ML19213A171

Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to File a New Contention

ML19213A171
Person / Time
Site:	HI-STORE
Issue date:	08/01/2019
From:	Eye R Fasken Oil and Ranch, Ltd, Permian Basin Land and Royalty Owners, Robert V. Eye Law Office
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55125
Download: ML19213A171 (30)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of:

)

)

Docket No. 72-1051 Holtec International

)

)

August 1, 2019 (HI-STORE Consolidated

)

Interim Storage Facility)

)

FASKEN OIL AND RANCH AND PERMIAN BASIN LAND AND ROYALTY OWNERS MOTION FOR LEAVE TO FILE A NEW CONTENTION Pursuant to 10 C.F.R. § 2.309(c), Fasken Oil and Ranch (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) (together Petitioners) respectfully file this motion for leave to file a new contention in the above-captioned matter.

I. PETITIONERS MEET STANDING REQUIREMENTS If a party or participant has already satisfied the requirements in the same proceeding for which the new contention is filed for standing under 10 C.F.R. § 2.309(d), the party or participant does not need to do so again.1 On May 7, 2019, the Atomic Safety and Licensing Board (ASLB) held that Petitioners have demonstrated standing in the current proceeding.2 II. PETITIONERS HAVE GOOD CAUSE TO FILE A NEW CONTENTION Filings made after a deadline by the Nuclear Regulatory Commission (NRC) will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and 1 10 C.F.R. § 2.309(c)(4) 2 See Atomic Safety and Licensing Board Memorandum and Order LBP-19-4 at 17 (May 7, 2019) (ADAMS Accession No. ML19127A026)(Fasken has demonstrated standing.).

2 (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(c)(1)(i-iii).

A. The Letter from Stephanie Garcia Richard, New Mexicos Commissioner of Public Lands, was not previously available.

On July 2, 2019, the Office of the Secretary for the NRC uploaded an electronic submission regarding the Holtec International (Holtec) proceeding entitled Letter from NRC Acting Secretary Denise McGovern to Commissioner Richard (hereinafter Letter).3 The Letter was originally sent to Krishna P. Singh, President and CEO of Holtec International, on June 19, 2019. The Letter was first served to hearing participants via the NRCs Electronic Information Exchange (EIE) system at 3:25 p.m. on July 2, 2019. Prior to July 2, 2019, the Letter was not previously available to Petitioners.

Petitioners have appropriately shown that the Letter was not previously available.

B. The information contained in the Letter is materially different from information previously available.

Petitioners explain in more detail infra that the Letter is materially different from information previously available. Generally, the Letter identifies Holtec repeatedly and publicly mischaracterizing ownership of surface and mineral rights at the Holtec Consolidated Interim Storage Facility (CISF). Holtec states that mineral interests are fully under its control4 when in fact, the State of New Mexico, through the New Mexico State Land Office, owns the mineral estate below the site.5 Incorrectly characterizing ownership of the mineral interest below the site in the application is materially different than information found in the Letter.

3 See Letter from NRC Acting Secretary Denise McGovern to Commissioner Richard (July 2, 2019) (ADAMS Accession No. ML19183A429) (hereinafter cited as Exhibit 5).

4 Exhibit 5, at 2 (citing e.g., Holtec FER 2.2.1.)

5 Exhibit 5, at 2.

3 Petitioners have appropriately shown that the Letter is materially different from information previously available.

C. This filing for a new contention has been submitted in a timely fashion.

Generally, a new contention is considered timely if it is filed within 30 days of the date upon which the new information became available.6 Thus, Petitioners have submitted this motion for leave to file a new contention in a timely fashion on August 1, 2019.

III. GENERAL REQUIREMENTS FOR CONTENTION ADMISSIBILITY In addition to meeting the requirements of 10 C.F.R. § 2.309(c)(1), new contentions must also satisfy the six contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). This section requires that each contention:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue; and (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

10 C.F.R. § 2.309(f)(1)(i-vi).

Contention No. 2:

Statements in Holtecs Safety Analysis Report (SAR) and Facility Environmental Report (FER) regarding control over mineral rights below the site are materially misleading and inaccurate.

Reliance on these statements nullifies Holtecs ability to satisfy the NRCs siting evaluation factors.

6 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), 67 N.R.C. 460, 493 (2008) (Many times, boards have selected 30 days as [the] specific presumptive time period for timeliness of contentions filed after the initial deadline).

