storage Partners, LLC, which 6 we'll generally call ISP, if that's okay with the 7 Applicant. And ISP's application is for a license 8 from the Nuclear Regulatory Commission to construct 9 and operate an interim storage facility for nuclear 10 waste in Andrews County, Texas.
11 I'm Judge Ryerson. I'm trained as a 12 lawyer. I chair the Atomic Safety and Licensing Board 13 that the NRC has assigned to this particular 14 proceeding.
15 On my right is Judge Arnold. Judge Arnold 16 is a nuclear engineer. Dr. Arnold is a nuclear 17 engineer. And no my left is Judge Trikouros, who's 18 also a nuclear engineer.
19 At the outset, I very much want to thank 20 the county commissioners and particularly Commissioner 21 Prude who extended an offer to us to use this facility 22 today so that we could be much closer than Rockville, 23 Maryland, to the affected population by this 24 application. I want to thank everyone in the 25 courtroom, staff, for assisting us here. We very much NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 appreciate their hospitality.
2 Today's proceeding concerns four requests 3 for an evidentiary hearing on ISP's application that 4 have been filed by a variety of different petitioners, 5 and I think we'll list them by name when we get to the 6 appearances of counsel.
7 But before that, I'd like to summarize how 8 we intend to proceed today. I think most of this was 9 set forth in the order we issued on June 7, but for 10 the benefit of everyone who's here, this is how we're 11 going to move forward.
12 Our purpose is a limited one today. It's 13 not to take appearances from the public and hear from 14 local governments or anything like that today.
15 Today's purpose is to hear arguments from the lawyers 16 who have filed petitions opposing the application and 17 from the lawyers for the Applicant and also lawyers 18 for the NRC staff on the sufficiency, the legal 19 sufficiency, of the petitions that have been filed in 20 opposition to ISP's application.
21 And our purpose is to determine whether 22 they have satisfied the NRC's legal requirements for 23 proceeding to essentially the next phase of an 24 adjudicatory proceeding, which would be in most cases 25 an evidentiary hearing. And if there were such a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 hearing, it would take place at a later time.
2 All members of the Board, I know, have 3 read the petitioners' and all the parties' pleadings 4 which total literally several hundred pages, and as it 5 turns out, the same three judges constituted a board 6 that heard arguments in an arguably similar 7 proceeding, a similar application, in New Mexico, 8 maybe all of 40 miles from here for an interim storage 9 site in the state of New Mexico.
10 But even though the sites are fairly 11 close, they are not the same. The applications are 12 certainly not the same. And so what we'd like to do 13 starting today as the first order of business is to 14 address the participants' views of how these 15 applications differ.
16 And so unlike our usual practice of 17 basically getting to the judges' questions right 18 away -- we may have some questions to interrupt your 19 presentations, but we'd like to start with longer than 20 usual presentations by the participants' counsel, 21 encouraging you to focus on how you -- what you see as 22 the significant differences between the Holtec 23 application in New Mexico and the ISP application here 24 in Texas.
25 After -- we're going to allow up to 45 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 minutes for each participant -- each petitioner to 2 address that issue. And then after we hear from the 3 petitioners, we'll allow an equal time for ISP, and 4 then we will allow some time -- we have been fortunate 5 in the past that the NRC staff is usually quite crisp 6 and responsive in its comments, so we will not put a 7 time limit on them, but I imagine their comments will 8 be considerably less than 45 minutes.
9 Again, we may have some questions during 10 this phase, but this first phase of the proceeding is 11 primarily for the participants to address these issues 12 of how these somewhat similar cases may, in fact, 13 differ.
14 Tomorrow, we will have -- tomorrow or 15 later today, as it turns out, we will have more 16 focused questions from the Board to various 17 participants, and I think we might as well talk then 18 at that time about what the best rules would be to 19 proceed with that phase.
20 Let me talk a little bit before we begin 21 or take appearances about logistical matters. Please 22 silence your cell phones, if anyone has a cell phone 23 on.
24 While we're grateful for the County's 25 hospitality, we have provided water ourselves for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 everyone, so feel free to find a bottle of water --
2 when I say, everyone -- I'm sorry -- I mean the 3 counsel for the participants, not the entire audience, 4 but we have provided, I hope, enough water even to 5 deal with the temperature that we're enjoying here in 6 West Texas in July.
7 We'll take at least one short break in the 8 morning, maybe two and try to do the same in the 9 afternoon. We will probably stop at a convenient 10 opportunity around noon for lunch, and I don't believe 11 there's a cafeteria in this building, so we'll 12 probably allow at least 90 minutes so people can get 13 out and get some lunch if they so choose and also make 14 it back in time through the security here in order to 15 begin an afternoon session.
16 I'd like to finish by five o'clock today.
17 I don't know if we'll have to go to a second day. My 18 guess is that we will, but if we could finish today, 19 we will certainly do that. But my guess is that we 20 will need at least part of the day tomorrow.
21 So before we take appearances, any 22 other -- my other judges, members of the Board, have 23 any comments? Judge Trikouros?
24 JUDGE TRIKOUROS: No.
25 JUDGE RYERSON: Judge Arnold? Okay.
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11 1 Well, let's go through the four petitioners first, and 2 ask you to introduce yourselves. Also if you have any 3 questions about how we're proceeding today, this would 4 be a good time to ask those. So starting with Beyond 5 Nuclear --
6 MS. CURRAN: Good morning. My name is 7 Diane Curran. I am appearing on behalf of Beyond 8 Nuclear, and with me this morning is Mindy Goldstein, 9 my co-counsel of the Turner Environmental Law Clinic.
10 And we're the only petitioners' counsel sitting by a 11 mike, so maybe I'll stand up -- or maybe they can go 12 to --
13 JUDGE RYERSON: Oh, do we have a small 14 mike? I'm not sure that will work for the reporter.
15 The reporter needs to be able to record everything as 16 well, so let's see how that works.
17 So next we would go to the Sierra Club.
18 And welcome to you, Ms. Curran.
19 MS. CURRAN: Thank you.
20 JUDGE RYERSON: And Ms. Goldstein.
21 MR. TAYLOR: Wallace Taylor for the Sierra 22 Club. I do have a procedural question.
23 JUDGE RYERSON: Yes, sir.
24 MR. TAYLOR: You said 45 minutes for the 25 Applicants. Is that their total, or 45 minutes for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 each of the --
2 JUDGE RYERSON: No. What I said was 45 3 minutes for each petitioner.
4 MR. TAYLOR: Right.
5 JUDGE RYERSON: And then the Applicant 6 will have an equal time. If, for example, Ms.
7 Curran -- and she doesn't have to take less than 45 8 minutes, but she has one contention, and one might 9 even say it's more of a generic issue than a site-10 specific issue. I don't know. She'll tell us that.
11 She takes ten minutes. I don't think ISP will want 45 12 minutes, but they're certainly not going to get 45 13 minutes. But then it will be each time. Yes. They 14 get to respond to each petitioner. Each time after 15 ISP responds, then the NRC staff, if it wishes may 16 make a comment or two as well.
17 MR. TAYLOR: Thank you.
18 JUDGE RYERSON: Thank you. And welcome to 19 you, Mr. Taylor.
20 And next we have what we're going to call 21 Joint Petitioners. There are seven or eight of them, 22 I think, and let me list them first and see if I get 23 them correct before you introduce yourself, Mr. Lodge.
24 We have Don't Waste Michigan, Citizens 25 Environmental Coalition, Citizens for Alternatives to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 Chemical Contamination, Nuclear Energy Information 2 Service, Public Citizen, Inc.; San Luis Obispo Mothers 3 for Peace; Sustainable Energy and Economic Development 4 Coalition, which we might abbreviate as SEED, I think, 5 if we talk about them individually; and then one 6 individual, Leona Morgan. Do I have it correct, sir?
7 MR. LODGE: You have it correct, sir.
8 JUDGE RYERSON: Thank you.
9 MR. LODGE: I'm Terry Lodge, and I 10 represent all of those organizations and people.
11 JUDGE RYERSON: Okay.
12 MR. LODGE: Thank you.
13 JUDGE RYERSON: Thank you, Mr. Taylor.
14 Welcome to you.
15 And then we have two organizations, Fasken 16 Land and Minerals, and also the Permian Basin Land and 17 Royalty Organization, of which, I believe, Fasken 18 would be a member -- is a member. And who is speaking 19 for Fasken?
20 MR. EYE: Good morning. My name is Robert 21 Eye. I represent Fasken and PBLRO, along with my 22 co-counsel, Timothy Laughlin.
23 JUDGE RYERSON: Thank you. Welcome to 24 you.
25 JUDGE RYERSON: Next to the Applicant, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 Interim Storage Partners, LLC.
2 MR. MATTHEWS: Good morning, members of 3 the Board. My name's Tim Matthews from Morgan, Lewis 4 & Bockius. I appear today on behalf of the Applicant, 5 Interim Storage Partners. With me at counsel table 6 today are my colleagues, Paul Bessette and Ryan 7 Lighty. I also have with us members of the 8 Applicant's staff, the joint venture partners of 9 Interim Storage Partners, Orano and Waste Control 10 Specialists.
11 I have Jeff Isakson, the president and CEO 12 of Interim Storage Partners; Elicia Sanchez, the 13 senior vice president of Waste Control Specialists; 14 Jack Boshoven, the chief engineer and manager of 15 engineering and licensing for the NRC project. I have 16 Jenny Caldwell, Waste Control Specialists geologist; 17 and Ben Mason, WCS's chief engineer, to assist us.
18 JUDGE RYERSON: Okay. Thank you, and 19 welcome to all of you, and -- pardon me.
20 MR. MATTHEWS: I did have one question.
21 JUDGE RYERSON: Yes, sir.
22 MR. MATTHEWS: With respect to the record 23 in the proceeding, the application for 72-1051 is not 24 part of the record in this proceeding. We understood 25 the Board's order, recognizing the similarity and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 contentions between the two proceedings, and the 2 pleadings.
3 Applicant has looked at those and the 4 Board's order in LBP 19-4, and we are prepared to 5 respond to how the contentions as pled are similar or 6 different here, and how they would apply or not apply 7 to the ISP application in docket 72-1050. But we 8 wanted to make sure that we understand correctly that 9 the Board does not intend to incorporate the record 10 from 72-1051 into this proceeding.
11 JUDGE RYERSON: That is correct. That is 12 correct. I mean, the decision in that case is a 13 matter of public record clearly, but we're not 14 incorporating that proceeding into this.
15 NRC staff.
16 MS. KIRKWOOD: Sara Kirkwood for the NRC 17 staff, and I'm accompanied by my co-counsel, Alana 18 Wase, Joe Gillespie, and Thomas Steinfeldt. I also 19 have several members of the NRC staff with me.
20 I have project manager John-Chau Nguyen 21 and safety project manager/environmental project 22 manager Jim Park. I have branch chief John McKirgan 23 and Christopher Regan who's the deputy director for 24 the Division of Spent Fuel Management.
25 JUDGE RYERSON: Thank you, Ms. Kirkwood, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 and welcome to you.
2 MS. KIRKWOOD: My only question is: Would 3 it be possible for that smaller microphone to come at 4 our table? Can you hear this?
5 JUDGE RYERSON: No.
6 JUDGE ARNOLD: That's the microphone for 7 the court reporter.
8 JUDGE RYERSON: Okay. Yes. I -- before 9 we begin with the presentations, I should have 10 mentioned, too. For the benefit of the court 11 reporter, we can hear you very easily, I think, but 12 the court reporter is recording this, and so it is 13 very helpful if you speak fairly close to a 14 microphone.
15 VOICE: The audience cannot hear well, so 16 if everyone could please speak in a microphone, it 17 would be very much appreciated.
18 JUDGE RYERSON: Okay. Thank you for that 19 comment. Yes. All right. We were not aware -- can 20 everyone hear me in a normal voice towards the back?
21 VOICE: It's not bad.
22 JUDGE RYERSON: All right. If anyone 23 can't hear me, raise your hand. Right.
24 (General laughter.)
25 JUDGE RYERSON: All right. We will try to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 be as clear and reasonably loud as possible. And, 2 again, everybody can get as close to the microphone as 3 possible. Does that work better? Sounds to me like 4 it works better.
5 VOICES: Yes.
6 JUDGE RYERSON: Yes. Okay. Great.
7 All right. Any further comments? Judge 8 Arnold? Judge Trikouros?
9 Let's begin with Ms. -- Ms. Curran will be 10 beginning, I assume, for Beyond Nuclear.
11 MS. CURRAN: Good morning again. Thank 12 you very much for the opportunity to address the 13 admissibility of Beyond Nuclear's contention and our 14 standing.
15 Regarding admissibility, there is no 16 significant difference between the violations of the 17 Nuclear Waste Policy Act and Administrative Procedure 18 Act set forth in our contention in the Holtec 19 proceeding and our contention in this proceeding.
20 As we have demonstrated previously, to 21 approve or even consider a license application with 22 knowledge that it contains provisions that would allow 23 illegal conduct under the Nuclear Waste Policy Act 24 violates the APA. We are not going to repeat all the 25 arguments we made about those points before, but there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 is new information that we could have not addressed in 2 t h e H o l t e c p r o c e e d i n g .
3 And the first is, of course, the Holtec decision 4 that was issued by this panel in May.
5 The second is that the fact that the 6 existence of two similar cases raising the same legal 7 issues establishes a pattern, and we want to address 8 the significance of that pattern.
9 So first to LBP 19-04, your decision. In 10 that decision, this Board found that no harm would be 11 caused by considering and potentially approving a 12 license application that contained illegal provisions, 13 because both the Department of Energy and the license 14 applicant, in that case, Holtec, could be trusted to 15 follow the law. They simply would not implement or 16 act upon an illegal license application or license if 17 it was granted.
18 But shouldn't that reasoning apply to NRC 19 in the first instance? Why is there no presumption 20 that the NRC would not entertain or approve a license 21 application that contains illegal provisions? Why 22 doesn't the presumption that an agency will act in 23 accordance with the law apply to the NRC?
24 We'd like to assert here that it does.
25 The NRC cannot avoid its own obligation to act in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 accordance with the law by saying that down the road, 2 whoever is allowed -- whoever is granted the license 3 that would allow, you know -- technically, legally 4 allow that violation won't do it. The buck must stop 5 with the NRC. Indeed, the APA requires it.
6 And in the case of the license applicant, 7 whether Holtec or ISP, why should it be necessary or 8 appropriate to assume that they will not implement an 9 unlawful license provision? We should never have to 10 get to that point.
11 Here we are at the point where the NRC has 12 been asked to say and must say, under the APA, we will 13 not take action that violates the law. The APA simply 14 requires that federal agencies must follow the law.
15 To hold that illegal license provisions 16 are acceptable because a private licensee may be 17 trusted not to implement them is completely 18 inconsistent with the APA, and it affronts the dignity 19 of the APA-based licensing process by turning 20 licensing into a gentlemen's agreement, made with a 21 wink and a nod to the actual law but not conformance.
22 Most seriously, approving illegal 23 provisions on the ground that they may sometime and 24 somehow become legal in the future has two detrimental 25 effects on the integrity of the NRC's licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 process.
2 First, it turns the licensing process into 3 a guessing game. Participants in a hearing process 4 are asked to assume that the law may change in the 5 future, without knowing exactly how that might be. In 6 order to challenge the license application, they must, 7 without knowing what the future holds, challenge with 8 specificity -- that's an NRC requirement. They must 9 challenge with specificity the license application.
10 That puts participants in the position of 11 doing the impossible. A hypothetical cannot be 12 challenged for lack of veracity or reliability or 13 support for the very reason that it's hypothetical.
14 In other words, the Holtec decision puts petitioners 15 like Beyond Nuclear in the impossible position of 16 challenging hypothetical, of meeting -- of having to 17 satisfy NRC procedural requirements, requiring great 18 precision in pleading that address an application that 19 has no such precision. And that really turns the NRC 20 licensing process on its head.
21 The second point I want to make about 22 admissibility relates to the pattern here. The Holtec 23 application wasn't a one-off, and I heard Judge 24 Ryerson say at the very beginning, Again, welcome.
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21 1 just one time that one license applicant has a 2 hypothetical in their application. This is something 3 that now is -- could be said perhaps to be regular.
4 We think it's a Pandora's box that this 5 licensing board has opened. In both of these cases, 6 we now have circumstances requiring local citizens to 7 muster their resources, to challenge an application 8 that is based on future changes to the law that may 9 never happen. Who knows how many more hypotheticals 10 the industry may dream up out of their eagerness to 11 get a business advantage by becoming the first in 12 line, so that their position to have the license in 13 hand after the law -- just in the law should change 14 the way they want it to change?
15 Allowing such hypothetical applications to 16 be considered and approved is an incredible waste of 17 the NRC's and the public's limited resources.
18 JUDGE RYERSON: Ms. Curran, if I can just 19 stop you there for a moment, I think where we may 20 differ is on your statement that this is an 21 application based on changes in the law.
22 MS. CURRAN: Uh-huh.
23 JUDGE RYERSON: I think one can fairly 24 read the Holtec decision as saying -- at least I think 25 this is what we tried to say, is that when you look at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 the record as developed in that adjudicatory 2 proceeding, it is clear that what the NRC is saying is 3 that if a license is granted, it would be a license to 4 engage in lawful sales, and that might change in the 5 future the scope of lawful sales.
6 I suppose a state could have a 21-year-old 7 drinking age and change it to 18. But that doesn't 8 mean normally, I think, that everyone who has a liquor 9 license has to go out and get a new liquor license to 10 sell to people between 18 and 21, that the thrust of 11 the application is to sell to all lawful applicants, 12 of which there are -- customers, rather, of which 13 there are potentially two kinds.
14 There would be utilities themselves or to 15 sell interim storage to DOE, if that were lawful, if 16 that becomes lawful, which, as you know, is a 17 realistic possibility. We're not saying it has to 18 happen, and as far as I can tell, the application does 19 not purport, at least, to be dependent on that. But 20 there's certainly a possibility that DOE -- Congress 21 could make DOE a lawful customer here.
22 So do you have a response to that view?
23 MS. CURRAN: Yes. Well, I can't imagine 24 that in, say, a liquor licensing context, that the --
25 a county government would give a liquor license that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 allows a company to sell to 15-year-olds, and then 2 says, Well, we assume that you would never carry that 3 out unless the law were changed to allow 15-year-olds 4 to buy liquor.
5 Very similar situation. I can't imagine 6 that this agency would issue a license to an applicant 7 or a nuclear power plant to, instead of storing spent 8 fuel on the site, to reprocess spent fuel, just in the 9 event that maybe reprocessing would one day become 10 permitted. It's just -- it's something that's not 11 allowed.
12 It shouldn't be in the license, because it 13 creates -- you know, just imagine yourself in the 14 position of the public, that a license has been issued 15 by a government agency that says, You may do something 16 illegal, that's currently illegal, in the event 17 that -- you know, in the event that it should become 18 legal in the future. We assume that you won't carry 19 it out until it becomes legal in the future.
20 It puts a burden -- it puts a burden of 21 vigilance on the public to be watching to see, will 22 someone try to get away with something because it's in 23 the license. You can do it. And here you say, well, 24 it's the DOE that has to act; it's the applicant that 25 has to act in concert. It's very unlikely that this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 would ever happen.
2 But this is a principle of licensing that 3 just shouldn't be breached. It shouldn't be breached 4 on practical grounds that, oh, well, this is -- how 5 could this ever happen. It should be dealt with when 6 it comes up. Licensing should not be issued for 7 activities that are known to be illegal under 8 currently law. Otherwise, it just turns the process 9 into a free-for-all.
10 Who couldn't now come in with a license 11 application that speculated on some nice things that 12 if they come to pass, I would like to be first in line 13 to take advantage of them. It puts an incredible 14 burden on the public. Look at all the people who are 15 here. We don't know if this is going to come to pass.
16 And certainly the very first application 17 that WCS filed, which was, I think, in 2016 had 18 nothing about private ownership of spent fuel. It was 19 clearly planned that this liability and ownership of 20 the fuel would be turned over to the DOE. And then 21 they changed the application and put this alternative 22 language in.
23 Well, is that just -- to us, it looks like 24 a fig leaf. I mean, we don't -- it's possible, I 25 guess, that ISP will decide that they're going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 contract with individual licensees who are willing or 2 going to be willing to take the liability of 3 transportation and storage for an indefinite period, 4 but it seems pretty unlikely to us.
5 So this just creates -- the Federal 6 Government shouldn't be in the business of propping up 7 a project like this that's based on speculation about 8 the future. We should be dealing with reality, and 9 that is what the intervenor groups get told all the 10 time. Don't speculate about what might happen with 11 this application.
12 How many times have you seen that in an 13 NRC decision, where a petition for a hearing is 14 rejected because it speculated about future events 15 that might or might not occur, and the decision was, 16 this case has to be about the real facts, what's in 17 the application, what is really planned, and we have 18 to, you know, go on good faith that what is planned is 19 actually going to happen.
20 JUDGE RYERSON: There's also a line of 21 cases from the Commission, though, Ms. Curran -- I'm 22 sure you're familiar with them -- that basically says, 23 This is a license in this particular instance to 24 construct and operate. And the NRC's interest in the 25 commercial inviability of the operation is limited or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 nonexistent.
2 The NRC has a huge interest, primary 3 interest, in, is this constructed and operated safely, 4 but whether it is commercially viable, whether there 5 are, in fact, private entities out there that want to 6 contract with this facility, that's not primarily our 7 concern, as long as the NRC is assured that this will 8 be constructed safely, and if operated, operated 9 safely.
10 But does the Agency have to second-guess 11 the commercial liability of the option that's being 12 proposed, which is, at the moment, to deal with 13 private entities?
14 MS. CURRAN: Absolutely not. I agree with 15 you. If this application only consisted of an 16 application to deal with private entities and to 17 contract with them for transportation, storage, 18 financial assurance was demonstrated through private 19 entities, we would say, Fine, that's a commercial 20 business decision of the company; let them get their 21 license, and then they can decide, are they actually 22 going to act on it or not.
23 But that's not what we've got here. What 24 we've got here is, in addition, there's an illegal 25 provision that's included there as an alternative.
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27 1 And we saw arguments where -- I think it may have been 2 in the letter that ISP wrote -- well, there's cases 3 where there's two alternative roads considered. It 4 might have been in a PFS project. Take this road or 5 that road. Well, those are two legal roads.
6 This is -- the alternatives are there's a 7 legal alternative and an illegal alternative. And I 8 don't think that you should be in the business of 9 allowing an unlawful alternative, because it's a 10 possible business -- you know, would be advantageous 11 from a business standpoint. Your obligation is to 12 make sure that you're not dealing with approving 13 illegal provisions.
14 So we believe the appropriate thing to do 15 would be to say, Yes, go ahead with this application, 16 but we're not going to consider the illegal 17 provisions. And if you want to consider federal 18 ownership of spent fuel, if and when the law changes, 19 come back and amend your application, and we'll deal 20 with it then.
21 JUDGE RYERSON: What is ISP simply didn't 22 say who their customers were going to be, they just 23 filed an application and said, We'd like to construct 24 and operate a facility, and they didn't specify who 25 the customers would be?
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28 1 MS. CURRAN: Well, I think what they have 2 to do is they have to show some -- provide some 3 information for financial assurance purposes, and so 4 I'm not sure the degree to which they'd have to do it, 5 but they probably have to show where they're going to 6 get the money to take care of this facility over the 7 licensing proceeding -- the course of that proceeding.
8 So they'd have to say something about having 9 contracts. Okay?
10 JUDGE RYERSON: Yes. But would that 11 necessarily limit them? I mean, could they have 12 crafted this application in a way that would have 13 allowed private contracts or whatever sources they 14 were using for financial assurances, and just didn't 15 address the possibility of Congress creating a new 16 lawful option, which is a realistic possibility.
17 I think we have to recognize that.
18 There's been legislation, I think, every year for the 19 last several years proposing that. It may or may not 20 pass, but it's certainly not an unrealistic 21 possibility. I mean, are we just arguing about the 22 way they drafted their application is, I guess, what 23 I'm a little concerned about?
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29 1 about, We are going to have contracts and -- for 2 instance, I think they say the money is going to be 3 provided through the contract damage lawsuits that the 4 licensee has filed against the DOE for these fees that 5 those --
6 JUDGE RYERSON: But that's money that the 7 private companies, which is the option -- the option 8 you don't challenge --
9 MS. CURRAN: Right.
10 JUDGE RYERSON: -- is the private 11 companies. Those are the ones who are receiving money 12 now from DOE, because DOE did not honor its commitment 13 to start taking the nuclear waste back in 1998. So, 14 I mean, that would be solely on the private side, 15 would it not?
16 MS. CURRAN: Right. And they have -- in 17 order to get a license, I believe, the NRC staff would 18 have to, in a safety evaluation report, look at the 19 question of where are the funds going to come from to 20 maintain this facility over the course of the license 21 term. So they would be looking at who -- what 22 entities are going to contract with this company.
23 And if the DOE were not included as --
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30 1 to say, We plan to contract with X, Y and Z utilities, 2 and that they will provide the -- you know, we will --
3 they will be financing the cost of storing this 4 material.
5 JUDGE RYERSON: Yes. We'll go through --
6 MS. CURRAN: The other thing is, okay, 7 from the public's point of view -- this is a very 8 important part of it. Once something goes into a 9 license, then it precludes the public from challenging 10 anything later.
11 So in other words, if DOE -- later on, 12 legislation passes, and DOE is allowed to take title 13 to the spent fuel, we are very much restricted in what 14 we can say and concerns that we could raise about that 15 enormous change, because you will have already 16 approved DOE as the owner.
17 And so even though it's going to raise a 18 host of issues if that happens, it makes it very 19 difficult for the public to come back in, because you 20 approved a hypothetical based on a guess, and then 21 when the guess happens to come true, it turns out, 22 Well, that was decided ten years ago; where were you, 23 to anybody who wants to come in and say, We're 24 concerned about what this looks like with DOE 25 ownership.
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31 1 It's really not good decision-making.
2 Look at all the people in this room. All these people 3 want to be able to engage in a real proceeding and a 4 real decision-making process. They want to know, 5 who's going to be responsible for this fuel, because 6 this concerns us. So please don't give us a decision 7 that says, That all is going to be decided down the 8 road, and we're not going to let you have anything to 9 say about it because it's a hypothetical. It's 10 really -- it's quite unfair to the public who is 11 affected by this to do this kind of hypothetical 12 decision-making.
