ML19198A219
| ML19198A219 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 07/11/2019 |
| 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: ML19198A219 (136) | |
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 11, 2019 Work Order No.:
NRC-0430 Pages 208-342 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
208 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 ORAL ARGUMENTS 6
x 7
In the Matter of: : Docket No.
8 INTERIM STORAGE : 72-1050-ISFSI 9
10 (WCS Consolidated : 19-959-01-ISFSI-BD01 11 Interim Storage :
12 Facility) :
13
x 14 Thursday, July 11, 2019 15 16 Commissioner's Courtroom 17 Midland County Courthouse 18 500 N. Loraine Street 19 Midland, Texas 20 BEFORE:
21 PAUL S. RYERSON, Chair 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 DR. GARY S. ARNOLD, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
209 APPEARANCES:
1 2
Counsel for the Applicant 3
Timothy Matthews, Esq.
4 Ryan Lighty, Esq.
5 Paul Bessette, Esq.
6 of:
Morgan, Lewis & Bockius, LLC 7
Washington, DC 20004 8
timothy.matthews@morganlewis.com 9
ryan.lighty@morganlewis.com 10 paul.bessette@morganlewis.com 11 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.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
210 On Behalf of the Nuclear Regulatory Commission 1
Joe Gillespie, Esq.
2 Sara Kirkwood, Esq.
Alana Wase, Esq.
5 of:
U.S. Nuclear Regulatory Commission 6
Office of the General Counsel 7
Mail Stop O-14A44 8
Washington, DC 20555-0001 9
301-287-9111 10 joe.gillespie@nrc.gov 11 sara.kirkwood@nrc.gov 12 thomas.steinfeldt@nrc.gov 13 alana.wase@nrc.gov 14 15 ALSO PRESENT FOR NRC:
16 John-Chau Nguyen 17 James Park 18 John McKirgan 19 Christopher Regan 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
211 On Behalf of Beyond Nuclear 1
Diane Curran, Esq.
2 of:
Harmon, Curran, Spielberg and Eisenberg 3
1725 DeSales Street, NW, Suite 500 4
Washington, DC 20036 5
dcurran@harmoncurran.com 6
Mindy Goldstein, Esq.
7 of:
Emory University School of Law 8
Turner Environmental Law Clinic 9
1301 Clifton Road 10 Atlanta, Georgia 30322 11 magolds@emory.edu 12 13 14 On Behalf of Fasken Land and Oil and 15 Permian Basin Land and Royalty Owners 16 Robert V. Eye, Esq.
17 Timothy Laughlin 18 of:
Robert V. Eye Law Office, LLC 19 4840 Bob Billings Parkway, Suite 1010 20 Lawrence, Kansas 66049 21 bob@kauffmaneye.com 22 tijay1300@gmail.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
212 On behalf of Sierra Club 1
Wallace Taylor 2
4403 1st Avenue, SE, Suite 402 3
Cedar Rapids, Iowa 52402 4
wtaylorlaw@aol.com 5
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 19 Terry Lodge, Esq.
20 316 N. Michigan Street, Suite 520 21 Toledo, Ohio 43604 22 tjlodge50@yahoo.com 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
213 P R O C E E D I N G S 1
9:00 a.m.
2 JUDGE RYERSON: Well, day two. Again, a 3
few logistical issues. If people, I hope, would 4
remember to silence your cell phones. I see we have 5
fewer people who might have cell phones. And once 6
again, we have provided water for the petitioners, the 7
Applicant, the staff, so feel free, if you don't have 8
a bottle of water near you, to grab one if there's 9
some down there. There should be plenty down there.
10 I think our plan today -- I'll just say a 11 few words about that. We're going to begin with, I 12 think it is, probably Mr. Lighty will be presenting 13 the Applicant's views on kind of some generic issues 14 of standing, to which all the petitioners are free to 15 respond, but if you've agreed on one lead, that would 16 be terrific, probably more efficient, but that's up to 17 you. We'll get to that.
18 After that, we will have questions from 19 the Board. I think all of us feel that a lot of our 20 questions were answered yesterday. Even though that 21 was not the primary purpose of yesterday, we really 22 got a lot of questions and we got a lot of answers.
23 So we are hopeful that this will be a relatively short 24 session today.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
214 We'll certainly take a break, but our 1
thinking is that if there's an excellent chance of 2
finishing in the morning, we'll take whatever time we 3
need to finish and have lunch afterwards, and indeed, 4
we might not even get that close to noon. We'll just 5
have to see how it goes, but -- no guarantees, but I 6
think we're all quite hopeful that we will finish this 7
morning.
8 So with that, Mr. Lighty, would you like 9
to begin -- or Mr. Matthews.
10 MR. MATTHEWS: Judge Ryerson, if I might, 11 I just wanted to make a correction to the record 12 for --
13 JUDGE RYERSON: Certainly.
14 MR. MATTHEWS: Tim Matthews for Interim 15 Storage Partners. I want to make a correction to the 16 record. I erroneously indicated yesterday with 17 respect to Fasken's motion related to the Nuclear 18 Waste Policy Act, I made a point about failure of 19 service, and that's incorrect. It was -- their 20 initial motion was not, in fact, served on Interim 21 Storage Partners, but they did resubmit the motion two 22 weeks later, and it was served on us, and we did not 23 argue failure of service in the response, so --
24 JUDGE RYERSON: Great. Thank you for --
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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215 MR. MATTHEWS: -- I just wanted to clarify 1
that.
2 JUDGE RYERSON: -- that clarification.
3 MR. LIGHTY: Good morning, Your Honors.
4 Ryan Lighty for ISP.
5 I know we're here to talk about standing 6
first thing, and I think it may be helpful to begin 7
with a brief discussion, a high-level overview of the 8
three types of standing, just to set the stage for 9
what we're going to talk about today.
10 There are three types of standing in NRC 11 proceedings. On one end of the spectrum is 12 traditional standing, and there is also, on the other 13 end of the spectrum, proximity standing in reactor 14 licensing cases, and then in the middle, between them, 15 is the hybrid of proximity-plus standing. That 16 applies to this proceeding.
17 As to traditional standing, it would be 18 helpful to think of these three types in terms of a 19 map. Visualize a map. For traditional standing, a 20 petitioner heeds to show that a harm would accrue at 21 a particular point on a map, and that they have 22 interests at that point on a map.
23 In the reactor proximity presumption, 24 however, the Commission has generically determined 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
216 that the potential for consequences is assumed at a 1
radius of 50 miles, and the only demonstration a 2
petitioner need make is that they have an interest 3
within that 50-mile radius.
4 But with the hybrid proximity-plus 5
standing, a petitioner needs to show that there will 6
be an obvious potential for off-site consequences at 7
a radius certain, not a point certain as in 8
traditional standing.
9 So when we talk about the three different 10 types of
- standing, the proximity-plus is a
11 presumption. There still must be a showing of harm in 12 proximity-plus, unlike reactor standings where the 13 Commission has generically determined that there is an 14 obvious potential, and it exists at a radius of 50 15 miles.
16 So there are really two showings that 17 we're talking about here that petitioners need to meet 18 for proximity-plus, that is, that there is an obvious 19 potential for off-site harm, and what the radius is 20 for that potential. And none of the petitioners in 21 this proceeding have made either of those 22 demonstrations.
23 The Commission has generically determined 24 as well that the type of activity for which ISP is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217 seeking a license falls into a category of ultra-safe 1
activities that do not require off-site emergency 2
planning, because the potential for off-site harm is 3
not plausible.
4 This type of proceeding is different from 5
other ISFSI or Part 72 applications that may involve 6
at-reactor ISFSIs, spent fuel storage pools, or other 7
applications that have fuel handling operations. And 8
the reason is that the risk profiles are very 9
different in those types of proceedings.
10 We discussed this a bit in our pleadings, 11 and it really goes back to the Part 72 emergency 12 planning rulemaking where the Commission made that 13 distinction. They discussed at-reactor ISFSIs wet 14 fuel handling operations, and they recognized that the 15 risk profile is significantly different for the type 16 of activity that ISP is seeking a license for here, 17 and that is dry storage, away from reactor, with no 18 fuel handling operations.
19 So the risk profile is very different here 20 and falls into a category of activities that the 21 Commission has generally determined to be ultra-safe 22 and to not require off-site emergency planning.
23 JUDGE RYERSON: Isn't there a difference, 24 Mr. Lighty, beyond what is a reasonable requirement 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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218 for emergency planning, which is something I assume 1
involves a lot of effort and cost and a standard for 2
whether somebody who lives across the street from a 3
facility is allowed to at least file a petition.
4 Put aside the Commission's views about 5
strict standards on contentions, but on standing, 6
hasn't the Commission said -- I hate to use the word 7
"lenient" -- we should be less strict than when it 8
comes to contention admissibility, that we should be 9
open and welcoming to petitions by people who at least 10 perceive a risk, even if, you know, in your view it's 11 not really a substantial risk? What's your response 12 to that?
13 MR. LIGHTY: Well, I think that's 14 absolutely right. The Commission has acknowledged 15 that, you know, that there is some leniency in 16 standing. However, it is a statutory requirement, 17 Section 189(a) of the Atomic Energy Act, to 18 demonstrate an actual interest that may be affected by 19 the proceeding. The perception of an interest that 20 may be affected wouldn't satisfy the statute.
21 In proximity-plus presumption, though, 22 that is a Commission policy, to create a shortcut to 23 show standing. And so when we're talking about 24 meeting the requirements that the Commission has 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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219 established to invoke that shortcut, what we're 1
talking about is a very wide gap between the 2
Commission's scientific determination that there is no 3
plausible possibility of off-site harm -- right?
4 There's no plausible possibility of it, and the 5
proximity-plus presumption requirement of a showing of 6
an obvious potential for off-site consequences.
7 There's an enormous gap between an obvious 8
potential and a scientific determination that there is 9
no plausible possibility of off-site radiological 10 consequences. And so I think that gap is what we're 11 really talking about here, the gap between the 12 Commission's scientific determination and the standard 13 in the Commission policy that you have to jump over 14 that hurdle to get the shortcut.
15
- Now, this has nothing to do with 16 traditional standing. Petitioners could make their 17 own arguments in traditional standing space. But this 18 is the obligation that the Commission has imposed for 19 the privilege of invoking the shortcut to 20 demonstrate --
21 JUDGE RYERSON: But understood. The 22 Commission also at the same time cautions Boards that 23 we should not conflate merits determinations with 24 standing determinations. And, granted, the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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220 has created a shortcut, to say, but in applying that 1
shortcut, aren't you urging us to basically come back 2
to your contentions and say that -- and examine 3
whether there is a plausible possibility of a release 4
of radioactivity from these casks when, let us say, 5
intuitively or obviously the petitioners feel there 6
could be. And isn't that enough for them to at least 7
get in the door to argue the admissibility of their 8
contentions?
9 MR. LIGHTY: In a reactor licensing 10 proceeding, I would say yes. But because the 11 Commission has imposed the additional hurdle in 12 proximity-plus of a demonstration of the obvious 13 potential and the basis for the radius to be used --
14 I think the Board's decision in LBP 19-4 on the AFES 15 standing is instructive here.
16 The Board, I take it, had some difficulty 17 in determining --
18 JUDGE RYERSON: It was a nondecision, as 19 I recall or understand.
20 MR. LIGHTY: Correct. Correct. In 21 determining the radius to be used, and that's because 22 none of the petitioners provided any basis for a 23 determination that there is a radius at which harm 24 could accrue. And I think the absence of that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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221 demonstration is exactly what we have in the petitions 1
here.
2 None of the petitioners have demonstrated 3
an obvious potential for off-site consequences at any 4
particular radius. If we look back to the emergency 5
planning rulemaking, a commenter in that rulemaking 6
suggested that the Commission adopt very small, 7
compact, one-to five-mile radius for off-site 8
emergency planning. The Commission rejected even 9
that, so if there is some plausible possibility of 10 off-site harm, it resides somewhere short of a mile 11 from the site.
12 The case law that many of the petitioners 13 cited for 17 miles in other proceedings again was wet 14 fuel storage at reactor operations. We're talking 15 about exposed fuel.
16 JUDGE RYERSON: What about the D.C.
17 Circuit decision in the NEI case where there was 18 18 miles, I believe, and that was not wet storage. That 19 was Yucca Mountain.
20 MR. LIGHTY: Yes. Yucca Mountain -- a 21 million years of storage, I believe, was the licensing 22 action there. Again, I think that's very different.
23 If I recall as well, the Yucca proceeding did involve 24 some fuel handling operations next to the site as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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222 well. And so, again, very different risk profiles, 1
very different licensing actions.
2 And as the Commission has stated with 3
proximity-plus, the determination must be case by 4
case. You have to take into account the specific 5
facts of the licensing action that's being proposed.
6 And so I think that case is inapplicable here.
7 Again, what the petitioners have alleged 8
in the petitions is that the quantity of the proposed 9
storage alone is enough to demonstrate an obvious 10 potential, and that's just not the case. As the 11 Commission stated in the Schoffield Barracks case, in 12 CLI 10-20, even an extraordinary volume, to quote the 13 Commission, extraordinary volume is not enough to 14 demonstrate an obvious potential for off-site 15 consequence.
16 You must go an additional step to show 17 that there's some plausible mechanism for off-site 18 release. And the Commission again has also made clear 19 in CLI 04-13 that, quote, "conclusory allegations 20 about potential radiological harm," end quote, are 21 insufficient to satisfy that burden.
22 The petitions here do not offer anything 23 other than conclusory allegations about potential 24 radiological harm. And that's -- it's just not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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223 enough. There must be some demonstration, some 1
demonstration of plausibility. And the petitions 2
don't meet that burden.
3 Again, this is a type of activity that 4
falls into what the Commission has determined to be an 5
ultra-safe category of activity, very different than 6
wet storage, fresh fuel, at an on-site operation.
7 JUDGE RYERSON: I'm a little concerned 8
about the practical consequences of the standard you 9
are proposing. You hint at the possibility that maybe 10 if someone lived within a mile of the proposed, you 11 wouldn't necessarily object or at least object as 12 strenuously. But, I mean, who would have standing?
13 I supposed if you were building this on 14 top of a Native American burial ground, they would 15 have standing. But who would -- who in your view 16 would have standing to challenge the movement of much 17 of the nation's nuclear waste to a lot across the 18 street from them? Who would have standing under your 19 theory?
20 MR. LIGHTY: Sure. I would note that all 21 we're talking about here is the privilege of invoking 22 the shortcut to
- standing, for proximity-plus 23 presumption.
We're not talking about any 24 determination applicable to traditional standing. So 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
224 the avenue of traditional standing is wide open. The 1
Commission's determination doesn't necessarily weigh 2
on that.
3 And so what I would say is it's possible 4
that in terms of radiological harm, perhaps someone 5
with on-site interests could raise a standing claim.
6 Workers at the site, contractors, businesses with 7
equipment that's leased at the site, whatever the case 8
may be. On-site radiological harm has not been carved 9
out by the Commission's generic determination.
10 And, second, off-site nonradiological harm 11 has not been precluded by the Commission's generic 12 determination. And so I think the only thing that's 13 carved out is this narrow area of off-site 14 radiological harm being used to invoke the privilege 15 of the shortcut in proximity-plus. And I think that's 16 a fairly narrow area that's been precluded by the 17 scientific determination that the Commission has 18 adopted.
19 The fact that the petitioners here haven't 20 sought any other grounds for standing here, even 21 though the conclusion applying the law correctly may 22 seem harsh, that's not a basis to abandon the law 23 here. The alternative, however, is discretionary 24 standing.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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225 Discretionary standing is permitted under 1
2.309(e) where petitioners have not met the legal 2
requirements for standing. The Board at their 3
discretion could admit petitioners with standing.
4 JUDGE RYERSON: Has the Commission ever 5
sustained a finding of discretionary standing?
6 MR. LIGHTY: That I don't know the answer 7
to, Your Honor.
8 JUDGE RYERSON: I don't either, but I --
9 but it hasn't happened often.
10 MR. LIGHTY: I'm not familiar. But it is 11 codified in the regulation. 2.309(e) makes it 12 explicit, and there are criteria that must be 13 satisfied, such as a demonstration in the initial 14 petitions that petitioners would create a meaningful 15 contribution to the proceeding and so forth.
16 But again, here, none of the petitioners 17 attempted to make that demonstration.
18 JUDGE RYERSON: Uh-huh. Right.
19 MR. LIGHTY: That was their choice to do 20 so. It was their choice not to address those criteria 21 as a back-up to their standing argument. And, again, 22 you know, even though the outcome may seem harsh, it's 23 not a basis to abandon the legal requirements for 24 standing, because it is, again, in the Atomic Energy 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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226 Act.
1 Petitioners must demonstrate an interest 2
that may be affected by the proceeding, and the 3
Commission has wide latitude to set the criteria for 4
who may invoke the shortcut. And we would urge the 5
Board to consider those criteria.
6 JUDGE RYERSON: Judge Arnold, did you have 7
questions?
8 JUDGE ARNOLD: Curiosity. Could the 9
proximity-plus criteria be used based upon an 10 environmental impact? I mean, you've addressed 11 safety.
12 MR. LIGHTY: Yes. I -- my understanding 13 of the proximity-plus presumption is that the shortcut 14 is for a demonstration of an obvious potential of off-15 site radiological consequences. Certainly in a 16 traditional standing showing, something within the 17 realm of NEPA could be a basis for standing. But I'm 18 not aware of any cases where a NEPA allegation has 19 been allowed as a basis for a proximity-plus shortcut 20 invocation.
21 JUDGE ARNOLD: And in your case, if I 22 remember correctly, all of your environmental impacts 23 were either small or nonexistent, so they would have 24 to actually challenge that finding as well.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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227 MR. LIGHTY: Yes. For example, let's say 1
that a petitioner alleged that construction dust had 2
not been adequately analyzed in the environmental 3
report, and showed that they had an interest that was 4
within a radius where that construction dust could 5
cause them harm. I think that may be a scenario where 6
you've got a nonradiological off-site consequence that 7
would be sufficient for showing of standing.