13 And then finally, I just -- one more point 14 about this is that there is a serious separation of 15 powers issue here. An executive agency is limited to 16 executing he legislation of Congress. And here 17 Congress has spoken without ambiguity. DOE cannot 18 take title to spent fuel without a permanent 19 repository in operation.
20 A decision by the NRC to act outside the 21 confines of Congress and congressional authorization 22 is arbitrary and capricious, because it exceeds the 23 authority of Congress, a separate branch of the 24 government.
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32 1 a moment, because there is a slight difference with 2 respect to standing, although we would submit that --
3 well, it's different people, a different place, 4 slightly different distances from the reactor or from 5 the proposed storage facility. We have two standing 6 declarants, one who owns property and has business 7 interests within four miles, and one who lives within 8 seven miles of the proposed facility.
9 As this panel recently recognized in the 10 Holtec decision, there is no magic number for when the 11 proximity standing presumption applies. While it is 12 likely less than 50 miles, which is the number for 13 operating reactors, other ASLB panels have found 14 proximity standing for individuals living within 17 15 and ten miles of the storage facilities that -- and 16 facilities that were actually much smaller than this 17 one.
18 And in NEI versus EPA, which is a D.C.
19 Circuit decision reported at 373 F.3d. 1251, from 20 2004, the Court of Appeals found that someone living 21 and working 18 miles from the proposed Yucca Mountain 22 repository had standing. Given that, the Nuclear 23 Waste Policy Act has a preference for repositories 24 over above-ground storage as a safer means of storing 25 or disposing of spent reactor fuel.
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33 1 If you're comparing 18 miles from a 2 proposed repository with four and seven miles from an 3 above-ground storage facility, we are well within the 4 scope that was found to confer standing in the NEI 5 case.
6 And we also have shown traditional 7 standing, which is, I think, something that has been 8 raised, that in the Holtec case, the Applicant is 9 continuing to raise the standing issue in its appeal 10 to the Commissioner, so we just want to emphasize that 11 we think our pleadings show that we have standing 12 under traditional concepts of standing, in other 13 words, injury, causation and redressability.
14 Our people live and travel along 15 transportation routes. There are, you know, just 16 regular emissions along transportation routes. Normal 17 emissions could affect them. And then I just want to 18 point out that in the NEI case, the Court did go 19 through a traditional standing analysis and said that 20 one cannot have 100 percent confidence that the 21 containers and repository will not leak.
22 And they were looking at thousands of 23 years, and they found that the petitioners had 24 standing based on potential for leakage of containers 25 into the environment over thousands of years.
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34 1 Well, we have -- the situation here is no 2 different. There's no guarantee that there will never 3 be leakage or an accident from these containers, and 4 this is a very large quantity of spent fuel. It's 5 40,000 metric tons. That's half the existing 6 inventory of spent fuel in the United States. So 7 if --
8 JUDGE RYERSON: But not for thousands of 9 years. At least, that's what one would hope.
10 MS. CURRAN: That's what one would hope.
11 But one doesn't know, and it's very interesting that 12 when Congress passed the Nuclear Waste Policy Act, one 13 of the rationales for prohibiting the transfer of 14 ownership from private licensees to the Federal 15 Government until a repository was open was to make 16 sure that everybody was together and had a motivation 17 to find a repository.
18 So there's a really good policy-based 19 question of whether, if Congress should say, Okay, 20 we're going to transfer; we're going to let the DOE 21 take ownership of spent fuel during storage, then all 22 the air goes out of that tire of motivating these 23 licensees to find -- to help Congress to get together 24 with state and local governments and agree on X or Y 25 as a good location for a repository.
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35 1 And it's very possible under those 2 circumstances that this site in West Texas could be 3 there for a long, long time if that motivation is 4 lost. So I don't think you can say with certainty 5 that this will never -- this fuel will never be 6 moved -- or will be moved. It's possible that it will 7 not.
8 So in conclusion about standing, while 9 there are a multitude of tests for standing in spent 10 fuel storage cases, they all get to the same point, 11 that you can't say with certainty that containers 12 holding a large quantity of highly radioactive 13 material will never leak or be susceptible to acts of 14 eventual leaks of radioactivity, and therefore, people 15 who live as close as a few miles should have the right 16 to challenge the proposed action of locating this very 17 highly radioactive material in their neighborhood, in 18 their community. And Beyond Nuclear has shown through 19 its members' declarations that we do need that 20 standing.
21 Thank you. I don't have anything more.
22 I'm glad to answer questions later.
23 JUDGE RYERSON: Thank you, Ms. Curran. I 24 have a question that probably will go more to the NRC 25 staff when it's their turn, but I'll let you comment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 if you want to. I'll alert them to it.
2 My understanding would be that the staff, 3 in terms of their concern of financial assurances, is 4 focusing solely on the lawful option, which would be 5 at the moment the only possible option, and that is 6 based on ISP contracting with private utilities.
7 So, I mean, I don't think -- I'm guessing, 8 and they'll tell us later, but I'm guessing they are 9 not relying in any way on the possibility which 10 everybody seems to agree at the moment is unlawful of 11 ISP dealing directly with DOE, and so that's not -- I 12 don't see how it could be part of the financial 13 assurances package.
14 Do you -- I mean, am I wrong about that 15 from your standpoint? We'll hear from them later, 16 but --
17 MS. CURRAN: Well, as a practical matter, 18 Judge Ryerson, if the DOE owns the fuel, then what is 19 the -- I mean, it's the taxpayers paying for it, so 20 what are you going to say about whether there's 21 sufficient funds? Yes. There's infinite amount of 22 money to pay for it if the DOE owns it, so it's not 23 really -- it's a whole different ball game if the DOE 24 actually owns it.
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37 1 they're examining right now, because they're 2 examining, I assume -- they'll tell us. But I assume 3 they're examining the lawful option as a basis for 4 going forward or not going forward.
5 MS. CURRAN: It still doesn't answer the 6 question that -- I hear an implicit question, if we 7 have a lawful alternative in this license, who cares 8 if there's an unlawful one, too, because we'll just 9 focus on the lawful part.
10 But then we just keep raising the same 11 question, as why, why are you allowing, if it's 12 perfectly permissible -- if they have the information 13 they need to issue a license based on lawful 14 provisions, then why, why allow consideration of an 15 application that contains provisions that concededly, 16 as all the applicants -- both Applicants have 17 conceded, they could not be implemented lawfully were 18 they granted.
19 So why should this agency start out by 20 entertaining or proposing to affirm unlawful license 21 provisions? Why not test it out and say, We're not 22 going to consider these; we're going to strike them 23 from the application. And if you want to go forward 24 with your application, then go ahead, but do it in an 25 appropriate and lawful way.
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38 1 JUDGE RYERSON: Thank you, Ms. Curran.
2 JUDGE ARNOLD: Not quite done.
3 JUDGE RYERSON: Not quite done.
4 JUDGE ARNOLD: You're not running this 5 alone.
6 JUDGE RYERSON: That's obviously true.
7 MS. CURRAN: I thought I could escape.
8 JUDGE ARNOLD: It has to do with the 9 standing. And one of your individuals is a D.K. Boyd.
10 MS. CURRAN: Yes.
11 JUDGE ARNOLD: D.K. Boyd also has 12 authorized Fasken to represent his interests. Do you 13 know of anything in the NRC regulations that allows an 14 individual to authorize two different organizations to 15 represent him?
16 MS. CURRAN: Judge Arnold, I am not 100 17 percent sure, but I believe that has been done in the 18 past. I can't see any reason why that person could 19 not be -- I think that Mr. Boyd has business interests 20 that are involved with Fasken and also has personal 21 interests that Beyond Nuclear represents, and I don't 22 see why there would be any reason to preclude him from 23 serving as a standing declarant for both petitioners.
24 But I'm not 100 percent sure if there's a case on 25 that. I don't know.
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39 1 JUDGE RYERSON: Actually the Commission 2 has spoken to that and at the very least discouraged 3 that. I think here we have representatives for groups 4 that if we treat Mr. Boyd for one but not for you, 5 you'd still have someone who lives within six or seven 6 miles.
7 MS. CURRAN: Yes. Mr. Boyd is within four 8 miles --
9 JUDGE RYERSON: It's an interesting issue, 10 and the Commission has spoken to it, but I think in 11 this instance, it's moot. It really would not 12 adversely affect you.
13 MS. CURRAN: Okay. Yes. And, again, as 14 you say, the Commission has discouraged it, but I 15 don't know if they've permitted it. Thank you.
16 JUDGE RYERSON: Judge Trikouros, did you 17 have anything?
18 JUDGE TRIKOUROS: Well, this was going to 19 be discussed more tomorrow, I think. But do you see 20 a distinction between the DOE situation that you've 21 just outlined and the other hypothetical situation 22 which is that some third party will take over to the 23 decommissioning of a plant in the future and become 24 the owner of that spent fuel, but in order to do that, 25 they would have to get approval from the Commission?
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40 1 Do you see a difference between that and 2 the DOE situation in the future? If, in fact, this 3 third party doesn't get the NRC license, then they 4 will not be owners of the fuel. If the DOE -- if the 5 law is not changed by Congress, then DOE will not 6 become owners of the fuel. Both basically 7 hypothetical situations that might occur. I don't --
8 do you see a difference there?
9 MS. CURRAN: The difference here is that 10 DOE is being put into the license now without it being 11 lawful. In your hypothetical, the third party comes 12 in later, wants to become the owner of the facility or 13 the spent fuel, and submits an application for 14 transfer of the license.
15 That's the way it should be done, is that 16 if there's going to be something that happens in the 17 future, then it's dealt with at that point. It would 18 not be appropriate, for instance, in the initial 19 license to say, The owner of the nuclear plant is 20 going to be A, B or C, and we don't know if it's going 21 to be -- it wouldn't be C unless the license -- unless 22 the law changed sometime in the future, but we're 23 going to write C into the license.
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41 1 when it becomes appropriate, at the time when it's 2 factually verifiable that this company wants to buy 3 this thing and is going to be the owner and has a 4 lawful right to own it.
5 JUDGE TRIKOUROS: If the license 6 application has said, current or future owners of the 7 spent fuel, would that be any different?
8 MS. CURRAN: It would be too vague, 9 because you don't want to have it unknown who is the 10 owner of the spent fuel. You want to know, who is it 11 and what are their qualifications.
12 JUDGE ARNOLD: One other thing. In your 13 contention, you argue that this contention is not 14 within the scope of these proceedings. Do you still 15 believe that?
16 MS. CURRAN: Yes.
17 JUDGE ARNOLD: Okay.
18 MS. CURRAN: But we -- we noticed you 19 didn't address it in your decision, but we figured it 20 was because you thought it was. And for us, the most 21 important thing is the -- we were looking for your 22 ruling on the validity of the Nuclear Waste Policy Act 23 claim and the APA claim, and that we do think that 24 this is an -- the NWPA compliance isn't within the 25 scope of issues that the licensing board is tasked to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 evaluate. But we think we're going to end up before 2 the Commission on the substantive issue.
3 JUDGE RYERSON: I think we regard -- at 4 least, I did -- the Commission's decision to have us 5 treat your motion to dismiss as a contention seemed to 6 me to resolve that issue from the Commission's 7 standpoint, but it's not the issue on the merits that 8 you're really concerned about, I don't believe.
9 MS. CURRAN: Yes.
10 JUDGE RYERSON: Okay. Any other 11 questions, gentlemen?
12 (No response.)
13 JUDGE RYERSON: Thank you, Ms. Curran.
14 MS. CURRAN: Thank you.
15 JUDGE RYERSON: Let's see. Oh, we haven't 16 been going for an hour yet, so unless I see a 17 overwhelming need for a break, let's begin with Mr.
18 Matthews. And I think, yes, about 45 minutes 19 actually.
20 MR. MATTHEWS: Judge Ryerson, I don't 21 believe we'll need 45 minutes.
22 JUDGE RYERSON: Okay.
23 MR. MATTHEWS: Would the Board prefer that 24 we address it from the podium or --
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43 1 that. Yes. Thank you.
2 MR. MATTHEWS: Good morning again. Thank 3 you. So as to the specific question that the Board 4 asked as to the differences between the contentions 5 presented in this proceeding and that in docket 6 72-1051, ISP notes that it is the same contention. It 7 is the same pleading, in fact, that presented the 8 contention, the same arguments for it.
9 The difference here is that the petitioner 10 Beyond Nuclear did not seek to amend the contention in 11 this proceeding as it did in the other proceeding 12 where it sought that more limiting language, 13 suggesting surgical changes to the application. That 14 wasn't presented in the record here. It's being 15 advanced to the Board for the first time in this 16 proceeding today.
17 The arguments advanced by the parties were 18 the same. Both Holtec and ISP agreed with petitioners 19 that the contention was inadmissible for the reasons 20 that it had nothing to do with the authority sought by 21 the respective applicants under their licenses.
22 I think the Board made clear in LBP 17-4 23 that the license that the Applicant sought there and 24 we seek here does nothing to authorize DOE to use such 25 a facility. There's nothing that the NRC staff, this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 Board or the Commission can do that will change the 2 DOE's authority under the Nuclear Waste Policy Act.
3 The Board invited ISP to provide its 4 opinion with respect to DOE's authority on that 5 question, the merits question, if you will, and we 6 agreed that DOE may not, absent statutory change, make 7 use of our facility. So the positions of the parties 8 are the same, and the Board's holding in LBP 17 would 9 be identical here.
10 We point out -- and this is probably the 11 right place to do it -- as to standing, since 12 petitioners have advanced it. ISP articulated a 13 different basis by which petitioners, BN included, 14 would not have standing -- Beyond Nuclear here would 15 not have standing either, and that is the proximity 16 plus issue.
17 My colleague Ryan Lighty will address that 18 at the time that the Board would like to entertain 19 that, but that question, as to whether it has been 20 resolved by Commission direction as to away from 21 reactor dry storage was not presented in the other 22 proceeding. It is presented in our responses to the 23 contention, and we think it appropriate that the Board 24 address that.
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45 1 seem to be moved into the merits of it -- and that's 2 probably appropriate in this contention -- and that is 3 that the Board observed, as the Commission has already 4 decided in Hydro Resources and PFS, that Applicant 5 here is not asking for anything unusual or different.
6 To the extent that petitioners disagree 7 with Commission policy, it's exactly that, a 8 disagreement with Commission policy about whether an 9 application can be issued priori to receiving all 10 applicable authorizations, state, federal or local, or 11 whether the NRC has to be the final gatekeeper, and 12 the Commission has concluded that in the negative. It 13 does not. That's well established case law as the 14 Board cited and followed. So --
15 We would read through all the arguments, 16 inappropriate to address here. There were some 17 arguments, impassioned arguments about the public 18 being cut out if the NRC does not address the NWPA 19 issue. I'd just point out that, you know, perhaps 20 that's new here, that Congress decided where NWPA 21 challenges should be had. It's 119 of the Act. It's 22 in the Circuit Courts of Appeals. It didn't ask NRC 23 to be the arbiter of DOE's authority under the Nuclear 24 Waste Policy Act, so --
25 I'm happy to answer any questions.
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46 1 JUDGE RYERSON: Okay. Just a procedural 2 one. I'm trying to decide when -- your position -- I 3 saw your position differed somewhat from the Holtec 4 position on standing, and we probably -- that really 5 applies to all the petitions here.
6 Would you -- ISP -- and this was the case 7 with Holtec as well. ISP would not acknowledge 8 standing on the part of any petitioner in this 9 proceeding. I think you articulated a slightly 10 different reason for that, and I'm just wondering the 11 best time to address that.
12 Maybe we should hold that, because it's 13 going to apply to everybody, and figure out a good 14 time to do it, and we'll continue now with the --
15 after we have questions from you, we'll continue with 16 the NRC staff on the Beyond Nuclear issue, its sole 17 contention, and then we'll probably take a break, and 18 we'll figure out when we want to talk about standing 19 per se, which, as I said, really applies -- your 20 argument applies to all of the petitioners here.
21 Okay. Let's do that. Judge Arnold, do 22 you have questions of Mr. Matthews?
23 JUDGE ARNOLD: Yes, I have a question.
24 Are you aware of any spent fuel or greater than class 25 C waste that is currently held by the Department of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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47 1 Energy?
2 MR. MATTHEWS: Yes, Dr. Arnold. In our 3 briefings, we cited to a Nuclear Waste Technical 4 Review Board report that quantified the holdings that 5 DOE had of commercial spent nuclear fuel, I think was 6 the question you were asking about. And it did have 7 a very limited quantity of special nuclear material 8 and reactor-related TTCC that it held from several 9 reactors.
10 JUDGE ARNOLD: Now, if you received your 11 license, would it be a violation of the Nuclear Waste 12 Policy Act for the Department of Energy to repackage 13 that fuel, put it in a certified cask, and ship it off 14 to your storage facility?
15 MR. MATTHEWS: In order for us to put it 16 into a cask that's already identified in our 17 license --
18 JUDGE ARNOLD: Uh-huh.
19 MR. MATTHEWS: If it were not a cask 20 that's already identified in our license, we would 21 need a license amendment. It would not be a violation 22 of the ISP license, presuming it met all of its 23 license conditions including the contract to provide 24 for decommissioning funding, the financing for it 25 that's all part and parcel.
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48 1 I expect that if DOE tried to do it as a 2 federal action, it would take action, and there would 3 be opportunity elsewhere for interested members of the 4 public to challenge if they thought that the 5 Department's pre-NWPA authority did not allow it. And 6 that's a question that has not been answered, whether 7 the -- Holtec went to this Agency's pre-NWPA 8 authority. I think that question is open.
9 JUDGE ARNOLD: I agree. Like the other 10 things do, but would it be a violation of the Nuclear 11 Waste Policy Act, since the DOE already holds title to 12 it?
13 MR. MATTHEWS: I'm not aware of any 14 federal case that's been cited, and I'm not aware of 15 any DOE position on that question which would be 16 entitled to Chevron deference in the first instance.
17 So it is -- it's an interesting case that I think that 18 ISP cannot answer today.
19 JUDGE ARNOLD: Thank you.
20 JUDGE RYERSON: Judge Trikouros.
21 JUDGE TRIKOUROS: No.
22 JUDGE RYERSON: Thank you, Mr. Matthews.
23 Well, let's hear from the NRC staff, and 24 then we will probably take a short break.
25 MS. KIRKWOOD: Do you want us --
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49 1 JUDGE RYERSON: Please. I believe only 2 that mike is hooked in with the court reporter, so we 3 have to live with the physical surroundings. Thank 4 you.
5 MS. KIRKWOOD: Your Honor, I am assuming 6 you would like us to address the question that you 7 asked about how the staff is reviewing the 8 application.
9 JUDGE RYERSON: Thank you.
10 AUDIENCE VOICES: We can't hear.
11 MS. KIRKWOOD: Can you hear me now? And 12 the answer is that the staff reviews the application 13 as it's presented to them. So to the --
14 VOICE: If you could speak slower, that 15 would help.
16 MS. KIRKWOOD: To the extent that the 17 Applicant is relying on any particular entity for 18 their financial qualifications, the staff will look at 19 that. We are still in the process of doing that 20 review, but we do take the application as it's 21 presented. We don't just -- if the Applicant's 22 assuming -- I mean, the Applicant has included it. We 23 assume that it's something that we need to look at.
24 JUDGE RYERSON: But, I mean, that seems 25 strange to me, because everybody agrees that one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 option is not presently a realistic option, so you're 2 looking at that as a hypothetical option. Tell me --
3 explain what you're really -- what the staff is doing 4 with that.
5 MS. KIRKWOOD: So I would note the staff 6 has not reached a conclusion on that, issue one. Two, 7 I would note that in a PFS proceeding for their 8 financial qualifications, they did not indicate who 9 the customer was. The financial qualifications was 10 based on a contract with spent fuel owners.
11 JUDGE RYERSON: So it's the conditions in 12 the contract that are material to you, regardless of 13 who the contract might ultimately be with.
14 MS. KIRKWOOD: Correct.
15 JUDGE RYERSON: Okay.
16 MS. KIRKWOOD: Well -- correct. Here, ISP 17 has chosen to indicate who those contract holders 18 might be, so the staff is looking at that to determine 19 whether or not it's relevant to our review.
20 JUDGE RYERSON: Okay. All right. Let me 21 ask you another question that comes up. Initially, 22 when -- several months ago when you responded to the 23 petitions, at the same time as ISP, the staff's 24 position was that Beyond Nuclear's sole contention was 25 admissible.
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51 1 Two things have happened since then. ISP 2 has withdrawn its application, its request for an 3 exemption from financing requirements, based upon DOE, 4 so that issue appears to have been taken off the 5 table.
6 And secondly, in response to our request, 7 they took the option to respond in writing before this 8 proceeding, so their position is absolutely clear that 9 as the law now stands, they agree that -- with Ms.
10 Curran that ISP cannot contract with DOE to take title 11 to nuclear waste.
12 So what is the staff's position today on 13 the admissibility of Ms. Curran's, Beyond Nuclear's 14 contention?
15 MS. KIRKWOOD: The staff had originally 16 thought this contention was admissible.
17 JUDGE RYERSON: Correct.
18 MS. KIRKWOOD: Beyond Nuclear responded by 19 saying that they thought the staff had made an error 20 and that it was not admissible. And so the staff is 21 a little -- the staff is not trying to waste a 22 contention on someone who doesn't want to litigate it.
23 I -- the staff --
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52 1 elsewhere. But I'm sorry. Yes. Continue.
2 MS. KIRKWOOD: There's a lot of aspects to 3 this the staff thinks are inadmissible. We think that 4 any speculation regarding the likelihood of any entity 5 wanting to enter into a contract with ISP is 6 inadmissible. You know, speculation over their 7 potential market strategies, we think that's 8 inadmissible.
9 We think that the remedy that the 10 application has to be dismissed and renoticed, which 11 I think more came up in Holtec than in this 12 proceeding, is inadmissible, that that's not 13 admissible.
14 To go back to what I earlier stated, the 15 staff takes the application as it's come, and in this 16 case, even if they didn't need to, ISP has included 17 the option that DOE be the ultimate contract holder.
18 So to the extent --
19 JUDGE RYERSON: As an option that 20 everyone, Ms. Curran, Mr. Matthews, I believe the 21 Board, all agrees would be unlawful today unless 22 Congress changes the law. So I -- let me rephrase my 23 question to you.
24 At the end of the day, we have to decide 25 whether a contention is admissible, admissible in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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53 1 part, or not admissible. Where is the staff on that?
2 What would you do if you were sitting on the -- well, 3 not what you would do, but what's the staff's position 4 on the admissibility of the contention today?
5 MS. KIRKWOOD: The staff views the 6 contention as narrow to whether it is legally 7 permissible to include DOE as a potential customer, as 8 an admissible contention.
9 JUDGE RYERSON: Okay. Which, as I recall, 10 was your position ultimately in Holtec.
11 MS. KIRKWOOD: Yes.
12 JUDGE RYERSON: Okay. So you have not 13 changed your -- well, I won't say you haven't changed 14 your position, but you still would regarding Ms. --
15 Beyond Nuclear's contention as admissible in part.
16 MS. KIRKWOOD: If it -- if that aspect of 17 it is what they want to litigate.
18 JUDGE RYERSON: Okay. All right. I'm 19 sorry. Did you have some other comments that you 20 wanted to make?
21 MS. KIRKWOOD: Only if the Court has other 22 questions.
23 JUDGE RYERSON: Any questions?
24 JUDGE TRIKOUROS: Just a clarification.
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54 1 fuel, whether it be DOE in the future or some third 2 party, once they decommission the plant, that the NRC 3 has to approve -- right? -- whether it be DOE or a 4 third party.
5 MS. KIRKWOOD: Of who takes title to it?
6 JUDGE TRIKOUROS: Right. Ownership of it.
7 MS. KIRKWOOD: That's not necessarily part 8 of this licensing procedure. So as a -- the Part 72 9 license would not -- it would authorize ISP to possess 10 it, but they wouldn't actually transfer title.
11 JUDGE TRIKOUROS: Okay.
12 JUDGE RYERSON: Do you have more to 13 follow?
14 JUDGE TRIKOUROS: No. That's fine.
15 JUDGE RYERSON: Okay. Are we done? Thank 16 you, Ms. Kirkwood.
17 Let's take a ten-minute break and 18 reconvene at 10:20. Thank you.
19 (Whereupon, a short recess was taken.)
20 JUDGE RYERSON: We're back on the record.
21 Resuming our discussion, I believe we are 22 up to Sierra Club, Mr. Taylor, and you have up to 45 23 minutes.
24 MR. TAYLOR: Thank you. Thank you for 25 allowing us to make a presentation this morning.
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55 1 VOICE: Can't hear you.
2 MR. TAYLOR: Thank you for allowing us to 3 make a presentation this morning. I want to begin by 4 making sure the record is clear about Sierra Club's 5 position, considering the procedure for this hearing, 6 if I may.
7 The Board has asked us to, in our case, 8 differentiate ten contentions that we had in Holtec 9 with similar contentions in this case.
10 JUDGE RYERSON: Yes. If I may interrupt 11 you, we are encouraging you to pick the contentions 12 that you think would be helpful to focus on. We are 13 not directing that you have to do that. You have 45 14 minutes to do whatever you want --
15 MR. TAYLOR: Okay.
16 JUDGE RYERSON: -- but I think, given our 17 decision in Holtec, you might be well advised to focus 18 on contentions that superficially may seem similar, 19 the language may seem similar, but you may feel there 20 are differences factually, based on the sites, based 21 on the applications. But we're just encouraging to 22 that. You have 45 minutes to say whatever you think 23 is most useful.
24 MR. TAYLOR: Okay. But just to continue, 25 I guess what you just said makes our point, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 you've already made a decision, and the impression 2 that's given is you've already made a decision in this 3 case, and that puts us in the position of an extra 4 burden, so to speak.
5 JUDGE RYERSON: Well, we're trying to do 6 the opposite. We were trying to give you every 7 opportunity to tell us what differences there are.
8 MR. TAYLOR: And I'll try to do that, but 9 I just wanted to make the record that by complying 10 with the Board's order, we're not conceding in any way 11 that we agree with the Board's decision in the Holtec 12 case.
13 JUDGE RYERSON: That's perfectly 14 understood. Thank you.
15 MR. TAYLOR: The first contention I wanted 16 to address is our contention number 6 in this case 17 regarding earthquakes. This is, of course, a 18 different location than the Holtec site, and it seems 19 to me that the question of earthquake potential is 20 almost by definition site-specific.
21 And we have a study that's particular to 22 this situation that we did not have in the Holtec 23 case. It's a study by the University of Texas and 24 Southern Methodist University, documenting seismic 25 impact of recent oil and gas drilling in the West NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 Texas area. And I hoped to use an easel over there, 2 but I can't manage two microphones, so if I can just 3 do it from here.
4 This is a figure from the Texas-Southern 5 Methodist study, and it shows that --
6 JUDGE RYERSON: Is that part of your 7 petition, or is this --
8 MR. TAYLOR: Yes.
9 JUDGE RYERSON: -- a new document?
10 MR. TAYLOR: It's part of the exhibits.
11 JUDGE RYERSON: Great.
12 MR. TAYLOR: And it shows that in the West 13 Texas area, particularly in the area of this WCS site, 14 that since 2000 at least, the earthquake -- the 15 numbers have gone up, and since 2010, almost 16 exponentially. And so that, I think, is important.
17 MR. MATTHEWS: Is there a citation for 18 that exhibit, just so we --
19 MR. TAYLOR: It's the University of Texas 20 study.
21 JUDGE RYERSON: It probably had an exhibit 22 designation in your petition.
23 MR. MATTHEWS: It's in the --
24 MR. TAYLOR: It's in the petition, and I 25 gave the URL. It's titled, Historical review of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 induced earthquakes in Texas, by Frohlich and others.
2 MR. MATTHEWS: Sorry about that.
3 MR. TAYLOR: Secondly, in that same study, 4 there's a chart that shows the increase in injection 5 wells in recent times, and you can see the cluster 6 of -- it's almost solid -- of injection wells in the 7 area of the WCS site. So that's information that was 8 not pertinent to the Holtec case that shows the 9 earthquake potential.
10 And the point of the Texas study was that 11 induced earthquakes from the oil and gas drilling 12 increase because of the oil and gas drilling in the 13 area.
14 The ER in section 3.3.3 claims only 15 minimal risk of faulting with seismicity. There's no 16 mention of seismicity induced by oil and gas 17 exploration. That section refers to a seismic hazard 18 evaluation, but we don't know what is in that 19 evaluation. It was listed as proprietary.
20 If I can just take a moment, I know in the 21 Holtec case, the Board said, well, we could use the 22 SUNSI procedure. But to be clear there and again here 23 in this case, the SUNSI procedure is really a very, 24 very difficult procedure to use. You have to know 25 what your issues are.
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59 1 You have to know what your evidence is 2 almost within ten days after the start of the 60-day 3 period for filing your contentions. Then you have to 4 make the application to the NRC staff who are going to 5 determine whether you even have standing or whether 6 the contention might be admissible. And then there 7 may be restrictions even then on what you can get.
8 It just doesn't really allow the 9 intervenor an appropriate opportunity to get that 10 information. And, frankly, I'm not sure why that 11 study, which is so pertinent to the conclusion that 12 was made in the ER would be proprietary. It would be 13 a study that certainly anybody should be able to have 14 in order to evaluate the ER.
15 There are numerous statements in the ER in 16 section 3.3.3, but we're just not clear if the 17 statements are from the seismic hazard evaluation or 18 simply unsupported assertions.
19 The contention also again relies on a 20 study from Stanford University, and there are charts 21 in that study that show the -- what they call the slip 22 potential in the area. That's these green lines, and 23 the slip potential, as I understand it, means that 24 there's an increased possibility of faulting, and thus 25 it can increase possibility of earthquakes. And you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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60 1 can see that they're right there in the area of the 2 WCS site.
3 Also in that same Stanford study is a 4 chart that shows what they call the orientation of the 5 faulting, and you can see again right there in the 6 area of the WCS site, there is some shifting of the 7 orientation that would lead to an increased potential 8 for earthquakes.
9 So I think with all of that, we have shown 10 that there is a difference in the facts. There are 11 additional facts in this case that were not present in 12 the Holtec decision that make this contention 13 admissible in terms of the ER and the SAR in this case 14 not adequately addressing the earthquake potential.
15 The next one I wanted to address is the 16 one you discussed with Ms. Curran, violation of the 17 Nuclear Waste Policy Act, which is our contention 1.
18 Ms. Curran has done an excellent job of covering most 19 of that, but a couple of things I wanted to add.
20 First of all, in the Holtec case, the 21 initial documentation Holtec presented, other than the 22 ER, did list the nuclear plant owners as possible 23 owners of the title to the waste once it got to the 24 site. They just did not put it in their ER, and so we 25 argued, of course, that the addition of the nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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61 1 plant owners was simply to make the proposal more 2 palatable, but not necessarily verifying or assuring 3 that the nuclear owners would want to retain 4 ownership.
5 Here, however, ISP, in their initial 6 documentation, never once in any of the documents 7 mentioned the nuclear plant owners. It was always 8 DOE, until Ms. Curran raised the issue. Then they 9 came up with revision 2 of their documentation, and 10 added the nuclear plant owners.
11 So I think here we have a much clearer 12 case that the addition of the nuclear plant owners is 13 simply a fig leaf to give the impression that this 14 project would be legal. But there's still no 15 assurance that the nuclear plant owners would want to 16 retain title. In fact, you know, the inference in the 17 documentation is that they want to get rid of it.
18 That's the point. But --
19 JUDGE RYERSON: Is that really an issue, 20 Mr. Taylor, in front of us? In other words, if ISP 21 constructs this facility and finds that there are no 22 takers, is that the NRC's concern? If it's 23 constructed safely and there are adequate assurances 24 it would be operated safely, if anybody wanted to send 25 their waste there but no one did, I mean, is that a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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62 1 bad thing? Is that something that we're supposed to 2 be concerned about?
3 MR. TAYLOR: I believe it is, because as 4 we said and as Ms. Curran said, it would be illegal, 5 and certainly you can't license an illegal --
6 JUDGE RYERSON: No. It wouldn't be 7 illegal if no one sent their waste there. Am I 8 correct?
9 MR. TAYLOR: Well, as proposed by ISP, 10 though, it would be illegal. They -- what it seems to 11 me they're doing is saying, We don't know what's going 12 to happen; give us a license anyway.
13 You know, in talking to Ms. Curran, you 14 raised the hypothetical of a liquor store owner and 15 the age of being able to buy liquor being changed.
16 But I think another analogy that may be closer is if 17 I'm still a law student and I say, Give me my law 18 license, and then if I graduate from law school and 19 pass the bar, then I'll be a lawyer, and I've already 20 got my license. That's kind of what we're looking at 21 here, it seems to me.
22 JUDGE RYERSON: Well, the analogy that 23 occurs to me is if you're a law student and you go to 24 a law firm and you say, Would you please hire me as a 25 law clerk until and when and if I get my -- I pass the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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63 1 bar, and then please hire -- we agree you'll hire me 2 as an associate. But there is a lawful option 3 meanwhile, and maybe that lawful option would go on 4 for a while if you fail the bar three times.
5 MR. TAYLOR: But in that case, Judge, you 6 are not getting paid for being an associate. You 7 don't get any of the other benefits, which is what 8 really ISP is asking for here. They're asking for a 9 license to be able to operate, and that's not the same 10 as if they said, Come to -- if they came in and said, 11 Well, if we get a license and we get the legal right 12 to store this waste, then we'll apply for a license.
13 That's kind of what this associate example 14 would be. But they aren't doing that. They're 15 saying, Give us a license now, and then later on, we 16 hope that we will be able to do it legally.
17 JUDGE TRIKOUROS: As a practical matter, 18 isn't it true that ISP is not going to lift a finger 19 to construct this facility unless they have signed 20 contracts from whoever is the spent nuclear fuel title 21 holder? I believe they went so far as to say that 22 directly at least once or twice in their 23 documentation. So there won't be a facility built 24 here if there aren't signed contracts.
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64 1 very clear that it will only be built -- now, that's 2 their decision to do that. They could have done it 3 any way they wanted, but I don't think the NRC cares 4 one way or the other. But that is the reality.
5 MR. TAYLOR: But, I guess, my feeling is 6 that if it's illegal, the NRC can't license it. Even 7 though if theoretically, although we don't think so, 8 it would be safe and environmentally appropriate, if 9 it's illegal, they still can't license it, it doesn't 10 seem to me. I don't see how you can license something 11 that would be illegal.
12 And we don't know whether or not the 13 nuclear plant owners are even interested in doing 14 this. It seems to me at least if ISP proposes one 15 alternative of the nuclear plant owners taking title, 16 they should at least have something in the 17 documentation from nuclear plant owners that, yes, we 18 would be interested in doing that.
19 They don't need a signed contract or any 20 firm commitment, just some assurance or some 21 indication from nuclear plant owners that, yes, we'd 22 be interested in doing that. They don't even have 23 that much.
24 And so, I think, because of the way the 25 application was made here initially, with only DOE and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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65 1 then adding nuclear plant owners only as an 2 afterthought, after an issue was raised, it seems to 3 me it is just a fig leaf and that the real intent here 4 is for the DOE to take title, and that ISP would use 5 the license if it's issued as leverage to Congress to 6 say, well, look, we've got a license from the NRC, so 7 change the law for us. I think that's probably what's 8 going on.
9 I also wanted to talk about the 10 decommissioning funding. ISP lists only two sources 11 of funding, the DOE, which I think we all agree is 12 illegal, and reactor owners again. But ISP has 13 provided no plan that I could see in their 14 documentation as to how this would be funded, how it 15 complies at all with 72.30.
16 In Holtec, at least Holtec had a plan, 17 although we asserted that the numbers didn't add up.
18 At least they had a plan. ISP doesn't even have a 19 plan.
20 NUREG-1757, volume 3, which talks about 21 decommissioning, lists only specific acceptable 22 funding mechanisms: a trust fund, surety bond, letter 23 of credit, insurance policy, parent guarantee -- a 24 parent company guarantee, self guarantee, external 25 sinking funds which, I believe, is more or less what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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66 1 Holtec had proposed, a statement of intent from a 2 licensee that's a government entity, special 3 arrangements with a government entity, and standby 4 trust funds.
5 I don't see any of that in ISP's 6 decommissioning plan. Well, there is no plan. Their 7 proposal.
8 And then they say they're going to request 9 a waiver from the requirements of 72.30, but they cite 10 no regulation or other authority that would allow that 11 waiver. There is authority in Chapter 72 for a waiver 12 of certain requirements, but I don't believe the 13 conditions for those waivers would be present here, 14 and certainly ISP has not suggested any.
15 They just make the unsupported statement 16 they're going to ask for a waiver, but there's no 17 indication that they would get that waiver or how it 18 would work. So I think there is a distinction here 19 between the decommissioning funding plan from Holtec 20 and ISP.
21 JUDGE RYERSON: I'm sorry. Are we talking 22 about the waiver that -- there was a withdrawal of the 23 waiver request. Are we talking about something 24 different?
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67 1 withdrawn it. I'm looking at Appendix D in their 2 application, which is their decommissioning proposal, 3 and --
4 JUDGE RYERSON: There's a subsequent 5 letter, I think, June 3 -- yes. There's a June 3 6 letter. Mr. Matthews will probably address that.
7 MR. TAYLOR: Okay. I wasn't aware of 8 that.
9 JUDGE RYERSON: The request for an 10 exemption has been, I understand, withdrawn.
11 MR. TAYLOR: But anyway, there's just no 12 real plan presented that would satisfy 72.30. Then I 13 want to -- I talk about geology and groundwater, which 14 again seems to me to be quite site-specific.
15 First of all, here -- our submission has 16 shown that this site is over the Ogallala Aquifer.
17 The ISP documentation asserts that it is not, but in 18 the maps that we presented in our expert's report, the 19 Ogallala Aquifer would extend down to the site that's 20 being proposed for this -- for the CIS project.
21 Also, we disagree with the statement in 22 the environmental report about the depth of the 23 groundwater. The evidence we presented in our 24 contention shows that the groundwater is at a much 25 shallower level than indicated in the ER.
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68 1 The NRC standard review plan, which we 2 cited in our contention, says there's no evidence that 3 cladding of high burnup fuel will remain undamaged 4 during the licensing period. This is relevant, 5 because ISP and, I believe, the Board in the Holtec 6 decision relied to some extent on the allegation that, 7 well, the containers won't leak, so there's no issue 8 as far as groundwater or geology.
9 But here, as near as I can tell, there's 10 no discussion in the ER or the SAR about high burnup 11 fuel. You know, there's a reference in ER 4.2.6 to a 12 RADTRAN study that does not specifically address high 13 burnup fuel, and furthermore, that talks about 14 transportation issues and not issues at the site once 15 it's being stored.
16 And I think Judge Trikouros made a very 17 important point in the Holtec hearing that we had, is 18 that irrespective of whether there's a path from the 19 containers to the groundwater for any impact to the 20 groundwater or the containers, the ER is required to 21 make a thorough, accurate review of the site, 22 including geology and groundwater.
23 And so I think that even beyond the point 24 of whether or not there's a pathway, the ER fails to 25 adequately describe or address the condition of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 geology and the groundwater in this area. And we've 2 shown that, and to the extent there's any 3 disagreement, I think that's a factual disagreement 4 that needs to be fleshed out at a hearing.
5 Our contention 14 dealt with the safety of 6 storage containers. In this case, the SAR at section 7 1.1 states that the containers to be stored at the ISP 8 facility are licensed for 20 years, and that the hope 9 is for them to be licensed for an additional 40 years.
10 That 60-year licensing period would be less than the 11 60- to 100-year life of the facility.
12 Furthermore, this scenario does not 13 account for the possibility that a permanent 14 repository may never be opened, and the CIS facility 15 would be a de facto permanent facility or a permanent 16 repository.
17 The container storage rule I don't believe 18 applies here because the container storage rule as I 19 read it and the GEIS that went along with it did not 20 really address specific containers. It was more of a 21 generic analysis, and each case would require a 22 determination of the appropriateness of the containers 23 for storage beyond the licensing period.
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70 1 put in their documentation, but there's certainly no 2 assurance of that, and there's no assurance that this 3 site or this facility would be capable of storing 4 waste beyond that period.
5 And even so, they say the life of the 6 facility would be 60 to 100 years, so there's 7 absolutely no indication that they plan to license it 8 beyond that stated period that they've put in their 9 documentation.
10 And we believe -- and I think most of the 11 intervenors believe -- that if this facility and the 12 Holtec facility are licensed, that takes the political 13 pressure off to find a permanent repository, because 14 a permanent repository, as we've seen, is very 15 difficult to site. And there's absolutely no 16 indication that that siting would come anytime soon, 17 if it comes at all.
18 So we believe that the SAR in this case 19 does not adequately address the safety of the 20 containers beyond the licensing period, and certainly 21 beyond the stated life of the facility.
22 But to the extent that this is also 23 different than the Holtec case, in Holtec our 24 contention 9 was different in that it was focused on 25 the design and service lives of the Holtec containers, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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71 1 not the licensing period.
2 ISP has not described any design or 3 service life with the containers to be used in their 4 facility here, so we don't have anything to go on 5 there. We're just -- all we have is the licensing 6 period and the licensing of the containers.
7 Transportation issues is the next thing 8 I'd like to address, unless there are questions. In 9 the Holtec case, our contention 4 also dealt with 10 transportation issues, and there was some discussion 11 about the study that we relied on there by Dr. Marvin 12 Resnikoff and Matthew Lamb concerning a train 13 derailment into Baltimore that resulted in a fire and 14 whether that was pertinent to this case or not -- that 15 case, I should say, the Holtec case.
16 And here, however, we're relying on the 17 study that was done again by Dr. Resnikoff for Yucca 18 Mountain, and although in the Holtec case, this Board 19 criticized us for allegedly not disputing Holtec's 20 reliance on the Yucca Mountain EIS and not countering 21 that EIS as criticism of Dr. Resnikoff's report, 22 that's not an issue here.
23 In the Yucca Mountain report, what 24 happened was that the DOE, which, of course, had a 25 vested interest in seeing Yucca Mountain go forward --
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72 1 JUDGE RYERSON: It was the Applicant, as 2 I recall.
3 MR. TAYLOR: It was the Applicant. You 4 bet. And so they had a vested interest in criticizing 5 Dr. Resnikoff's report. It wasn't exactly an 6 independent, objective criticism of Dr. Resnikoff's 7 report. So that's why -- and we didn't think it was 8 going to be relied on to the extent that it was, and 9 we didn't challenge it.
10 But in this case --
11 JUDGE TRIKOUROS: Dr. Resnikoff's 12 analysis, if I remember correctly, used RADTRAN as 13 well as ISP. Correct?
14 MR. TAYLOR: Yes, yes. But he came up 15 with a different result, and we explain why, or at 16 least we tried to in our contention. In this case, 17 ISP does not rely on the Yucca Mountain EIS but had 18 its own evaluation in ER 4.2.
19 Our contention 4 in this case set forth 20 Dr. Resnikoff's specific criticisms of that evaluation 21 and challenged the conclusions of that study, so 22 that's something that was not in the Holtec case. And 23 whether or not you agree with Dr. Resnikoff's 24 criticism, at least we put it out there, and it 25 creates a factual issue that I think is appropriate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 for a full hearing.
2 We also had a declaration from Dr. Gordon 3 Thompson in this case that we didn't have in the 4 Holtec case, expressing some concerns about the 5 transportation of the waste. So those are all items 6 that were not present in the Holtec case that are 7 present here.
8 Contention 2 in this case that criticized 9 the ISP documentation for saying that CIS was safer 10 and more secure than on-site storage. We again cite 11 the container storage rule and the rule of 12 decommission report, both saying that on-site storage 13 is safe indefinitely.
14 And there was some indication that an ER 15 would not deal with safety, but if you read NUREG-16 1748, section 6.3.11, which is the NRC guidance for 17 the licensing -- well, for ERs and EISs in waste 18 cases, it says that safety is an issue in terms of 19 public health and safety. So it is appropriate to 20 address that in the ER.
21 Dr. Thompson in his declaration points out 22 the alleged reasons that ISP lists for attempting to 23 justify this project are wants and not desires --
24 not -- they're wants or desires and not needs.
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74 1 specifically says that the ER has to present needs and 2 not simply a justification for the project.
3 And the ER here, in setting out what they call 4 their purpose and need, are simply things that are 5 desired but are not needed.
6 We also noted that on-site storage doesn't 7 mean that nothing is done. We're suggesting that the 8 ER should look at hardened on-site storage, because 9 that would increase the safety of on-site storage, and 10 may be even more safe than the CIS.
11 So just because we're saying that on-site 12 storage should be better evaluated doesn't mean that 13 on-site storage would be just, you know, putting it in 14 an unsafe container. We're saying you can bulk up 15 that on-site storage to make it safe. And the ER has 16 not adequately looked at the on-site storage.
17 JUDGE RYERSON: Just to alert you, Mr.
18 Taylor, I think we can give you about ten more 19 minutes.
20 MR. TAYLOR: Okay.
21 JUDGE RYERSON: Up to ten minutes.
22 MR. TAYLOR: And I think we already noted 23 that in this case, it doesn't appear that ISP has 24 adequately addressed the issue of high burnup fuel 25 that we set forth in contention 16.
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75 1 I would also note finally that the site 2 selection alternative -- or the site selection process 3 for alternatives as we've described in our contention 4 11 is not adequate. The site selection is not about 5 purpose and need. It's about the range of 6 alternatives.
7 And here, although ISP claims they've gone 8 through a rigorous site selection procedure, going 9 through several states and looking at various cities 10 and the 15 criteria, they amazingly came up with the 11 perfect site right next to their adjacent -- or their 12 existing low-level site on land already owned by WCS.
13 So we've explained in detail in our 14 contention why that site selection process was 15 inadequate and should not be allowed to qualify for an 16 adequate review of alternatives. NEPA is clear. The 17 regulations are clear that alternatives are a part of 18 the NEPA process, and without doing that, they have 19 not done a proper job.
20 If I still have a few minutes left, 21 contention 13 concerns the protected species of 22 lizards. And the -- we've shown how the ER says these 23 species are in the area. One has been sighted on the 24 site, and the other is likely in the area, but there's 25 been no study showing that they've done a proper job NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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76 1 of surveying to see if those species are there, and if 2 they would be impacted.
3 And, finally, environmental justice, we 4 take issue with the hard and fast four-mile rule or 5 radius that was used. You know, we're not challenging 6 the regulation. That's simply guidance, and the 7 guidance itself says that that four-mile radius is --
8 well, flexible and only advisory.
9 And we've shown here how there are -- the 10 adjacent counties are majority minority and that that 11 was not properly taken into consideration, and that, 12 in fact, the area -- the region of interest that is 13 set forth in Appendix A, which is the socioeconomic 14 issues section, is 30 miles. And we have definitely 15 minority populations in the 30-mile region of 16 interest. So that hasn't been adequately addressed.
17 Thank you.
18 JUDGE RYERSON: Judge Arnold, do you have 19 any questions at this time?
20 JUDGE ARNOLD: On that last contention, 21 contention 13, I see actually two claims in the 22 statement of contention. One has to do with an 23 endangered species. The other one is there is no 24 discussion of any of the studies or surveys used to 25 determine if a species are present.
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77 1 So is part of your claim that that section 2 3.5.16, description of ecological studies, is 3 inadequate?
4 MR. TAYLOR: Yes.
5 JUDGE ARNOLD: Okay.
6 JUDGE RYERSON: Thank you, Mr. Taylor.
7 I think what we'll do is take another 8 break till -- a short one, till 11:15. Then we'll 9 hear from ISP's counsel and the NRC staff in response 10 to Mr. Taylor. Then we'll have lunch.
11 And I think when we take a break, the 12 Board will consider maybe how to handle the issue of 13 standing, the argument on standing that cuts across 14 all of the petitioners. We might do that today or 15 maybe tomorrow, depending on how we're doing.
16 But let's convene again at 11:15. Thank 17 you.
18 (Whereupon, a short recess was taken.)
19 JUDGE RYERSON: All right. We are back on 20 the record.
21 Before we hear from ISP's counsel in 22 response to Mr. Taylor, the Board has been talking 23 about this issue of standing -- I'll say, the argument 24 of standing that cuts across all petitioners. And I'm 25 pretty sure that we're going to need all of today for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 presentations. We'll finish today -- this morning 2 around lunchtime. Then we still have two petitioners 3 to address in the afternoon.
4 So I'm thinking -- we are thinking that 5 maybe the first thing we do tomorrow is address the 6 standing argument that ISP would like to make that 7 cuts across all petitioners.
8 Do you have a sense of how long that would be?
9 MR. LIGHTY: Your Honor, I think it would 10 be five, ten minutes, unless you have specific 11 questions, and then we will certainly be willing to 12 answer those.
13 JUDGE RYERSON: Okay. I mean, we're not 14 holding you strictly to that. This is kind of outside 15 of what we planned with the June 7 order. I think 16 since it goes to all petitioners, we would hear, if 17 need be, from everybody on the standing issue, but it 18 might be a good idea if overnight, after today's 19 session or at lunch, the petitioners' counsel might 20 agree on someone who takes a lead in response to the 21 argument.
22 I assume it's a variation of the argument 23 that was presented in their opposition, and Mr. Lodge 24 is standing up, because he wants to say something.
25 MR. LODGE: No. I have a question, Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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79 1 Ryerson.
2 JUDGE RYERSON: Yes.
3 MR. LODGE: Part of my presentation this 4 afternoon, given the fact that a similar group of 5 petitioning intervenors in the Holtec case were denied 6 standing, part of my presentation is going to address 7 in detail our particular case for legal standing here.
8 I am just asking if I am going to be 9 allowed to proceed this afternoon to do that, or if 10 that gets bundled into what's you're talking about.
11 JUDGE RYERSON: You may use your 45 12 minutes as you see fit.
13 MR. LODGE: Thank you.
14 JUDGE RYERSON: Again, as I said earlier, 15 we suggested, given the result in Holtec, that you 16 might find it most useful to use that time telling us 17 how this case is different. But it's entirely up to 18 you, however you wish to use your 45 minutes.
19 And, again, we'll let all the 20 petitioners -- all petitioners have an interest in 21 standing. This is an argument that cuts against the 22 standing of every petitioner, and so we'd let you all 23 speak. I just think it might, from your standpoint, 24 be most effective if you agree upon a lead on that.
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80 1 sound like it's an unduly lengthy argument.
2 But we'll probably, unless we move very 3 rapidly this afternoon, we'll count on that as our 4 opening for tomorrow, and then we'll go to the phase 5 of the Judges' specific questions, some of which I 6 think are being answered in the course of these 7 presentations, so we may have fewer questions than we 8 otherwise would have had.
9 All right. So with that, Mr. Matthews, 10 are you responding to Mr. Taylor?
11 MR. MATTHEWS: Judge Ryerson, the three of 12 us, we have split the contentions by subject matter.
13 JUDGE RYERSON: Okay.
14 MR. MATTHEWS: So each of us have some of 15 these that Mr. Taylor --
16 JUDGE RYERSON: Well, that's fine. I 17 think if you move to the lectern, then you'll be 18 picked up by the court reporter, so that's the best 19 place to do it.
20 MR. MATTHEWS: We'll do that. Ryan Lighty 21 will go first and discuss the seismicity issue, and 22 then to avoid jumping up and down, he will address the 23 other contentions that he's responsible for, and Mr.
24 Bessette and I will then address the ones that we're 25 responsible for.
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81 1 JUDGE RYERSON: Right. And I certainly 2 don't want to tell you how to conduct your argument, 3 but I think all the Board members were interested in, 4 I think it is, Sierra Club number 4, whatever deals 5 with the transportation aspect, so I hope someone is 6 dealing with that.
7 MR. MATTHEWS: We are, Your Honor.
8 JUDGE RYERSON: Okay. Thank you.
9 MR. LIGHTY: Thank you, Your Honor. Ryan 10 Lighty for the Applicant. As Mr. Matthews mentioned, 11 I'm going to start off responding regarding Sierra 12 Club contention 6 on earthquake potential. Sierra 13 Club's counsel noted that there was a difference 14 between the pleadings in the two proceedings in that 15 the petition here referenced a University of Texas 16 study.
17 However, the statement of the contention 18 in the two proceedings is verbatim identical, except 19 for the name of the applicant. And the addition of 20 the UT study does not add anything material to the 21 arguments advanced. It merely stands for the 22 assertion that petroleum recovery activities may cause 23 induced seismicity, and that's a duplication of the 24 Stanford study, although with different geographic 25 areas, but the concept being that the petroleum NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 recovery may cause induced seismicity.
2 There's no dispute with the application on 3 that point. The application explicitly recognizes 4 that possibility and analyzes it.
5 Second, Your Honor, a significant 6 difference between the Holtec proceeding and this is 7 that Sierra Club's arguments on earthquake potential 8 in the Holtec proceeding cited to the analysis that 9 was conducted. Here they simply complain that the SAR 10 and the attachment with the analysis is a SUNSI 11 document, so we're going a step further in their 12 failure to challenge the relevant content of the 13 application, and that is a significant difference 14 between the two proceedings that we think the Board 15 should be aware of.