8 JUDGE ARNOLD: But the petitioners haven't 9
done that.
10 MR. LIGHTY: But the petitioners have not 11 done that here.
12 JUDGE ARNOLD: Thank you.
13 JUDGE RYERSON: Judge Trikouros, any 14 questions?
15 JUDGE TRIKOUROS: No.
16 JUDGE RYERSON: Thank you, Mr. Lighty.
17 MR. LIGHTY: Thank you.
18 JUDGE RYERSON: How have petitioners 19 decided they wish to proceed? Individually or with a 20 single presentation? Ms. Curran?
21 MS. CURRAN: Good morning.
22 JUDGE RYERSON: Good morning.
23 MS. CURRAN: The petitioners have decided 24 we're each going to proceed on our own, because we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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228 each have made different standing arguments, and I'm 1
sure we won't be completely repetitive, but we're not 2
going to designate one person.
3 JUDGE RYERSON: This argument affects all 4
of you, and so that's fine. I do urge all of you to 5
try to be crisp and efficient if you can be.
6 MS. CURRAN: We certainly will. With all 7
due respect, I'd like to correct a couple of things 8
that Mr. Lighty said. First, Beyond Nuclear did claim 9
traditional standing. It's in our hearing request.
10 We claimed traditional standing through the frequent 11 contacts of people -- of our standing declarants with 12 transportation, transportation routes, you know, the 13 railroad yards where spent fuel would be stored. So 14 that is something that was in our hearing request.
15 We also --
16 VOICE: We can't hear very well. Sorry.
17 MS. CURRAN: Oh, sure.
18 JUDGE RYERSON: I think if you slightly 19 move that mike it --
20 MS. CURRAN: Is that better?
21 JUDGE RYERSON: Much better.
22 VOICE: Much better.
23 MS. CURRAN: So I will repeat and say that 24 we did claim traditional standing. It is in our 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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229 hearing request. We also would argue to you that NEI 1
versus EPA is to a degree a traditional standing case, 2
because the Court talked about how the effects could 3
harm the standing declarant in that case.
4 And I would also say that the distinction 5
that Mr. Lighty makes between the NEI case and our 6
case is not a distinction of importance here, that 7
there is, as in the Yucca Mountain repository case, 8
there is also a potential here for casks to remain for 9
a lengthy period at this site, and there is a 10 potential for them to release radioactivity.
11 And just, you know, to get back to the 12 central point here -- and I think it gets to your 13 question, Judge Ryerson, of when would anybody have 14 standing to participate in a case like this. If the 15 basic presumption for -- and used by the NRC to assess 16 standing is that casks will be operated in complete 17 conformance with the regulations for only the license 18 term that is being sought here, and that everything 19 will go well. Then no one will ever have standing.
20 But the issue is that as in all aspects of 21 life, there are risks. There are risks that casks 22 will not maintain their integrity. There are risks 23 that there will be an accident. There is the 24 potential that the cladding inside a spent fuel 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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230 storage cask is flammable.
1 We haven't even talked about the risk of 2
an attack on a spent fuel storage cask. We know that 3
that -- in this Circuit, that that can't be addressed 4
in a NEPA case, but you can't rule that out for 5
purposes of standing, because standing is a broader 6
inquiry and it is a much different test.
7 And with that, I would like to get to the 8
relevance of the emergency planning rule that ISP 9
relies on. The Commission in that case did not say 10 that the potential for off-site harm is not plausible.
11 They just didn't say that. They said there was not a 12 significant potential for off-site harm in the context 13 of emergency planning, which is an immediate response 14 to an accident.
15 It doesn't say anything at all about what 16 if an accident resulted in longer term release of 17 radioactivity that didn't require -- didn't rise to 18 the level of an evacuation, but that contaminated the 19 environment. They didn't address that, and that is 20 certainly a relevant concern for purposes of standing.
21 The standing for -- the standard for the 22 proximity-plus presumption is whether there's an 23 obvious potential, potential, for off-site 24 consequences. It doesn't mean that it has to be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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231 significant or likely. It's an obvious potential, and 1
if you look at the --
2 There's a case decided by the licensing 3
board in 1996, Yankee Atomic Electric Company, LBP 4
96-2, 43 NRC 61, which says that the licensing board 5
said, We don't find ourselves in a position at this 6
threshold stage to rule out as a matter of certainty 7
the existence of a reasonable possibility that, in 8
that case, decommissioning might have an adverse 9
impact to petitioners' members who live nearby or 10 recreate nearby.
11 So we're talking about whether the NRC can 12 rule out the potential for off-site consequences, and 13 we think that with a facility that would store in one 14 single place half of the existing inventory of spent 15 fuel in the United States, 40,000 metric tons, you 16 cannot rule out the potential that in such a large 17 quantity of spent fuel storage casks, you may have an 18 accidental release.
19 I also -- I think we dealt with this in 20 our reply to the oppositions to our hearing request, 21 but the Schoffield Barracks case is not helpful in 22 this case, because Schoffield Barracks dealt with low-23 level radioactive material that was widely disbursed 24 over a large area. That's just not what we're talking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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232 about here. We're talking about a highly concentrated 1
collection of highly radioactive spent fuel, not 2
comparable at all.
3 And I just, in closing, I want to read you 4
a quotation from the emergency planning rule that I 5
think is helpful. The citation to the emergency 6
planning rule is 61 Federal Register 32430, and this 7
is at page 32439.
8 It says -- and this is in the context of 9
emergency planning. "At this age, spent fuel has a 10 heat generation rate that is too low to cause 11 significant particulate disbursal in the unlikely 12 event of a cask confinement boundary failure.
13 Therefore, the consequences of worst case accidents 14 involving an ISFSI located on a reactor site would be 15 significantly less than those accidents involving the 16 reactor."
17 So they're looking at the unlikely event 18 of a cask confinement boundary failure. They don't 19 rule it out. They just say it's unlikely. So for 20 purposes of this proceeding, at this stage, we don't 21 think that you have the basis to rule out an accident 22 that would involve a radiological release from a cask, 23 and therefore, you would not have a basis for denying 24 our standing. Thank you.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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233 JUDGE RYERSON: Any questions?
1 JUDGE TRIKOUROS: No.
2 JUDGE RYERSON: Thank you, Ms. Curran.
3 Mr. Taylor, welcome.
4 MR. TAYLOR: Thank you. It's always an 5
advantage to follow Ms. Curran's argument, so I don't 6
have to say very much. The Sierra Club has two bases 7
for standing in this case. One is we have two 8
declarants who live in Eunice, six miles from the 9
site. I might just note parenthetically that ISP has 10 objected to Rose Gardner because apparently she also 11 signed a declaration for Beyond Nuclear.
12 I don't know that the Commission has 13 specifically said that a
declarant cannot be 14 representative of two organizations. But in any 15 event, we have a declaration from Shirley Henson, who 16 also lives in Eunice, so I think that's probably a 17 nonexistent question in terms of standing.
18 But -- so we have a standing based on 19 residence within six miles of the site. We also have 20 standing based on proximity to the transportation 21 route, again in Eunice, and we also have some 22 declarations from the Dyer family in Hobbs.
23 And if you recall, one of the maps Mr.
24 Lodge showed yesterday showed definitely that there is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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234 a transportation route north and south that goes 1
through Hobbs and Eunice, and there's a little spur 2
that goes directly to the proposed waste site. So 3
that's definitely going to be a transportation route.
4 The Commission has made it clear that 5
proximity-plus standing applies to waste sites or 6
similar projects that are not reactors, where standing 7
was accorded to petitioners up to 17 or 18 miles away.
8 I guess I find it a little bit ironic that 9
the petitioners yesterday were required -- not 10 required -- were asked to distinguish this case from 11 the Holtec decision that this Board rendered a few 12 months ago.
13 But apparently ISP is not being asked to 14 distinguish the standing issue between the two, 15 because clearly the standing issues are the same here, 16 and the Board accorded standing, noting these cases 17 that allowed standing for 17 or so miles away. And I 18 haven't heard ISP make any argument about 19 distinguishing this Board's decision in Holtec from 20 the facts in this case.
21 In terms of plausible harm or plausible 22 connection between this project and the standing 23 allegations of the declarants, the declarants 24 specifically identified what their concerns were, why 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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235 they had the concerns, and in our petition, we also 1
referred to our contentions concerning the safety and 2
environmental impacts that we felt would be created by 3
this project.
4 And as Judge Ryerson noted a little bit 5
ago, the standard for admissibility of contentions is 6
not the same as the standard for finding standing, so 7
the fact that we have at least presented some 8
plausible concern that these declarants would have 9
based on our contentions, I think that that is 10 something the Board can and should consider.
11 So based on all the cases Ms. Curran 12 mentioned and the cases that are in our petition and 13 our response, our reply, we believe that we do have 14 standing, just as we had standing in the Holtec case.
15 JUDGE RYERSON: Any questions? Judge 16 Arnold?
17 JUDGE ARNOLD: No questions.
18 JUDGE RYERSON: Judge Trikouros?
19 JUDGE TRIKOUROS: No.
20 MR. TAYLOR: Thank you.
21 JUDGE RYERSON: Thank you, Mr. Taylor.
22 Mr. Lodge.
23 MR. LODGE: Thank you and good morning.
24 In the interest of crisp efficiency, I would like to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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236 indicate that the Joint Petitioners adopt the 1
arguments that were advanced by Beyond Nuclear's 2
attorneys. I'd like to supplement that, however, with 3
a number of points.
4 We believe -- and I'd just like to remind 5
the Board of a major distinction between most of the 6
Joint Petitioners and other putative intervenors here, 7
that being the fact that we're talking about 8
grassroots organizations with members who have 9
provided declarations of proximity to what we believe 10 are known and/or readily identifiable rail routes and 11 other transfer routes to -- in route to WCS, Texas.
12 We believe that there's an obvious 13 potential for off-site radiological harm that is 14 admitted in the environmental report. There's 15 discussion at -- on tables 4-18, -19, and -20, within 16 the environmental report of radiation emissions from 17 routine incident-free transport.
18 There's also the return to sender, what I 19 call the return to sender, policy enunciated by the 20 Applicant here, whereby if contaminated, leaking, 21 troublesome canisters or casks arrive, they will in 22 some sense, I guess, be patched up, remediated enough 23 to put back on the road home. They will be returned.
24 So there will be a knowing send-back of spent nuclear 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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237 fuel.
1 We also would point out that the TAD 2
reloading issue, which is gapingly unresolved for 3
purposes of consideration of this application, 4
certainly raises some interesting questions. As I sat 5
listening to the WCS presentation, it occurred to me 6
that it's a -- by denying any possibility, by claiming 7
that this will be a perfectly executed business plan 8
for generations, you get to knock all of the 9
intervenors out because they just don't have enough to 10 show for standing.
11 The -- as Mr. Ryerson indicated, Judge, a 12 little while ago, I have to agree with what you were 13 saying. I think that there's an enormous attempt to 14 conflate merits with the much different and lower 15 thresholds for standing, because of the fact that they 16 don't get into -- this explains the preposterous 17 notion that in the 2120s will be the first appearance 18 of a dry transfer system.
19 It explains why there would be a return to 20 sender policy, because outwardly the Applicant 21 maintains that this is all low risk, effectively a 22 perfect conceived idea. What could possibly go wrong?
23 So you have several different modes of 24 potential off-site consequences. You have a given of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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238 off-site radiological consequences to and from the 1
facility. And I would like to discuss the traditional 2
standing that we believe the Joint Petitioners, not 3
just Ms. Aguilar -- Gardner-Aguilar, but the people I 4
consider to be at considerably further distances away 5
from the facility along the routes.
6 As I pointed out, Patricia Mona Golden, 7
Van Horn, Texas, works a hundred feet away from the 8
only apparent east-west rail line between El Paso and 9
Monahans. She lives a block away from that same rail 10 line. We have people who have demonstrated that they 11 are certainly within the zone where one might conceive 12 of routine incident-free transport radiation 13 emissions.
14 The -- WCS claims that effectively we have 15 only made a -- raised a generalized grievance. We 16 believe that that's quite incorrect. The term 17 "generalized grievance" doesn't just refer to the 18 number of people who are allegedly injured. It refers 19 to the diffuse abstract nature of the injury itself.
20 So just because, let's say, hundreds, 21 thousands or most likely millions of people live 22 proximate enough to probably rail corridors that they 23 will be subject involuntarily to radiation emissions, 24 just because there's millions doesn't mean that if a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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239 handful of them file declarations, that they have 1
identified this as a concern, that they were actually 2
following in the path of the adjudicated fact from the 3
Savannah River case, the MOX Fuel Facility case, that 4
noted the possibility of incidental emissions of 5
radiation, incident exposures.
6 The fact that a few people are raising it 7
and are invoking a statutory procedure that is 8
purported to protect public health and safety is 9
significant, and it takes this out of the class of 10 dismissible generalized grievances.
11 We also would point out that the logic of 12 the Savannah River case -- I call it the Duke Cogema 13 Stone & Webster case, but the Savannah MOX Fuel case 14 is sort of interesting on its facts. We're talking 15 about finished fuel being delivered to two recipient 16 reactors, a total of 550 contemplated shipments, and 17 spent nuclear fuel presumably contains a good many 18 more radiological poisons which are in a less stable 19 circumstance than MOX Fuel.
20 The fact that a mere 550 shipments was 21 contemplated in the Savannah River case is sort of 22 glaring in the shadow of potentially tens of thousands 23 of shipments to the Texas site. But the logic of that 24 licensing panel, which unfortunately this panel 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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240 considers to be an outlier type of decision, but the 1
logic of it lays out very well the same logic that we 2
propose be applied to our situation as Joint 3
Petitioners.
4 "As the intervention petitions indicate, 5
incident-free shipping of plutonium provides a dose of 6
ionizing radiation, albeit small, to anyone next to 7
the transport vehicle and a minor exposure to 8
radiation, even when within regulatory limits is 9
sufficient to state and injury in fact." And that 10 cites to the Yankee Atomic Electric Company case.
11 "Further, the asserted harm here, injury 12 to the health and safety of petitioners' members from 13 ionizing radiation, is clearly encompassed by the 14 health and safety interests protected by the Atomic 15 Energy Act. Nor is there any doubt that the injury 16 alleged by the petitioners' members is fairly 17 traceable to the production and subsequent manufacture 18 and shipping of MOX Fuel.
19 "Because the transport of MOX Fuel to the 20 mission reactors over public highways on which 21 petitioners' members travel cannot take place without 22 construction of the facility, it can't be fairly 23 argued that the threatened injury to the petitioners' 24 members is not caused by the challenged licensing 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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241 action.
1 "Indeed, the unique circumstances 2
surrounding the transportation of MOX Fuel over 3
unannounced routes, with unannounced schedules, in 4
unmarked trucks, precludes the petitioners' members 5
from being able to avoid the asserted harm to their 6
health from the shipment of plutonium over the 7
highways.
8 "Additionally and most obviously, the 9
asserted injury to the health of petitioners' members 10 would be redressed by a decision favorable to the 11 petitioners, denying the construction authorization 12 for the MFFS" -- pardon me -- "MFFF.
13 "Finally, the interests that the 14 petitioners seek to protect by challenging the 15 construction authorization are germane to the purposes 16 of the environmental organizations."
17 We believe that that constitutes in a very 18 concise fashion our arguments here, and that the Board 19 should grant all the Joint Petitioners standing.
20 Thank you.
21 JUDGE RYERSON: Any questions? Judge 22 Arnold?
23 JUDGE ARNOLD: No.
24 JUDGE RYERSON: No questions. Thank you, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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242 Mr. Lodge.
1 Mr. Eye, before you begin, just a -- well, 2
come on. But I mentioned yesterday, I think, when we 3
get to the next phase and we have questions from the 4
Board, I will have some questions about the specifics 5
of the declarations that you submitted on behalf of 6
your clients. So if you could try to focus your 7
comments, since I'll be -- we will be dealing with the 8
specifics of the declarations later.
9 So if you would try to focus your comments 10 primarily on the more generic issue that's been raised 11 by Mr. Lighty, I'd appreciate that. Thank you.
12 MR. EYE: Yes, sir. With that assurance, 13 that we'll be able to speak --
14 JUDGE RYERSON: Absolutely.
15 MR. EYE: -- in response to some of the 16 criticisms of the declarations, I'll try to focus on 17 the broader issue regarding standing.
18 I want to disabuse the panel of the idea 19 that there is no proximity-based standing for IFSFIs.
20 There are at least three cases in which that 21 proximity-based standing has been found for such 22 facilities. There's a Private Fuel Storage case, of 23 course, 1998. That's 47 NRC 142. There's the Pacific 24 Gas and Electric case, a 2002 case, and that is cited 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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243 at 56 NRC 413. And, of course, there's the Holtec 1
case from earlier this year, and that's LBP 19-04.
2 So certainly those cases are examples 3
where proximity-based standing for ISFSIs has been 4
validated. Now, there are other non-reactor cases in 5
which proximity-based standing has been found, but 6
those are less specific to our claims here, and so I 7
think it's important to recognize that there is 8
precedent for ISFSIs having a basis for proximity 9
standing.
10 Second, there's the argument that somehow 11 the emergency planning rule negates proximity-based 12 standing. Well, that is also, I think, refuted by the 13 precedent that I just mentioned and the fact that the 14 emergency planning rule was adopted in 1995.
15 Subsequent to 1995, in Private Fuel Storage, Pacific 16 Gas and Electric, and Holtec, we have instances where 17 in the context of those cases, the emergency planning 18 rule did not preclude proximity-based standing.