16 If you have any questions on Sierra Club 17 6, I would be happy to answer those. Otherwise, I can 18 move on to --
19 JUDGE RYERSON: Judge Arnold, any 20 questions at this point?
21 JUDGE ARNOLD: No.
22 JUDGE RYERSON: Judge Trikouros?
23 JUDGE TRIKOUROS: No.
24 JUDGE RYERSON: Okay. Proceed.
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83 1 contention 4 regarding the transportation analysis, 2 again the statement of the contention is identical 3 between the two proceedings but for the name of the 4 applicant.
5 But in the ISP proceeding, there is a 6 different Lamb and Resnikoff study that was cited in 7 the petition. The title of that study is, Worst case 8 credible nuclear transportation accidents, analysis 9 for urban and rural Nevada.
10 Now, in the Holtec proceeding, there may 11 have been some question as to whether the report cited 12 was a worst case analysis. Here there can be no 13 doubt. The title of the document itself tells you 14 what it is.
15 More importantly, this analysis does not 16 challenge the sufficiency of ISP's RADTRAN analysis.
17 This document challenges and criticizes the DOE 18 RADTRAN analysis, and so to lodge arguments against an 19 analysis that's not in this application simply doesn't 20 dispute the application.
21 The closest that petitioners got to doing 22 so was simply copying and pasting some charts from the 23 Resnikoff analysis and saying, These are lower values.
24 But the ISP -- excuse me. The ISP analysis has lower 25 values. But it does not explain why that makes the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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84 1 application deficient.
2 Merely citing to a worst case analysis and 3 saying there's a discrepancy does not identify a 4 genuine dispute with the application. It doesn't 5 explain what that dispute is, why the analysis that 6 was conducted may have been deficient somehow.
7 JUDGE TRIKOUROS: In -- however, in your 8 analysis, you seem to go to great lengths to show that 9 various other studies agree with you, one of which, I 10 think, was the DOE study that we're talking about.
11 And, therefore, to some extent, then, Dr. Resnikoff's 12 challenge to the DOE RADTRAN study, which got the same 13 basic answers that your RADTRAN study got, has a 14 measure of validity, wouldn't you say?
15 MR. LIGHTY: Perhaps in an attenuated 16 fashion. I don't believe the ISP application gives 17 significant analysis to the DOE report. It's 18 certainly cited as a reference, and it is noted that 19 ISP's RADTRAN is consistent with the NRC's conclusions 20 in NUREG-2125, in the PFS analysis, in the DOE 21 analysis.
22 But still we don't have any explanation 23 for why the Lamb and Resnikoff report criticizing the 24 DOE analysis somehow presents a challenge to ISP's 25 analysis, even though ISP's conclusions may be similar NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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85 1 to what all of the other studies have concluded.
2 JUDGE TRIKOUROS: I also wanted to just 3 point out that for further discussion tomorrow, that 4 the staff only recently identified a bunch of RAIs 5 regarding this subject and, you know, needed a 6 significant amount of additional information so that 7 they could understand the details of the RADTRAN study 8 that ISP conducted.
9 Therefore, it would be hard for me to 10 understand how Sierra Club could understand the 11 details and present an argument if they weren't 12 available even to the NRC.
13 MR. LIGHTY: I would first note that the 14 petition doesn't attempt to challenge the information 15 that was provided in the ISP RADTRAN analysis, and to 16 the extent that the new RADTRAN analysis that was 17 recently submitted -- and I believe there was -- that 18 was submitted on June 28 and notification to the Board 19 and all the parties was sent out regarding that.
20 The new RADTRAN analysis essentially was 21 a regeneration under the TN Americas quality assurance 22 plan, but it didn't reach any different conclusions.
23 The methodology was the same. It was just a rerun of 24 the RADTRAN, and so, you know, to the extent that 25 there may have been some additional information that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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86 1 was presented there, petitioner didn't seek to 2 challenge the absence of that information in the first 3 instance, and so they didn't identify that as their 4 purported dispute with the allocation.
5 JUDGE TRIKOUROS: The enclosures that were 6 provided in that, I think you mentioned, June 28 7 letter, notification letter, there were numerous 8 enclosures apparently. I don't think we saw more than 9 one or two of those, but those were not publicly 10 available?
11 MR. LIGHTY: I believe that there was a 12 proprietary attachment to the document with some 13 information about the actual calculation, but all of 14 the information was described in the publicly 15 available attachment to the Board notification.
16 JUDGE TRIKOUROS: You apparently provided 17 RADTRAN input files, pretty much anything you would 18 need to independently verify the calculation. But 19 that was not available to anyone else. I'm asking.
20 MR. LIGHTY: Yes. I believe that is 21 correct. The actual files are proprietary 22 information, and no petitioner sought to obtain SUNSI 23 authorization to view proprietary information in this 24 proceeding when they had the opportunity to do so.
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87 1 questions on Sierra Club 4, I'm happy to move on very 2 briefly to Sierra Club contention 11.
3 JUDGE ARNOLD: I do have a question, and 4 it has to do with the details of the shipping casks 5 being used in the transportation accident analysis.
6 And you may not be able to answer this. But I'm 7 wondering how important the actual structural details 8 of the casks are.
9 For instance, if you did a detailed finite 10 element analysis of the cask, putting it through the 11 accident transient, the details would be very 12 important. Alternatively, if you just used the design 13 criteria, you know, that the NRC says, these are the 14 things that the cask must survive and the analysis 15 just looks to see that the temperature's under that 16 temperature, the, you know, G forces are within it, 17 then there's no failure, in that type of analysis, the 18 details of the specific cask are not important because 19 it covers all the certified casks.
20 Which type of analysis are your accident 21 analysis? Do you know?
22 MR. LIGHTY: Unfortunately, that's not 23 something that I can answer regarding the details of 24 a finite element analysis inputs. You know, I would 25 note that any transportation cask is going to have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 be NRC-approved, according to performance criteria, 2 and so I'm not sure that any difference would be 3 material.
4 But more importantly, petitioners didn't 5 present any information, any support for an argument 6 that there is a material difference. Any unsupported 7 speculation simply would not be enough for an 8 admissible contention.
9 JUDGE ARNOLD: Thank you.
10 JUDGE TRIKOUROS: The -- I got the 11 impression that the assumptions on the loss of 12 shielding transportation accident was sort of 13 nonmechanistic in the sense that basically said, the 14 cask loses a certain amount of shielding, and that was 15 it. It wasn't -- the cask itself didn't seem to me to 16 be analyzed. Can you comment on that?
17 MR. LIGHTY: That also is not something 18 I'm intimately familiar with. No. I would note that 19 the analysis, however, did use conservative bounding 20 in that all of the canisters that would be received at 21 ISP, stored at ISP, would be welded inert canisters, 22 and for the sake of conservatism, it was assumed that 23 welded inert canister would not be used.
24 In other words, I think the proper term 25 would be bolted canisters, which have a greater NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 p r o b a b i l i t y o f l e a k s .
2 And so the analysis that was is very 3 conservative, very bounding analysis in that regard.
4 JUDGE TRIKOUROS: We'll pursue this 5 more --
6 MR. LIGHTY: Sure.
7 JUDGE TRIKOUROS: -- tomorrow.
8 MR. LIGHTY: Okay. Very good.
9 JUDGE TRIKOUROS: Or later today.
10 MR. LIGHTY: Okay. If there are no 11 further questions on Sierra Club 4, I will move on 12 very briefly to Sierra Club 11. This is the site 13 selection contention.
14 This was not a specific contention raised 15 in the Holtec proceeding. It is new here. But the 16 bottom line is that the petitioners provide no 17 explanation of how the process used here for site 18 selection circumvents reasonable consideration of 19 alternatives or is somehow less than what the NRC 20 requires in an environmental report.
21 The petitioners have a laundry list of 22 complaints about the issues that are discussed in the 23 ER, but it doesn't identify any legal deficiency, 24 anywhere the application's somehow deficient as a 25 matter of regulation or law. And so for the reasons NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 that we discussed in our pleadings, we continue to 2 believe that contention is inadmissible.
3 And if there are no questions on Sierra 4 Club 11, I will move on to Sierra Club 15 very briefly 5 also. This is the environmental justice contention.
6 The Board in LBP 19-4 considered three environmental 7 justice related contentions from AFES, and the 8 conclusion for those contentions is entirely 9 applicable here.
10 The bottom line is that Sierra Club has 11 not pointed to any legal requirement for a more in-12 depth EJ analysis. ISP addressed EJ to the depth 13 recommended by NRC guidance, and petitioners offer 14 nothing to explain why compliance with the guidance in 15 this case is somehow deficient.
16 They offer what they believe would be 17 their preferred radius for an EJ analysis, but they 18 don't offer any support for why that would demonstrate 19 a genuine dispute with the application. And so the 20 contention is inadmissible on those grounds.
21 And if there are no questions on that 22 contention, I will turn it over to my colleague Tim 23 Matthews.
24 MR. MATTHEWS: Thank you, sir. I will 25 start with Sierra Club 1. Sierra Club 1 is its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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91 1 version of the Nuclear Waste Policy Act --
2 VOICE: Can you speak louder, please.
3 MR. MATTHEWS: Thank you. Sierra Club 1 4 is its rendition of the Beyond Nuclear Nuclear Waste 5 Policy Act contention. Sierra Club in its filing of 6 this contention argued only standing and adopted 7 Beyond Nuclear's pleadings. In that regard, it is no 8 different than Beyond Nuclear. It was not amended as 9 it was in the other CISF proceeding, so all the 10 discussion we had earlier about Beyond Nuclear 1 hold 11 here, and we have not further to address on that 12 specific allegation.
13 There was a suggestion, though, here today 14 that is somewhat different from the pleadings that 15 went to the timing of ISP's revised application, I 16 think, and suggesting that the Board should read some 17 inference into it and suggest a fig leaf.
18 ISP's application was submitted after the 19 WCS version of the application had been suspended.
20 The joint venture parties formed Interim Storage 21 Partners, decided on a new business model or an 22 amended business model to incorporate both DOE and 23 private storage, and revised the application and 24 submitted it that way. It's that simple. There's no 25 reason for the Board to draw any untoward inference NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 from it. It's that on Sierra Club 1.
2 Sierra Club 9 is similar and more, a 3 little bit. In fact, the staff's original reason for 4 suggesting that Beyond Nuclear and Sierra Club 1 were 5 admissible was that ISP had an exemption request that 6 relied on the Nuclear Waste Policy Act in their view, 7 and therefore, the contention would be admissible.
8 As the Board noted, the Applicants have 9 withdrawn that exemption request. It's no longer part 10 of the application. I think that was discussed in the 11 questions with respect to Sierra Club 9.
12 The Board's ruling in the similar 13 decommissioning funding or financial qualification 14 funding in Sierra Club 8 in the other proceeding, the 15 basis is similar. Here the fault of the petitioner is 16 different in that they failed to read the application, 17 and they assert that there is no decommissioning plan, 18 and appear to continue to assert that today, despite 19 it being answered in the briefs.
20 We point to the section in the application 21 and the attachment entitled, Decommissioning Plan. So 22 we think that answer is fully briefed, and we think 23 the Board's logic in Sierra Club 8 in the other 24 proceeding would apply fundamentally here as well.
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93 1 want to address briefly here with you today. I 2 suspect that they're ones that the Board may be 3 interested in discussing further. Did you have a 4 question, Judge?
5 JUDGE TRIKOUROS: Yes. I just wanted to 6 make sure that I understand the sequence. Originally 7 you were relying upon the DOE entirely for 8 decommissioning funds. Is that correct?
9 MR. MATTHEWS: The WCS application 10 originally submitted relied exclusively on DOE as the 11 only customer.
12 JUDGE TRIKOUROS: Okay. And the revision 13 basically took the DOE out of the picture and said 14 that you were going to meet the requirements of 15 72.13 -- .10.
16 MR. MATTHEWS: No. Not exactly. The 17 application as originally submitted for financial 18 qualification indicated that ISP would have a contract 19 with DOE as a customer, and it would -- in fact, the 20 license condition was there, that it would have an 21 external sinking fund and a contract with DOE.
22 It was modeled on the PFS application, so 23 that funds recovered from the customer would be 24 deposited in the external sinking fund, and the surety 25 would make the difference between the balance in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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94 1 fund and the decommissioning cost estimate.
2 When Interim Storage Partners reactivated 3 the application, they amended it to include -- so not 4 to remove DOE, but to include -- let me step back. It 5 also had an alternative by which WCS would use an 6 exemption, based on other Part 70 facilities where DOE 7 would assume the financial obligation for 8 decommissioning the facility, so one of the other 9 listed provisions of 72.30.
10 Those two provisions were left in, so DOE 11 as a customer with the external sinking fund, or the 12 DOE exemption were left in the application in Rev. 2 13 when ISP reactivated it. But ISP added a third, and 14 that was that private customers would use that 72.30 15 external sinking fund combined with surety bonds.
16 So regardless of who the customer was, 17 when ISP recently, on June 3, removed that exemption 18 request, those two alternatives still exist.
19 Regardless of who the customer is, ISP will recover 20 those funds, deposit them into the external sinking 21 fund and make up delta with a surety bond.
22 JUDGE TRIKOUROS: And you appropriately 23 modified the license conditions as per --
24 MR. MATTHEWS: That's correct, Judge 25 Trikouros. We modified that amendment, modified NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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95 1 everywhere the exemption was addressed and removed the 2 exemption request in 1.71.
3 JUDGE ARNOLD: I do have a simple 4 question. The petitioners have expressed doubts as to 5 whether or not it is credible that utilities owning 6 fuel might be willing to pay you to store their fuel.
7 Let's assume for a moment that they're correct and 8 they have cold feet and they will not allow you to 9 store the fuel, and the DOE just can't by law.
10 What, in that case, would your 11 decommissioning costs be? I mean, because you've 12 never gotten any fuel.
13 MR. MATTHEWS: There'd be even no 14 construction, Judge Arnold. It would be similar to 15 the status of the PFS license today. There's a 16 license that exists that hasn't been used.
17 JUDGE ARNOLD: So if petitioners are 100 18 percent correct, then there's no problem really.
19 MR. MATTHEWS: Petitioners assert that 20 there is a problem. They somehow believe that we will 21 have decommissioning expenditures prior to receipt of 22 fuel for storage. It's the opposite that you point 23 out, enshrined in the license conditions, that we 24 won't have the fuel absent the contract, so there will 25 be assurance of decommissioning funding prior to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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96 1 receipt of any fuel for storage. And that was 2 specifically modeled on the PFS precedent.
3 JUDGE ARNOLD: Thank you.
4 MR. MATTHEWS: The remaining two 5 contentions that -- the first that I have is the 6 location of the Ogallala Aquifer seems to be how the 7 petitioners style it and would have the Board think 8 about it. But it is a contention about the CISF 9 adversely affecting groundwater.
10 And in that regard, it is no different 11 than Sierra Club 15 in the other proceeding. The 12 location of the Ogallala Aquifer or Ogallala -- the 13 OAG Aquifer, the OAG Formation. Whether there's water 14 in that formation and where under the proposed CISF 15 site, we recognize that petitioners disagree with our 16 application, and we recognize that their expert 17 disagrees with the location of what Dr. Bobek believes 18 is the Ogallala Aquifer.
19 ISP has indicated where the water is, 20 regardless of what label any petitioner wants to put 21 on it. What petitioners have not shown here is the 22 same as what petitioners didn't show in the other 23 proceeding, and that is why dry pelletized fuel inside 24 clad has some risk, whether it be high burnup or 25 other, how somehow that radiological material could NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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97 1 move from outside the clad to outside the welded can, 2 what medium there is to transport it from that dry can 3 onto a pad, and then how it would penetrate that layer 4 of ground to reach whatever water is there.
5 What ISP has shown in its applications is 6 that there is not water under the pad where it intends 7 to store the fuel. Petitioners have not shown that 8 there is water under the pad. They have shown that 9 there's water in the nearby vicinity, and they would 10 have the Board look at very large scale maps with 11 large dots that would cover many square miles on a 12 question that is very local. So --
13 JUDGE RYERSON: Yes. If I may interrupt 14 you, Mr. Matthews, it seemed to me, if I recall, you 15 made an argument that because of the lack of a pathway 16 for liquid, that the geology was therefore not 17 material to the outcome of whether there could be 18 liquid contamination.
19 But isn't -- doesn't ISP have an 20 independent obligation to analyze the geology and the 21 water structure per se, and isn't their argument that 22 they have raised at least, whether you agree with them 23 or not, they have at least raised an issue for a 24 hearing on that, regardless of whether there could be 25 groundwater contamination?
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98 1 MR. MATTHEWS: So separate from the safety 2 issue of groundwater, the NEPA issue of whether ISP 3 adequately analyzed the --
4 JUDGE RYERSON: Correct.
5 MR. MATTHEWS: -- the groundwater status 6 at the site.
7 JUDGE RYERSON: Correct. Does the 8 contention cover that?
9 MR. MATTHEWS: We know of no site that has 10 been more studied, more analyzed and more documented 11 with respect to groundwater. The fact that there are 12 petitioners' studies that they have found or 13 commissioned to identify groundwater in one place or 14 another does not somehow suggest that ISP has failed 15 to adequately assess the groundwater WCS, the partner, 16 has failed to assess.
17 In fact, it has been the subject of 18 extensive review in other proceedings that the 19 petitioners cite they say are still disputed, but 20 don't say where or by whom. And they cite the Texas 21 Water Development Board for being authoritative of 22 where the aquifers are, and even the Board doesn't 23 show the water there.
24 So, yes, they disagree, but they have not 25 shown how ISP's analysis is somehow inadequate from a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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99 1 NEPA perspective.
2 JUDGE RYERSON: Okay.
3 MR. MATTHEWS: From either a safety or a 4 NEPA perspective. And my last is high burnup fuel, in 5 this proceeding, Sierra Club 16. In the other 6 proceeding, this same issue was spread across several 7 different contentions. I believe they were Sierra 8 Club 20 through 23 in that proceeding, but presented 9 the same issues.
10 There are opinions about high burnup fuel 11 might react, and cite to DOE and NRC references for 12 concerns about high burnup fuel, but they don't point 13 to deficiency in the application, how the application 14 assessed high burnup fuel.
15 They say that we haven't, but failed to 16 address those sections of the application that do, as 17 it relates to the facility, and failed to address or 18 seek to go beyond the scope of this licensing 19 proceeding with the facility and get into the 20 licensing of the canisters themselves, the dry storage 21 systems that are subject of separate NRC licensing 22 process.
23 Those are incorporated by reference in the 24 CISF application. WCS commits, as in the other 25 application, that any high burnup fuel will be canned NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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100 1 inside the canister. And petitioners haven't 2 suggested any reason why that is inadequate.
3 So the analysis that the Board applied in 4 those contentions 20 through 23 in the other 5 proceeding, that applies equally well here to the 6 reformulated contention 20 here -- I'm sorry --
7 contention 16.
8 JUDGE ARNOLD: When you load spent fuel, 9 is there a limit on the decay heat that can be within 10 one specific fuel assembly?
11 MR. MATTHEWS: ISP won't load spent fuel.
12 JUDGE ARNOLD: When the -- it's probably 13 in the certification --
14 MR. MATTHEWS: The certification for each 15 of those dry canister systems that are incorporated by 16 reference into the ISP application would be in chapter 17 12 of the application for each system. Each of the 18 eight systems are listed there, and those technical 19 specifications and requirements for those canisters 20 apply the same as they do today at the WCS CISF.
21 So, yes. There are limitations that apply 22 to each of the different designs as to -- and this is 23 where I get out in front of my headlights. It's burn 24 and temperature that they manage with the system.
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101 1 specific canister design that has a limit on the decay 2 heat, the burnup that can be in it, if this canister 3 can take either low burnup or high burnup fuel, do 4 they require that the high burnup fuel that has 5 greater decay heat decayed longer in a spent fuel pool 6 before it's loaded?
7 MR. MATTHEWS: So, again, I'm not --
8 JUDGE ARNOLD: I'm just saying, is there 9 one thermal limit that is approved for all fuel, 10 regardless whether it's high or low burnup?
11 MR. MATTHEWS: I don't believe there's one 12 thermal limit that applies to every dry cask storage 13 system. They each have their own --
14 JUDGE ARNOLD: For a specific system.
15 MR. MATTHEWS: Each specific system has 16 its own licensing basis, and --
17 JUDGE ARNOLD: Okay. You just don't have 18 the --
19 MR. MATTHEWS: I don't have the --
20 JUDGE ARNOLD: -- expertise --
21 MR. MATTHEWS: -- answers for that, but 22 they carry over in the CISF -- so they don't change in 23 this application. They're incorporated by reference, 24 and the site application has a condition that is 25 specific, defining high burnup at 45,000. So if a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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102 1 canister wasn't loaded -- if it were somehow allowed 2 to be loaded with a higher burnup without canisters 3 and didn't meet the 45 in the ISP license, it wouldn't 4 be acceptable for receipt. Am I answering your 5 question?
6 JUDGE ARNOLD: No, no. I understand that 7 you don't have the technical expertise to answer what 8 I'm asking.
9 MR. MATTHEWS: I've proven that. Thank 10 you, Judge Arnold. I'll turn it over to my colleague, 11 Paul Bessette.
12 JUDGE RYERSON: Thank you, Mr. Matthews.
13 MR. BESSETTE: Good morning, Your Honor.
14 This is Paul Bessette, and I think I can be fairly 15 quick in our wrap-up on the remaining Sierra Club 16 contentions. And I'm going to start with general 17 categories.
18 First is Sierra Club's contentions 19 regarding purpose and need of the application. And 20 there's three contentions that generally are somewhat 21 repetitive and overlap, Sierra Club 2, which asserted 22 a lack of support in the ER for comparative safety and 23 security claims and that the application must examine 24 hardened on-site storage; Sierra Club 3, that there's 25 no need for the CISF and that it conflicts with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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103 1 container storage rule; and Sierra Club 8, that the 2 application is not supported by the Blue Ribbon 3 Commission.
4 Overall, all three of those contentions 5 are very similar or are identical to the Board's 6 decision in Sierra Club 2 and 3 in Holtec, which 7 addressed the comparative safety of fuel on site to 8 the continuous CISF; Sierra Club 6, which addressed 9 hardened on-site storage; and Sierra Club 7, which 10 addressed the Blue Ribbon Commission. We believe 11 those contentions are identical, and the Board's 12 decision applies to all of those.
13 Moving along, Sierra Club no-action 14 alternative, Sierra Club 7. Again, very similar.
15 Must discuss safer on-site storage of hardened on-site 16 storage, and the fact that fuel can be stored safely 17 and indefinitely on site. It must discuss the costs 18 and benefits.
19 The Board decision in Holtec 6 applies 20 equally here, and I would note that that was not 21 appealed in Holtec, nor was Sierra Club 2, 3, or 8.
22 The Board's decision applies here. The cost benefit 23 is discussed in the ER, particularly in our 24 application section 7.2 and 7.3. The no-action 25 alternative is maintaining the status quo. There's no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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104 1 need to evaluate alternate means of storing fuel at a 2 licensee's site.
3 The failure to discuss how HOSS is 4 relevant to the no-action alternative, it's not 5 licensed or implemented at any site, and the Continued 6 Storage Rule does not include any comparative safety 7 analysis of on-site to CISF storage. So, again, 8 Sierra Club 7, Board decision applies here as well.
9 There was another category of contentions 10 on the duration of the license, the de facto 11 repository, and for Sierra Club, that was Sierra Club 12 contention 5. It said ER must address the purpose, 13 need and environmental impacts if a permanent 14 repository is not found and the CISF become the de 15 facto permanent repository.
16 The Board decision in Sierra Club 5 and 17 also in Joint Petitioners 10 applies equally here, and 18 none of those were applied. Like the Holtec 19 application, the CISF -- the ISP application is only 20 for 40 years. Possible renewals are irrelevant. They 21 will be separate licensing actions.
22 The CISF continuous storage rule includes 23 the impact determinations from the continued storage 24 GEIS, which considers the environmental impacts beyond 25 the terminal license. That's a challenge to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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105 1 Continued Storage Rule which is barred in this 2 proceeding without a waiver, which has not been 3 applied.
4 With regard to the container licensing 5 period, Sierra Club 14, which was discussed by Mr.
6 Taylor, says they have a 20-year licensing period, and 7 by the time that they get to the CISF, many of them 8 will already have been in service for many years. It 9 said we must evaluate the environmental impacts of the 10 containers beyond the 20-year period. They also 11 assert as part of that that it is a de facto 12 repository.
13 The Board's decision in Holtec, Sierra 14 Club 9, applies equally here for the same reasons.
15 And the Continued Storage Rule -- per the Continued 16 Storage Rule, we are not required to consider the 17 environmental impacts beyond 40 years. And it's not 18 relevant to this proceeding that extensions to the 19 cask life or the CISF are possible, as that is 20 governed by the Continued Storage Rule.
21 There is one different contention here, 22 Sierra Club 12. They assert the actual minimum 23 cooling time for a boiling water reactor fuel in new 24 homes MP-187 which is one of the casks in the ISP 25 application is greater than calculated through TN or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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106 1 Orano. Thus, the cladding will exceed the allowable 2 limits.
3 That is actually just a error in the 4 pleading. That cask, which is cited in our 5 application, does not allow storage of boiling water 6 reactor fuel, so that is a different contention, but 7 it's just a factual error. In addition, any 8 challenge -- even if it were allowed, that would be a 9 challenge to the CFC for that cask and beyond the 10 scope of this proceeding.
11 Finally, Sierra Club 13, which you 12 discussed earlier by Mr. Taylor, is a challenge to the 13 discussion of endangered species, particularly the 14 Texas horned lizard and the dune sagebrush lizard.
15 They say they have or may be present on the site, and 16 there is no discussion of any studies or surveys to 17 determine if the species are present or impact the 18 project.
19 I would note that the entirety of that 20 contention is one-and-a-half pages of double-spaced 21 pages, and they really on cite two statements in it.
22 We believe the Board decision in Sierra Club 12 23 applies equally here, although that was restricted to 24 the dune lizard.
25 Differently in that case, they provided NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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107 1 maps and surveys, trying to show the presence of the 2 dune lizard on the Holtec site. Here they provided no 3 maps, no data, no citations to anything wrong in the 4 multiple sections of Section 3.5 or 4.5 of the 5 environmental report, so we believe the Board's 6 decision that it was unsupported applies equally here.
7 JUDGE RYERSON: Mr. Bessette --
8 MR. BESSETTE: Yes.
9 JUDGE RYERSON: -- if I recall, part of 10 petitioner's argument in contention 13 was that ISP 11 did cite authorities, studies that were not cited in 12 a way that anyone could find. Didn't they make that 13 argument?
14 MR. BESSETTE: They said the reports were 15 not available, but the reports are actually -- the 16 results of the reports and the findings of the reports 17 are thoroughly discussed throughout the application in 18 Section 3.5 and 4.5. So although they said they 19 couldn't put their hands on the reports, they never 20 challenged the multiple sections of the ER that 21 actually the results of all of those studies.
22 JUDGE RYERSON: Okay. But the application 23 discusses the results of those studies, but the 24 studies themselves were privately done, and they're 25 not available. Is that basically the state of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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108 1 affairs?
2 MR. BESSETTE: They were not included as 3 reference in the application. Yes, Your Honor.
4 JUDGE RYERSON: Okay.
5 MR. BESSETTE: But if you look at ER 6 Section 3.5, ER 4.5.4, ER 4.5.10, they are thoroughly 7 summarized, and petitioners haven't challenged any of 8 that information. They brought forth no public data, 9 no studies, nothing to challenge that information.
10 JUDGE RYERSON: Thank you.
11 JUDGE TRIKOUROS: And I think that is 12 something we want to just discuss when we get to 13 questions, I guess, in the morning or whenever we get 14 there. But that's not the end of it, at least not for 15 me anyway.
16 MR. BESSETTE: Yes, Your Honor. We'll be 17 available to discuss that in more detail. And that's 18 the summary of the remaining Sierra Club contentions, 19 Your Honors.
20 JUDGE RYERSON: Anything further, Judge 21 Arnold?
22 JUDGE ARNOLD: No.
23 JUDGE RYERSON: Judge Trikouros?
24 JUDGE TRIKOUROS: Not now.
25 JUDGE RYERSON: Thank you, Mr. Bessette.
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109 1 MR. BESSETTE: Thank you.
2 JUDGE RYERSON: And the NRC staff? And I 3 know at the start, I have one question for you about 4 Sierra Club, I think it would be, 9. Originally the 5 NRC staff thought -- took a position that Sierra Club 6 9 was admissible in part -- oh, you're switching 7 personnel out there. I must have struck a nerve 8 perhaps.
9 Initially the staff's position was that, 10 yes, Sierra Club 9 is admissible in part, but I was 11 wondering, in light of the withdrawal of the exemption 12 request by ISP, whether you have changed your 13 position.
14 MS. KIRKWOOD: Yes, Your Honor. Yes. The 15 exemption request was withdrawn, and so the challenge 16 to that is now moot, and Sierra Club did not amend 17 their contention.
18 JUDGE RYERSON: So in the staff's view, 19 Sierra Club contention 9 is now not admissible at all.
20 MS. KIRKWOOD: Correct.
21 JUDGE RYERSON: Thank you.
22 MR. GILLESPIE: Your Honor, Joe Gillespie 23 with the NRC staff. With the exception of your 24 question just now and contentions 4 and 16, the 25 staff --
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110 1 VOICE: We can't hear.
2 MR. GILLESPIE: The staff has nothing 3 further to add beyond its initial answer, which we 4 believe represents our positions. However, with 5 respect to contention 4, the staff originally stated 6 that it was admissible in part. However, based on the 7 additional information provided in the June 28 RAI 8 response, the staff believes this issue has been 9 superseded, as it's unclear what the precise dispute 10 that the petitioner has with the updated application.
11 Again, also a statement was made with 12 respect to contention 16, high burnup fuel. There was 13 a statement made that the issues related -- at least 14 there was a potential that all the designs of the 15 facility have an approved COC and are out of scope 16 under 72.46(e). However, that said, there is one 17 design of the facility -- I just wanted to point this 18 out -- that is not -- does not have an approved COC 19 under 72.14 with respect to storage, and --
20 VOICE: We can't understand you. You need 21 to --
22 JUDGE RYERSON: I think if you move the 23 mike slightly more directly --
24 MR. GILLESPIE: Is that better?
25 VOICE: Oh, yes.
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111 1 MR. GILLESPIE: That said, regardless of 2 whether it is out of scope of the hearing with respect 3 to that one design, the lack of specificity with the 4 dispute with the application and the lack of dispute 5 with the provisions in the application related to high 6 burnup fuel are still dispositive of this issue.
7 JUDGE RYERSON: So you're saying that 8 is -- we're talking about 16 now. The staff's view is 9 that is not admissible.
10 MR. GILLESPIE: Yes, Your Honor.
11 JUDGE RYERSON: But your position has 12 changed on Sierra Club contention 4. Correct?
13 MR. GILLESPIE: Yes, Your Honor. As it 14 stands today, this --
15 JUDGE RYERSON: Okay. We're here today.
16 So you have changed your position. You urged -- had 17 urged that Sierra Club 4 should be admitted in part, 18 and as we stand here or sit here today, your 19 position -- the NRC staff's position is that Sierra 20 Club 4 should not be admitted.
21 MR. GILLESPIE: Yes, Your Honor. Based on 22 the application as it stands today, because it's 23 unclear that we've -- the tables have changed such 24 that it's unclear exactly what particular section is 25 being disputed in the contention as originally NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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112 1 written.
2 JUDGE RYERSON: Okay. Is there any 3 contention -- is there any Sierra Club contention the 4 NRC staff asserts is -- currently is admissible?
5 MR. GILLESPIE: No, Your Honor.
6 JUDGE RYERSON: Okay. Thank you. That's 7 it? Thank you, Mr. Gillespie.
8 MR. GILLESPIE: Thank you so much.
9 JUDGE TRIKOUROS: I have --
10 JUDGE RYERSON: Oh, I'm sorry. I keep 11 cutting off my colleagues here who have better 12 questions than I have.
13 JUDGE TRIKOUROS: The original basis for 14 the staff recommending this admission of contention 4 15 in part was, I thought, that there was a rather large 16 discrepancy between the Dr. Resnikoff analysis and the 17 analysis in the ER.
18 MR. GILLESPIE: Yes, Your Honor.
19 JUDGE TRIKOUROS: All right. Now the --
20 in response to an RAI, the transportation radiological 21 analysis was redone. From what I can see is that it 22 was done over again the same way but in accordance 23 with a quality assurance program that wasn't in place 24 in the first analysis.
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113 1 at all. It's still there, just as it was. The 2 results of the new analysis in the ER are no different 3 than the first analysis. So what is it that had made 4 you change your mind?
5 MR. GILLESPIE: Your Honor, specifically 6 there was a table in the original application that was 7 referenced by --
8 VOICE: Can't hear you.
9 MR. GILLESPIE: There was a table in the 10 original application that was referenced by the 11 petitioner that identified maximum dose for an 12 individual nearby and these different consequences.
13 JUDGE TRIKOUROS: Table 4-2.9, I think 14 you're talking about.
15 MR. GILLESPIE: Yes. Yes, Your Honor.
16 JUDGE TRIKOUROS: Yes.
17 MR. GILLESPIE: And I believe that's 18 been -- there's most clearly links to table 4-2.11 now 19 where it links a maximally exposed individual to 20 different levels of losses of shielding.
21 And in this case, it's unclear exactly how 22 that original dispute with that one number correlates 23 to the table now, because there's information on 24 different levels of shielding and what that 25 would entail. And there was no discussion of exactly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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114 1 what level of shielding was lost in the original 2 study.
3 JUDGE TRIKOUROS: So the Dr. Resnikoff 4 study is no basis at all in --
5 MR. GILLESPIE: I'm not sure the staff 6 would go that far. We haven't made a determination at 7 this stage as to what a reasonable value for these 8 individuals are at this stage.
9 JUDGE TRIKOUROS: Say that again. I'm 10 sorry.
11 MR. GILLESPIE: At this stage we have not 12 made a determination as to what exactly the 13 consequences of a transportation accident might be as 14 part of the RAI. It's under more review at this time.
15 JUDGE TRIKOUROS: Right. In fact, you 16 asked for just the very piece of information you could 17 ask for to independently verify it, and it hasn't been 18 done yet. So I was just curious. But at this point, 19 you've made the decision to -- that it's not 20 admissible any longer.
21 MR. GILLESPIE: Your Honor, it's not 22 admissible because the table that they disputed has 23 changed so significantly that we're not clear what the 24 dispute is at this stage. Instead of having a six-25 value table, now there's a 50-value table, and it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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115 1 just not clear to us.
2 JUDGE RYERSON: Are you suggesting, Mr.
3 Gillespie, you're going to come back to the Board and 4 say, Surprise, this is now an admissible contention?
5 I'm confused as to what you think the process is here.
6 MR. GILLESPIE: Well, the issue has -- at 7 this stage, I mean, for an admissible contention, it 8 has to provide a dispute with the application and 9 point to specific sections of the application. Our 10 position is that with respect to the original 11 application and that one -- it is admissible in part 12 with respect to that issue. But with respect to the 13 application as it stands today, there's no clear 14 dispute with it, and as a result, it would be 15 inadmissible as it stands today.
16 JUDGE RYERSON: Okay. But my question 17 was: As you -- as the staff continues its work, is 18 there a possibility you're going to change your mind?
19 MR. GILLESPIE: No, Your Honor.
20 JUDGE RYERSON: Okay. Thank you. Any 21 other questions, gentlemen, at this -- we may get back 22 to this issue tomorrow.
23 MR. GILLESPIE: Understood.
24 JUDGE RYERSON: Thank you, Mr. Gillespie.
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116 1 break, and we will resume -- we will try to resume 2 promptly at 1:45. Thank you.
3 (Whereupon, at 12:15 p.m,. the oral 4 arguments in the above-entitled matter were recessed, 5 to reconvene at 1:45 p.m., this same day, Wednesday, 6 July 10, 2019.)
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117 1 A F T E R N O O N S E S S I O N 2 (1:45 p.m.)
3 JUDGE RYERSON: Well, we are back on the 4 record, and I believe it is Mr. Lodge's turn. And I 5 should say before you begin, we were talking about the 6 standing issue, and you mentioned that you might want 7 to deal with that quite a bit. You have a number of 8 different clients who have different standing 9 positions. So feel free to say whatever you want, but 10 on the generic issue of -- the generic argument, if 11 you will, we will address that tomorrow. You can 12 address it now as well. That's up to you, but we will 13 address that tomorrow.
14 MR. LODGE: I'm fine. Can you hear me?
15 JUDGE RYERSON: It really matters whether 16 you turn right into that microphone and get close to 17 it.
18 MR. LODGE: Okay. Thank you. May it 19 please the panel and opposing counsel, other 20 intervenors, the Joint Petitioners have a number of 21 things to talk about today. However, I do feel 22 compelled to mention that we feel, my clients, that 23 is, feel that this is being conducted sort of as a 24 show-cause why contentions related to WCS should not 25 be dismissed if they are not sufficiently NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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118 1 differentiated from similar contentions in Holtec.
2 And that isn't how it works.
3 The burden for admission of a contention 4 isn't on how it creates an issue of fact with the 5 Holtec application, but how it does so with the WCS 6 application. As the Board realizes, you're required 7 to arrive at an independent conclusion as to each 8 distinct license application.
9 What troubles me is the distinct 10 possibility that you will be put in the situation 11 where you might have to overrule, in effect, the 12 similar holdings in Holtec and will constrain 13 yourselves from doing that so as to not see 14 intervenors raise those in the appeal of the Holtec 15 license case. I'm very troubled by the appearance of 16 the posture of the licensing board at this point.
17 JUDGE RYERSON: I must say, you know, you, 18 in effect, raised that argument early on with the 19 motion for recusal which was denied and affirmed by 20 the Commission. So, I mean, we're aware of that 21 position, but frankly, boards and courts all the time 22 consider similar cases, and they just have to 23 differentiate them.
24 And I will say again what I said earlier.
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119 1 giving you this opportunity in addition to responding 2 to our questions, this opportunity to differentiate 3 the cases, is solely for your benefit. I mean, you 4 don't have to do that. You could talk to us about 5 something else for 45 minutes.
6 But we thought it might be constructive to 7 do it that way, but you don't have to do it that way.
8 That's up to you.
9 MR. LODGE: Well, I thank you for that.
10 We took the Board's order of June 7 as a clear 11 suggestion as to what the Board wants to hear about, 12 and so I'm going to turn to that matter of responding 13 to the June 7 priorities, but I want it clear that the 14 Joint Petitioners are not waiving their objections by 15 doing that.
16 JUDGE RYERSON: Understood.
17 MR. LODGE: Thank you. So the first issue 18 I'm going to talk about is our contention 4, which is 19 analogous to contention number 3 in Holtec. That 20 pertains to low-level radioactive waste volumes which 21 we believe are grossly ignored, understated or 22 completely unmentioned in the application by WCS.
23 The circumstance that we see are that 24 there are two major streams of potentially low-level 25 radioactive waste. Now, I'm aware that the GEIS NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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120 1 divides the notices that there may be something on the 2 order of, I believe, 639 cubic yards of low-level 3 radioactive waste that generically may be expected to 4 be generated by the CISF.
5 But the numbers are staggering the other 6 direction. For instance, there are going to be eight 7 concrete pads. I did my own political science major 8 simplistic mathematical calculations as to their 9 dimensions and came up with the fact that probably 10 gross amount of about 104,000 cubic meters of concrete 11 will ultimately be involved in the build-out of the 12 pads.
13 Now, I realize that not 100 percent of 14 this will be irradiated perhaps. That gets me to 15 another problem, though. That is that there's no 16 disclosure in the application nor discussion of low-17 level radioactive waste irradiation potential, and 18 while, as I recall in Holtec, basically the burden was 19 put on the intervenors to scientifically show or 20 suggest that this phenomenon would even take place.
21 I think that's a ridiculous and legally misplaced 22 obligation.
23 It is the burden of the Applicant to 24 disclose and discuss its calculations as to what level 25 of irradiated concrete might be generated. Now, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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121 1 also sat here this morning and I'm figuring this room 2 is about 45 feet side. The ceiling's about 12 feet 3 tall, and 600 cubic yards or 640 cubic yards is going 4 to run out maybe 30 feet. So half this room is all 5 the low-level radioactive waste that is anticipated in 6 the GEIS to be generated after perhaps a hundred years 7 and thousands of tons of SNF storage.
8 104,000 meters, cubic meters, or pick a 9 fraction, 80 percent of that, 60 percent of that if 10 irradiated would mean more than a hundred times the 11 volume I just described. It'd be 50 times the size of 12 this room in terms of the volume of concrete 13 irradiated low-level radioactive waste.
14 The numbers are staggeringly at odds.
15 There's a considerable issue of difference between our 16 position and what is stated in the application. But 17 wait. Don't answer yet, because there is the 18 additional completely unmentioned, undiscussed huge 19 problem, the huge what we'll call the zombie in the 20 living room of the TADs, the transportation, aging and 21 disposal canister problem.
22 In approximately 2006, Department of 23 Energy announces to the world that they are going to 24 insist that there be a standardized canister used for 25 deep repository storage, and for efficiency's sake, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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122 1 that they'll have to come up with a standard design, 2 but upstream of the repository is when the radioactive 3 waste has to be loaded into the canisters.
4 But what's happened in the interceding 5 dozen or so years is that the radioactive waste is 6 getting loaded into a bunch of different canisters, 7 most of which aren't even fit for transport usage at 8 this time, so they are rapidly becoming LLRW in their 9 own right. But they're sitting at reactor sites.
10 The problem is when does the material get 11 reloaded dangerously into transport canisters. Does 12 it happen at the reactor sites, when you have a dozen 13 sites that are closed and have no dry transfer or 14 other storage -- DTS or other capability, or does it 15 happen at WCS, which is saying, We are not planning on 16 having a DTS system for the first century.
17 There is also the question of what happens 18 if that occurs at DTS. You then are generating untold 19 volumes of metallic canisters that undoubtedly will be 20 irradiated. I realize that part of the mitigation 21 could be some sort of remediation and possible reuse 22 of the concrete or the metallurgical steel, but these 23 are huge quantities of low-level radioactive waste.
24 That latter is not mentioned anywhere in the 25 application. It's not discussed. It's not a problem NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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123 1 apparently, even though it is a major, major issue.
2 So there is this entire problem of low-3 level radioactive waste that is at -- considerably 4 controverted, let's say, by the prospects. Again, I 5 repeat. I don't believe it is the burden of 6 intervenors to have to prove beyond a reasonable doubt 7 that there will be a ton more than is projected in the 8 GEIS. I believe that the environmental and health and 9 safety aspects, the AEA and NEPA problems that this 10 posers, do have to be disclosed, and it isn't.
11 Now, we turn to contention 10, which is 12 also number 10 in Holtec. It's the matter of 13 operation of the facility beyond 120 years. There is 14 considerable evidence suggesting and, in fact, growing 15 evidence suggesting that WCS may operate beyond that, 16 I guess, presumed design basis.
17 As recently as late March or early April 18 this year, former Texas governor, now Department of 19 Energy Secretary Rick Perry indicated to a 20 congressional committee with considerable alacrity 21 that it was anticipated and more or less something he 22 was not uncomfortable with that there's a distinct 23 possibility that the operators of WCS and Holtec would 24 possibly at some future point just walk away, and 25 these two facilities become de facto permanent sites NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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124 1 for disposal of spent nuclear fuel.
2 That's a kind of a stunning revelation, 3 notwithstanding the fact that -- I guess it's simply 4 surprising, since the promise, the pledge, the 5 marketing being peddled to the public says something 6 quite different, that it's interim, that we'll deal 7 with this. This is only to buy a little bit more 8 time.
9 And as Ms. Curran indicated this morning, 10 the NWPA policy as it exists on the books definitely 11 ties interim storage to the fate of a real repository.
12 So, again, this is a very, very serious problem.
13 There are indications in the record that we provided 14 in our petition, which, of course, was filed well 15 before Secretary Perry's comments, that even Holtec 16 had admitted the possibility that a facility should 17 expect to operate for perhaps 300 years.
18 But there are other problems. There's a 19 swap-out of the canisters, no matter if they're TADs 20 or other types of storage canisters. There is the 21 growing problem of accidents, of leakage, of 22 contamination, and no DTS system occurring in that 23 first hundred years.
24 The problem is that this is an evolving 25 plan. It's a moving target. It is not nailed down to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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125 1 paper. There are changes that are being made in the 2 plan even as we speak. It's a very troubling 3 situation. That is a contention that differs from the 4 Holtec one insofar as the fact that Secretary Perry 5 was talking with a certain degree of knowing and 6 personal experience as governor of the WCS facility 7 being one that could be walked away from.
8 Moving on to contention WCS -- our 9 contention WCS case number 12, which was number 4 in 10 Holtec. We contend that the GEIS simply does not 11 apply here, because of the fact that there are so many 12 design differences so far between WCS and the 13 theoretical facility described in the generic 14 environmental impact statement.
15 The GEIS, as I understand it, was more or 16 less taken from the model of private fuel storage 17 earlier this century. The WCS design doesn't employ 18 a spent fuel pool or other -- and I'm quoting -- other 19 bare fuel handling capability. The cask handling 20 building is designed to handle canisterized material 21 and does not have the capability to handle bare fuel.
22 A recovery method for the unlikely loss of 23 confinement event is independent of any bare fuel 24 handling facilities. Additionally, the WCS CISF does 25 not have a spent nuclear fuel pool or any associated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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126 1 waste generated as a result of pool operations or pool 2 maintenance.
3 The WCS emergency response plan does not 4 include arrangements and procedures for omissions 5 mitigation such as reduction -- that is to say, 6 reduction of emissions to the surrounding environment 7 of radiation or radioactive material from spent 8 nuclear fuel as a result of damage to SNF assemblies 9 or containers.
10 So we have another very large set of 11 distinctions that we believe mean that the WCS 12 proposal has to be treated as less -- as not a generic 13 proposal with the insularity of these critical 14 distinctions unresolved issues.
15 Turning to our contention 13, which was 16 comparable to -- roughly comparable to number 6 in the 17 Holtec case, reprocessing. There's been -- there have 18 been and are continuing to be new developments in 19 reprocessing. This panel sitting as the Holtec Judges 20 ruled that the reprocessing contention was 21 inadmissible because there isn't a hard enough --
22 hardened enough plan or intention that we were able to 23 find and put into the record.
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127 1 printed completed application or plan. We believe 2 that there are very considerable pieces of evidence 3 from a variety of sources as to the intentions of 4 several of the parties and several of the moving parts 5 of both Holtec and WCS.
6 There have been a number of pronouncements 7 widely publicized, nationally, as it were, by Holtec 8 officials and ELEA officials of -- pardon me -- not 9 Holtec officials, but ELEA, the Eddy-Lea Environmental 10 Alliance, which is the New Mexico sponsor, of course, 11 of the Holtec facility site.
12 They would love to see and believe for a 13 variety of economic reasons that New Mexico would be 14 a fine site for a plutonium reprocessing type of 15 facility. In Texas, his name comes up again. Former 16 Texas Governor Rick Perry, now Secretary of Energy, in 17 2014 a report from his Texas Council on Environmental 18 Quality was issued that said reprocessing is a fine 19 idea; the assets can be easily put in place. There 20 needs to be some type of arrangement made for this 21 sort of reclamation of plutonium.
22 And the sponsor of the WCS proposal is 23 Orano. Orano is a surviving entity, I guess, of 24 AREVA. AREVA has a demonstrated history of being 25 perhaps the largest corporate plutonium reprocessing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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128 1 company in the world, was a large promoter of GNEP, 2 the Global Nuclear Energy Partnership, in the early 3 part of this century, about ten or eleven years ago, 4 which was an initiative that went nowhere ultimately 5 but has not been forgotten nor apparently abandoned.
6 Moreover, under Secretary of Energy Rick 7 Perry, last fall the DOE issued notice in the Federal 8 Register, asking for comments. It wasn't a 9 rulemaking, but it was sort of an interesting inquiry, 10 asking for comments on what -- whether there was any 11 strong feeling about deregulating the waste generated 12 from nuclear reprocessing down to the level of low-13 level radioactive waste, so they would not have to be 14 as expensively isolated and contained as high-level 15 nuclear waste.
16 I don't know what the status of that 17 inquiry is, but it happened on the watch of former 18 Governor Perry, who is a -- apparently a reprocessing 19 booster, as we know.
20 So beyond that, in the congressional 21 hearings in both houses just in the past three or four 22 weeks, discussing the Nuclear Waste Policy Act as 23 amended by 2019 proposals, the Nuclear Energy 24 Institute CEO has been -- or other officers have been 25 testifying before congressional committees about the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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129 1 desirability of reopening the reprocessing can of 2 worms via statutory changes.
3 And there's a history of statutory 4 changes. Back in the early part of this century, 5 approximately 2004, waste incident to reprocessing 6 statutorily became low-level radioactive waste for a 7 couple of sites. There has been at least one other 8 legislative attempt to expand it from, I believe it 9 was, Savannah Research site and another one, but to 10 expand it to include now Hanford and West Valley.
11 So there was considerable legislative --
12 there's some success in making that kind of change, 13 apparently relatively easily. And there's 14 contemporary discussion going on about nuclear 15 reprocessing in Congress. We believe you don't need 16 a hardened plan. We believe that the installation of 17 a CISF in West Texas would enable and facilitate 18 reprocessing. It is the missing ingredient, in fact, 19 that would ultimately gel the rest of a plan.
20 We believe that NEPA requires cumulative 21 impacts analysis of this strong possibility, that a 22 NEPA coverage of this proposal absolutely needs to 23 include serious identification and analysis of 24 reprocessing as an alternative.
25 Now, I'd like to switch -- I'd like to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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130 1 move the microphone, if I may, for a few minutes and 2 talk about standing. Is this thing still working?
3 On behalf of seven different groups and an 4 individual, we submitted a couple of dozen 5 declarations in support of our petition to intervene 6 in this. I want to talk about approximately ten of 7 them. And I'm going to be responding to the critique 8 of the Nuclear Regulatory Commission staff in their 9 opposition to the Joint Petitioners having any 10 recognizable standing.
11 JUDGE RYERSON: And if I can just 12 interrupt here for a moment --
13 MR. LODGE: I'm sorry.
14 JUDGE RYERSON: -- Mr. Lodge. These are 15 all part of your petition. Am I correct?
16 MR. LODGE: Well, they're either referred 17 to in our petition or they are lifted from -- they're 18 within the discussion of rail transportation within 19 the application.
20 JUDGE RYERSON: Okay. I mean, these are 21 not new documents, in other words.
22 MR. LODGE: No, no, no.
23 JUDGE RYERSON: Okay.
24 MR. LODGE: And let me sort of --
25 JUDGE RYERSON: I'm sorry. I said NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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131 1 initially your petition. But you said some are from 2 the application itself.
3 MR. LODGE: They're all from the 4 environmental report.
5 JUDGE RYERSON: Okay. All right.
6 MR. LODGE: But first I want to talk about 7 what the declaration said. The NRC sort of derided 8 the declarations as being templated and essentially 9 not reflecting sufficient proximity or danger, as it 10 were, to the transportation routes. These all -- all 11 of the petitioners have manifested some serious 12 concerns about transportation.
13 The petitioners -- pardon me -- the 14 declarants identified routine radioactive emissions as 15 something that they were concerned about, as well as 16 nonroutine. And in our petition, we discuss the 17 standard for Yucca Mountain that was referenced for 18 purposes of the zone of influence, I believe is the 19 name, or pardon me, the region of influence, the ROI, 20 as being 50 miles for serious accidents, and 21 approximately 800 meters either side of a 22 transportation route for routine radioactive 23 emissions.
24 The problem that we have identified is 25 that apparently it would be helpful to illustrate on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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132 1 maps the principal means of transportation that is 2 going to be used for the radioactive waste.
3 So obviously this is a national map. This 4 appears in the application -- pardon me -- in the 5 environmental report WCS submitted. The circle --
6 let's see if I can point to things. It's not 7 cooperating.
8 The circle that you see in the lower left-9 hand side is the region where WCS would be located, 10 and as you can also see, there's kind of a funneling 11 effect. The vast majority of the radioactive -- the 12 spent nuclear fuel is going to come from eastern 13 reactors. There is some that will come mainly down 14 the West Coast and across Arizona.
15 But there's a funneling effect that 16 occurs. The waste will come across from New England, 17 from the Central States, as it were, the Piedmont, I 18 guess, and ultimately from the Southeast, will 19 generally head west through major rail corridor areas.
20 As you can see, by the time things get to Dallas, 21 the -- we're down to only a couple of major railroad 22 routes from the East.