19 And I think that that precedent stands as 20 a basis for this Board to find that under the facts 21 that have been advanced, that there is a basis for 22 proximity-based standing, and it's not undercut by 23 this emergency-based -- or rather emergency planning 24 rule.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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244 And with that, I would ask the panel to 1
allow me to also adopt by reference and incorporation 2
the arguments that have been made by Ms. Curran 3
previously this morning.
4 JUDGE RYERSON: Of course. Any questions, 5
Judge Arnold?
6 JUDGE ARNOLD: Are we going to get into 7
specifics now or --
8 JUDGE RYERSON: I think later, specifics 9
on the declarations.
10 JUDGE ARNOLD: No.
11 JUDGE RYERSON: Okay. Thank you, sir.
12 MR. EYE: Thank you.
13 JUDGE RYERSON: The NRC staff. Mr.
14 Gillespie, and I have a comment or question before you 15 begin.
16 MR. GILLESPIE: Okay.
17 JUDGE RYERSON: Just to recap, in your --
18 in the staff's initial filings, you did not oppose the 19 standing of Beyond Nuclear. You did not oppose the 20 standing of Sierra Club, and you did not oppose the 21 standing of Fasken, the two entities, one individual 22 and one entity collectively called Fasken. Initially 23 you opposed the standing of the Joint Petitioners, but 24 as of yesterday, I assume today, you do not oppose the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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245 standing of SEED, one of the Joint Petitioners.
1 So from that, I take it that you disagree 2
with Mr. Lighty's analysis of what is necessary to 3
show an obvious potential. So that's the itch that 4
you might try to scratch, if you would address that 5
question specifically.
6 MR.
GILLESPIE:
- Yes, Your Honor.
7 Frankly -- well, we disagree with the Applicant's 8
position, interpreting our EP requirements to apply to 9
standing. The AEA sets forth who the Commission must 10 give standing to. It doesn't give a floor as to who 11 may be granted standing.
12 Additionally, the case that they mention, 13 the Ross ISR case at CLI 12-12 mentioned by the 14 Applicant, is not fully dispositive of this issue.
15 While the Commission said that the 50-mile proximity 16 presumption roughly corresponds to EPZ ingestion 17 pathways, they said it's -- the Commission stated that 18 it's an application-specific determination as to what 19 might be a
particular radius for individual 20 application.
21 VOICE: I'm sorry; I can't understand you.
22 JUDGE RYERSON: Yes. If you'd move the 23 mike -- that mike is very sensitive to direction.
24 MR. GILLESPIE: Yes, it is. Yes.
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246 JUDGE RYERSON: Yes. I think that's 1
better. Would you like me to repeat, or did you -- I 2
think -- well, it'll be on the written record. Just 3
continue at this point. Thank you.
4 MR. GILLESPIE: Additionally we wanted to 5
answer your question about discretionary intervention.
6 There were nine cases we've identified where 7
discretionary intervention was granted that were not 8
overturned by the Commission.
9 These are, not in a particular order, 10 Pebble Springs in ALAB-362; CLI 93-3; LBP 91-38; CLI 11 82-15; ALAB-670; ALAB-363; ALAB-397; LBP 79-1; and 12 then LBP 09-6, in which NEI was granted discretionary 13 intervention in the Yucca Mountain proceeding, but was 14 also found to have standing as a matter of right.
15 JUDGE RYERSON: You know, it shows I'm 16 getting too old. We did that. Yes. That's right.
17 But there hasn't been one probably since then. Right?
18 That --
19 MR. GILLESPIE: No, Your Honor.
20 JUDGE RYERSON: -- was ten years ago.
21 MR. GILLESPIE: There has not.
22 JUDGE RYERSON: Thank you.
23 MR. GILLESPIE: And that is all, unless 24 there were any specific questions.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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247 JUDGE RYERSON: Any questions?
1 JUDGE ARNOLD: No.
2 JUDGE RYERSON: Any questions? No.
3 We'll take a short -- thank you, Mr.
4 Gillespie. We'll take our first -- we'll take a 5
short -- very short break, if we can, and convene 6
promptly at ten o'clock. Thank you.
7 (Whereupon, a short recess was taken.)
8 JUDGE RYERSON: We are now into our third 9
and final phase of this proceeding, which is the 10 opportunity for the Board, individual members of the 11 Board, to ask questions about aspects of the 12 particular petitions that concern us.
13 Generally as we do this, if a Board member 14 wants an answer from a particular individual, we will 15 say so, and if we want an answer from two people, 16 we'll direct the question to two people. If you do 17 not have a question directed to you and you have an 18 overriding desire to comment immediately, raise your 19 hand and we'll probably recognize you. We're fairly 20 informal here, but generally better to wait your turn 21 and follow up sort of at the end.
22 I think -- the way we intend to proceed --
23 and the logistics here are a little difficult, but I 24 think we're going to go through petition by petition.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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248 Ms. Curran, you are in luck. We have no questions for 1
Beyond Nuclear. So I think physically the easiest way 2
to do this would be to have us in a position to ask 3
questions simultaneously of the petitioner who's at 4
that, the NRC staff, and the Applicant.
5 I hate to put a burden to stand on the 6
petitioners, but I think it will work best because the 7
Applicant will always be up here, so you get to take 8
a table for the time being, if you would like. The 9
NRC staff can take the table. No, no -- the staff 10 can't be at the podium. The staff at the podium the 11 whole time?
12 JUDGE ARNOLD: Sure. You said your 13 questions were for the staff.
14 JUDGE RYERSON: I have two questions. In 15 any event -- we need to confer briefly.
16 (Pause.)
17 JUDGE RYERSON: Okay. We have conferred.
18 We know the petitioners are in excellent shape and do 19 not mind standing briefly, so we're going to allow the 20 NRC staff to take a table. The Applicant has a table, 21 and the Applicant and the staff will stay in those 22 places, and we will have the petitioners come up, the 23 three remaining petitioners, one at a time, and we 24 will ask our questions.
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249 So if, Mr. Taylor, I could ask you to come 1
up to the podium, and I apologize for making you 2
stand, but we don't have enough tables, I'm afraid.
3 MR. TAYLOR: If I can use part of the 4
table here --
5 JUDGE RYERSON: You may use -- you are 6
welcome to use part of the NRC's table. And let me 7
start then, and I think my first and probably only 8
question -- yes. My only question actually is for the 9
staff, and this is a question on Sierra Club's 10 question -- contention number 1.
11 That's a multi-part contention, I believe, 12 but one aspect of it challenges having -- I believe, 13 having the option in the application to either have 14 DOE as a customer or to have a private energy company, 15 power company as a customer.
16 Now, when Beyond Nuclear made that 17 assertion, the staff still says that's an admissible 18 contention. Why does the staff not find Sierra Club's 19 contention 1 admissible, at least as to that issue?
20 Who would like to address that?
21 MS. KIRKWOOD: Your Honor, I will. Can I 22 have just a minute to pull up the right document?
23 JUDGE RYERSON: Yes, yes.
24 (Pause.)
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250 MS. KIRKWOOD: Your Honor, Sara Kirkwood 1
for the NRC staff. The answer is because we read the 2
Sierra Club contention to be focused on the idea that 3
the inclusion of nuclear plant owners was a fig leaf 4
and that what they were trying to litigate was that 5
that was not a likely outcome that anyone other than 6
DOE would be willing to take title to this waste. And 7
we view that argument as precluded in part by the 8
Holtec ruling that the NRC is not in the business of 9
regulating the market strategies of licensees --
10 VOICE: I'm sorry. We can't hear you.
11 MS.
KIRKWOOD:
or determining 12 whether --
13 JUDGE RYERSON: Can you speak a little 14 more slowly might help and directly into the 15 microphone.
16 MS. KIRKWOOD: I think I'm practically 17 eating the microphone. That they were focused on the 18 idea that the -- the Sierra Club noted that the 19 application had changed, that they were now including 20 nuclear plant owners, but that that was a fig leaf, 21 that they -- and that is not admissible, because an 22 application's allowed to change and because the 23 Commission does not regulate the market strategies of 24 licensees.
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251 So the staff did not see in their 1
contention a concern about including DOE as an option.
2 Rather we saw a contention that was trying to litigate 3
the idea that the inclusion of nuclear plant owners 4
was a ruse, so that's why we didn't see it as 5
admissible.
6 JUDGE RYERSON: I see. Okay. I 7
understand the staff's argument, and you're welcome to 8
make a comment, Mr. Taylor, but I think I understand 9
what the staff was doing anyway. Let's leave it at 10 that. And if you could move your microphone a tad, 11 too, a little more directly in front of you. That's 12 a very sensitive one. It works at a certain angle and 13 not at others.
14 MR. TAYLOR: Let's try that.
15 JUDGE RYERSON: It's fine for us. I'm 16 concerned about people in the back.
17 (Pause to adjust microphones.)
18 JUDGE RYERSON: We'll try to articulate as 19 best we can, but let's continue. Thank you.
20 MR. TAYLOR: I guess I didn't see that 21 particular distinction between our contention 1 and 22 Beyond Nuclear's contention. We certainly are 23 continuing to assert that having DOE take title is 24 illegal and cannot be licensed and that the nuclear 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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252 plant owner, an alternative, was an afterthought, and 1
we believe that the panel should consider that in 2
determining whether or not that's an appropriate 3
alternative.
4 And I thought Beyond Nuclear made that --
5 a similar argument, so I'm not quite sure what the 6
distinction is.
7 JUDGE RYERSON: Yes. I think I understand 8
that this was an intentional act by the staff. I may 9
agree with you. I think they're similar. But in any 10 event, I think that answers the question.
11 Those are the only questions I had with 12 respect to Sierra Club. Judge Trikouros?
13 JUDGE TRIKOUROS: Well, yes. I have 14 questions regarding, to begin with, contention 4.
15 The -- in your petition, you refer to table 4.2-9 of 16 the environmental report, and you contrast the doses 17 associated that are presented in that table with --
18 this is the loss of shielding accident, transportation 19 accidents. And you state that the doses are far 20 smaller than those that appear in table 1 of your 21 petition.
22 And I just wanted to affirm that it's the 23 difference between that analysis that you refer to in 24 your contention 4 and the ER analysis were basically 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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253 the same thing. That is the basis for your 1
contention.
2 MR. TAYLOR: Yes.
3 JUDGE TRIKOUROS: All right. And I would 4
like to hear from the Applicant as to why they feel 5
that that doesn't constitute an admissible contention.
6 MR. LIGHTY: Thank you, Your Honor. Ryan 7
Lighty for ISP. The presentation of an alternative 8
conclusion does not show a defect in the application.
9 There's no explanation as to why the application's 10 analysis is somehow deficient. In other words, simply 11 saying, I have a different study -- that study is 12 admittedly a worst-case analysis which is not required 13 by NEPA -- does not show a genuine dispute on a 14 material issue of law or fact with the application.
15 So simply saying, Here's a table that has 16 some numbers in it, and there's a table in the 17 application that has different numbers in it, doesn't 18 explain a defect in the application, the analysis or 19 the methodology.
20 JUDGE TRIKOUROS: So what you're saying is 21 that the Sierra Club would have had to go into all the 22 details of the input and assumptions and calculation 23 method of the environmental report, find defects in 24 that, and then present those as contentions.
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254 MR. LIGHTY: What I'm suggesting is that 1
the petition says, You're wrong. It does not say, 2
You're wrong because. The absence of the because 3
explanation is what renders the contention 4
inadmissible. The -- there's --
5 JUDGE TRIKOUROS: Which is what I -- I 6
think is what I just said, that you have an analysis 7
and the analysis has inputs, an analysis has 8
assumptions, and an analysis has a calculational 9
method.
10 If the analysis is wrong, it has to be 11 wrong in one or more of those three areas. Therefore, 12 one would have to have those three areas -- the 13 information from those three areas available to be in 14 a position to argue that they're wrong.
15 You know, that really wasn't the -- isn't 16 the case in the environmental report. Now, don't get 17 me wrong. Some of the information is available in the 18 environmental report, but it seems to me that an 19 alternative is to present an analysis that says, you 20 know, we did an analysis the same way you did or the 21 same methodology you did, and got a significantly 22 different answer.
23 Now, I can understand if the answer is 5 24 percent, 10 percent, 20 percent different. But in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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255 this particular case, the analysis that's represented 1
is significantly different, I mean, multiples of --
2 MR. LIGHTY: Yes. I agree. And that's 3
not surprising, given that it is a worst-case analysis 4
that's not required by NEPA. But to the extent we're 5
talking about the methodology that's described in the 6
ER, they still don't challenge what pieces of the 7
descriptions of the methodology that they disagree 8
with. They simply present an alternative analysis 9
without explanation.
10 And so it's not necessary to have all of 11 the proprietary computer files. That's not what we're 12 saying. That's not necessary. But you must challenge 13 what is in the application, and the description of the 14 methodology is in the application, and there's no 15 requirement to go further to do a worst-case analysis 16 which is what they're attempting to present as having 17 different conclusions.
18 JUDGE TRIKOUROS: So what's the basis 19 for -- what's your basis for saying that unless you, 20 you know, can be very specific with respect to the ER 21 analysis, that unless you can do that, having an 22 alternative analysis is not acceptable? That piece 23 I'm not getting.
24 The end result of all of this, as I see 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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256 it, is that a member of the public has to know what 1
kind of dose they're getting from a nonincident and an 2
accident, transportation of, let's say, a number of 3
casks that carry radioactive materials. That's the 4
bottom line. Is the public confident that we know the 5
answer to that?
6 MR. LIGHTY: Well, to the extent we're 7
talking about data that's in the proprietary files, 8
that petitioners didn't request access to, that was 9
their choice not to request access. Judge Trikouros, 10 as you may recall from the Seabrook proceeding, a 11 Board that you were on, there was a contention 12 regarding the unavailability of SUNSI information and 13 the Board there rejected that as a contention because 14 it is incumbent upon petitioners to request access to 15 proprietary information if they feel it's necessary 16 for a contention.
17 To the extent they wish to dispute that 18 information, they had the opportunity to do so in this 19 proceeding and elected not to do so.
20 JUDGE TRIKOUROS: All right. Well, you 21 know, we've dealt various times with contentions that 22 involve doing the same calculation with different 23 methodologies, so, you know, one and the other have 24 different inputs, et cetera. And the contention was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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257 based on the fact that one methodology, a credible 1
methodology, gave a different answer than the one in 2
question, without going into the details of the 3
calculation in question.
4 So --
5 MR. LIGHTY: I think --
6 JUDGE TRIKOUROS: -- it's not clear to me 7
that it's -- unless you can explain to me why it's an 8
absolute requirement that an alternate calculation 9
method cannot be utilized as a basis for a contention, 10 I'm confused.
11 MR. LIGHTY: I would refer you to our 12 answer pleading to Sierra Club, on pages 46 and 47.
13 We included an extension block quote from the 14 Commission's decision in CLI 12-5. And I'll read just 15 a brief excerpt from it.
16 "A contention proposing alternative inputs 17 or methodologies must present some factual or expert 18 basis for why the proposed changes in the analysis are 19 warranted, for example, why the inputs or the 20 methodology used is unreasonable, and the proposed 21 changes to the methodology would be more appropriate.
22 Otherwise, there is no genuine material dispute with 23 the analysis that was done, only a proposal for an 24 alternative NEPA analysis that may be no more accurate 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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258 or meaningful."
1 JUDGE TRIKOUROS: Yes. In this particular 2
case, the analysis methodology that we're talking 3
about is, I believe, identical. We're talking about 4
RADTRAN, perhaps RADTRAN 6. I don't remember. So 5
they're using the same methodology and coming up with 6
different answers. So what you had read doesn't 7
directly apply to this situation.
8 MR. LIGHTY: I see.
9 JUDGE TRIKOUROS: Okay. That's fine. So 10 I understand your position on this.
11 MR. LIGHTY: If I may, just one brief 12 additional point. So the methodology and the inputs 13 are described in Chapter 4, in attachment 4-1 of the 14 ER. And in a nutshell, the inputs to the RADTRAN 15 analysis are directly from the regulations in Part 71.
16 So those are not hidden from public view. Those 17 inputs are the NRC's standard inputs versus the Lamb 18 and Resnikoff analysis which used different inputs, 19 worst-case scenario inputs which are not required by 20 NEPA.
21 JUDGE TRIKOUROS: Understood. And, 22 indeed, it is specifically identified as a worst-case 23 analysis in the title. Okay. Go ahead.
24 MR. TAYLOR: May I respond?
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259 JUDGE TRIKOUROS: Sure.
1 MR. TAYLOR: First of all, regarding the 2
title as worst case, I think that when --
3 JUDGE TRIKOUROS: Talk -- see if you can 4
put that closer to your --
5 MR. TAYLOR: With regard to the worst-case 6
argument, I think under NEPA worst case means the 7
impact, the overall impacts that are being addressed.
8 Here as -- like you indicated, Judge Trikouros, what 9
we're looking for is what can the public expect as a 10 dose that they be exposed to, and certainly they would 11 want to know what the worst case would be. I think 12 that's what this is referring to in the study, rather 13 than the NEPA definition of worst case.
14 But beyond that, I think what the 15 Applicant is suggesting here is an analysis or an 16 exposition in the contention that goes beyond what's 17 required for a contention. Now, you don't have to 18 present an entire case in your contention, and we 19 certainly have in this contention set forth Dr.
20 Resnikoff's analysis. We've referred to his report, 21 gave the citation to it, and explained why he 22 disagrees with the result from ISP's analysis. And I 23 think that's all that's required.
24 JUDGE TRIKOUROS: I mean, this is a fairly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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260 complicated situation, because it's very clear to me 1
that unless you do specify particular inputs or 2
particular problems with the analysis, it would be 3
incredibly difficult to litigate an entire analysis 4
that involved hundreds or thousands of inputs and 5
assumptions. So clearly in order to be able to 6
litigate something, you would have to have something 7
specific to have a hearing on, let's say.
8 But, again, we do have the question that 9
the result is significantly different than another 10 analysis, so, you know, I guess we have to deal with 11 that. Does the staff have any comments on this? You 12 initially admitted the contention. We went through 13 this yesterday in part.
14 MR. GILLESPIE: Your Honor, the staff does 15 not have any further input unless you have a specific 16 question.
17 JUDGE TRIKOUROS: Say it into --
18 MR. GILLESPIE: I apologize. The staff 19 does not have further input on this unless there's a 20 specific question.
21 JUDGE TRIKOUROS: And your position is 22 it's not admissible at this time.
23 MR. GILLESPIE: Yes, Your Honor.
24 JUDGE TRIKOUROS: And I will also point 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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261 out that the staff, in doing their analysis, their 1
review of this, felt obliged just recently to ask for 2
input information, assumption information, input, so 3
clearly if they needed to ask for all that -- and I 4
mentioned this yesterday -- if they needed to ask for 5
all of that, it wasn't available in the environmental 6
report, and clearly it wasn't because they did ask and 7
received all of that.
8 So I think that's the difficult question 9
that we have to deal with.
10 MR. LIGHTY: If I may, Your Honor, just 11 very briefly, I would note that if the petitioners had 12 the same concerns that the staff raised in their RAI, 13 they had the opportunity to raise those concerns in 14 their petition but did not. And so the fact that the 15 staff could envision some omission from the ER doesn't 16 mean that the petitioners alleged that in their 17 petition.
18 We're here to talk about satisfaction of 19 the 2.309 pleading requirements, and so I don't think 20 it's appropriate to incorporate the staff's questions 21 in an RAI to the petitioner's petition.
22 And one final point as to the inputs. I 23 agree there may be hundreds of inputs into a 24 calculation. Our position is not that petitioners 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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262 would need to challenge every single one, but just a 1
challenge to a single input, one explanation of why it 2
was inappropriate to use the NRC regulation in Part 71 3
as the basis for the inputs into RADTRAN calculations.
4 There's no explanation of why the inputs 5
that Lamb and Resnikoff used are somehow better than 6
the Part 71 inputs. There's just no explanation for 7
why there's a difference in the inputs, why it's 8
material here.
9 JUDGE TRIKOUROS: Yes. And I think one 10 other complicating factor is that in the letter that 11 was sent to the Board, notifying us of the reanalysis 12 that was done, that reanalysis did point to other 13 studies, other credible studies, of the same thing 14 that resulted in answers that were very similar to 15 what you were getting in your analysis.
16 So the question then becomes: Is the 17 Resnikoff study an outlier or does it represent a more 18 conservative analysis that should be seriously 19 considered? I don't think we have any other -- I 20 would love to have other people comment on this, but 21 I think we're done.
22 MR. LIGHTY: If I may, Your Honor, one 23 other brief point while we're talking about 24 transportation analysis. I know Mr. Lodge earlier 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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263 made a number of references to there being something 1
on the order of 30,000 shipments to the facility. We 2
would just like to correct the record that that is 3
orders of magnitude different than what the 4
application proposes, which is something on the order 5
of 500 casks total.
6 So assuming that there were only a single 7
cask per shipment, that would be orders of magnitude 8
different. I'm not sure where Mr. Lodge was coming up 9
with 30,000 transportation shipments, just to correct 10 the record.
11 JUDGE TRIKOUROS: In the analysis of the 12 shielding -- of the loss of shielding accident, the 13 reanalysis references 40,000 -- an exposure of burnup 14 of more than -- of 40,000 megawatt-days per metric 15 ton. Was that -- do you know if that was a change 16 from the way it was originally done? And the other 17 question is: Why 40,000? The boundary for high 18 burnup fuel is, as I understand it -- and it's 19 somewhat subjective or arbitrary -- is 45,000 20 megawatt-days per metric ton.
21 But on the other hand, I believe the fuel 22 in your facility is at 45,000 megawatt-days is canned.
23 Would that be an argument for utilizing -- not 24 utilizing 45-but utilizing 40-, since the 40- would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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264 not be canned?
1 MR. LIGHTY: If I may have a moment, Your 2
Honor --
3 JUDGE TRIKOUROS: Okay.
4 (Pause.)
5 MR. LIGHTY: Thank you, Your Honor. So 6
there was no change in the analysis on that basis.
7 The value comes from the design basis for the MP197 8
cask. That is considered a conservative analysis, and 9
so that's why that value was used.
10 JUDGE TRIKOUROS: All right. And the 11 reason I asked the question is there was a confusing 12 change. The reanalysis included changes to the ER, 13 and there was a change to the ER that took out the 14 statement that the dose that was assumed for the casks 15 in transport were -- was the maximum dose that would 16 be allowable to transport, as per Part 71.
17 That was removed, and it appears that the 18 40,000 megawatt-days per metric ton was put in there.
19 Now, my understanding of this is that for non-incident 20 transportation doses, the maximum Part 71 dose from 21 the cask is assumed at a meter or two meters. I 22 forgot what it is. And, therefore, the loss of 23 shielding accident, which would result in a release of 24 radioactivity from the gap of the fuel cladding gap, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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265 would -- exposure or burnup would be appropriate to 1
use there, you know, a conservative exposure. Does 2
that make sense?
3 MR. LIGHTY: I think -- am I getting too 4
much into the weeds of this thing?
5 MR. LIGHTY: A little bit, Your Honor.
6 The design basis of the MP187 is what was used, and 7
that is a conservative analysis. And maybe I'll turn 8
it over to Mr. Matthews.
9 MR. MATTHEWS: Thank you, Judge Trikouros.
10 I'm jumping in, because this was my part of the 11 contention response, and I did review the RAI 12 response.
13 The source term was used only for release.
14 Part 71 limits were used for exposure, and I'd note 15 that the transportation cask exposure limit is --
16 governs, regardless of whether it's 40- or above 45-.
17 Whether it's high burnup or not, you're still limited 18 by the transportation --
19 JUDGE TRIKOUROS: Right. And that -- I 20 assume that's for the nonaccident analysis, the non --
21 what they call nonincident transportation evaluation.
22 No?
23 MR. MATTHEWS: So we did not use those 24 source terms incident-free. We did not.
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266 JUDGE TRIKOUROS: Okay, because as I said, 1
the -- originally in the ER it said that the maximum 2
Part 71 assumption was made. Those were crossed out, 3
and 40,000 megawatt-days per metric ton was added in 4
the update. That's the --
5 MR. MATTHEWS: At the risk of having to 6
correct another misstatement, Judge Trikouros, we will 7
be happy to get back to the Board, but note that this 8
is an interesting aspect of the RAI but somewhat far 9
afield from --
10 JUDGE TRIKOUROS: That's fine. It's not 11 critical that I get an answer right now.
12 MR. GILLESPIE: Your Honor, if I could 13 maybe perhaps give some input, the dose rate in Part 14 71.47 for external radiation standards for all 15 packages, 71.47(b)(3) is 10 millirem per hour at two 16 meters away from the outer lateral surface of the 17 vehicle.
18 JUDGE TRIKOUROS: Right.
19 MR. GILLESPIE: And RAI response in page 20 26 of their updated ER page references a 14 millirem 21 per hour dose rate at one meter, which they claim is 22 based on an estimate from the 10 millirem per hour at 23 two meters from the external surface, away from the 24 vehicle.
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267 JUDGE TRIKOUROS: Now, with respect to the 1
staff, they're in the process of doing an independent 2
evaluation of this. And I say that because I just 3
asked for the input at the end of June, so we're not 4
that far away from that. And yesterday you had said 5
that you don't anticipate any change to your position 6
on admissibility, but --
7 MR. GILLESPIE: That is correct.
8 JUDGE TRIKOUROS: -- we don't know what 9
the outcome is of the independent evaluation at this 10 point. Right?
11 MR. GILLESPIE: That is correct. The 12 staff is still undergoing its review. However, the 13 RAI response and the regulations specify the external 14 dose rates, and I believe that was your question.
15 JUDGE TRIKOUROS: Okay. That's fine.
16 JUDGE RYERSON: Judge Arnold.
17 JUDGE ARNOLD: Yes. On page 31 of your 18 petition, you cite 10 CFR 71.108 as requiring a 19 nuclear waste storage facility be evaluated with 20 respect to the potential impact on the environment of 21 the transportation of the radioactive waste. But if 22 you look at that 106, it consists of one sentence, and 23 you left out the final part of the sentence that 24 requires this evaluation to be within the region.
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268 Considering that this application is for 1
a materials license and doesn't authorize any shipping 2
or any shipping routes, what do you see is the 3
appropriate interpretation of "within the region"?
4 MR. TAYLOR: It sounds like a trick 5
question. The Sierra Club's position is that our 6
interest is for the person's within what ISP calls the 7
region of interest. Certainly it seems to me also 8
that, although I don't represent Mr. Lodge's clients, 9
I think they certainly have an interest, because 10 this -- the storage facility would not even exist if 11 not for the transportation of all the waste from 12 different parts of the country.
13 So I think wherever that waste is being 14 transported and stored, anywhere that persons would be 15 exposed to safety concerns or there may be 16 environmental impacts, I think that that would be the 17 region that would be necessary to evaluate for the ER.
18 JUDGE ARNOLD: Given that they've done 19 this evaluation for specific transportation routes, do 20 you have some reason to believe that the environmental 21 impacts would be different on different transportation 22 routes, other than correcting for population?
23 MR. TAYLOR: Yes. I could foresee that if 24 there are certain areas where perhaps the rail 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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269 infrastructure is not as good as it might be other 1
places, that would be a concern. If there are routes 2
where there may be more trips than other routes -- for 3
example, there are many reactors in the Northeast and 4
the Southeast area, so there may be much more 5
transportation risk from the East coming west toward 6
this site than there would be from the two or three 7
reactors in California, for example.
8 JUDGE ARNOLD: On page 43 of your 9
petition, you assert that, "The specific details of 10 the cask system are important in evaluating the 11 impacts transporting radioactive waste."
12 MR. TAYLOR: Uh-huh.
13 JUDGE ARNOLD: But I don't see anything in 14 the discussion that supports that assertion. What do 15 you have to support your assertion that the different 16 type of casks -- being that they're all certified, why 17 does the type of cask make a difference?
18 MR. TAYLOR: Well, I think that the 19 statements or the declarations of Dr. Resnikoff and 20 also Dr. Gordon Thompson indicate that they are 21 looking at the specific casks involved, and certainly 22 the documentation that we referred to of the NUREGs, 23 I think, are based on particular casks.
24 And it just seems, I guess, sort of common 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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270 sense that different casks might have different 1
factors that would go into whether certain acts need 2
to be done in order to make them safe. You know, each 3
cask is evaluated by the NRC individually. They 4
don't -- there's no generic cask certification, so I 5
think the NRC itself acknowledges that different casks 6
have different aspects that need to be evaluated.
7 JUDGE ARNOLD: Okay. Thank you. The rest 8
of my questions are for the Applicant. In your answer 9
to the petition, you, in fact, pointed out that they 10 had -- that petitioners had given no justification for 11 their assertion. Do you have any support for the 12 implication that the type of cask evaluated for the 13 transportation analysis, in fact, really is not 14 significant in that analysis?
15 MR. LIGHTY: Off the top of my head, I'm 16 not familiar with that as a technical matter, but as 17 a legal argument, I would note that the burden is on 18 the petitioner to demonstrate the materiality of their 19 contention, and they have not done so. They haven't 20 even attempted to do so, and I think that's 21 dispositive here.
22 JUDGE ARNOLD: Also, the Sierra Club 23 faults your analysis for not considering the increased 24 traffic of oil tanker cars and the fact that these can 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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271 cause higher fire temperatures. Why do you not 1
consider oil fires important?
2 MR. LIGHTY: For the reason that we intend 3
to ship by dedicated train, and as the Board noted in 4
LBP 19-4, there will be no flammable oil cars with the 5
shipments that would come to the facility.
6 JUDGE ARNOLD: I just needed to hear that 7
for this. Okay. Sierra Club asserts that the 8
railroad infrastructure is deteriorating. Could such 9
deterioration be cause to question the applicability 10 of the earlier transportation studies?
11 MR. LIGHTY: No. The infrastructure would 12 be evaluated separately in the Part 71 transportation 13 route selection and approval process. It's not part 14 of this application. It will be considered, and the 15 FRA has to approve those routes, so we -- we have to 16 assume that they're not going to allow shipment over 17 routes that are unsafe.
18 JUDGE ARNOLD: And would this maybe 19 provide some support for your assertion that analyzing 20 a specific route can be representative of other 21 routes, because whatever route is chosen is going to 22 be verified to be of decent quality?
23 MR. LIGHTY: Correct. That's an approach 24 that the NRC has used for many decades to analyze 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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272 representative routes, and as noted in LBP 19-4, 1
that's a sufficient basis for a NEPA analysis.
2 JUDGE ARNOLD: And do you have any 3
responses --
4 MR. TAYLOR: Yes, I do. This is our one 5
chance to challenge the licensing of this project, and 6
to have the Applicant say, well, the safety of the 7
rail will be decided later, then we don't have any 8
chance to have this kind of input and ability to 9
challenge of the licensing at that point. So I think 10 this is our one chance to do that, and we've done the 11 best we can with the information we have available 12 right now.
13 And I think that it's not the NRC's policy 14 to do this kind of piecemeal approach that this is our 15 one chance to challenge the license, and that's what 16 we're doing.
17 JUDGE ARNOLD: Thank you. That's all of 18 the questions I have on that contention.
19 JUDGE RYERSON: Judge Trikouros, do you 20 have more questions?
21 JUDGE TRIKOUROS: I just had one more 22 contention, Sierra Club contention 13. In your 23 petition -- I think it's on page 79 -- you state that 24 the ER 3.4.16 cites several sources, but the sources 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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273 are not described well enough to allow members of the 1
public to access the sources.
2 Well, first of all, I think you meant 3
3.5.16. Right?
4 MR. TAYLOR: Yes. That's right.
5 JUDGE TRIKOUROS: Just wanted to make 6
sure. And --
7 MR. TAYLOR: The computer made a typo.
8 JUDGE TRIKOUROS: And can you explain that 9
a little bit further, please.
10 MR. TAYLOR: Sure. If you look at that 11 section, at the end they cite their alleged references 12 that they were using, but there are no -- there's no 13 URL to go to, there's no citation of a journal that 14 you can go to, and I Googled all of those, and I 15 couldn't find anything. And the NEPA regs certainly 16 say that the Applicant has to at least show that 17 they've provided a thorough analysis and the sources 18 so that the public can comment and be advised of what 19 the ER relies on, and that wasn't done there.
20 JUDGE TRIKOUROS:
- And, now, the 21 Applicant -- from the point of view of the Applicant, 22 you included them. I think there were five of them, 23 and they were rather cryptic. Is there any reason --
24 and, however, they were quoted in the ER very 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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274 prominently. But in the -- but what was quoted were 1
the result -- ostensibly the results of these studies.
2 Is there any reason why you didn't include 3
them as formal references or provide some -- even the 4
titles of the reports are not there, so it would be 5
rather hard to Google something like that. Is there 6
any reason for this?
7 MR. BESSETTE: Your Honor, I can't speak 8
to why the precise language was used in the original 9
ER describing the reports. The fact of the matter is 10 there is no requirement that a reference -- contrary 11 to what Mr. Taylor said, that a reference be publicly 12 available. And in response to the questions, we did 13 look to whether they're publicly available, and at the 14 time of the petition, they were not.
15 But the real issue focuses on what's in 16 the ER itself, and the ER describes the conclusions of 17 those reports in extensive detail, so what Mr. Taylor 18 had the opportunity to do, as any petitioner, is to 19 look at that detailed information and challenge that 20 information as cited in the ER.
21 And I would remind the Board to look at 22 the very contentions, Sierra Club 13. It really 23 contains two sentences on all of that information.
24 "There does not appear to have been an adequate survey 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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275 conducted to determine if the species are resident in 1
the area." That's it.
2 And then it says, "The sources are not 3
described well enough to allow members of the public 4
to access the sources, so the public and the NRC are 5
left with only unsupported statements in the ER."
6 That's the entirety of their contention.
7 They had every opportunity to go through 8
the multiple sections and select multiple chapters in 9
ER section 3, 4 and 5, and challenge any of that 10 information, provide studies, expert report. So the 11 issue is what's in the ER, not what's in those cited 12 resources, and they've done nothing.
13 JUDGE TRIKOUROS:
- Well, they are 14 challenging the conclusions by saying that there are 15 no adequate surveys, because you didn't provide any 16 surveys. You -- it's almost like you and I having a 17 conversation, and I say, Well, I read this somewhere, 18 you know, and give you some facts. It doesn't help --
19 you know, there's not much you can do regarding that.
20 You might just shake your head and not believe it, but 21 you have no basis for anything else.
22 MR. BESSETTE: Well, Your Honor, as Mr.
23 Ryan said and as we've noted, it's their -- there's no 24 basis to assert what we've said in the ER is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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276 inadequate or incomplete or somehow inaccurate. They 1
provided no information on that. And it's their 2
burden at this point to say what is in the ER is 3
somehow inaccurate.
4 In addition, as I noted yesterday, we do 5
reference a 2015 response from the U.S. Fish and 6
Wildlife Service that is included as an attachment ER 7
3.3 to the ER that discusses endangered or threatened 8
species. And that was not reviewed or even 9
referenced.
10 Further, just as a reminder, neither of 11 the sand dune lizard or the dunes sagebrush lizard is 12 not even a threatened or endangered species in this 13 proceeding.
14 MR. TAYLOR: May I respond?
15 JUDGE TRIKOUROS: Yes. Of course.
16 MR. TAYLOR: Sure. Well, first of all, 17 the discussion, if you want to call it that, in the ER 18 regarding these two species was pretty limited and not 19 very lengthy. And with respect to the Fish and 20 Wildlife Service, these two species that we're 21 concerned about here are state species, either 22 threatened or of concern. And the Fish and Wildlife 23 Service is going to be just dealing with federally 24 listed species, so that's kind of a red herring, which 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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277 is not an endangered species apparently.