23 So there's a funneling effect. If there 24 are as many as 80,000 trips, 30,000 of which are bound 25 for WCS, we're talking certainly about three-quarters NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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133 1 or more of those transport trips coming from the East 2 and an awful lot of them coming from the Northeast and 3 also in the Southeast, so just to give the Board that 4 idea as to what the national map looks like.
5 MR. MATTHEWS: I'm sorry to interrupt.
6 MR. LODGE: Yes.
7 MR. MATTHEWS: May I ask, for the benefit 8 of the record, what either page or figure number --
9 MR. LODGE: Sure.
10 MR. MATTHEWS: -- that is from the 11 application, just so those reading the transcript know 12 what we're all looking at.
13 MR. LODGE: Yes. Thank you. See that 14 Figure 2-2-4. I believe it's -- it may be page 2 --
15 I think I turned it on its side. Page 2-71, I think, 16 from the first ER.
17 JUDGE RYERSON: There's a date on there.
18 I don't know if that's helpful.
19 MR. LODGE: Yes. 11/18/16. Good. Thank 20 you. All right.
21 Then there is this, and we'll identify it.
22 Figure 2-6-1. That's page 2-78 from revision 2 of the 23 ER. And I just want to point out a couple of facets 24 here. One of them is that my Citizens Environmental 25 Coalition group from Upstate New York has posited NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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134 1 declarations that indicate geographical proximity to 2 that blue route, that rail route that's identified, 3 and that the Nuclear Energy Information Service 4 declarants are in Chicago, which is clearly traversed 5 by that same route.
6 As you can see again, there's about a 7 approximately, roughly 50-mile stretch of rail that 8 goes up to and a little bit past WCS. Also there's an 9 obvious trunk route. I believe that's from the San 10 Onofre, but probably is a share of the trunk route 11 that would come down from maybe the Trojan plant as 12 well as Rancho Seco and Diablo Canyon and Mesa Verde.
13 I don't know.
14 Also, there's this interesting phenomenon, 15 and this all assumes, of course, that Yucca Mountain 16 is the repository site, but there's kind of a double 17 whammy of transport here. Initially the waste would 18 go to WCS for some period of time, then backtrack --
19 and this would be duplicative of a route probably 20 traversed by many thousands of canisters, but up into 21 Oklahoma and near to Kansas. You would have 22 duplication of the route, and then an entirely new 23 route taken out to Nevada.
24 So there would be -- you're moving the 25 waste twice, and you're moving it, if Yucca is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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135 1 ultimate goal, you're moving it quite far. So -- and 2 this, of course, this route is going to be the same 3 for every storage canister that finds its way to WCS.
4 Finally I'd like to show you more of a 5 localized regional view of the rail system in Texas.
6 There's only one -- once you get off the main east-7 west line -- and incidentally, this east-west line 8 goes through El Paso very clearly.
9 But once you get off of this route and 10 turn north, essentially 100 percent of the spent 11 nuclear fuel that's being delivered to WCS is going to 12 travel this route, the blue line, all the way up to 13 WCS. And it's all going to go through the small towns 14 nearby.
15 It's -- a lot of it is going to go past --
16 well, I'll start naming names in a minute, but the 17 circumstance that I want to point out is that the 18 funnel ultimately funnels everything down to this 19 route, and if we can demonstrate that -- what? --
20 30,000 separate trips are likely to be made on that 21 particular rail line and that there are people living, 22 recreating, working in proximity to it, we should --
23 our petitioners should be accorded some standing.
24 Up in Eunice, New Mexico, which is about 25 four or five miles from the WCS, one of the declarants NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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136 1 for the SEED coalition is Brigitte Gardner-Aguilar, 2 who essentially lives near, within perhaps a couple of 3 blocks, of one or two Sierra Club declarants.
4 The NRC has recommended standing be 5 granted to the Sierra Club but when we have 6 demonstrated evidence at more than adequate evidence 7 of Ms. Gardner-Aguilar's presence in the same zone, if 8 you will, the NRC staff opposes.
9 JUDGE RYERSON: Excuse me. In the staff's 10 defense, did you mention that in your pleadings, or 11 did they have to ascertain that solely from knowing 12 where Eunice is and looking at the declaration?
13 MR. LODGE: I would have expected the NRC 14 staff to read the declaration --
15 JUDGE RYERSON: I understand. My question 16 was whether you brought it to their attention.
17 MR. LODGE: In rebuttal, yes.
18 JUDGE RYERSON: In -- I know in rebuttal, 19 but that was after they filed. We will get to asking 20 them whether they've changed their mind on that.
21 Thank you.
22 MR. LODGE: Very good. Thank you. We 23 also have SEED member Elizabeth Padilla who lives in 24 Andrews, which is about 37 miles from the WCS site --
25 it's the county seat in the same county as WCS -- and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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137 1 who attests to frequently traveling, often with family 2 members, directly past and adjacent to WCS, ultimately 3 down to El Paso, and I believe she mentions that she 4 crosses the rail line there at Monahans in route to El 5 Paso. Monahans is the intersection of the yellow and 6 blue.
7 Patricia Mona Golden, who is another SEED 8 declarant, lives a little bit west or to the left of 9 the blue line in Van Horn, Texas, which is between 10 Monahans and El Paso. And as I indicated, that 11 appears to be likely a prime route for spent nuclear 12 fuel moved from western power plants. So it is very 13 likely that hundreds of shipments will pass by her 14 town.
15 She lives a block from the rail line and 16 works a hundred feet from the rail line, also in Van 17 Horn. And I would incidentally like to point out that 18 with routine emissions -- I realize that there's a lot 19 of discussion about how close can you stand and how 20 dangerous can it get. The thing is that there's a 21 direct relationship. The farther you are from the 22 canister, the lower the radiation.
23 The DOE apparently believes that out to 24 about 800 yards, that there can be detectable 25 radiation levels from a spent nuclear fuel or a high-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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138 1 level radioactive waste canister, and any amount of 2 radioactive exposure that is involuntary can have both 3 medically and scientifically have implications. But 4 it also is something to which the general public 5 should not be exposed.
6 JUDGE RYERSON: A question and also just 7 to alert you, you have about ten minutes, Mr. Lodge.
8 MR. LODGE: Yes. Very good. Thank you.
9 JUDGE RYERSON: But what -- to what level 10 of assurance do we have that these transportations 11 would, in fact, be used? I mean, this is a -- would 12 be perhaps ultimately a 40,000 metric ton facility.
13 That is far less than the current amount of spent 14 nuclear fuel, and so presumably it's not taking all of 15 the nation's nuclear fuel. How do we even know that 16 there would be any fuel from the West going to this 17 facility?
18 MR. LODGE: If -- this gets into the thing 19 that troubles me the most about the controversy over 20 taking title and DOE involvement. If DOE is involved, 21 DOE is the aggregator. They are the customer of WCS 22 or Holtec. And if they are aggregating the waste, 23 then they're picking the routes.
24 But I, first of all, would observe that --
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139 1 map I showed you, the 50 or -- that. There's 100 2 percent certainty that that blue line is going to 3 be -- it's going to see possibly tens of thousands of 4 shipments, 100 percent, if the WCS business model 5 reaches that which is not -- attains the success that 6 is not statutorily allowed right now.
7 So how can I predict it? I can predict 8 that stretch of it with very high confidence. I can 9 also suggest that WCS is proposing 40,000 metric tons, 10 which represents roughly 40 percent of the current 11 inventory of spent nuclear fuel.
12 And if they are successful in lining up 13 customers, whether it's one or many separate private 14 utilities, they are going to undoubtedly be using the 15 northern route that I showed you in the map from San 16 Onofre.
17 They undoubtedly -- assuming that they are 18 going to get customers from the northeastern 19 corridor -- I think that the problem here is that this 20 is an unprecedented, absolutely globally unprecedented 21 transportation scheme, that it has not been well 22 thought out even close, that it is not something that 23 legitimately can be kicked down the road eight or ten 24 years until the eve of when the shipments begin 25 because of the vast amount of emergency coordination NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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140 1 and understanding and communication, and for that 2 matter, consent of communities through which the waste 3 is going to be transported.
4 I think that there are many unworked-out 5 problems that the Applicant is able to hide from by 6 saying, Oh, well, nothing's concrete, pardon the pun.
7 Nothing is set to paper. Nothing is firm yet. I 8 think what is firm is that there is a very high 9 probability that most of the major rail trunk lines 10 will be involved, and they will not be involved a 11 couple of times. They'll be involved hundreds of 12 times.
13 I want to show you another one. I want to 14 talk about Michigan. I want to talk about the Fermi 15 II Nuclear Power Plant, which is roughly halfway 16 between -- it's on the green or bluish line between 17 Detroit and -- you can't really see it very well, but 18 Toledo at the Ohio border. Monroe is about roughly --
19 the Fermi plant's about 20 miles north of the state 20 line.
21 There's only one rail route. There's one 22 rail spur that goes into the Fermi installation. It 23 comes out, and the only way, the only direction in 24 which SNF will be transported is north through heavily 25 urban, downtown area Detroit, on out, as you can see NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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141 1 with the -- sort of the tan rail line, on out to 2 western Michigan and on down through the Chicago 3 region.
4 I have three declarations from people 5 living six miles or less from Fermi II who all attest 6 there's only one rail line in and out, and where it 7 goes. Two of those three declarants are within about 8 2.5 miles of the Fermi plant.
9 It is very clear to me that there's a 100 10 percent probability, if the stuff goes by rail, that 11 it's going through Detroit. And, again, I can't 12 predict with 100 percent certainty as to the entire 13 national rail grid, but when you are getting into the 14 possibility of tens of thousands of shipments, 15 separate canister shipments, it is, it seems to me, 16 very inevitable that there will be an awful lot of 17 those transportation corridors ultimately put to use 18 in the service of transporting spent nuclear fuel.
19 JUDGE RYERSON: And you have approximately 20 five minutes.
21 MR. LODGE: Thank you. I will be wrapping 22 up. The petitioners base their claim for standing on 23 proximity plus standing. And you have to have an 24 inherently dangerous radioactive material, in 25 combination with some sort of geographical proximity.
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142 1 I believe in many, many cases, we have 2 demonstrated that. A question, of course, is what 3 is -- how far away is safe? And that's why we have 4 advanced the argument that a 50-mile radius in the 5 event of serious accident ought to be used. The DOE 6 thinks so, so far, and we believe that in -- and 7 that's for nonroutine problems that occur in 8 transportation.
9 Just the routine emissions of radiation 10 are problematic enough. The declarants state that 11 they have concerns about driving by or driving on 12 highways parallel and close to rail lines, so they 13 have thought about, consciously taken into account the 14 facts of potential exposure to unwanted minor amounts 15 of radiation.
16 We believe that because of the inherent 17 dangerousness of this material, that our situation, 18 the situation of my clients, is very distinguishable 19 from the cases that were cited by this panel sitting 20 as the Holtec panel. The cases that were cited talked 21 about a few one-shot or few transports of low-level 22 radioactive waste, which is deemed not to be so 23 dangerous and pervasive.
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143 1 shipments. And as you work things through the funnel, 2 you get a smaller and smaller, more definite routing 3 population that is possibly exposed to serious 4 problems, or at least routine emissions.
5 I'd just like to also point out with 6 respect to Diablo Canyon -- I'm not going to move the 7 map around to focus on Southern California. But 8 again, we have declarants, two of them, who identified 9 their proximity and location to rail and highway 10 routes, the only routes coming out of the Diablo 11 Canyon complex, and that they were within about four 12 or five miles, I think, for each of them.
13 With respect to Cervelle de Aslan 14 [phonetic], who is a public citizen declarant -- she 15 lives in El Paso -- stated that she lives within, I 16 believe, a block of the major rail line that we're 17 talking about that goes through El Paso. Rev. James 18 Caldwell of Houston, which is another funneling point 19 across the southern tier of states, lives about a mile 20 from a major funneling rail line.
21 If you saw on the map, the closer you get 22 to the Dallas-Fort Worth area, the greater the 23 funneling effect there. Dallas-Fort Worth seems to 24 become the zone through which a vast majority of the 25 waste will ultimately travel.
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144 1 We believe that we've made a very 2 compelling case for standing, at least of some of the 3 petitioning organizations, and that that needs to be 4 closely scrutinized. I apologize to the extent that 5 perhaps we should have relied more on the maps in our 6 written arguments, but the maps were there. The 7 information in the declarations was always there to be 8 laid and scrutinized alongside the maps. It is 9 certainly time for that to happen.
10 I am reserving the right to give any 11 further presentations or answers respecting the other 12 contentions I haven't talked about. Thank you.
13 JUDGE RYERSON: Okay. Thank you. I have 14 one question. If hypothetically we were to conclude 15 that SEED has standing but not your other many, many 16 clients, would you be continuing this proceeding on 17 behalf of SEED?
18 MR. LODGE: Certainly would.
19 JUDGE RYERSON: Okay. Judge Arnold, do 20 you have --
21 JUDGE ARNOLD: No.
22 JUDGE RYERSON: -- any questions? Judge 23 Trikouros?
24 JUDGE TRIKOUROS: No.
25 JUDGE RYERSON: Thank you, Mr. Lodge.
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145 1 Let's see. Mr. Bessette.
2 MR. BESSETTE: Yes, sir. Good afternoon.
3 I'm -- as we've done before, we're going to be 4 discussing groups of Joint Petitioners' contentions.
5 As a preliminary matter, Mr. Lodge kept 6 referring to WCS as the Applicant. I just want to 7 make sure we're clear that it's not WCS. It is 8 Interim Storage Partners.
9 VOICE: Can you speak a little louder, 10 please.
11 MR. BESSETTE: Yes. It is Interim Storage 12 Partners, not WCS.
13 I'm going to go through several of the 14 contentions, but I'd like to start in order of what 15 Mr. Lodge addressed. On contention 4 related to low-16 level rad waste, he stated that there's no discussion 17 of the low-level rad waste potential for contamination 18 on the application. That is demonstrably false.
19 It is throughout the application, 20 including in ER Chapter 4, but more importantly, it's 21 discussed in the license application, Appendix B, the 22 decommissioning -- preliminary decommissioning plan; 23 in Appendix D, the decommissioning funding plan. And 24 the decommissioning funding plan very conservatively 25 assumes that 20 percent of all the pad surfaces are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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146 1 contaminated and go to low-level rad waste.
2 Importantly, Joint Petitioners never even 3 referenced Appendix B or Appendix D of the license 4 application.
5 With regard -- he had some discussion of 6 burden. We hear this complaint a lot, but at this 7 point in the proceeding, intervenors absolutely have 8 the burden to propose inadmissible contention. And 9 fundamentally they have a burden to review the 10 application and dispute it. So if there's entire 11 sections of the application that discuss the 12 information they're looking for and they don't 13 challenge it, that is a fundamental failure.
14 With regard to Joint Petition 4, I refer 15 the Board to their decision in JP-3, and that equally 16 applies here. The continued storage rule GEIS 17 discusses low-level rad waste generated during 18 decommissioning and cites small impacts. Any 19 challenges to decommissioning activities, which are 20 well beyond the license term of the facility, are 21 challenges to the Continued Storage Rule.
22 And petitioners only speculate about the 23 volumes and causes of the low-level rad -- the gross 24 volumes of low-level rad waste that they estimate. So 25 I refer the Board to their decision in Joint Petition NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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147 1 3.
2 With regard to Joint Petition contention 3 10, Mr. Lodge referred to some statements by Secretary 4 Perry. Those statements are not in the record.
5 They're not part of the petition, and frankly, no one 6 even knows what he's talking about. We're not 7 familiar with those statements. So we'd seek to 8 strike any discussion of that.
9 If he thought it was important, he could have 10 amended his petition, and he certainly did not do 11 that.
12 With regard to Joint Petition 10, the 13 indefinite length of interim storage requires a NEPA 14 evaluation beyond 60 years. We refer the Board to 15 their decision in Joint Petition 10 in the Holtec 16 proceeding. That applies here.
17 The license application is only for 40 18 years, and so possible renewals are -- anything 19 environment -- environmental impacts beyond that 20 period are beyond this proceeding. The Continued 21 Storage Rule incorporates impact determinations from 22 the GEIS, which considers environmental impacts well 23 beyond this period, and NRC regulations bar 24 impermissible challenges to Continued Storage Rule 25 without waiver.
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148 1 With regard to their arguments regarding 2 cherry-picking of containers, we would note that is 3 pure speculation. They've cited zero examples of how 4 such a container could even exist at a plant site, and 5 further, there's nothing anywhere in our application 6 that suggests we would cherry-pick and leave 7 containers behind.
8 With regard to Joint Petition 12, where 9 they said the Continued Storage Rule does not apply 10 here, it was unclear the differences he was trying to 11 cite to the Holtec petition. The fact is the 12 Continued Storage Rule evaluates a similar facility, 13 the PFS facility, which has the same ultimate capacity 14 of 40,000 metric tons uranium, and the same footprint.
15 So there really are no differences, and 16 the Continued Storage Rule acknowledges there may be 17 site-specific differences of particular ISFSI 18 locations, but those differences are to be evaluated 19 as part of the site-specific license, which we 20 entirely did here in the environmental report.
21 With regard to Joint Petition 12, I refer 22 the Board to their decision in Joint Petition 4 in the 23 Holtec proceeding. It included issues regarding no 24 need to consider a dry transfer facility at this time, 25 and again, the GEIS acknowledges that not all storage NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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149 1 facilities will match the assumed generic facility.
2 Site-specific impacts are analyzed as a licensing 3 action.
4 With regard to a few other contentions, 5 Your Honor, we'd like to -- on Joint Petition 8, which 6 was no-action alternative must discuss the hardened 7 on-site storage and at least four other alternatives, 8 including dry transfer of storage, modifications to 9 the emergency plan, modifications to the ISFSI design, 10 and ownership by the U.S. Government, we'd refer the 11 Board to the decision in Holtec 6 where they discuss, 12 among other things, HOSS is not relevant to the no-13 action alternative.
14 With regard to Joint Petition contention 15 2, cherry-picking of canisters, we've already 16 discussed that as it was raised earlier. And Joint 17 Petitioners 11, which is no plans for a dry transfer 18 system to handle damaged, leaking or contaminated 19 systems, which we would refer the Board to their Joint 20 Petition 7 which applies here.
21 There is no facts or expert opinion that 22 canisters will arrive damaged to the interim storage 23 facility, and we cite to the PFS decision that an 24 accidental canister breach is not a credible scenario.
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150 1 cite to that as well.
2 If you have no other questions, Your 3 Honor, I'll pass it on to one of my colleagues.
4 JUDGE RYERSON: Thank you. Any questions, 5 Judge Arnold? Or Judge Trikouros?
6 JUDGE ARNOLD: No.
7 JUDGE TRIKOUROS: No.
8 J U D G E R Y E R S O N :
9 Thank you, Mr. Bessette.
10 MR. LIGHTY: Thank you, Your Honor. Just 11 very briefly, one additional contention here that we 12 heard about earlier from Joint Petitioners is Joint 13 Petitioners 13 regarding reprocessing. I would note 14 that counsel didn't note any distinctions in terms of 15 the applications, the facts, the proceedings at issue.
16 He simply noted the Board's citation in 17 the other proceeding to NEPA case law, that noted that 18 NEPA doesn't require analysis of potential actions 19 that are merely contemplated. Joint Petitioners' 20 argument was, quote, "We disagree legally," end quote.
21 That's not a distinction between the proceedings, and 22 the Board's decision in the other proceeding is fully 23 applicable here on the reprocessing contention.
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151 1 standing. I know we will talk about standing, the 2 more global issue, proximity plus presumption standing 3 at a later point. But just a couple of items for the 4 Board to keep in mind.
5 The maps that counsel referred to from the 6 environmental report were there for the purposes of 7 NEPA. This was to identify information, to provide 8 representative routes, to provide information, because 9 there are no specific transportation routes identified 10 at this point. There are no specific transportation 11 routes requested to be approved in this proceeding.
12 And so a proper understanding of those maps is 13 important for understanding what they do and the story 14 they do and do not tell.
15 For example, counsel spent a few minutes 16 speaking about Fermi up in Michigan. As noted in our 17 pleadings, the spent fuel at Fermi is not in a type of 18 canister that could even be accepted at ISP pursuant 19 to this application, so again, the maps and the routes 20 in the ER simply don't stand for likely routes to ISP.
21 And that's important to keep in mind.
22 As to counsel's statement that any amount 23 of radiation provides a basis for standing, that's 24 simply an incorrect statement of the law. We've cited 25 case law in our answer, noting that radiation that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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152 1 four or five orders of magnitude below background 2 levels clearly falls below the level that could be 3 considered substantial enough for standing purposes.
4 So I think it's important to correct the record as to 5 the current state of the law on that issue.
6 And then finally, I would note, as the 7 Board correctly pointed out, Joint Petitioners raised 8 an entirely new theory of standing as to their SEED 9 individuals in the reply. It's inappropriate to raise 10 an entirely new theory of standing in a reply, and 11 that cannot be the basis for their standing argument.
12 They submitted their petition, relying 13 entirely on alleged proximity to hypothetical 14 transportation routes, and the Commission has spoken 15 clearly on this, that -- and noted, for example, in 16 CLI 04-17, mere geographic proximity to potential 17 transportation routes is insufficient to confer 18 standing.
19 In other words, we're out of the proximity 20 zone here. We're talking about going to traditional 21 standing, if you want to claim standing based on a 22 transportation route. And Joint Petitioners offer no 23 information that would establish traditional standing 24 in their argument.
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153 1 Ms. Gardner-Aguilar established that she lives within 2 five or six miles of the proposed facility, doesn't 3 it?
4 MR. LIGHTY: It provided an address. It 5 did not provide any distance to any particular 6 facility, transportation route, the ISP facility.
7 It --
8 JUDGE RYERSON: It's not a big place, 9 though. If she lives there, she has to be within a 10 few miles of the facility.
11 MR. LIGHTY: It's possible. It wasn't 12 pled. In other words, it wasn't demonstrated. Again, 13 the burden here is on --
14 JUDGE RYERSON: Well, the facts are there.
15 The facts are there. Granted, I believe that the 16 principal theory -- there are eight Joint Petitioners 17 or something like that, and the vast majority, 18 probably all of them, were talking about 19 transportation routes. But the facts are -- you'd 20 have to admit, the facts are there in the declaration.
21 If -- now, I know you disagree. But if 22 one thought that being within six miles of the 23 proposed facility gave you standing, they have 24 established that, haven't they?
25 MR. LIGHTY: I certainly agree that Ms.
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154 1 Gardner's petition gave her home address. If it was 2 incumbent on the Board and the parties and the staff 3 to go and Google and do their own research to 4 determine whether there is standing, then I would say, 5 yes, that's --
6 JUDGE RYERSON: But that was explicitly 7 clarified in the reply, was it not?
8 MR. LIGHTY: Raising a new theory of 9 standing in the reply, yes.
10 JUDGE RYERSON: Well --
11 MR. LIGHTY: Yes.
12 JUDGE RYERSON: I guess we're -- we have 13 to decide whether that's a new theory or not. It 14 would be impermissible, but a fact was clarified in 15 the reply.
16 MR. LIGHTY: Yes. And if you read the 17 declaration itself, it says, I live within a certain 18 distance of a transportation route. It does not say, 19 I live within a certain distance of a facility. So 20 the declaration, I think, speaks for what the theory 21 being advanced in the declaration was.
22 JUDGE RYERSON: I'm sorry. Continue, Mr.
23 Lighty.
24 MR. LIGHTY: And one final point of 25 clarification here. ISP will not be the shipper of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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155 1 spent fuel in this application. It's not requesting 2 authorization to do that. It does not contemplate 3 doing that in the future. That's something that 4 someone else would do, an activity that someone else 5 would do that's not within the scope of this 6 proceeding.
7 This proceeding won't approve any 8 transportation routes. It won't approve any rail 9 routes, any road routes, any barge routes. There's no 10 request to approve the specific places that spent fuel 11 would travel. And so I think that's again one more 12 important point to keep in mind here in terms of the 13 scope of this proceeding as noticed in the Federal 14 Register.
15 JUDGE RYERSON: Any questions, gentlemen?
16 Is that it? Thank you, Mr. Lighty.
17 MR. LIGHTY: Thank you very much.
18 MR. MATTHEWS: Good afternoon, panel. Tim 19 Matthews. There were a few other contentions that Mr.
20 Lodge did not address, and to address the Board's 21 question about what's different between this 22 proceeding and the contentions in the Holtec 23 proceeding, I wanted to very briefly touch on those.
24 In the -- with respect to the NWPA, the 25 Joint Petitioners filed an objection, which seems to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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156 1 be most analogous to the motion to dismiss, and it 2 would, therefore, fall within the same discussion that 3 we talked about earlier with respect to the NWPA 4 issues and the APA, NWPA-specific lack of NRC 5 jurisdiction to consider the application or that 6 allegation.
7 JUDGE RYERSON: Now, I -- this may not be 8 directly relevant, but when you talk about the NRC 9 jurisdiction to consider, I mean, in Yucca Mountain, 10 DOE moved to withdraw its application, and the 11 Board -- I was actually on the Board -- at the 12 direction of the Commission determined whether or not 13 that was lawful under the Nuclear Waste Policy Act.
14 I mean, is that inconsistent with the position you're 15 taking? I'm confused on that.
16 MR. MATTHEWS: Petitioners have asserted 17 that because of the NWPA, the NRC lacks authority 18 here. That was not the question --
19 JUDGE RYERSON: Correct.
20 MR. MATTHEWS: -- before the Board at 21 Yucca Mountain.
22 JUDGE RYERSON: But we were asked to 23 adjudicate the lawfulness of actions under the Nuclear 24 Waste Policy Act, of DOE's actions, a sister 25 government agency. In any event --
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157 1 MR. MATTHEWS: I can't speak to that, 2 Judge Ryerson.
3 JUDGE RYERSON: -- it may not be directly 4 relevant to your argument, but I was --
5 MR. MATTHEWS: That would be our view.
6 JUDGE RYERSON: That's your view. Okay.
7 MR. MATTHEWS: With respect to Joint 8 Petitioners 3, which is financial assurance, that is 9 very similar to the Sierra Club contention 9 that we 10 discussed earlier here today, and the financial 11 qualifications petition by Joint Petitioners in the 12 other proceeding, very similar, and the bases would be 13 the same.
14 There are two contentions in this 15 proceeding that are not -- don't have an analog in 16 Holtec. One was the foreign ownership, and we don't 17 have anything to add beyond our pleadings there. And 18 then -- that was JP-7 here.