1 And I still say that if they're going to 2
rely on these sources, they have to at least give us 3
some way to go and find them and review them and 4
comment on whether those sources were adequate to 5
reach the conclusions that they made in the ER.
6 JUDGE TRIKOUROS: Was the staff able to 7
find these cryptic studies?
8 MR. STEINFELDT: Your Honor, Thomas 9
Steinfeldt, the NRC staff. No, Your Honor. The 10 staff's not able to find them.
11 VOICE: We can't understand.
12 MR. STEINFELDT: No. The staff was not 13 able to find these studies. However, our response to 14 this contention is that it is inadmissible, because 15 the Sierra Club does not explain how this creates a 16 material dispute with the application. It doesn't --
17 their contention does not meet the 2.309(f)(1)(vi) to 18 form an admissible contention.
19 JUDGE ARNOLD: Let me ask you a question.
20 Here's one of the 3.5.16 descriptions. The first 21 one: "The ecology group conducted an ecological 22 assessment in 1997." Can you tell me from that 23 description how many people performed the survey, what 24 their qualifications were, and how much time they 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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278 spent on the site?
1 MR. STEINFELDT: No, Your Honor.
2 JUDGE ARNOLD: Wouldn't you need to know 3
that in order to determine that the information from 4
that survey is credible?
5 MR. STEINFELDT: May I have a moment to 6
consult, Your Honor, to consult with staff?
7 JUDGE ARNOLD: I did not understand that.
8 MR. STEINFELDT: I'm sorry. Your Honor, 9
may I have a moment to consult with staff?
10 JUDGE ARNOLD: Yes.
11 MR. STEINFELDT: Thank you.
12 (Pause.)
13 MR. STEINFELDT: Thank you, Your Honor.
14 The staff has requested more information on this in an 15 RAI, and based on that response will determine if more 16 information is necessary.
17 JUDGE ARNOLD: The information provided in 18 the environmental report provides the staff baseline 19 information from which they can start and do their 20 environmental study. Right?
21 MR. STEINFELDT: Correct.
22 JUDGE ARNOLD: Is it not useful to the 23 staff to know that the information provided is 24 credible, so that they really have a base point to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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279 start their study from?
1 MR. STEINFELDT: Yes.
2 JUDGE ARNOLD: Okay. Let me ask the 3
Applicant. Do you think that the information you 4
provided on the surveys is adequate for the staff to 5
say, Oh, yes, those survey results are credible?
6 MR. BESSETTE: Your Honor, I believe the 7
information in the environmental report fully complies 8
with Part 51, NEPA, and the NMSS guidance on 9
environmental reports for ISFSIs. And contrary to 10 what Mr. Taylor said that there's scant information, 11 I would refer the Board to sections 3.5, 3.5.33, 12 3.5.4, 3.5.56, 4.5.8, and ad nauseam we talk about the 13 habitat, the environment, the area of a five-kilometer 14 area around the CISF. We talk about species found in 15 the CISF.
16 That is all that's required of the 17 Applicant. I understand that Mr. Taylor would like or 18 prefer to go find the source information, but he has 19 cited no information, no regulation, no case law that 20 requires the Applicant to do so.
21 JUDGE TRIKOUROS:
Yes.
But that 22 information has to have a basis. Right? I can't just 23 say, This is the habitat of this animal, and it's not 24 present here, without some basis for that, some study, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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280 some reference somewhere that supports that statement.
1 This can't be a battle of opinions. This has to be a 2
scientific, technical process. Correct?
3 MR. BESSETTE: I understand what you may 4
be discussing is perhaps what NRC may want for its 5
review. But what here we were talking about, has 6
Sierra Club provided a basis for a contention. And it 7
is our opinion that they have the burden to somehow 8
prove -- I mean, there's a presumption of what we 9
provided on the signed application by a company 10 representative is complete and accurate. They 11 provided nothing to assert that that is not complete 12 and accurate.
13 There should not be a presumption that we 14 are wrong in this information unless -- they could 15 have provided a study somehow saying what we provided 16 is wrong. They provided two sentences. That's it.
17 JUDGE TRIKOUROS: Well, you quote five 18 studies, and it was -- and this was a technical 19 analysis. Correct? This is a reputable organization 20 that you hired to do this, and they say, I got this 21 information from these five studies. I don't 22 understand why it's such a big deal, so to speak, to 23 provide a reference of those studies that one can 24 access.
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281 You know, in the legal world, you know, 1
they're citing, you know, a hundred cites per, you 2
know, page. They don't say anything without a cite.
3 The same standard really should apply to this, I would 4
think. I just don't understand why -- to me, it's 5
valid to say that the statement is not supported. If 6
it's a simple statement with reference to a study that 7
hasn't been properly identified.
8 MR. BESSETTE: Well, I mean, from the ER, 9
we know that those studies were part of the Waste 10 Control System's low-level rad waste license 11 application. So we know that's evident from the ER.
12 I don't have the citation right now. So it was part 13 of another proceeding. It has legitimacy. And I 14 understand, Your Honor, I understand your point.
15 But there's -- to presume the information 16 in a signed application by an applicant is somehow 17 incomplete or inadequate without more, I think, is an 18 invalid assumption and it's not -- it's their burden 19 to prove that.
20 JUDGE RYERSON: Let me see if I understand 21 the availability or nonavailability of these studies.
22 Obviously if you had decided as a matter of your 23 discretion to attach them all to the application, they 24 would have been available. Short of attaching the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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282 studies, are they publicly available? I mean, is 1
there any reference you could be giving that would 2
allow Mr. Taylor to go find those studies, or are 3
there not?
4 MR. BESSETTE: Your Honor, I would have to 5
confer. These were studies prepared by Waste Control 6
Solutions as part of a low-level rad waste facility.
7 I suspect we could find -- excuse me.
8 (Pause.)
9 MR. BESSETTE: Your Honor, as I said, they 10 were part of the low-level rad waste facility 11 application, and they are referenced in that 12 application, and that application could be available.
13 JUDGE RYERSON: But you say the studies 14 were referenced in that application.
15 MR. BESSETTE: Right.
16 JUDGE RYERSON: But would they have been 17 attached to that application or --
18 MR. BESSETTE: As I was not involved with 19 that application, Your Honor, I can't say.
20 JUDGE RYERSON: Okay. Your colleague is 21 nodding. If you want to make that as a representation 22 of counsel --
23 MR. BESSETTE: So the answer is yes.
24 JUDGE RYERSON:
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283 available. All right. So --
1 MR. BESSETTE: To be honest, Your -- I 2
mean, to be clear, Your Honor, we did not in our 3
answer say they were publicly available because they 4
were part of an application that was not readily 5
accessible online.
6 JUDGE RYERSON: Right. Thank you.
7 MR. BESSETTE: But, again, I want to 8
emphasize. There was not a presumption that the 9
information we prepared and presented is somehow 10 incomplete or inaccurate. And they have not 11 provided -- they provided not a scintilla of evidence 12 that that's true.
13 MR. TAYLOR: If I can respond, I don't 14 believe, as I recall, that there was any reference in 15 this ER to the low-level rad waste document that the 16 counsel refers to, so how am I supposed to know that 17 I should go to that document to find these sources?
18 I'd also point out, just in terms of our 19 pointing out the portions of the ER that we are taking 20 issue with, on page 78 of our petition, we note that 21 the horned lizard and sagebrush lizard are in the area 22 of the ISP site. And that was -- that comes directly 23 from the ER.
24 But then, with no factual support in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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284 section 4.5.10 of the ER, they claim that the project 1
will have no impact on the species. That just seems 2
like a contradiction that is not explained, and the 3
reason I said no adequate survey was conducted is 4
because they haven't set forth any factual information 5
as to what kind of survey, if any, was done.
6 MR. BESSETTE: Your Honor, if I may 7
address that, I think they're misinterpreting the 8
application. In section 3 -- chapter 3, we talk about 9
the survey results in the CISF area, which is a five-10 kilometer radius around it. The -- and it talks about 11 the general habitat and the sightings of those species 12 in very detailed information around that area.
13 Chapter 4 talks about the impact of the 14 actual CISF facility, which is a much smaller size.
15 So there's no discrepancy there. I believe that 16 they're just misreading the application.
17 JUDGE TRIKOUROS: Yet in reading that 18 section of the ER, it struck me that the conclusions 19 that were reached were sort of left hanging with 20 respect to sources as indicated in the contention.
21 For example, if you say that the study found that 22 these were not -- these -- the dunes sagebrush lizard 23 was not present within one mile of the site in the 24 study, it just says, the study.
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285 It doesn't say, you know, the study of 1
this title, this chapter or this page of the study.
2 There's no more than just a bare conclusion, you know, 3
and, you know, bare conclusions are no less unliked in 4
the technical world than they are in the legal world.
5 JUDGE RYERSON: I'm not sure that was a 6
question, Judge Trikouros, but --
7 JUDGE TRIKOUROS: No. My question was:
8 Why didn't you refer more to the study in depth when 9
you reached a conclusion in the ER? You reached many 10 conclusions, but you didn't -- even if I had the study 11 in front of me, your conclusion in the ER wouldn't 12 have told me where to go in the study to find it.
13 MR. BESSETTE: Your Honor, I understand 14 your point, but we believe we fully complied with 15 NRC's guidance in Part 51, NEPA, and the applicable 16 NUREGs regarding describing the environmental 17 baseline. We did describe the environmental baseline, 18 and we believe we complied fully with NRC's 19 requirements on that.
20 JUDGE RYERSON: Any more? Judge Arnold, 21 do you have more questions?
22 JUDGE ARNOLD: Not on this contention.
23 JUDGE RYERSON: More questions on other 24 contentions?
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286 JUDGE ARNOLD: Sure. Going back to 1
contention 8, having to do with ISP mischaracterizing 2
the Blue Ribbon Commission's report, the first 3
sentence of your basis is, quote, "ISP takes the 4
position in its ER Rev. 2, 1.1 and 2.1, that the 5
purpose and need for the CIS project is dictated to a 6
great extent by the BRC report."
7 Well, I read over those sections, and I 8
really didn't find anything that sounded like that, so 9
could you be more specific. What were the words that 10 they said?
11 MR. TAYLOR: I don't have it right in 12 front of me, Your Honor, but the -- it's at various 13 places, in fact, even in other portions of their 14 documentation that this CIS would carry out or comply 15 with the recommendations of the Blue Ribbon 16 Commission. And I think that's pretty explicit in all 17 of the -- in a number of areas of the documentation.
18 JUDGE ARNOLD: Well, let me just ask 19 Applicant. To what extent does your application rely 20 on the Blue Ribbon Commission and its report?
21 MR. BESSETTE: Your Honor, we do reference 22 the Blue Ribbon Commission. But it's -- nowhere that 23 it states -- our application states that -- or even 24 implies that the project is dictated by the Blue 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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287 Ribbon Commission. There are seven purposes of the 1
proposed project, and we simply are referencing that 2
the CISF is consistent with one of the goals.
3 JUDGE ARNOLD: On Sierra Club contention 4
10 about the aquifer, on page 66 of your petition 5
regarding high burnup fuel you state, quote, "The 6
damage to the cladding likely leads to leakage of 7
radioactive material from the storage container."
8 Now, that doesn't seem clear to me, I 9
mean, especially since it's also a can. So do you 10 have any support that the leakage is likely?
11 MR. TAYLOR: I referenced two publications 12 on page 67 that I believe supported those allegations, 13 and we also have, I think it is, contention 16 14 concerning high burnup fuel, and it -- the ER in 15 discussing the groundwater did not address any of that 16 risk from high burnup fuel.
17 JUDGE ARNOLD: I didn't see anything that 18 addressed how the leakage would get through the can.
19 I just -- basically it seemed to be a jump from, fuel 20 leaks, so it's going to get out.
21 We'll move to having to do with Sierra 22 Club contention 11. This was about the site selection 23 criteria. Can you direct me to any legal requirement 24 that the site be selected based upon environmental 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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288 considerations?
1 MR. TAYLOR: Well, what you have to 2
understand is that this whole discussion about site 3
selection is under the section of the ER regarding 4
alternatives, and so certainly the ER has to discuss 5
the various alternatives, how they were chosen, and 6
whether they're reasonable alternatives, and then to 7
discuss the impacts regarding each alternative.
8 So that's the point here. It's -- the NRC 9
staff thought we were talking about purpose and need, 10 but we're not. We're talking about the selection of 11 alternatives.
12 JUDGE ARNOLD: Okay. On page 71 of your 13 petition, you state, quote, "The ER contends that no 14 contamination of any kind has been detected from the 15 adjacent LLRW site" -- low-level rad waste site --
16 "near the proposed CISF site. There's nothing in the 17 ER, however, to substantiate this allegation."
18 When I read over that section in the ER, 19 I saw that the previous sentence right before what you 20 cited was, quote, "The Waste Control Specialist site 21 has been under a monitoring plan to detect the release 22 of trace amounts of radiological and hazardous 23 chemical constituents since it was permitted and 24 licensed in 1997."
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289 It seems to me when they say it's been 1
under constant monitoring and no leakage has been 2
detected, that, in fact, substantiates the claim that 3
there's been none detected. And I don't understand 4
why you say there's nothing in the ER to substantiate 5
the allegation. Do you want a list of dates and 6
below-detectible activity? You know, would that -- is 7
that what you're looking for?
8 MR. TAYLOR: It didn't appear to me that 9
there was enough information there to support their 10 statement. But the bottom line with that particular 11 point A on page 71 is that contamination or leakage 12 from the low-level site is irrelevant to what we're 13 talking about here. We're talking about leakage or 14 pollution or contamination from the proposed site out 15 to the groundwater.
16 JUDGE ARNOLD: Okay. Let me ask 17 Applicant. On page 72 of the petition, the Sierra 18 Club notes that you state, The facility is not within 19 the 500-year flood plan. And then the Sierra Club 20 goes on to assert that you need to address the impacts 21 associated with the 100-year flood plan.
22 The question to me is: Isn't the 100-year 23 flood plan -- plain completely encompassed by the 500-24 year flood plan, so that your statement that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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290 facility is not in the 500-year floodplain 1
explicitly -- or implicitly says it's not within the 2
100-year.
3 MR. LIGHTY: I believe it would be 4
bounding, but I would also point you to ER page 3-20 5
which says that it's not within the 100-year 6
floodplain. It explicitly addresses the 100-year 7
floodplain.
8 JUDGE ARNOLD: Great. I'm done with 9
10 JUDGE RYERSON: Thank you, Judge Arnold.
11 Judge Trikouros?
12 JUDGE TRIKOUROS: No.
13 JUDGE RYERSON: Thank you, Mr. Taylor.
14 MR. TAYLOR: Thank you.
15 JUDGE RYERSON: Thanks for standing for 16 that period of time.
17 Well, let's take another break, and resume 18 at 11:30.
19 (Whereupon, a short recess was taken.)
20 JUDGE RYERSON:
Despite contrary 21 indications a few minutes ago, we're still optimistic 22 that we might be able to finish this before lunch.
23 I'm guessing we might go on past 12:30 a little bit, 24 but I think most people would prefer to do that and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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291 break for lunch, rather than -- break before lunch, 1
rather than have lunch and come back.
2 I think part of that assumes -- we talked 3
a little bit about it yesterday -- whether the parties 4
after a day and a half really feel it would be 5
productive to have five minutes to say something. And 6
I'm guessing that if we can finish before lunch, there 7
might be a sense that that's not really necessary.
8 You can think about that and make an argument if 9
somebody feels that we need to do that.
10 But otherwise, we have two more petitions 11 to handle. I think we're going to try to be as crisp 12 and efficient as we expect you to be, and I see a 13 question from the Office of General Counsel.
14 MR. STEINFELDT: Yes, Judge Ryerson. Tom 15 Steinfeldt with the NRC staff. I'd like to correct 16 something I said earlier regarding the RAI related to 17 Judge Arnold's question on Sierra Club contention 15.
18 JUDGE RYERSON: Yes.
19 MR. STEINFELDT: So the RAI that has been 20 issued is to -- is seeking studies, the most recent 21 studies, as required for the licensing condition of 22 the WCS site for the studies that Texas requires.
23 It's not to request the studies listed in 3.5.16.
24 JUDGE RYERSON: Okay. Thank you.
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292 All right. Mr. Lodge, I have no further 1
questions for you. And we'll start perhaps this time 2
with Judge Arnold.
3 JUDGE ARNOLD: On contention 1 -- or 4
actually this is a contention 1 question for the 5
Applicant. On page 42 of their petition, Joint 6
Petitioners claim, quote, "ISP has thus segmented the 7
indispensable transportation component of the project 8
proposal from the storage component."
9
- Now, did you choose to do this 10 segmentation, or is this basically how the rules of 11 the NRC require you to do it?
12 MR.
LIGHTY:
Your
- Honor, the 13 transportation analysis is analyzed as a connected 14 action, and in fact, that's explicitly what the 15 petitioner demand be done.
They say that 16 transportation should be considered as a connected 17 action. The title of the very section in the ER, 18 section 4.2.4.1, is titled, Connected transportation 19 impacts, for example. And so that's how it's 20 analyzed, because it is not part of the proposed 21 action, but, in fact, could be reasonably foreseeable, 22 and so it's analyzed as a connected action exactly as 23 they demand.
24 JUDGE ARNOLD: What you've applied for is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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293 a materials license. Is it possible by NRC 1
regulations to obtain a material license that both 2
authorizes you possession of the material and 3
transportation of that material to your site?
4 MR. LIGHTY: Your Honor, I believe those 5
would have to be separate licenses. The application 6
here is for a Part 72 license. Transportation route 7
approval happens under Part 71 licensing criteria.
8 JUDGE ARNOLD: Now let me ask the Joint 9
Petitioners. Do you know of any way that NRC rules 10 allow this licensing action to also authorize 11 transportation?