19 And then Joint Petitioners 9 here was the 20 alleged misrepresentation of financial benefits under 21 the NEPA, essentially saying that we considered only 22 the benefits and not the costs. And, again, we point 23 to our pleadings there, but note that there is, on 24 this contention and several others that we'll be 25 addressing today and tomorrow, there are pending NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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158 1 motions to strike, and I presume the Board will take 2 those in due course.
3 JUDGE RYERSON: We will decide everything 4 at one time, in a timely fashion. We'll get to that 5 at the end. Thank you. Oh, I'm sorry. Any questions 6 before we -- okay. Thank you, Mr. Matthews.
7 Before the staff people get up, I am going 8 to have two questions. It may affect who gets up. My 9 two questions to start will be: Have you -- you took 10 the position that Joint Petitioners did not have 11 standing, none of them had standing, was your 12 position. And I'm going to ask whether you have 13 reconsidered that as to SEED.
14 And my other question would be: You felt, 15 the staff felt, that contention 3, Joint Petitioners 16 contention 3 was admissible, at least in part, and I 17 believe that part related to the exemption request 18 which has been withdrawn.
19 So my question is: Have you changed the 20 staff's position on either of those -- on either that 21 standing matter and the admissibility of that 22 contention?
23 MS. KIRKWOOD: Can we have just one 24 minute?
25 JUDGE RYERSON: You may confer.
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159 1 (Pause.)
2 MR. GILLESPIE: Hello again. With respect 3 to Joint Petitioners contention 3, we consider that 4 issue moot, and see it as an inadmissible 5 contention --
6 JUDGE RYERSON: Okay.
7 MR. GILLESPIE: -- at this stage.
8 VOICE: Louder, please.
9 JUDGE RYERSON: Yes. If you would say 10 that again.
11 MR. GILLESPIE: Yes. At this stage, 12 because the exemption was withdrawn, we see this issue 13 as moot and inadmissible for that reason.
14 JUDGE RYERSON: Inadmissible. And if my 15 count is correct, the staff would then not find any 16 Joint Petitioners contention admissible at this point.
17 Is that correct?
18 MR. GILLESPIE: That is correct.
19 JUDGE RYERSON: That is correct. The 20 question -- you could argue it's moot, but the 21 question of standing then of SEED, what's your view on 22 that?
23 MR. GILLESPIE: Yes, Your Honor. As we 24 stated in the legal background section in our answer, 25 the mere fact that radioactive material transportation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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160 1 may occur in an area is insufficient to grant 2 standing.
3 With respect to SEED and Ms. Brigitte 4 Gardner-Aguilar specifically, the issues that she 5 alleged arise from the transportation of material to 6 the nuclear site. She doesn't allege any issues with 7 the facility.
8 JUDGE RYERSON: Well, she alleged she 9 lives -- not in these words, but she alleged that she 10 lives within six miles maximum or so of the proposed 11 facility. And the staff does not consider that, those 12 facts, sufficient to base standing on?
13 MR. GILLESPIE: As originally placed in 14 the declaration, she did not identify a distance, and 15 to contrast that with Ms. Rose Gardner alleges issues 16 related to the site, accidents that could occur, 17 things like that, which make her distinct from Ms.
18 Brigitte Aguilar.
19 JUDGE RYERSON: Okay.
20 MR. GILLESPIE: That being said, given her 21 proximity to the site, we would likely not have an 22 objection if standing was found on that basis.
23 JUDGE RYERSON: So you're -- excuse me.
24 You're saying you're not objecting if the Board were 25 to find standing, but you're not --
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161 1 MR. GILLESPIE: Yes, Your Honor.
2 JUDGE RYERSON: -- changing your position 3 on it.
4 MR. GILLESPIE: Yes. Based on proximity, 5 if the Board found that the address there was 6 sufficient --
7 JUDGE RYERSON: Was sufficient. Okay.
8 MR. GILLESPIE: -- information to find 9 that, then --
10 JUDGE RYERSON: Particularly with 11 clarification in the reply. We can argue whether that 12 reaches beyond the proper scope of a reply, but it was 13 explicitly made as an argument in the reply.
14 MR. GILLESPIE: Yes, Your Honor.
15 JUDGE RYERSON: All right. Those are my 16 two up-front questions, and now anything else you'd 17 like to talk about on this topic?
18 MR. GILLESPIE: No, Your Honor.
19 JUDGE RYERSON: Okay. Thank you.
20 Why don't we take a relatively short break 21 right now, and we'll resume -- I think we're now up to 22 the last set, the Fasken set. Right? Other than the 23 standing issue, which we'll probably get to tomorrow, 24 so why don't we take a break until 3:10, and then we 25 will resume at that point.
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162 1 (Whereupon, a short recess was taken.)
2 JUDGE RYERSON: Mr. Eye, I see you're in 3 the right location already. Welcome, and we will 4 begin with your presentation on behalf of Fasken.
5 I'll call both your clients Fasken collectively if 6 that's okay.
7 MR. EYE: Very well, Your Honor. Thank 8 you. Can I be heard?
9 VOICES: Yes.
10 MR. EYE: Okay. Good. We it please the 11 panel, we are glad to be here to present our case or 12 at least the case that we will summarize in front of 13 you that is also contained in our pleadings, in 14 opposition to the application to construct and operate 15 the CISF that ISP has advanced.
16 My name is Robert Eye, and along with my 17 co-counsel, Tim Laughlin, we represent Fasken Oil 18 Ranch and the Permian Basin Land and Royalty Owners.
19 Sometimes we call them PBLRO, and as Judge Ryerson 20 noted, we'll probably refer to them collectively as 21 Fasken, if that's not too confusing.
22 Fasken is representative of the ranching 23 and oil and gas industry located in the Permian Basin, 24 which turns out to be the most prolific oil and 25 natural gas production area in the world.
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163 1 As the panel is aware, in the Holtec case, 2 Fasken advanced a motion to dismiss as our sole issue.
3 As the panel will also recall, procedurally, when that 4 was filed, it was circuitously -- ended up at the NRC 5 secretary's office, which dismissed the motion, but 6 then referred it back to you to process as a 7 contention, which you then addressed in the Holtec 8 order.
9 So with that just brief background and 10 recollection, I want to get into some of the issues 11 that we believe are pertinent regarding the ISP 12 application.
13 But just before I do that, I want to note 14 the attendance today of a number of people associated 15 with Fasken and PBLRO. That include Fasken's 16 management and staff, and a number of PBLRO 17 supporters. And thank you for being here. It's much 18 appreciated.
19 If there are questions about contentions 20 2 and 4 that come up later during our presentation, I 21 would ask leave to defer those questions or to rather 22 refer those questions to my colleague Mr. Laughlin, 23 and then if there are questions concerning the motion 24 to dismiss or contentions 1, 3 and 5, I will do my 25 best to address those questions.
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164 1 Fasken opposes the licensing of the ISP 2 CISF because, among other reasons, there is a real 3 prospect here that this facility will become a de 4 factor permanent disposal facility. And I'll say more 5 about this in just a moment. But it's important to 6 realize the magnitude of the radioactive materials 7 that will be placed or anticipated to be placed at 8 this facility. It would represent the largest 9 concentration of radioactive materials ever amassed on 10 earth.
11 The opposition to the ISP proposal, 12 therefore, is based on its failure to meet the very 13 crucial requirements that pertain to these facilities 14 that are contained in the NRC regulations and its 15 guidance documents.
16 Now, the reality of amassing this 17 magnitude of radioactive materials should make strict 18 compliance with the application requirements a 19 foregone conclusion, but as we know, in any 20 proceeding, it's frequently arguable whether 21 compliance has been achieved or not. It's frequently 22 a nuanced question rather than a stark black and white 23 determination. We recognize that.
24 But it's important from our view to keep 25 in mind the stakes. The reality of this quantity of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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165 1 radioactive materials placed in the middle of the 2 Permian Basin raises the stakes considerably. It 3 could undermine our country's capacity to meet its own 4 energy needs if the Permian Basin was ever taken out 5 of production as a result of an accident and a 6 radiological release at the ISP facility.
7 A brief word about standing. Now, I know 8 that this is the favorite topic in many regards, but 9 I do want to just note that as determined in the 10 Holtec proceeding, Fasken/PBLRO has met the 11 requirements of standing based on the proximity plus 12 presumption.
13 In the current proceeding, NRC staff 14 agrees that PBLRO/Fasken have been that -- those 15 requirements and should be recognized as having 16 standing in this proceeding.
17 Given the similarity and proximity of 18 Fasken and Fasken's declarants related to standing in 19 the Holtec case and the ISP case, we think that it is 20 prudent and correct to handle the standing question 21 related to Fasken the same way in ISP as it was 22 addressed in the Holtec matter.
23 It was mentioned earlier there is a 24 prospect that this proposed facility will become, by 25 default, by default, the final and permanent NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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166 1 disposition point of our country's commercial high-2 level waste stream. A CISF is not a substitute for a 3 deep geological repository. They are different 4 species of facilities for good reason.
5 And any representation that somehow a CISF 6 can function, either in a quantitative sense for 7 controlling the release of radiation or over a long 8 duration of time as effectively as a deep geologic 9 repository flies in the face of the science that 10 supports deep geologic repositories as final 11 disposition points for high-level waste.
12 The availability of a CISF would 13 effectively relieve the pressure to establish a 14 permanent deep geologic repository. That is precisely 15 why the authors of the Nuclear Waste Policy Act 16 recognized that a CISF without a functioning permanent 17 repository would be a sitting duck to become a 18 permanent repository by default.
19 ISP has made no attempt, nor could it, to 20 show that its CISF would move our country any closer 21 to establishing a deep geologic repository.
22 Let me address some of our contentions.
23 The first contention we raise dovetails with our 24 motion to dismiss and is based in interpretations and 25 applications of the Nuclear Waste Policy Act. The so-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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167 1 called waste confidence contention includes an 2 assertion that the Applicant has failed to establish 3 a need for away-from-reactor high-level waste storage.
4 It posits that the preferences of reactor 5 owners for away-from-reactor storage are not the 6 same -- or we argue, rather, that the preferences of 7 reactor owners are not the same as the needs that are 8 the predicate for establishing away-from-reactor 9 storage. ISP has failed to prove that its CISF is any 10 safer than existing at-reactor storage facilities, 11 even though it does assert this in a conclusory 12 fashion.
13 It never supports with evidence why it 14 believes its facility is safer than at-reactor 15 storage. It simply concludes such. To accept this 16 requires a rejection of the findings by the -- that 17 underpin the Continued Storage Rule that were 18 developed in the waste confidence proceedings Blue 19 Ribbon Commission that specifically determined current 20 at-reactor storage is a safe and secure method to 21 manage the high-level waste stream for an indefinite 22 duration of time. That fact has not been undermined 23 in this proceeding. It's the premise from which we 24 should begin.
25 Does ISP base its assertion that a CISF NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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168 1 would be safer because it is proposed to be built in 2 a less densely populated part of our country? If so, 3 such an assertion ignores the fact, for example, that 4 the cities of Midland and Odessa have a combined 5 population of around 300,000 people.
6 And simply because other areas in the 7 vicinity of the proposed facility may not have the 8 population densities that -- of their urban 9 counterparts, people living there are no less 10 deserving of protection that their urban counterparts 11 would expect.
12 Further, building this CISF in the Permian 13 Basin invites the possibility that the most productive 14 oil and gas production field in the world is put 15 needlessly at risk. In sum, ISP has not established 16 that there is a need for this CISF to safely manage 17 the high-level waste stream, let alone to do so in an 18 area that is crucial to the capacity of our country to 19 meet its energy needs.
20 In fact, under International Atomic Energy 21 Agency standards, which I understand don't apply, but 22 I think it's important to note that under IAEA 23 standards, this facility could not be built anywhere 24 near energy-related facilities. And that, I think, is 25 telling, and it shows that there are higher standards NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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169 1 out there to which facilities in other parts of the 2 world would have to meet compared to this facility.
3 Our second contention argues that ISP has 4 failed in a rather spectacular way to fully evaluate 5 and characterize the region surrounding the CISF and 6 the unstable characteristics of the geology 7 surrounding the site, specifically the effect that 8 over 3,800 abandoned and temporarily abandoned wells, 9 including any number of unaccounted for orphan wells, 10 may have on the site.
11 As our declarant Tommy Taylor, an upper 12 management person for Fasken, said in his declaration, 13 the Applicant has understated the number of wells that 14 are within the vicinity of this particular site.
15 Staff agrees that this contention should 16 advance to adjudication, and we find that to be a 17 significant decision on the part of staff, because we 18 know they are by practice and by indications in the 19 Holtec proceeding and in this one, they are reluctant 20 to give any kind of an endorsement to a petitioner's 21 contentions, but they did this one, and we think that 22 that was a correct decision by staff.
23 Our third contention argues that ISP has 24 failed to address how its CISF will mitigate the 25 damage and release of radioactive materials in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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170 1 event of a plausible malicious or accidental airplane 2 crash into the facility. ISP's dismissive attitude 3 about this contention is based on a probabilistic risk 4 assessment that says that there's less than a one in 5 a million chance on an annual basis of such an event 6 happening.
7 Now, it's interesting because ISP's 8 assertion in that regard doesn't cite to the NUREG 9 guidance that relates to CISFs. It cites instead to 10 a NUREG that addresses power reactors. I believe it's 11 light water power reactors specifically. Why the 12 difference? If one in a million chance of such an 13 event happening at a power reactor is the standard, 14 why should it be different under the NUREG that 15 addresses CISF events such as this?
16 Well, that difference is not -- it's not 17 clear why there's the difference, but let me posit a 18 potential reason. And it would be that the quantity 19 of radioactive materials at a PWR, a light-water 20 reactor, rather, is vastly smaller than that which 21 would be found at a fully subscribed CISF. So we find 22 it inappropriate for the Applicant to go to a NUREG 23 that relates to power reactors to determine the 24 probabilistic risk assessment for an airplane crash 25 into one of these facilities, rather than going to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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171 1 source document, the NUREG source document that 2 actually discusses CISFs.
3 And we discuss this extensively in our 4 pleadings. The Applicant does not explain -- or I 5 should say, doesn't address why it doesn't recognize 6 the NUREG that discusses CISFs, rather than its 7 preference for a light-water power reactor NUREG.
8 Now, this one in a million -- yes.
9 JUDGE TRIKOUROS: Yes. Just let me 10 interrupt you for a second. You're talking about the 11 initiating event frequency. Right? You're not 12 talking about a risk. You're talking about event 13 frequency. Right?
14 MR. EYE: I am. But as a practical 15 matter, they seem to be very close in terms of the 16 kind of assessment that should be made in terms of 17 whether we're allowing an inordinate risk or an 18 unreasonable risk to occur. But, yes. It is related 19 to the triggering event.
20 So ISP's position that this is only a one 21 in a million chance on an annualized basis, you know, 22 may be quite satisfying in an abstract statistical 23 sense, but it defies common sense in our contemporary 24 world. There are three major airports within 50 miles 25 of the WCS site, raising the possibility of short NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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172 1 flight times from those airports to the ISP site.
2 So at the very least, it seems that ISP 3 should, instead of relying on what we consider to be 4 an irrelevant NUREG related to light-water reactors, 5 ought to at least back up and consider what the NUREG 6 that addresses CISFs has to say about airplane 7 crashes, and there it's quite unequivocal. It says 8 those incidents need to be analyzed and considered in 9 the context of an application.
10 But instead of doing that, they point us 11 over to a light-water reactor NUREG in this 12 probabilistic risk assessment which doesn't appear in 13 the CISF NUREG.
14 Our fourth contention contends that ISP 15 has failed to include adverse information regarding 16 the presence of groundwater formations beneath and 17 proximate to the ISP site, because our expert 18 witnesses have developed credible, scientifically 19 based information to indicate that there are, in fact, 20 aquifers and other water-bearing formations located 21 directly beneath the proposed site and proximate to 22 it, among other things these formations provide 23 potable water to the city of Midland and just about 24 every rancher pumping water between Andrews and 25 Midland.
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173 1 Now, these formations, including the Santa 2 Rosa Aquifer, are routinely used also by the oil and 3 gas industry in their exploration and extraction 4 activities. All this flies in the face of ISP's 5 evaluation of the hydrological formations and aquifers 6 below the site.
7 Furthermore, when considered in 8 conjunction with ISP's failure to identify the 9 presence of approximately 4,579 wells within ten miles 10 of the site that on a daily basis produce 11 approximately 10,100 barrels of oil and 85,000 MCF of 12 natural gas per day, ISP has also failed to discuss 13 how these might end up as vectors to groundwater 14 formations.
15 These factual disputes about the presence, 16 the extent and the nature of substrata water 17 formations below and proximate to the ISP site must be 18 resolved through an adjudicatory process. There are 19 too many issues of fact, and I might add that other 20 petitioners have raised these and similarly find that 21 there are contradictions between that which ISP has 22 advanced about the nature and extent of water 23 formations beneath and proximate to the site.
24 This is a classic example. This is a Rule 25 56 civil procedure question about summary judgment.
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174 1 We have conflicting evidence, conflicting credible 2 evidence, that has to be resolved in some way other 3 than a summary disposition proceeding such as the one 4 we are in now.
5 The fifth contention argues that ISP has 6 failed to adequately characterize its proposed 7 facility's effect on the areas' threatened and 8 endangered species and undermines the extensive 9 conservation efforts made in recent years by the 10 energy and ranching industries in an effort to 11 conserve the habitats of threatened and endangered 12 species.
13 We're down to the protected lizard species 14 specifically, but I want to make one mention about the 15 lesser prairie chicken. It's worth noting that one of 16 the reasons why its conservation effort was successful 17 was because it was spearheaded by the oil and gas 18 industry and the ranching interests in that area.
19 And while this may be counterintuitive, 20 they were successful. They took that commitment on.
21 They do not want to see it undone, their efforts, 22 their resources that they poured into that project.
23 They don't want to see it undone by the presence of 24 ISP's proposed CISF.
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175 1 Fasken/PBLRO has asserted that ISP's application was 2 fatally flawed, because it depends on the Department 3 of Energy taking title to and liability for high-level 4 waste. This is, as the panel knows, the underlying 5 premise or one of the underlying premises of our 6 motion to dismiss, and it also is tied to our first 7 contention, our so-called waste confidence contention.
8 But for DOE to take title to the high-9 level waste stream, there must be a deep geologic 10 repository that is able to receive high-level waste.
11 Of course, no such facility presently exists in the 12 United States. Despite ISP's refusal to acknowledge 13 this legal reality until just about two weeks ago, 14 when on June 28, it issued a letter that acknowledged 15 this legal barrier that it is now forced to confront, 16 ISP now agrees this requirement must be met before a 17 CISF may be used for high-level storage, high-level 18 waste storage.
19 ISP evidently recognizes that for its 20 proposal to be viable, the Nuclear Waste Policy Act 21 must be amended to allow use of a CISF without the 22 availability of a functioning deep geologic 23 repository. But such an amendment has not 24 materialized, and whether ISP will be rescued by an 25 act of Congress is utterly speculative.
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176 1 This proceeding should not continue based 2 on an act of Congress that may never materialize, and 3 I would note in rather stark contrast, a petitioner 4 that depends on nonexistent legislation to support a 5 contention would likely not be well received by this 6 panel. The same standard should apply to ISP's 7 application.
8 It is this panel's duty to determine 9 whether an Applicant has satisfied each of the 10 requirements that pertain to this CISF proposal, and 11 if they are not going to follow the NUREGs that 12 pertain directly to it, have some good reason why they 13 are deviating from that. These NUREGs are kind of a 14 moving target. They're cited when they favor ISP, but 15 not when they don't. They should be held to a higher 16 standard.
17 When an application is riddled with issues 18 of fact and that the Applicant has failed to satisfy 19 its essential burdens, this panel should deny the 20 application or at least advance the contentions to 21 final adjudication. And, of course, we think that the 22 motion to dismiss that we advanced early on in this 23 matter should be granted, and the application rejected 24 on that basis.
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177 1 siting is being used apparently to convince the public 2 that their consent is an essential element for 3 licensing this facility. Legally, of course, that is 4 not the case.
5 But if consent-based siting is going to be 6 more than a ruse, it should be codified and defined 7 what consent means and a methodology adopted to 8 determine who should give what consent and at what 9 level, because to do otherwise sends a false message 10 to the public that their input can somehow be weighed 11 just as significantly as other evidence that the panel 12 considers.
13 Thank you, and we'll do our best to 14 respond to any questions that the panel may have.
15 JUDGE ARNOLD: Well, I have some questions 16 concerning standing. Now, the proximity assumption 17 normally involves a person who lives within 50 miles 18 of a commercial power plant. Proximity plus, I 19 assume, should mean you've got somebody who lives 20 within some proximity to the plant. So between Tommy 21 Taylor and D.K. Boyd, which one lives closest to the 22 ISP facility, and how far away is that?
23 MR. EYE: I think it's D.K. Boyd that 24 lives closer, and his exact -- the exact distance of 25 his residence from his ranch, I do not know. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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178 1 proximity standing doesn't depend on residential 2 location -- let me put it this way. It can depend on 3 residential location, but it can also be tied to 4 somebody's occupation.
5 And D.K. Boyd's occupation is ranching.
6 He goes to his property on a regular basis, and it's 7 close to the proposed facility, and that provides a 8 basis for standing. Likewise Mr. Taylor, who in his 9 occupation has reasons to visit the area on a regular 10 basis as well.
11 So it's -- I think that the idea of 12 proximity is residential, but it also includes 13 occupational or other uses of property that are 14 proximate to a proposed facility.
15 JUDGE ARNOLD: According to D.K. Boyd's 16 statement, his brother runs the cattle operations, so 17 just the fact that he has a ranch there doesn't tell 18 me that he's there often enough to have a proximity 19 standing. How often is he there? And although part 20 of the ranch is within four miles of the CIS, looking 21 at a map of it, it looks like an awful lot of the 22 ranch isn't within four miles.
23 MR. EYE: He signed a declaration under 24 penalty of perjury that said his ranch is four 25 miles -- approximately four miles from the facility.
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179 1 JUDGE ARNOLD: The closest point.
2 MR. EYE: That's correct. And if we're 3 quibbling about four miles or five miles --
4 JUDGE ARNOLD: No. We're quibbling 5 about --
6 MR. EYE: -- that's really a 7 distinction --
8 JUDGE ARNOLD: -- four miles and 20 miles.
9 MR. EYE: Well, he --
10 JUDGE ARNOLD: I don't know the ranch.
11 MR. EYE: His ranching operation obviously 12 is something that he has a concern about not only 13 himself but his brother out there working it.
14 JUDGE RYERSON: Is his brother formally an 15 employee of his, or is it simply his brother works it, 16 and they somehow work that out?
17 MR. EYE: I think that they both have 18 interests in that ranching operation.
19 JUDGE RYERSON: I was curious. You know, 20 those of us from the East have a hard time with the 21 distances here in Texas. Unless it was a typo, I 22 think it said that the ranch is 137,000 acres.
23 MR. EYE: Yes. That was a typo. Yes.
24 JUDGE RYERSON: Pardon? That's a typo.
25 Okay.
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180 1 MR. EYE: That's a typo. I --
2 JUDGE RYERSON: I thought that a little 3 corner with four miles could be pretty far from part 4 of the ranch, so that's an error of probably at least 5 ten. Okay. Well, that answered my question.
6 Did you have some more, Judge Arnold, at 7 this point? We can get back to -- we'll be talking 8 about standing tomorrow in the context of the generic 9 issue that ISP is raising, and so we might have some 10 more individual questions at that point.
11 Judge Trikouros, are you --
12 JUDGE TRIKOUROS: Well, I have questions, 13 but I'm going to ask them tomorrow. I don't think I 14 want to ask them today.
15 JUDGE RYERSON: Okay. All right. Well, 16 thank you, Mr. Eye.
17 We're going to take a brief break right 18 now before we hear from ISP and the NRC staff. Why 19 don't we reconvene at four o'clock, and we will 20 probably finish up for the day after those two and 21 start again tomorrow, but we'll see you again at 4:00.
22 Thank you.
23 (Whereupon, a short recess was taken.)
24 JUDGE RYERSON: Mr. Matthews, are you 25 ready? Mr. Eye, did you have something to say?
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181 1 MR. EYE: Yes. I just would like to 2 correct the record, if I could, on --
3 JUDGE RYERSON: Certainly.
4 MR. EYE: In response to the question 5 about the dimensions of the ranch, actually the 6 declaration's correct. It is 137,599 acres, which by 7 quick calculation is about 250 square miles. So 8 that's correct, that he owns --
9 JUDGE RYERSON: 250. Yes. I did my own 10 calculation with things I'm more familiar with, and it 11 occurred to me that the ranch is about ten times the 12 size of Manhattan Island.
13 (General laughter.)
14 JUDGE RYERSON: And so --
15 MR. EYE: And easier to get around.
16 JUDGE RYERSON: While I have you, I think 17 we are going to -- we're going to be talking about 18 standing in a generic way tomorrow, and I did have 19 some questions about the affidavits on standing in the 20 case of Fasken.
21 We're not taking evidence tomorrow. You do 22 not have to bring your clients in, and I think there 23 would be objections if we did do that. But I am, just 24 to alert you, I'm going to ask some clarifying 25 questions about some of the more general statements.
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182 1 And so to the extent you are quite familiar with the 2 facts that are sort of underlying the more general 3 statements, fine. I don't know if you want to contact 4 either of those gentlemen.
5 but the nature of my questions would be 6 more in the case to compare with Holtec. I believe --
7 what was the gentleman's -- not Mr. Boyd, but --
8 MR. EYE: Taylor.
9 JUDGE RYERSON: Mr. Taylor?
10 MR. EYE: Tommy Taylor.
11 JUDGE RYERSON: Thomas Taylor, yes.
12 Another Taylor. Thomas Taylor had reasons to go to 13 the facility specifically, as I recall. Here the sort 14 of more general statements and it almost seems to come 15 down to his saying, Well, I drive on highways in that 16 area.
17 So I'm not limiting my questions to that 18 specific one, but those are the sorts of questions I 19 think I might have about fleshing out perhaps some of 20 those declarations as to exactly what they mean.
21 MR. EYE: I understand, and we'll do our 22 best to respond.
23 JUDGE RYERSON: Okay. Thank you.
24 MR. EYE: Thank you.
25 JUDGE RYERSON: Now, Mr. Matthews.
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183 1 MR. MATTHEWS: Thank you, Judge Ryerson.