12 MR. LODGE: What I know is that the --
13 this may not be on. Oh, yes. Is it? Can you hear 14 me?
15 JUDGE RYERSON: Yes.
16 MR. LODGE: What I know is that the NRC 17 regs don't constrict NEPA. NEPA predominates when 18 there's a conflict with NRC regulations and that the 19 scope of the project must be addressed in the NEPA 20 documents.
21 JUDGE ARNOLD: Okay.
22 MR. LODGE: And -- pardon me. And to 23 conclude, we believe that the scope of the project 24 includes pardon me if I
butcher the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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294 pronunciation -- but the sine qua non, without which 1
element the CISF cannot exist without transportation, 2
and the entirety of the project thus includes 3
transportation.
4 JUDGE RYERSON: Strictly speaking, though, 5
at this point, we're talking about compliance with 6
Part 51, not compliance with the statutory mandate of 7
- NEPA, which will ultimately be the staff's 8
responsibility.
9 MR. LODGE: Yes.
10 JUDGE RYERSON: They're very similar, 11 perhaps identical, but --
12 MR. LODGE: Yes.
13 JUDGE RYERSON: -- technically at this 14 point, we're talking about compliance with NRC 15 regulations, not compliance with the statute.
16 MR. LODGE: But it is the burden of the 17 public intervenors to raise the issue at the very 18 earliest part --
19 JUDGE RYERSON: Correct.
20 MR. LODGE: -- of the proceeding.
21 JUDGE ARNOLD: Contention 2 concerning the 22 Start Clean-Stay Clean policy, question for the 23 Applicant again. Joint Petitioners claim that, 24 "Aggressive implementation of this policy will mean 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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295 that problematic canisters will accumulate at reactor 1
sites." Do you consider this to be an inevitable 2
consequence of your Start Clean-Stay Clean policy?
3 Will you often reject casks?
4 MR. BESSETTE: No, Your Honor. I believe 5
the parties -- Joint Petitioners misrepresent the 6
Start Clean-Stay Clean policy. It's the same as 7
described in the Holtec proceeding, the general 8
philosophy that all parties along the loading, 9
transportation, and storage route will comply with 10 quality assurance program and NRC regulations.
11 The fuel from canisters that the Applicant 12 will take are outlined in our application, and there's 13 no reason to believe that there's any cherry-picking 14 involved in that. Joint Petitioners have provided 15 zero indications of any types of casks that would 16 somehow be left abandoned.
17 JUDGE ARNOLD: Do you have any comment on 18 that?
19 MR. LODGE: I'm not sure what you're 20 asking me to comment on.
21 JUDGE ARNOLD: Well, the Applicant is 22 essentially saying that's not a policy that's going to 23 be leaving some spent fuel behind. It's an 24 infrequent, you know, quality control. Do you have 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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296 anything to add to your -- that isn't in the petition 1
already? Well, I shouldn't ask that.
2 MR. LODGE: Possibly not, but --
3 JUDGE ARNOLD: Any reinterpretation of 4
what you put in the application?
5 MR. LODGE: I think that, in effect, there 6
will be process of cherry-picking, because quality 7
control requirements at the reactor sites are going to 8
certainly exert a limiting effect on what are 9
acceptable canisters for shipment.
10 That becomes really problematic, but in 11 any event, if during transit, contamination or leakage 12 or breach or some type of malfunction is noted in a 13 canister, there will certainly be a time, which may be 14 a significant period of time -- it's not really amply 15 discussed -- during which canisters will sit at the 16 site.
17 And because of the difficulties of their 18 design, there may be problems in accurately diagnosing 19 what the technical problem is, which may cause further 20 delays. Speculation builds upon speculation, but the 21 problem is I don't see in the application, I don't see 22 an ample discussion of risk, of quality control that 23 happens at the site once there is a problem, don't see 24 site safety procedures, in the event that there is a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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297 serious ongoing problem that requires a little bit 1
more, perhaps having a dry transfer system for 2
remediation or something like that.
3 JUDGE ARNOLD: Moving on to contention 11 4
having to do with no dry transfer system, question for 5
Applicant. On page 119 of the petition, the 6
petitioners claim, "Emergency response plan for the 7
CISF contains no provisions for emissions mitigations, 8
i.e., reduction of emissions or releases to the 9
surrounding environment of radiation and/or 10 radioactive material from SNF as a result of damage to 11 SNF assemblies and/or SNF containers."
12 Is it true that if you detect leakage from 13 some container, that you have no means of handling it?
14 MR. BESSETTE: No, Your Honor. I'll have 15 to look up the exact section of the environmental 16 report. Give me a minute. There is discussion of 17 that.
18 (Pause.)
19 MR. BESSETTE: I would particularly -- and 20 also in the SAR, Chapter 7.2, the discussion of 21 confinement, if there's any events aren't identified, 22 particularly upon receipt, there's corrective --
23 they'll enter the corrective action program, evaluate 24 the NRC. There's provisions for isolation. So we do 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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298 have provisions for addressing those issues.
1 JUDGE ARNOLD: If this leak -- if you put 2
a canister out on the pad and it's been sitting out 3
there and after a few years, for some reason, 4
degradation occurs and it starts to leak, do you have 5
some means of mitigating that leakage?
6 MR. BESSETTE: It would be entered. It 7
would be reviewed accordingly, addressed with a 8
corrective action program, and coordinated with NRC.
9 And it is discussed in the application, Your Honor.
10 The precise means of dealing with it would have to be 11 based on the actual situation, but there are ways of 12 isolating, including putting them back into a 13 transport cask.
14 JUDGE ARNOLD: Much of this contention 15 appears to be based upon Dr. Gordon Thompson's 16 assertion that, quote, "It is likely that some spent 17 nuclear fuel assemblies and/or spent nuclear fuel 18 containers would be damaged at the site as a result 19 of, one, accident; two, attack; and/or, three, slow 20 degradation."
21 Now, is this opinion of his consistent 22 with the evaluations in the SAR?
23 MR. BESSETTE: No, Your Honor. The SAR 24 discusses there's no degradation mechanisms through 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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299 the life of the casks. Once the casks are renewed, 1
there has to be aging management programs. There are 2
license conditions requiring the aging management 3
programs.
4 JUDGE ARNOLD: On page 125 of the petition 5
regarding the opinion of Dr. Gordon Thompson, 6
petitioners state, quote, "He foresees that likely 7
modes of attack would include initiation of a cask 8
fire involving sustained burning in air of Zircaloy 9
cladding of spent nuclear fuel."
10 Within your storage system, is the 11 Zircaloy clad normally exposed to air?
12 MR. BESSETTE: No, Your Honor. All the 13 casks are welded, sealed, and are in an inert 14 environment.
15 JUDGE ARNOLD: Okay. So there's no normal 16 circumstances in which air would come in contact with 17 the clad.
18 MR. BESSETTE: Unless my experts behind 19 correct me and shake their head, my answer is no.
20 MR. LODGE: Judge Arnold, I'd like to 21 point out one thing. That is that in their 22 application, WCS essentially says that they see no 23 return to sender problem because they've never allowed 24 problematic casks to come to WCS in the first place.
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300 They now today are admitting that, yes, 1
there could be some problems and here's our answer to 2
it. And we would consult with the NRC and we would do 3
this or that. And we're not sure what specific 4
remediation or other types of protective steps we'd 5
take. I think that there's -- WCS has created their 6
own material problem in conflict with their own 7
application.
8 JUDGE ARNOLD: Thank you. I'm done.
9 JUDGE RYERSON: Thank you, Judge Arnold.
10 Judge Trikouros?
11 JUDGE TRIKOUROS: Yes. Some of my 12 questions got answered, so that's good. The safety 13 analysis report specifically says that greater than 14 class C waste that's shipped to the facility will only 15 be in solid form. Is that correct?
16 MR. BESSETTE: Your Honor, in my 30-plus 17 years of working in the nuclear field, I've only known 18 of storage of greater than class C in a dry cask and 19 solid form, so -- but I believe my colleague wants to 20 address that.
21 JUDGE TRIKOUROS: Okay. Well, I think 22 you've just answered my next question. Is there any 23 greater than class C that's in liquid form? You're 24 saying there isn't.
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301 MR. MATTHEWS: Judge Trikouros, the 1
proposed license specifies the form. It's only solid.
2 JUDGE TRIKOUROS: Right. And it excludes 3
liquid form. So I was asking a follow-up question, 4
was: Is there such a thing as greater than class C 5
liquid waste at the facilities -- at the reactors?
6 MR. BESSETTE: Your Honor, I'm not aware 7
of anything. Any highly radioactive liquid waste at 8
the reactors tends to be run through resins and it 9
turns into waste that's disposed of elsewhere. So 10 unless there's some -- there might be some Department 11 of Energy type waste that's processed, but I'm not 12 aware of anything from a commercial nuclear plant of 13 liquid greater than class C waste.
14 JUDGE TRIKOUROS: So the likelihood that 15 there would be greater than class C liquid waste 16 stranded at the reactors is not viable?
17 MR. BESSETTE: I'm -- of the currently 18 decommissioned sites, which the reactors have been 19 knocked down, and greater than class C waste is 20 currently stored on the ISFSI pads, it is all in solid 21 form.
22 JUDGE TRIKOUROS: Okay. Does the staff 23 have any comment on that at all?
24 MS. KIRKWOOD: The staff is not aware of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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302 any greater than class C waste at a reactor in liquid 1
form.
2 JUDGE TRIKOUROS: Okay. I just want to 3
make sure that -- ISP will not be associated at all 4
with what goes on at the reactor sites in terms of 5
their preparation of these canisters for shipment?
6 MR. BESSETTE: That's my understanding, 7
Your Honor. I mean, the sites are responsible for the 8
loading, the quality assurance, the conformance with 9
the certificates of compliance, and the Applicant is 10 not involved with that -- those processes. They will, 11 of course, review the quality assurance records, all 12 the records that are required, to ensure the contents 13 meets the requirements of the COC.
14 And also anyone who packs fuel into a dry 15 storage canister will have to meet the Department of 16 Energy's standard contract for recordkeeping 17 requirements, and I imagine ISP will also review those 18 records. But it will really -- it'll be a record 19 review and not anything to do with the actual packing.
20 JUDGE TRIKOUROS: There won't be like an 21 on-site inspector at any of these sites at all.
22 Right?
23 MR. BESSETTE: Unless -- it's not my 24 understanding. During the loading process, no, Your 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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303 Honor. The loading process is extremely strictly 1
controlled and also observed by NRC during dry runs 2
and quality assurance highly controlled evolutions.
3 MR. LODGE: Judge Trikouros, if I may 4
supplement that answer, I think that the fact that WCS 5
is a partner with a firm called NorthStar that has 6
entered into arrangements at Vermont Yankee for the 7
readying and transport of material to WCS, it looks to 8
me as though WCS may be wading into that field, and --
9 JUDGE TRIKOUROS: Can you speak a little 10 louder, please.
11 MR. LODGE: Yes. Sorry. It seems to me 12 that WCS may be wading into the tier of actually being 13 much more involved from a proprietary standpoint in 14 the preparation and transport of casks, canisters.
15 MR. BESSETTE: Your Honor, WCS, again to 16 Mr. Lodge, not the Applicant here. It's Interim 17 Storage Partners. To the extent that there's certain 18 different commercial entities that have combined to 19 conduct decommissioning of the utilities, that is not 20 part of this application and not the Applicant here.
21 JUDGE TRIKOUROS:
The staff has 22 indicated -- let's see; I think it's in the answer to 23 Don't Waste -- Joint Petitioners' petition --
24 indicates -- I think it's on page 21 to 22. "In other 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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304 words, even if the application does contemplate some 1
canisters may not meet the criteria of this license, 2
that does not demonstrate why it is likely the 3
canisters will not meet NRC regulations, and licensees 4
cannot bring these canisters into compliance or that 5
oversight of those canisters entails significant 6
environmental impacts."
7 So do I read -- why don't you just let me 8
know what you meant by that.
9 MR.
GILLESPIE:
- Yes, Your Honor.
10 Specifically, I think, our -- we have a reference on 11 the sentences to the Commission's decisions in Private 12 Fuel Storage, CLI 04-4 and CLI 04-22. And those cases 13 stand for the proposition that to allege some sort of 14 risk or violation of Part 71 associated with 15 transportation and Start Clean-Stay Clean, that there 16 need to be facts alleged that would provide a 17 plausible scenario or allege QA deficiencies at 18 individual sites, as to why it's likely that that 19 would occur.
20 JUDGE TRIKOUROS: All right. I think all 21 of my other questions have been answered.
22 JUDGE RYERSON: Anything further, Judge 23 Arnold?
24 JUDGE ARNOLD: No.
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305 MR. LODGE: If I may, I'd like to make a 1
couple of comments. I'd like to respond to the ISP 2
affiliation or nonaffiliation with NorthStar. The 3
fact is that these are interlocking corporations.
4 It's a --
5 VOICES: We can't hear you.
6 MR. LODGE: It's difficult for me to 7
imagine that NorthStar would not in some official 8
business way have to be in contact, in communication 9
with the WCS site in terms of coordinating the 10 transport and delivery. I think that now -- to hear 11 now that there's simply no relationship of relevance 12 to this application is very difficult to handle.
13 JUDGE RYERSON: Do you have any contention 14 that addresses that issue, Mr. Lodge?
15 MR. LODGE: No, sir -- well, insofar as we 16 were talking about the other thing that I wanted to 17 make comment on, yes. The DTS, the lack of dry 18 transfer system, is of considerable concern, and I 19 would like to explain my mathematics as to my 20 references to possibly 30,000 different shipments.
21 This will be my last comment, so I'll keep it crisp.
22 Robert Alvarez, we cite him at pages 70 23 and 121 of our original petition, as noting that the 24 transport -- the TAD canister policy enunciated by DOE 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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306 suggests that there may be overall as many as a total 1
of 80,000 canisters that would -- the fuel basically 2
would be broken into smaller quantities at some point, 3
either the reactor site or the CISF site.
4 Working backwards from a total of 80,000 5
and apportioning WCS's portion as 40 percent of a 6
rough 100,000 MTU total, you get 40,000 that either 7
comes as 3,000 shipments, not 500 as is suggested in 8
WCS's own application, or you end up with 80,000 9
shipments, 40 percent of which --
10 The 40 percent going to WCS would total 11 32,000 in some form or fashion, either 32,000 12 shipments coming from the reactor customers they 13 develop or at the CISF.
14 In some way you would have to break the 15 fuel quantities down into 32,000 canisters. So I 16 think it's a very reasonable, foreseeable, predictable 17 number. And I repeat. This is a big problem that no 18 one is addressing in the application in any fashion.
19 And it bespeaks the whole difficulty that the 20 petitioners have with the denial of any need until 21 2125 or so to even have a DTS system around.
22 There'll have to be swap-outs of whatever 23 storage units are used. There will have to be --
24 there may be -- I think we finally know today for sure 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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307 that there's some conceded possibility that something 1
just might go wrong, even in the first hundred years 2
where DTS might be a handy thing to have.
3 If I may have one more moment --
4 (Pause.)
5 MR. LODGE: The claim that was made 6
earlier when Mr. Taylor was up here that nuclear waste 7
will only travel in dedicated trains, the problem 8
is --
9 JUDGE TRIKOUROS: People can't hear you.
10 MR. LODGE: I'm sorry. My apologies. The 11 claim that -- the voluntary offer of the company, of 12 the Applicant that they will only transport in 13 dedicated trains, number one, is not going to be 14 enforceable, because it's not a requirement.
15 Number two, I think we're learning a lot 16 coming to Midland that West Texas is for some time to 17 come and maybe a very significant time to come, the 18 site of the most enormous petroleum and gas 19 development on the face of the planet. That includes 20 Andrews County. It includes the immediate vicinity of 21 Eunice and the actual CISF site.
22 In looking at the railroad maps up close, 23 I've noticed that there are several intersections 24 with -- in very heavy trafficked, otherwise rural-25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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308 seeming oil patch land of oil trucks by the thousands, 1
of oil trains, certainly in large numbers. This is 2
the wrong place for this very partially developed, 3
half-baked idea.
4 Unless there are other questions, I'm 5
done.
6 JUDGE RYERSON: Thank you, Mr. Lodge.
7 MR. LODGE: Thank you.
8 JUDGE RYERSON: Mr. Eye. All right. I do 9
have a few questions for you, I think. As I mentioned 10 a couple times, I've looked at the declarations that 11 have been submitted by Mr. Taylor, Mr. Tommy Taylor, 12 and Mr. Boyd.
13 The declaration of Mr. Taylor is on behalf 14 of Fasken, who is actually Fasken management, I guess, 15 which is a petitioner, and in addition, his 16 declaration, Mr. Taylor's declaration, supports 17 Fasken's representation in the Permian Basin Land and 18 Royalty Owners Association.
19 And then in
- addition, there is a 20 declaration from Mr. Boyd who is individually a member 21 of the Permian Basin association. And I'm familiar, 22 I remember the declaration of Mr. Taylor in the Holtec 23 case where he represented that he had to go in the 24 area of the proposed facility to engage in work for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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309 his employer.
1 It's a little less clear to me from the 2
declaration. It admits to that possibility, but I 3
don't think says it quite as explicitly as was said in 4
the declaration in Holtec. And so my first question 5
is really what -- whether -- what duties, employment 6
duties or personal reasons take Mr. Taylor to the area 7
of the proposed facility, and how often does he go 8
there.
9 MR. EYE: As Mr. Taylor says in his 10 declaration, he says that his employment duties and 11 personal reasons require him to travel to and to spend 12 time in the area of the proposed CISF. Mr. Taylor's 13 an upper management person for Fasken. He's an expert 14 in drilling. He's an engineer.