2 I want to set this where I can still see my notes.
3 Are you able to hear me in the room?
4 VOICE: No. Microphone's not working. It 5 might need new batteries.
6 JUDGE RYERSON: Have you tried it really 7 close?
8 MR. MATTHEWS: Will that work?
9 JUDGE RYERSON: That certainly works for 10 us.
11 MR. MATTHEWS: I intend to address three 12 issues, and my colleagues will address the remaining 13 three of Fasken's issues and contentions.
14 The first, not a surprise, would be the 15 motion to dismiss on the NWPA basis. What's different 16 here that's sort of a procedural matter, I suppose, in 17 that the motion was styled for both CISF proceedings, 18 but there was a failure of service on it. It was not 19 served to the parties. I understand that the boards 20 have great leeway in how they interpret these, but a 21 failure of standing -- a failure of service -- there 22 are cases where failure of service, the Board has 23 taken note, and we just want to note that.
24 JUDGE RYERSON: Was this in your response?
25 Was that ever raised?
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184 1 MR. MATTHEWS: I'll confirm that, Your 2 Honor.
3 JUDGE RYERSON: Okay.
4 MR. MATTHEWS: I believe there was in our 5 initial objection, once it was referred -- we didn't 6 have a chance to respond to it. It wasn't served to 7 us, so it first landed on our point once the Secretary 8 referred it to the Board. So --
9 JUDGE RYERSON: So normally the Secretary 10 would be responsible for serving you. I mean, once 11 it's treated as a contention, they should have served 12 it.
13 MR. MATTHEWS: The Secretary did send it 14 to us, when the Secretary referred it to both dockets 15 and we received it then.
16 JUDGE RYERSON: Okay.
17 MR. MATTHEWS: But when it was initially 18 served on the other applicant, it was not served on us 19 as well.
20 JUDGE RYERSON: You have it.
21 MR. MATTHEWS: I'm merely preserving it, 22 Your Honor.
23 JUDGE RYERSON: You have it.
24 MR. MATTHEWS: We have it.
25 JUDGE RYERSON: Okay.
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185 1 MR. MATTHEWS: We have actual notice.
2 JUDGE RYERSON: You've had actual notice.
3 MR. MATTHEWS: At this point, we have 4 actual notice.
5 JUDGE RYERSON: Okay. You've made the 6 point.
7 MR. MATTHEWS: We have a lot of 8 contentions here, Your Honor. With respect to Fasken 9 3, there's been sort of a crab walk as to what this 10 contention is about, and that's what I wanted to bring 11 this -- there's not an analogous contention in the 12 Holtec proceeding.
13 This contention as styled was that the 14 application failed to meet the 72.122 design 15 requirements for protection of components important to 16 safety, in that if there was a credible accident, 17 specifically an aircraft impact, a fully loaded 18 aircraft, that somehow ISP had conceded was credible 19 and had failed to meet the 122 requirements for 20 protection.
21 In our response, ISP noted that it had 22 never conceded or considered an aircraft impact as a 23 credible accident. It did consider it in alert 24 classifications as required in the emergency planning 25 provisions, and those both derive from staff guidance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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186 1 requirements, separately for protection components 2 important to safety and for what needs to be 3 considered in an emergency response plan.
4 But the application, as noted in our 5 brief, clearly stated that just because it's in the 6 emergency response plan doesn't mean Applicant 7 considers it credible. And Applicant didn't consider 8 it credible. And that was the answer.
9 It seems now and in the reply, petitioners 10 want to point to guidance for the staff review that 11 says you must consider hazards in the area, including 12 airports and consider those and the guidance on how to 13 consider airports.
14 We've come a long way from physical fire 15 protection systems on the site being adequate from a 16 72.122 perspective. Nonetheless, petitioners haven't 17 asserted why ISP must conduct an aircraft crash 18 analysis. They point to a staff guidance document, 19 not a Commission requirement.
20 Nonetheless, ISP has done that analysis 21 and supplemented the application. It wasn't subject 22 of notification because it was outside the scope of 23 the contention, but it's there. It's in ADAMS. It 24 exists, and it concluded that the likelihood of an 25 aircraft crash, the probability of the initiating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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187 1 event was less than one times ten to minus 6, which is 2 the standard established in PFS, the Commission's 3 standard.
4 Petitioners might disagree with that 5 standard, but it is the standard that the Commission 6 has set for this Board and others to follow, as the 7 Board noted in the 19-4. So we make that point.
8 And then separately with respect to --
9 pause for a second, if there's anything about that.
10 JUDGE ARNOLD: I do have a question on 11 that. Your emergency response plan is the 12 consolidated emergency response plan. What is being 13 consolidated?
14 MR. MATTHEWS: Thank you, Judge Arnold.
15 The consolidated interim storage facility sits on the 16 WCS site. The WCS site is also the home for TCEQ 17 license low-level radioactive waste facilities. Those 18 facilities under the TCEQ regulation require an 19 emergency response plan.
20 Both the NRC and TCEQ recognize that the 21 licensee -- their respective licensees needs an 22 emergency response plan, and the NRC's guidance 23 indicates that where it makes those sense, those plans 24 ought to be consolidated, such that you can actually 25 carry them out.
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188 1 At the time of an event, you may not know 2 where it initiated. You want to be able to respond to 3 the plan appropriately, notifying law enforcement 4 agencies and the like, first responders.
5 So the plan recognizes that, and it specifically 6 delineates which portions are applicable to the CISF.
7 JUDGE ARNOLD: So this consolidated plan 8 evolved from an existing plan for the whole site, 9 or --
10 MR. MATTHEWS: I wouldn't quibble with 11 "evolved." There was an existing plan for the site, 12 and then ISP, WCS before it, began working on what 13 else needs to be included in this plan in order to 14 address the NRC requirements that may be different 15 from the TCEQ requirements.
16 JUDGE ARNOLD: Do you know if the airplane 17 crash alert was added to the existing plan as 18 consolidation, or did it already exist?
19 MR. MATTHEWS: I'll check on that, Judge 20 Arnold. I don't know off the top of my head. There 21 is NRC staff guidance that -- the REG guide for review 22 of a 72 facility that drives you to an ANSI standard 23 that includes a list of initiating events that need to 24 be considered, and aircraft is in there. So that's 25 the why it's there, but whether it preexisted, I will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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189 1 check and come back to the Board.
2 JUDGE ARNOLD: Thank you.
3 MR. MATTHEWS: Last is the groundwater 4 contention, and just a couple points on that. We've 5 addressed that today earlier in the context of Sierra 6 Club 10, and noting that it's not different materially 7 from Sierra Club 15 in the Holtec proceeding. Those 8 arguments still apply here. The Applicant -- or 9 sorry. The petitioner has not explained why any 10 radionuclide could ever get to groundwater if it 11 exists there, and there are a couple points to make.
12 The contention bootstraps this idea of a 13 fully loaded aircraft landing unintentionally on the 14 CISF. It doesn't somehow suggest that that's 15 plausible or probable. Just it relates back to the 16 other contention, saying, well, ISP has conceded that.
17 As we just talked about, that's not the case.
18 There is nothing that indicates there is 19 some initiating event that could cause fission product 20 to leave the clad, to leave the canister, to have a 21 transport mechanism to leave the pad and to reach the 22 groundwater. That didn't exist and doesn't exist.
23 JUDGE RYERSON: And just to clarify, the 24 possibility of an airplane intentionally landing is 25 beyond the scope of what we may consider, given the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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190 1 Commission's position on --
2 MR. MATTHEWS: We are still beyond the 3 Ninth Circuit. Yes, Judge Ryerson.
4 And with respect to the location of the 5 aquifer or aquifers as petitioners allege, there are 6 some significant deficiencies noted in our pleadings 7 that the Board may want to consider. That is, the 8 various petitioners don't agree as to where or which 9 water is under the site.
10 ISP has presented extensive analysis about 11 where groundwater or formations are, the geologic 12 structure, and where it has actually found water and 13 where it has not.
14 Petitioner has a supporting affidavit of 15 geologist Pachlhofer, who opines on many things, one 16 of which is geology. But for his assertions about 17 geology, he relies on Lehman and Rainwater, which was 18 one of the references in the ISP application.
19 Geologist Pachlhofer asserts that, with 20 reasonable scientific certainty, the Ogallala Aquifer 21 exists underneath the site of the proposed CISF. The 22 problem with the Pachlhofer assertion is it relies 23 only on Lehman and Rainwater, which comes to the 24 opposite conclusion. It says there is no Ogallala 25 Aquifer there. It says there's an Antlers Formation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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191 1 and, further in Exhibit 10 of Lehman and Rainwater, 2 says it's dry.
3 It says where the site is is between two 4 zero water level gradients. So it's completely 5 consistent with the application that ISP filed. Where 6 the expert's opinion is different from the sources 7 upon which he relies, it is not entitled to deference 8 from the Board, and there is nothing else, no 9 independent evaluations that geologist Pachlhofer 10 asserts that he conducted.
11 I'll stop there. I understand there may 12 be further questions today or tomorrow or whenever the 13 Board would like.
14 JUDGE RYERSON: Apparently no questions 15 now.
16 MR. MATTHEWS: Then I will turn over the 17 mike to my colleague Ryan Lighty.
18 JUDGE RYERSON: Okay. Thank you, Mr.
19 Matthews.
20 MR. LIGHTY: Thank you, Your Honor. I'm 21 just going to be speaking about Fasken and PBLRO 22 contention number 2 regarding oil and gas wells. I 23 would first note that the petitioner's argument here 24 is really twofold, asserting that the SAR fails to, 25 number one, mention and, number two, investigate what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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192 1 it asserts are thousands of wells within ten miles of 2 the site.
3 But it points to no requirement in Part 72 4 to list wells within any particular radius of the 5 site, and it provides no explanation for why the 6 radius that it has selected without explanation of ten 7 miles is a requirement that has not been met here.
8 To the second part of the argument that 9 the application does not investigate, the petitioner 10 simply has not looked at the appropriate portions of 11 the application. If you look at SAR section 2.6, 12 2.6.1 is a discussion of the basic geologic and 13 seismic information; in 2.6.2, vibratory ground 14 motion; 2.6.3, surface faulting; so on and so forth.
15 They don't challenge any of that 16 information, and more importantly, they don't 17 challenge the attachments to the SAR. Attachment D is 18 the probabilistic seismic hazards evaluation. That 19 document is a proprietary document that they did not 20 even attempt to request to access to dispute 21 information in that evaluation.
22 And Attachment E is the geotechnical 23 investigation. That document is public. It's also 24 not disputed, so to the extent petitioners argue that 25 there is no investigation of the geotechnical NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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193 1 information here, it's simply incorrect. It's in the 2 application. It just has not been disputed here.
3 I would note that recently on May 31, we 4 did submit an RAI response that contains some 5 additional information regarding oil and gas wells in 6 the region. We still maintain that that disclosure is 7 not required under the regulation cited by 8 petitioners, 72.103(a)(1), but we did provide the 9 Board notification and the notice to the parties, 10 because it is generally relevant to the discussion 11 here. So even if there was some obligation to include 12 that information, that omissions has now been cured, 13 and there's no longer a live contention on this.
14 And importantly, the information as 15 provided shows that there are no active wells at the 16 site or within a mile of the site. And petitioners 17 haven't explained why the presence of thousands of 18 wells ten miles away from the site is material to 19 their contention when there's not any active wells 20 within a mile of the site. That's a sharp drop-off, 21 and there's no explanation of why that additional 22 information that they demand is material here.
23 And so for those reasons, we believe and 24 continue to believe that contention 2 is inadmissible.
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194 1 on -- that's the sole contention you are dealing with?
2 MR. LIGHTY: Yes. Thank you, Your Honor.
3 JUDGE RYERSON: Thank you, Mr. Lighty.
4 MR. BESSETTE: Almost have clean-up for 5 the day, Your Honor, so hopefully I'll be short.
6 JUDGE RYERSON: We'll get with the NRC 7 staff yet.
8 MR. BESSETTE: I'm going to address Fasken 9 contentions 1 and 5.
10 VOICE: Pull down the microphone, please.
11 Thank you.
12 MR. BESSETTE: I did listen carefully to 13 Mr. Eye's discussion of Fasken 1, which discusses that 14 the CISF is not needed to ensure safe storage of spent 15 nuclear fuel, and also his arguments regarding a de 16 facto repository.
17 One issue I did hear that was new was that 18 we do not -- the siting would not meet international 19 siting standards for such a repository. That is a new 20 issue, not included in this pleading at all, so 21 similarly, that should be ignored.
22 Simply, Your Honor, I believe this is 23 identical, almost word for word, for Sierra Club 2 and 24 3, so the Board's decision on that applies equally.
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195 1 decision on Joint Petition 10 and Sierra Club 5.
2 So if you have no questions, I'll move on.
3 JUDGE RYERSON: No questions at this 4 point.
5 MR. BESSETTE: All right. The next item, 6 Your Honor, is on Fasken item 5, challenging -- let me 7 find it -- the discussion in the environmental report 8 of endangered and threatened species. I did 9 acknowledge that Mr. Eye acknowledged currently -- the 10 original petition challenged that there was no 11 discussion of the lesser prairie chicken and dunes 12 sagebrush lizard as threatened or endangered.
13 Neither of those are threatened or 14 endangered under Texas or U.S. law, and Mr. Eye 15 admitted that, noting that the only species threatened 16 and endangered species is the Texas horned lizard, 17 which is endangered under Texas law only.
18 I would note that the contention itself 19 never mentions the Texas horned lizard. It's 20 completely silent on that. The only mention of the 21 Texas horned lizard is in the Pachlhofer declaration 22 on one page where he asserts that it would be affected 23 by radiation for the facility. So there's no 24 connection between the conservation efforts and the 25 Texas horned lizard in their petition or their expert NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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196 1 reports.
2 The main consensus or main concern is that 3 the conservation efforts, to the extent they are even 4 relevant to this contention on the remaining species, 5 somehow are undermined by the efforts of the interim 6 storage project. But there is zero information on 7 what those conservation efforts are and how the 8 project would undermine them. They don't include that 9 as a reference. They don't cite what's being done, 10 and therefore, we don't -- it's unclear to us, besides 11 just simple construction, how we would undermine those 12 efforts.
13 As they assert to us that these studies 14 are outdated or we need more, we need more from them.
15 They have the burden to state how their conservation 16 efforts are somehow undermined by the project.
17 With regard to the assertion that these 18 studies are out of date somehow, this is very similar 19 to the Sierra Club petition on those studies. I would 20 note there is no law that requires us to do updated 21 studies if the discussion in the environmental report 22 provides an appropriate environmental baseline.
23 In addition, the environmental report does 24 discuss 2015 data from the U.S. Fish and Wildlife 25 Service regarding the status of threatened and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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197 1 endangered species, which they don't challenge.
2 That's all I have on Fasken 5.
3 JUDGE RYERSON: Okay. Any questions?
4 JUDGE ARNOLD: No questions.
5 MR. BESSETTE: All right. Thank you, Your 6 Honor.
7 JUDGE RYERSON: Thank you, Mr. Bessette.
8 You may -- well, as usual, I'm going to 9 have a question or two. You may want to hear what 10 they are. Let's see. Actually, yes. I'm going to 11 talk a little bit about or have some questions on 12 Fasken contention 2. I don't know if that affects who 13 would like to start. Mr. Gillespie.
14 MR. GILLESPIE: Yes, Your Honor.
15 JUDGE RYERSON: Yes. I mean, I don't want 16 to preempt what you're going to say, but I -- it did 17 seem to me -- this is a contention that the staff 18 proposed that we should admit, Fasken contention 2, as 19 I recall, in part.
20 And the staff's explanation of that -- I 21 know you have less time than we get to write these 22 things up, but it was fairly brief and seemed to spend 23 most of its time on why the contention should not be 24 admitted as to groundwater issues, but spent very 25 little time on the conclusion that it should be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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198 1 admitted as to geologic stability issues.
2 And I was just wondering -- well, let me 3 finish a related question, and that is whether you've 4 looked at RAI response, I think it is, 2.2-2 that was 5 recently filed that provided some additional 6 information that bears on this contention.
7 Having said all that, my question is: Has 8 the staff's position changed? And if it -- well, 9 first, has the staff's position changed?
10 MR. GILLESPIE: Yes, it has, Your Honor.
11 JUDGE RYERSON: And what is the staff's 12 position today?
13 MR. GILLESPIE: The position today is that 14 the contention is inadmissible. It's been rendered 15 moot by the updated information provided in the 16 application.
17 VOICE: We can't hear you.
18 JUDGE RYERSON: Yes. I think some of the 19 people would like to hear that more clearly.
20 MR. GILLESPIE: That we see the contention 21 as moot, based on the updated information provided in 22 the RAI response.
23 JUDGE RYERSON: Okay. I think that moots 24 my second question, so okay. Having said that, what 25 else would you like to address about the Fasken?
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199 1 MR. GILLESPIE: I believe my colleague has 2 something further to say.
3 JUDGE RYERSON: Ms. Kirkwood. And I 4 perhaps should have asked this to Mr. Gillespie. But 5 that means, unless you've changed some other views, 6 that means the staff would urge that no contention 7 submitted by Fasken is admissible.
8 MS. KIRKWOOD: That is correct.
9 JUDGE RYERSON: Although the staff has 10 maintained the staff supports the standing of the 11 Fasken petitioners.
12 MS. KIRKWOOD: Yes. That is correct, Your 13 Honor.
14 JUDGE RYERSON: Okay. Thank you.
15 MS. KIRKWOOD: Your Honor, I just -- the 16 staff just wanted to speak briefly to the discussion 17 regarding what NRC guidance required with respect to 18 aircraft crash probability. We thought there might 19 have been some confusion.
20 And we wanted to state that NUREG 1567, 21 Section 2.5.2, calls for potential hazards to be 22 reviewed that are nearby the site, and that includes 23 that for an installation near an airport, to consider 24 whether an aircraft -- consider aircraft size, 25 velocity, weight and fuel load in assessing the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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200 1 hazards of aircraft crashes. But it does not say that 2 it is ergo a credible event.
3 The Applicant also mentioned this, but the 4 Commission established the threshold for considering 5 the aircraft crash to be a credible event in the PFS 6 proceeding for ISFSIs and at one times ten to the 7 minus 6, which would apply to this proceeding.
8 And then the staff uses the guidance in 9 NUREG 0800 which applies directly to light-water 10 reactors in order to assess whether or not the -- in 11 order to assess the methodology for determining the 12 probability of an aircraft crash at a particular 13 installation because the guidance in that document is 14 more detailed, but it is not changing the standard 15 from that set by the Commission.
16 So that's the only thing that we wanted 17 to --
18 JUDGE RYERSON: Okay.
19 MS. KIRKWOOD: -- add to that response.
20 JUDGE RYERSON: While I have you --
21 MS. KIRKWOOD: Sure.
22 JUDGE RYERSON: -- and your answers are 23 subject to what you may hear tomorrow in response to 24 the Board's questions or the arguments about standing 25 as a more generic issue. But I think, as you've NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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201 1 acknowledged, the staff's position has changed on a 2 few issues since the staff's original written 3 responses to the petitions.
4 And it might be useful to summarize, just 5 so we're clear, as of right now, the staff's position 6 is that Beyond Nuclear has established standing, and 7 the staff would urge the admission of Beyond Nuclear's 8 sole contention, at least in part.
9 MS. KIRKWOOD: Correct.
10 JUDGE RYERSON: With respect to Sierra 11 Club, the staff would find standing, I believe, but 12 would not find an admissible contention.
13 MS. KIRKWOOD: Correct.
14 JUDGE RYERSON: With respect to the Joint 15 Petitioners, the staff would not find standing but 16 would not object to the Board's finding standing for 17 SEED, but would find no admissible contentions.
18 And with respect to Fasken, the two Fasken 19 entities, the staff would find standing. That was 20 your written position. That has not yet changed.
21 MS. KIRKWOOD: Right.
22 JUDGE RYERSON: But would not find an 23 admissible contention. So if we were holding a 24 hearing today -- put aside motions for summary 25 disposition. If we were holding a hearing today, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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202 1 staff's position would be we should have a hearing on 2 Beyond Nuclear's contention.
3 MS. KIRKWOOD: Correct.
4 JUDGE RYERSON: But the issue -- but let 5 me parse through one more thing, if I can. Is the 6 staff's view that we should have -- well, maybe it's 7 not a hearing. Maybe it's a legal issue contention 8 and doesn't require a factual hearing. Would that be 9 the staff's view?
10 MS. KIRKWOOD: Your Honor, I think there 11 is a good chance that that would not be -- that that 12 would not require an evidentiary hearing.
13 JUDGE RYERSON: An evidentiary hearing.
14 That we should perhaps have further briefing on the 15 question that you say is admissible. But if I'm 16 hearing you correctly, what you're saying is 17 admissible is not the issue of the lawfulness of DOE 18 taking title today. I think the Board thinks that's 19 not lawful. ISP has acknowledged that's not lawful.
20 But petitioners urged everyone that that's not lawful, 21 and I think the staff is agreeing, are you not, that 22 it's not lawful?
23 MS. KIRKWOOD: Staff hasn't taken a 24 position.
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203 1 position. Okay. I wasn't sure if you agreed it was 2 not lawful, but it was not clear to you whether it 3 would be a good thing to have it in the application, 4 even though you think it's not lawful.
5 MS. KIRKWOOD: Yes. Even --
6 JUDGE RYERSON: But you're not taking a 7 position on either.
8 MS. KIRKWOOD: We're not -- I want to be 9 very clear on this.
10 JUDGE RYERSON: Okay.
11 MS. KIRKWOOD: Even if you -- admitting 12 the contention assumes that there is at least a 13 plausible argument that it's not lawful, and which 14 appears to be obvious --
15 JUDGE RYERSON: Yes.
16 MS. KIRKWOOD: And so I think you could 17 sort of jump to the second part of that, which is 18 thus, is it acceptable to have it still in the license 19 application or not. And that's the part that we think 20 is an inadmissible contention.
21 JUDGE RYERSON: Okay. And you think 22 further briefing on that issue, beyond the hundreds of 23 pages we already have, would be helpful?
24 MS. KIRKWOOD: Your Honor, I don't 25 think -- the staff has not taken a position on that.
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204 1 We have an obligation to review the application and to 2 issue a license that we think is appropriate.
3 JUDGE RYERSON: Okay.
4 MS. KIRKWOOD: And I don't think 5 actually -- I think that the briefing thus far has 6 focused on the admissibility of the contention, not on 7 the merits of whether or not it's appropriate to 8 include that option in the --
9 JUDGE RYERSON: Yes. I mean --
10 MS. KIRKWOOD: -- license.
11 JUDGE RYERSON: -- when you're talking 12 about a legal issue contention, I think of necessity 13 sometimes the admissibility of the contention and the 14 outcome of a legal issue contention seemed often to be 15 very close. But I understand your position. I 16 appreciate it. Thank you.
17 Anything else?
18 MS. KIRKWOOD: Just to clarify slightly 19 our position on the SEED standing with the Joint 20 Petitioners, we don't object to SEED having standing 21 based on proximity to the facility. We do object to 22 SEED having standing based on transportation, based on 23 the transportation routes.
24 JUDGE RYERSON: Oh, I -- the statement 25 was -- so you slightly changed your position on that.
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205 1 MS. KIRKWOOD: I hope not.
2 JUDGE RYERSON: Well, at least you've 3 changed my understanding of your position. In other 4 words, you would agree -- does the staff agree that 5 SEED has presented facts that are sufficient for the 6 Board to find standing for SEED, based not -- on the 7 basis of Ms. Gardner-Aguilar's proximity of her 8 residence to the proposed facility?
9 MS. KIRKWOOD: Yes. But that's not 10 exactly what she said in the affidavit. I think you 11 could read --
12 JUDGE RYERSON: Oh, I know, I know.
13 MS. KIRKWOOD: -- it to include that.
14 JUDGE RYERSON: Okay. All right. I -- we 15 understand your position. Or I won't go quite that 16 far, but I think we've reached as far down that road 17 as we can get.
18 MS. KIRKWOOD: Okay.
19 JUDGE RYERSON: Thank you. Anything else?
20 MS. KIRKWOOD: I have nothing further.
21 JUDGE RYERSON: Okay. So we will convene 22 again tomorrow at nine o'clock. We'll begin with the 23 explanation of your views on the generic issue, why 24 nobody has standing, and we'll have a response to that 25 from petitioners, all the petitioners if they want to, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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206 1 but again, I encourage the petitioners to consider a 2 joint -- at least a lead by somebody on that issue.
3 We did offer -- I didn't mention it this 4 morning. We did offer in our order, the June 7 order, 5 the opportunity for very brief concluding statements 6 by everybody. I think many of you may feel you've 7 talked enough by the end of tomorrow morning or 8 whenever we finish tomorrow. But if there's a sense 9 that people would like to do that, you know, I think 10 we'll probably have time to allow that.
11 So you might want to think about whether 12 you want to give a brief summary statement, probably 13 five minutes for everyone, maybe a few more minutes 14 for the Applicant. It's four to one, but I'm not sure 15 how much one can do in five minutes versus seven 16 minutes, but we'll do something on that nature.
17 And I don't know if Ms. Curran is here.
18 Is she here? Oh, over here. That's why I didn't see 19 you. Sorry. I know that you -- last time we made 20 that as a possible offer, you were enthusiastically 21 accepting, and I assume you are again, that you would 22 like to have five minutes at the end to --
23 MS. CURRAN: Yes, if possible. But we 24 hope to be done by the lunch break.
25 JUDGE RYERSON: That's our hope as well.
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207 1 Okay. Well, I mean, we'll see how it goes. I think 2 we can probably do that. If there really isn't a 3 strong sense that that would be productive after a day 4 and a half, we don't -- certainly don't have to do it.
5 I see you, Mr. Matthews. You were eager 6 to say something.
7 MR. MATTHEWS: Thank you, Judge Ryerson.
8 I just wanted to -- we had a response to Judge 9 Arnold's question about the emergency plan --
10 JUDGE RYERSON: Oh, okay. Great.
11 MR. MATTHEWS: -- and that is, yes, today 12 the WCS emergency plan includes aircraft crash as a 13 site area emergency. It is one of the alerts.
14 JUDGE ARNOLD: Okay. So it's carried 15 over.
16 MR. MATTHEWS: Yes, Judge Arnold.
17 JUDGE RYERSON: All right. Thank you, Mr.
18 Matthews. Anything else, anyone?
19 We will resume at nine o'clock tomorrow.
20 Thank you.
21 (Whereupon, at 4:40 p.m., the oral 22 arguments in the above-entitled matter were recessed, 23 to reconvene at 9:00 a.m., Thursday, July 11, 2019.)
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