15 He oversees and is involved in various of 16 the Fasken activities, really from start to finish of 17 their production. That requires him to go to the 18 various sites where Fasken is engaged in exploration 19 and extraction, and to make sure that the operations 20 are going consistent with the company's expectations.
21 The frequency that he goes there is 22 somewhat variable. It depends on the nature of the 23 activity that's going on and whether there's a 24 particular need for him to be there. However, it's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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310 not unusual for him to go dozens of times during the 1
course of a year to a particular site, and it may even 2
be more than that -- well, I should -- let me clarify 3
one thing.
4 The particular highway that runs closest 5
to the ISP site has been under some reconstruction, 6
rebuilding due to very heavy oil and gas activity on 7
it, and that has recently caused Mr. Taylor to have to 8
take a detour. So recently he has not used that 9
particular highway as frequently, but once it's back 10 in a useable fashion, he would be using it again.
11 But historically, it's not unusual for him 12 to be in the area of the ISP site dozens of times in 13 the course of a year.
14 JUDGE RYERSON: But his contacts with the 15 site would involve more than merely using the road, I 16 take it. You're saying that he would go to the 17 facility, his Fasken facilities that are quite close 18 to the site in that area, and he would get out and do 19 things. Or does he just drive on the highway?
20 MR. EYE: Well, really both --
21 JUDGE RYERSON: Okay.
22 MR. EYE: -- I think it's fair to say, 23 because Fasken's closest oil and gas facility 24 currently to the ISP site is 18 miles, 18 miles from 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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311 the ISP proposed site. So certainly he goes that 1
close on a regular basis, to see Fasken's operations.
2 And it's -- but one has to remember that 3
he has to go to also the New Mexico holdings of Fasken 4
which require him to go, you know, essentially in the 5
immediate vicinity of the proposed facility. And it's 6
also not unusual that Mr. Taylor's called upon to do 7
site evaluations, to determine whether a particular 8
activity ought to go forward, which requires more than 9
just driving there. It requires him to do some, I 10 guess you would call them, sort of a field study.
11 JUDGE RYERSON: The 18-mile location, that 12 is not like his office where he is on a regular basis.
13 He is there sporadically. Is that fair to say?
14 MR. EYE: It is fair to say that that is 15 not his office, and the frequency of him visiting 16 those, I think, again is dependent upon the operations 17 and the nature of what may be going on with them on a 18 day-to-day basis.
19 JUDGE RYERSON: Right. And he speaks in 20 his declaration of being familiar with other employees 21 who go to the area of the proposed facility. But I 22 take it no Fasken operation is closer than 18 miles.
23 Is that correct?
24 MR. EYE: It's -- the closest Fasken 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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312 facility is 18 miles.
1 JUDGE RYERSON: Is 18 miles.
2 MR. EYE: Currently.
3 JUDGE RYERSON: And so these other 4
employees would either be 18 miles away from time to 5
time, or they might be using the highways that go 6
closer than that. Is that --
7 MR. EYE: I would agree with both of 8
those.
9 JUDGE RYERSON: Okay. Let me ask you a 10 little bit about Mr. Boyd's declaration. We've talked 11 about the size of the ranch, which still amazingly 12 impresses me, 137,599 acres. As we said yesterday, 13 that's about ten Manhattan Islands. A corner of that 14 ranch is four miles away from the proposed facility.
15 And I know Mr. Boyd's -- he owns part of the ranch.
16 He ranches the ranch, but part of it he leases.
17 But how much time would he personally be 18 spending in the corner of this ten Manhattan Island 19 ranch that is near the proposed facility?
20 MR. EYE: Hard to say. I mean, again, 21 it's contingent on the needs of his operations and the 22 requirement that he be there to be a part of those.
23 But I would add that in a more intimate way, the New 24 Mexico-Texas railroad that is proposed to bring waste 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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313 to the ISP site, for 5.5 miles runs through his ranch.
1 He uses the crossing of that to get across that 2
railroad to do his various ranching operations.
3 So it's not quite as remote as just 4
talking about the relationship of the four-mile point, 5
because this railroad crosses his property. He uses 6
the crossings to get across the railroad, and that 7
gives him a special kind of relationship to the ISP 8
facility.
9 JUDGE RYERSON: A question for the 10 Applicant: Is there any uncertainty that this 11 railroad line would be used for the transportation of 12 the waste? Is that pretty clear?
13 MR. LIGHTY: I certainly wouldn't say it's 14 a certainty. No transportation routes have been 15 identified as certain to be used here. Speculative 16 routes, bounding routes, representative routes, are 17 presented in the application for need analysis 18 purposes. But, again, no specific customers have 19 been identified, and transportation infrastructure 20 certainly could change between now and the time that 21 actual transportation happens, so --
22 JUDGE RYERSON: But as of today, given how 23 close we are at this point -- I can understand that 24 rails perhaps in Michigan might not be decided yet or 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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314 the Northeast, but this close to the proposed 1
facility, is there another railroad that would not go 2
through the Fasken property, that might be an option 3
as of today? Or is this really the only realistic 4
options?
5 MR. LIGHTY: If I may confer for a 6
moment --
7 JUDGE RYERSON: Certainly.
8 MR. EYE: Just for clarity of the record, 9
it's the Boyd property, not the Fasken property.
10 JUDGE RYERSON: I'm sorry. The Boyd --
11 yes. Through the Frying -- what's the name of --
12 MR. EYE: Frying Pan Ranch.
13 JUDGE RYERSON: Frying Pan Ranch.
14 (Pause.)
15 MR. LIGHTY: So the spur to the current 16 WCS site does connect to the rail line that I believe 17 counsel's referring to, and is used today for 18 deliveries. It's foreseeable that that route would be 19 used.
20 JUDGE RYERSON: Okay. Thank you. And a 21 question for the staff. The staff would urge us to 22 find standing or at least not oppose standing, both 23 for Fasken, the company, and for the Permian Basin 24 group.
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315 And I'm curious whether, I suppose --
1 well, the -- you must have found the Taylor 2
declaration persuasive, because there's no other 3
source of a representative for Fasken. I guess both 4
Mr. Taylor and through Fasken -- or Fasken through Mr.
5 Taylor, and Mr. Boyd as an individual member, both are 6
representative of the Permian Basin.
7 Could you tell us whether you found both 8
those affidavits persuasive, or whether you relied on 9
one? What was the staff's position on that?
10 MR. GILLESPIE: Your Honor, in particular, 11 the affidavit by Mr. Boyd would be the one we relied 12 on primarily.
13 JUDGE RYERSON: Primarily. Okay. Did you 14 rely in part on the Taylor declaration? Or you relied 15 entirely on the Boyd declaration?
16 MR. GILLESPIE: Entirely on the Boyd 17 declaration.
18 JUDGE RYERSON: Entirely. Thank you. I 19 think that's the scope of my questions. You may have 20 some more in the area, Judge Arnold.
21 JUDGE ARNOLD:
No.
You covered 22 everything.
23 JUDGE RYERSON: Any other questions?
24 JUDGE ARNOLD: Not on standing.
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316 JUDGE RYERSON: No, no. Any other 1
questions?
2 JUDGE ARNOLD: Oh, of course.
3 JUDGE RYERSON: Of course.
4 MR. EYE: And, again, if this goes to 5
contentions 2 or 4, I'd like to request that my 6
colleague Mr. Laughlin be able to respond to those.
7 JUDGE RYERSON: Okay. Contentions 2 and 8
4.
9 MR. EYE: 2 and 4. Yes, sir.
10 JUDGE RYERSON: Certainly.
11 JUDGE ARNOLD: Let's see. So you would be 12 3 and 5.
13 MR. EYE: 1, 3 and 5.
14 JUDGE ARNOLD: 1, 3, and 5. No questions 15 on 1.
16 JUDGE RYERSON: If I can interrupt you and 17 sort through this, if you're relying totally on the 18 Boyd -- and this is a question directed to the NRC 19 staff -- that would go to the Permian Basin group, but 20 that does not go to Fasken management or Fasken, 21 because only the Taylor declaration would support that 22 standing. Am I wrong?
23 MR. GILLESPIE: No, Your Honor. That is 24 correct.
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317 JUDGE RYERSON: So you are opposing the 1
standing of Fasken but not the standing of Permian 2
Basin, who we're calling Fasken. But is that clear in 3
your -- I don't think it is.
4 MR. GILLESPIE: Your Honor, our pleading 5
may not have been the most artfully worded.
6 JUDGE RYERSON: Your position today is 7
that the Permian Basin organization, through its 8
individual member Mr. Boyd, has standing, but that 9
Fasken itself does not have standing.
10 MR. GILLESPIE: That is correct.
11 JUDGE RYERSON: Thank you.
12 MR. EYE: Your Honor, may I comment on 13 that?
14 JUDGE RYERSON: You may comment on that.
15 That's kind of new.
16 MR. EYE: It is quite new. Number one, it 17 disregards the relative proximity of Fasken's 18 facilities, 18 miles from the ISP facility, which, you 19 know, comes within the zone that is generally 20 considered as being supportive of standing.
21 JUDGE RYERSON: But no one resides there, 22 and possibly there's not even an office there where 23 people work eight hours a day, five days a week.
24 MR. EYE: True. But the economic impact 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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318 of diminished -- that diminished value of that 1
property as a result of the ISP facility and its 2
operation would also provide a basis for standing.
3 And it's -- if you read staff's response to the answer 4
to the petition, they don't differentiate.
5 And so for them to do so now without 6
explaining away the facts that we have laid out in the 7
petition and in Mr. Taylor's affidavit leaves us 8
wondering precisely exactly how they arrived at the 9
conclusion that they did today.
10 JUDGE RYERSON: I agree with you, sir.
11 MR. EYE: Thank you.
12 JUDGE RYERSON: But -- I'm sorry. We 13 should let the staff respond to that.
14 MR. GILLESPIE: Your Honor, I mean, the 15 fundamental distinction is that 18 miles is outside 16 the 17 miles that has been found in previous NRC 17 cases. That being said, the staff would not see it as 18 abuse of discretion to -- or a legal error for 19 standing to be found for 18 miles versus 17 miles.
20 JUDGE RYERSON: Okay. But your position, 21 as I understood it ten minutes ago, is the same as 22 now, that you have concluded, on further thought 23 perhaps, that Fasken management, Fasken, does not have 24 standing, because your only reliance on that would be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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319 the Taylor declaration. You can't use the Boyd 1
declaration for that. He's not associated with 2
Fasken. So Fasken does not have standing in your 3
view.
4 MR. GILLESPIE: Yes, Your Honor.
5 JUDGE RYERSON: Okay. But you continue to 6
believe, based on the Boyd declaration, that the 7
Permian Basin group has standing -- organization has 8
standing.
9 MR. GILLESPIE: Yes.
10 JUDGE RYERSON: We should probably change 11 the name of combined group, but that's their position, 12 and we understand that's just the staff's position.
13 MR. EYE: One thing I would comment on, 14 Your Honor, is that the 17-mile perimeter or range --
15 I believe the case law would reflect that this is --
16 the determinations are on a case-by-case basis. And 17 in that regard, it seems to us that if we have a 18 strict adherence to 17 miles and exclude something at 19 18 miles, it might appear as if there's an attempt to 20 just be far too attenuated in determinations of 21 standing.
22 JUDGE RYERSON: Yes. Eighteen miles was, 23 as we talked earlier, an NAI case in the D.C. Circuit 24 was deemed to be sufficient. But they were talking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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320 about residences. I mean, there's some balancing.
1 There's one case -- I forget where it was, in 2
Connecticut or somewhere -- where ten miles was 3
considered sufficient where someone had a second home, 4
so they spent substantial time there, but they didn't 5
live there. And so there seems to be some balancing 6
in the distances.
7 But in any event, we have the staff's 8
position. I'm glad we fleshed out that it's changed, 9
and so we are aware of that.
10 MR. EYE: I would point out that the 11 facility in question at the 18-mile point is one that 12 does require some employees of Fasken to be at some 13 portion of each day for monitoring and to make sure 14 that the operations are going consistent with their 15 expectations. So there is a regular, daily presence 16 of Fasken at that facility.
17 JUDGE RYERSON: Okay. All right. Well, 18 thank you. And I'm sorry to interrupt, Judge Arnold.
19 MR. LIGHTY: Your Honor, if I may just ask 20 for a point of clarification from the Board. Are we 21 taking new evidences to standing here, or -- I just 22 want to be clear.
23 JUDGE RYERSON: You know, I was waiting 24 for you to comment on that.
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321 MR. LIGHTY: I apologize. Just to 1
clarify.
2 JUDGE RYERSON: Because what -- as I said 3
yesterday, we are not bringing in these declarants and 4
having an evidentiary hearing based on their 5
declarations. We are taking the representations of 6
counsel to the extent that they may appropriately 7
flesh out the declarations, and we'll have to look at 8
those -- at that fleshing out as we read the 9
transcript and decide what we may permissibly 10 consider.
11 I take it you would object to anything 12 that we shouldn't permissibly consider, and we're 13 aware of that position.
14 MR. LIGHTY: Thank you, Your Honor.
15 JUDGE RYERSON: Thank you. Judge Arnold.
16 JUDGE ARNOLD: For Mr. Eye, I have a 17 couple of questions on contention 5. Can you cite to 18 any specific information provided in the ER concerning 19 either the dunes sagebrush lizard or the lesser 20 prairie chicken for which you have provided actual 21 evidence that is contradictory to what's in the ER?
22 MR. EYE: No. And -- but this contention 23 is really one more of omission, so we -- the basis of 24 that contention is there's an omission of material 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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322 information rather than contradicting that which has 1
actually been presented.
2 JUDGE ARNOLD: And every so often, when I 3
go through these petitions, I have a thought which I 4
later wish I never had, and I came across one of those 5
in this contention.
6 Now, early in the petition when you 7
describe the Permian Basin group, you say that they 8
are specifically organized to oppose Waste Control 9
Specialists. And then I read this about the Permian 10 Basin organization's attempt to repopulate the -- what 11 is it? -- the lesser prairie chicken.
12 And I'm wondering. Were they -- was that 13 repopulation motivated by them being good citizens and 14 wanting to, you know, repopulate this chicken, or was 15 it because they wanted to make it harder for Waste 16 Control Specialists to use their land?
17 MR. EYE: Well, at the time that it 18 happened -- let me make one clarification. To the 19 extent that it was the Permian Basin organization, it 20 was acting strictly through Fasken. So it was really 21 Fasken's participation in the collective efforts of 22 other oil and gas entities plus the ranching industry 23 to try to protect the habitat of the lesser prairie 24 chicken, which happened before the ISP application had 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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323 materialized.
1 So the answer is, no, it wasn't to just be 2
obstructionist and frustrate the efforts of ISP. It 3
was to protect the habitat of the lesser prairie 4
chicken.
5 JUDGE ARNOLD: Great. Thank you very 6
much.
7 MR. EYE: You're welcome.
8 JUDGE ARNOLD: My other questions are on 9
contention 2 and 4.
10 MR. EYE: We'd take those up now then?
11 JUDGE ARNOLD: Yes.
12 MR. EYE: Okay.
13 MR. LAUGHLIN: Thank you, Your Honors.
14 JUDGE ARNOLD: Contention 2 has to do with 15 the information concerning borings on or near the 16 site, and I'm wondering: How would the SAR containing 17 an enumeration of wells near the site actually affect 18 the suitability of the site?
19 MR. LAUGHLIN: Well, as our expert 20 indicated, especially for wells that are older, past 21 the 1967, they have integrity issues associated with 22 them, and ISP does not indicate the presence of those 23 wells and how that instability would affect the site, 24 which is required, a requirement by 72.103.
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324 They are required to investigate the 1
region for unstable geological characteristics, and 2
they do not do that with these unstable geological 3
characteristics, meaning the abandoned or potential 4
for orphan wells near the site.
5 JUDGE ARNOLD: You're saying there's some 6
sort of a seismic activity analysis method that would 7
use actual boring location and characteristics in the 8
evaluation of the stability? Is there a computer 9
program, for instance, that uses input? There's a 10 hole there. It's so deep.
11 MR. LAUGHLIN: Yes, Your Honor. And 12 that's how we came to that number. And, in fact, at 13 this point, the total number that we provided has 14 actually decreased, so I was going to ask this Board, 15 just for clarity, to take administrative notice of 16 that number. We cited 4,947 wells within the ten-mile 17 radius. Now it's actually 4,579, so I -- is it 18 appropriate to ask for administrative notice of this 19 change? Will the Board --
20 JUDGE RYERSON: We'll note that.
21 MR. LAUGHLIN: Okay. Thank you. And you 22 bring -- so, yes, there is. And our clients actually 23 refer to it in the declaration from Aaron Pachlhofer.
24 They use the Petra software, which is used by the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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325 industry, to identify the location of these wellheads.
1 JUDGE ARNOLD: Let me just ask Applicants.
2 Are you aware of methods that use the actual location 3
and characteristics of borings to evaluate seismic 4
stability?
5 MR. LIGHTY: I'm not personally familiar 6
with software packages that would do that. I think 7
counsel was referring to software that simply shows 8
the location of wells, not a particular computer code 9
that would analyze those in a
geotechnical 10 investigation.
11 But I would note that ISP's geotechnical 12 investigation is included in the application as 13 Attachment E. And I'm not sure what they seek to 14 challenge from it. They don't acknowledge that 15 investigation and specifically say, This -- here's the 16 defect in the attachment. They just ignore the 17 relevant analysis in the application, as well as the 18 probabilistic seismic hazards evaluation in Attachment 19 E.
20 MR. LAUGHLIN: May I respond?
21 JUDGE ARNOLD: Yes.
22 MR. LAUGHLIN: So potential from vibratory 23 ground motion is one of the three characteristics that 24 72.103 requires of the Applicant, but it also requires 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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326 them to look for unstable geological characteristics.
1 It's not just limited to seismicity. It also 2
encompasses the potential presence of unstable 3
geological characteristics.
4 And I will note that -- I talked about how 5
especially for wells drilled pre-1967, there are 6
integrity issues associated with that, mostly because 7
the industry back then had fewer regulations as far as 8
how to properly plug a well and things like that.
9 And if you look at -- if you break it 10 down -- and we'll break it down within a five-mile 11 radius -- there are 645 wells within a five-mile 12 radius. Of those 160 were drilled pre-1967. So of 13 these wells, we have 160 within the five-mile 14 vicinity, and we have no idea what the integrity of 15 those wells are.
16 And it is not our burden to determine 17 whether these wells have integrity issues. It is the 18 Applicant's burden pursuant to 72.103 to determine 19 whether these wells' unstable geological 20 characteristics will influence the site. Maybe they 21 won't, but it is a requirement by 72.103, and they 22 have not done that.
23 JUDGE ARNOLD: Thank you. The only other 24 question I have is on contention 4. On page 30 of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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327 your petition, you state that the water from the 1
Antler Formation is used as potable water in Midland.
2 MR. LAUGHLIN: Correct, Your Honor.
3 JUDGE ARNOLD: I think I noticed that same 4
in the water at the hotel.
5 MR. LAUGHLIN: I noticed it in the water 6
fountain out there, so --
7 JUDGE ARNOLD: On that same page, you 8
infer that the Antler Formation is exposed in the 9
excavation walls of the WCS low-level rad waste 10 facility. Is that correct?
11 MR. LAUGHLIN: Correct, Your Honor.
12 JUDGE ARNOLD: To your knowledge, is the 13 low-level rad waste facility experiencing water 14 intrusion from the Antler Formation?
15 MR. LAUGHLIN: There is evidence -- and we 16 do not discuss this in our petition, so I'm just 17 answering a question -- that the low-level site has 18 water contained on the surface of the site that has to 19 be regularly pumped. Whether that -- we don't know 20 which formation that water comes from, but, yes.
21 There is evidence that shows that there has been water 22 at the low-level site.
23 JUDGE ARNOLD: Do Applicants have anything 24 to say on that?
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328 MR.
MATTHEWS:
The joint venture 1
participant WCS that runs the low-level waste disposal 2
facility has no indication of groundwater leakage into 3
the facility, and clearly rainwater collects in the 4
site, and the facility is designed to remove that 5
rainwater.
6 JUDGE ARNOLD: Thank you. I'm done with 7
my questions.
8 MR. LAUGHLIN: Thank you, Judge Arnold.
9 JUDGE RYERSON: Judge Trikouros?
10 JUDGE TRIKOUROS: Yes. Many of mine got 11 covered once again, which is very good. I wanted to 12 ask about the response to the RAI, I think it is, 13 2.2-2, regarding this contention 2. The staff 14 originally had admitted this contention. Now that we 15 have that response to the RAI, are you changing your 16 position on that? I think we discussed this a little 17 bit.
18 MR. GILLESPIE: Yes, Your Honor. As you 19 said yesterday, we see this issue now as moot, based 20 on the response that there are no working wells on the 21 site.
22 JUDGE TRIKOUROS: And do you -- yes. Do 23 you have any comments --
24 MR. LAUGHLIN: May I respond?
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329 JUDGE TRIKOUROS: Yes.
1 MR. LAUGHLIN: Yes. So as mentioned and 2
as staff just stated, there are no orphan wells found 3
on the site. That may be correct. We don't know 4
that. But the requirements of 72.103 pertain to 5
investigating the region, not just the site, not just 6
one mile from the site.
7 And, in fact, the NUREGs indicate that a 8
region is typically five miles. It could be more. It 9
could be less, but if we look to the NUREGs -- let me 10 just look at my notes here real quick and cite it for 11 you.
12 The NUREGs talk about vicinities and 13 applicants needing to identify nearby industrial 14 activity within five miles and identifying any 15 potential hazards to an ISFSI from activities or 16 materials at facilities that should be discussed.
17 So let's just say it's five miles. It's 18 not limited to the site. And if I may just address 19 the RAI response briefly, it's six sentences, so the 20 Applicant provides six sentences that made staff 21 change its position. And if I may just go through the 22 sentences really quick --
23 So, first, discusses that regionally the 24 CISF is located in the Permian Basin, which is one of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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330 the most important petroleum-producing regions in the 1
United States. So that doesn't really address the 2
unstable characteristics of the pre-1967 or any other 3
wells that may be unproperly plugged.
4 Secondly, however, significant petroleum 5
storage, petroleum storage, not wells that may be 6
improperly plugged, is not located within five miles.
7 So they're talking about petroleum storage here, not 8
about the existence of 160 wells drilled pre-1967, 9
which could potentially provide or be unstable.
10 So then we go on to their discussion of 11 the dry hole that is in the immediate area of WCISF, 12 but failed to discuss the producing well which is 13 within one mile of their site. So, I guess, my point 14 here is that the RAI is misleading. It talks about 15 wells on the site, not wells located in the region.
16 And that's kind of our problem with the 17 Applicant's analysis, is, one, it doesn't take into 18 account the region. They mostly focus on wells 19 located on site, and also they focus here in the RAI 20 on petroleum storage, which has nothing to do with the 21 analysis required by 72.103, which requires them to 22 investigate unstable geological characteristics.
23 And one more point. They discuss that if 24 they do find any orphan wells, that they will be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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331 properly assessed and remediated, but this implies 1
that this will occur after a license. And a license 2
cannot be issued until the Applicant properly 3
investigates unstable geological characteristics as 4
required by 72.103. And to identify an orphan well 5
afterwards would run in the face of hose requirements.
6 JUDGE TRIKOUROS: Does ISP want to respond 7
to this or --
8 MR. LIGHTY: Just a couple of comments.
9 First, as to potential orphan wells, I would note that 10 if during the construction of the facility an orphan 11 well was discovered, ISP would have an obligation 12 under existing Part 72 regulations to take appropriate 13 action. This is an ongoing compliance issue that's 14 required under the terms of the license and the 15 regulation itself.
16 So if a new hazard is discovered, it must 17 be analyzed and considered. So to the extent that 18 counsel speculates that something may happen in the 19 future, there's a mechanism for dealing with that 20 imposed by the regulations themselves.
21 MR. LAUGHLIN: I would agree with that 22 statement, Your Honors, but we're talking about an 23 analysis that needs to occur before a license is 24 granted.
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332 MR. LIGHTY: To the extent counsel 1
believes that there is a duty to excavate everywhere 2
within ten miles of the site to determine whether some 3
hidden hazard exists, I simply don't see that 4
requirement in Part 72.
5 MR. LAUGHLIN: I do.
6 MR. LIGHTY: In addition, the RAI NP2.6.1 7
also addressed wells in the area, and additionally, 8
again, I would note that the application thoroughly 9
considers induced seismicity from petroleum recovery 10 operations. It's in Attachment D to Chapter 2 to the 11 SAR. That's a proprietary document that Fasken and 12 PBLRO did not dispute. They don't dispute a single 13 word in that document, and so they haven't disputed 14 the application here.
15 MR. LAUGHLIN: So in their response in 16 opposition to our petition, Applicants do indicate 17 that we did not seek SUNSI admission or access to 18 Attachment D. But while that talks -- that document 19 discusses induced seismicity from horizontal drilling, 20 it does not discuss the potential for abandoned and 21 potential for orphan wells within the vicinity of the 22 site.
23 And if it did, the Applicants have failed 24 to mention that in their response. And Mr. Lighty 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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333 discusses Section 2.6.1 discussing oil and gas 1
presence within the area, but if I may quote that 2
section, the statement is limited to the Applicant's 3
stating that, Drilling for and production of oil and 4
gas are land uses within a few miles of the WCS CISF.
5 And that's it.
6 They don't discuss the presence of any of 7
these unstable geological characteristics that are 8
associated with abandoned and orphan wells. So it's 9
a little misleading to say that that section discusses 10 to the extent required by 72.103 meets that burden.
11 MR. GILLESPIE: Your Honor --
12 JUDGE TRIKOUROS: Yes.
13 MR. GILLESPIE: Your Honor, if I could 14 say, just a point. 72.103 states that sites will be 15 acceptable if the results from on-site foundation 16 geologic investigation, literature
- review, and 17 regional geologic reconnaissance show no unstable 18 geological characteristics, as well as building 19 problems or potential for vibratory ground motion.
20 I would highlight in there the on-site 21 foundation geologic investigation, and point to the 22 Pachlhofer declaration does not indicate how orphan 23 wells off site could lead to an impact on site. And 24 because of that, it does not meet the standards in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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334 2.309(f)(1) for admissibility of a contention, without 1
providing exactly the mechanism as to how those off-2 site wells, orphan wells, may impact the soil 3
stability on the site.
4 JUDGE TRIKOUROS: Okay. I understand.
5 MR. LAUGHLIN: May I quickly address that, 6
Your Honor?
7 JUDGE TRIKOUROS: Yes.
8 MR. LAUGHLIN: So the ISP staff talks 9
about orphan wells, and that is one of the issues.
10 The other issue is the presence of abandoned and 11 temporary plugged wells. And to the extent that these 12 wells have any integrity issues, which can include 13 case collapse or leakage of these wells, that is 14 something that is required to be analyzed by 72.103, 15 and Applicant's failed to address the presence of the 16 over 160 that were drilled pre-1967.
17 JUDGE TRIKOUROS: Okay. That's all I have 18 on contention 2. With respect to 5, contention 5 --
19 MR.
LAUGHLIN:
That's Mr.
Eye's 20 contention.
21 JUDGE TRIKOUROS: Yes.
22 MR. LAUGHLIN: Yes. Do you have any 23 questions, Judge Trikouros, about contention 4?
24 JUDGE TRIKOUROS: No.
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335 MR. LAUGHLIN: Okay. Thank you, Judges.
1 JUDGE TRIKOUROS: There's a statement made 2
in your contention that relevant conservation efforts 3
may be undermined by the proposed facility. What's 4
your basis for that?
5 MR. EYE: It's a commonsense basis. You 6
have a big disruptive construction project. It 7
requires earth moving, civil engineering. Just by the 8
force of those particular activities, has the 9
potential to disrupt the habitat.
10 JUDGE TRIKOUROS: You're not trying to say 11 that the habitat of that region is being destroyed or 12 anything like that. This is just the construction 13 noise and et cetera. That's what your focus is.
14 MR. EYE: It's a prospective disturbance 15 of the habitat. And I might add to that that our 16 declarant, Mr. Pachlhofer, does note that operation of 17 this facility, to the extent that there are 18 radiological impacts, would -- to the vicinity would, 19 per force of logic, impact species that happened to be 20 in the vicinity.
21 JUDGE TRIKOUROS: You also say that the 22 Applicant does not address ongoing conservation 23 efforts for either the dunes sagebrush lizard or 24 lesser prairie chicken, in addition to whether it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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336 would interfere with those. The -- when you say, 1
ongoing conservation efforts, are you referring then 2
to the conservation that we've been discussing 3
regarding the oil and gas industry efforts? Is that 4
what you're referring to?
5 MR. EYE: It is, Your Honor. And this was 6
all as a result of, like I said, collective efforts 7
amongst the oil and gas industry and ranching 8
industry, to try to protect these habitats.
9 JUDGE TRIKOUROS: All right. So you're 10 saying they didn't comment in the application that 11 this was going on, and that they would or wouldn't be 12 affecting it at all. So it's an omission --
13 MR. EYE: Yes.
14 JUDGE TRIKOUROS: -- statement.
15 MR. EYE: Yes, sir.
16 JUDGE ARNOLD: Let me just ask Applicant.
17 What's the footprint area of your site?
18 MR. BESSETTE: The actual site is, I 19 believe, 332 acres.
20 JUDGE ARNOLD: 332, so that's what 21 compared to the ranch? That's --
22 MR. EYE: Small.
23 MR. BESSETTE: I did that on my calculator 24 last night. I think it's.0002.
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337 JUDGE ARNOLD: Okay. Given the difference 1
in areas, if you were to really want to affect 2
ecology, would you try to change what Interim Storage 3
Partners is doing or what D.K. Boyd is doing?
4 MR. EYE: D.K. Boyd doesn't have to follow 5
the requirements of 10 CFR Part 72 or Part 50. That's 6
the difference there. Moreover, D.K. Boyd isn't 7
building a CISF or any other massing facility to my 8
knowledge. So the answer is it needs to be focused on 9
ISP, not D.K. Boyd.
10 JUDGE TRIKOUROS: The Board was notified 11 both May and June. I can't remember which was which, 12 but one of those notifications indicated that the ER 13 was being updated to list the lesser prairie chicken 14 as under review. Can you comment on the implications 15 of that.
16 MR. EYE: Well, to the extent that it's 17 potentially going to be delisted or taken off of a 18 threatened and endangered list, then it would 19 certainly reflect the current status of the protection 20 of that habitat, that it is now in a satisfactory 21 status to support that particular species' life and 22 continuance.
23 But this does not necessarily go to 24 disruption of that habitat during construction 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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338 operation of a CISF. So, yes. And when it's under 1
review, it certainly raises the prospect that its 2
status might not change as a result of that particular 3
review.
4 And although I don't know the intricacies 5
of that review at this point because I don't know that 6
it's actually been made public, the results of the 7
review, but I would anticipate that a comprehensive 8
review would take into account the potential for the 9
presence of a CISF, both in terms of its construction 10 and operation, or I would think that that would be a 11 germane topic for that review to consider.
12 MR. BESSETTE: Your Honor, I might clarify 13 if there's any confusion. The lesser prairie chicken 14 is currently delisted, so the review is whether to 15 list it. It's not under review of whether to keep it 16 on the current list. It is currently delisted.
17 MR. EYE: I agree with that. I mean, 18 it's --
19 JUDGE TRIKOUROS: In other words, under 20 review to mean that it may end up on the list?
21 MR. BESSETTE: It will, but I just wanted 22 to clarify. I thought his statement was that it was 23 under review for delisting, and it is not.
24 MR. EYE: I may have misspoken.
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339 JUDGE TRIKOUROS: That's correct.
1 MR. EYE: But the -- of course, the 2
implication of it being under review means there is 3
some effort to determine whether its ongoing status is 4
satisfactory.
5 Given the extensive efforts of Fasken and 6
its coalition partners in terms of trying to protect 7
this species, I think that that is a prudent thing to 8
do, particularly in light of this proposal to build 9
the CISF in that region.
10 JUDGE TRIKOUROS: And whether or not a 11 species is on the endangered species list, does that 12 really matter with respect to the ER and conservation 13 efforts?
14 MR. EYE: Well, to the extent that they do 15 have to take into account impacts on species in the 16 area, I think it is a relevant consideration.
17 JUDGE TRIKOUROS: So even if it's not on 18 any list, if it's the subject of conservation efforts 19 in the region, you're saying the ER has to address 20 that.
21 MR. EYE: Well, I think it's only prudent 22 to do so, unless there is some ironclad assurance that 23 the vulnerability of a particular species, let's say, 24 the lesser prairie chicken, is not going to be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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340 affected in any way, shape or form by the construction 1
or operation of the CISF.
2 JUDGE TRIKOUROS: Any comment on that?
3 MR. BESSETTE: Your Honor's question is 4
very good, because the issue is moot. The ER 5
thoroughly discusses lesser prairie chicken habitat, 6
the occurrence -- actually the absence of occurrence 7
of any lesser prairie chicken since 2007, and that was 8
only an anecdotal sighting. So it is thoroughly 9
discussed. And NEPA is not action enforcing. This 10 idea that there has to be an ironclad prevention of 11 any impact on a species that's not listed, there's no 12 such thing.
13 MR. EYE: Your Honor, I might add that 14 there is the state-listed species that also, I think, 15 are germane to this contention as well.
16 JUDGE TRIKOUROS: Does the staff have any 17 comments on that?
18 (No response.)
19 JUDGE TRIKOUROS: All right. Then that's 20 the end of my questions.
21 JUDGE RYERSON: Anything further, Judge 22 Arnold?
23 JUDGE ARNOLD: No.
24 JUDGE RYERSON: Thank you.
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341 MR. EYE: Thank you.
1 JUDGE RYERSON: All right. Well, I think 2
that concludes what we want to do today. I don't see 3
a show of hands of enthusiasm for very short final 4
statements. I think everyone has had a very good 5
opportunity to state their positions on what's at 6
issue.
7 The Board's job now is the take all of 8
this information and particularly, of course, as we 9
said yesterday, there are hundreds of -- literally 10 hundreds of pages of filings on these issues, and 11 they, of course, are also a very important part of 12 what need to consider to reach a decision.
13 The Commission has milestones or goals for 14 our doing that, which we very much try to comply with.
15 We know we ask the parties to comply with deadlines, 16 so we try to comply with our own deadlines. Assuming 17 there are no further filings, our deadline would be 45 18 days from today, which I think is August 26, so we 19 would either have a decision then or have a notice as 20 to when a decision would be expected.
21 In the past, sometimes there've been 22 filings afterwards, after an argument, and we have to 23 make a decision whether that's a reason to postpone 24 the decision in order to deal with those other issues 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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342 separately. But as matters now stand, our target is 1
a decision by August 26.
2 Really on behalf of the Board, I want to 3
thank all the counsel really for all the petitioners, 4
the Applicant, the staff. These have been very 5
helpful presentations.
They've been very 6
professional, and they make our job easier.
7 And again I want to thank the county 8
commissioners and everyone here at the Court who has 9
gone out of their way to make this, first of all, 10 possible in this facility, and secondly, to make it at 11 least for us and, I hope, for everyone, as easy as 12 possible.
13 Any comments further?
14 JUDGE ARNOLD: No.
15 JUDGE RYERSON: Judge Arnold? Judge 16 Trikouros?
17 JUDGE TRIKOUROS: No.
18 JUDGE RYERSON: Thank you. We stand 19 adjourned.
20 (Whereupon, at 12:45 p.m., the oral 21 arguments in the above-entitled matter were 22 concluded.)
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