4 A. Basis for Contention This contention is within the scope of this proceeding because, contrary to the requirements of 10 C.F.R. § 72.11(a), Holtec provided the NRC with inaccurate material statements in its application. NRC Regulation 10 C.F.R. § 72.11(a) requires that information provided to the Commission be complete and accurate in all material respects. Holtec has failed to provide the NRC with information that is complete and accurate by falsely indicating that it has control over mineral rights below the site. Holtecs FER and SAR contain statements that have the potential, intended or not, to mislead federal regulators and the public alike.7 B. Facts Upon Which Petitioner Intends to Rely in Support of This Contention Holtecs application has misled the NRC and Petitioners to believe that it has full control over the mineral estate below the Holtec HI-STORE CISF. As the Letter indicates, the State Land Offices control of the Sites mineral estate is not disclosed in the FER or other NRC submissions.8 Inaccurate and misleading statements made by Holtec include:

• As previously stated in Section 2.6.4 of the SAR, with regard to potential future drilling on the Site, Holtec has an agreement with Intrepid Mining LLC (Intrepid) such that Holtec controls the mineral rights on the Site and Intrepid will not conduct any potash mining on the Site. SAR, Section 2.1.4 pg. 74. (emphasis added)

• [b]y agreement with the applicable third parties, the oil drilling and phosphate extraction activities have been proscribed at and around the site and would not affect the activities at the site. FER, Section 2.4.2 pg. 51.

• With regard to potential future drilling on the Site, Holtec has an agreement [Reference 2.6.9] with Intrepid Mining LLC (Intrepid) such that Holtec controls the mineral rights on the Site and Intrepid will not conduct any potash mining on the Site. SAR, Section 2.6.4 pg. 176. (emphasis added)

• Additionally, any future oil drilling or fracking beneath the Site would occur at greater than 5,000 feet depth, which ensures there would be no subsidence concerns. SAR, Section 2.6.4 pg. 176.

7 Exhibit 5, at 2.

8 Exhibit 5, at 2.

5

• Economic mineral resources located beneath the CIS Facility would be unavailable for exploitation during the life of the project. FER, Section 8.1.3 pg. 272.

• With regard to potential future drilling on the Site, Holtec has an agreement with Intrepid Mining LLC (Intrepid) such that Holtec controls the mineral rights on the Site and Intrepid will not conduct any potash mining on the Site. FER, Section 3.1.1 pg. 58.

(emphasis added)

Holtecs statements regarding ownership of mineral rights below the site are neither vague nor broadly generalized. For the application to be complete, it would have included the State Land Office alongside the other applicable regulatory agencies in Table 1.4.1 of the FER.

To be accurate, Holtecs application should have omitted the multiple statements alleging that Holtec controls the mineral rights on the Site. Holtecs application is neither complete or accurate, and thus, fails to satisfy the requirements of 10 C.F.R. § 72.11(a).

C. Contention 2 is Material

i.

Contention 2 is material pursuant to 10 C.F.R. § 72.11 Pursuant to the requirements of 10 C.F.R. § 72.11(a), applicants must provide information that is complete and accurate in all material respects. Holtec has provided and relied on inaccurate information regarding the ownership of minerals below the site to support and satisfy the requirements of part 72. Holtec is obligated to ensure that [its] arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis.9 As articulated above, Holtecs assertion that it owns the minerals below the site is false and may not be used to support and satisfy the requirements of part 72. Furthermore, failure to support assertions with appropriate and accurate references may result in a party being 9 Areva Enrichment Servs., LLC, 70 N.R.C. 1, 16 (July 23, 2009). (emphasis added)

6 dismissed from the proceeding.10 For this reason, Contention 1 is material pursuant to 10 C.F.R.

§ 72.11(a) because Holtec failed to support its assertions using accurate information.

ii.

Contention 2 is material pursuant to 10 C.F.R § 72.40 Pursuant to 10 C.F.R. § 72.40(a)(2), the NRC may issue a license only upon a finding that [t]he proposed site complies with the criteria of subpart E. Subpart Es siting evaluation factors require ISFSI applicants to satisfy sections 72.90 through 72.108 of part 72. Holtec has not satisfied 10 C.F.R. § 72.90(b) or 10 C.F.R. § 72.103(a)(1).

a. Holtecs reliance on inaccurate information eliminates its ability to satisfy 10 C.F.R. § 72.90(b)

Pursuant to 10 C.F.R. § 72.90(b), proposed sites for ISFSIs must be examined with respect to the frequency and the severity of external natural and man[-]induced events that could affect the safe operation of the ISFSI.11 Holtecs application operates on the false assertion that it controls the mineral rights on the Site, and because of this false assertion, economic mineral resources located beneath the CIS Facility [will] be unavailable for exploitation during the life of the project.12 To the contrary, oil and gas extraction activities provide for most of the activity in the

[sites] vicinity.13 There are presently 253 oil and gas well bores still in production within a 5-mile radius of the CISF.14 The depth of wells within the region range from 710 feet deep to 10 Id.

11 See also 10 C.F.R. § 72.24(a) (requires applicants to provide a description and safety assessment of the site on which the ISFSI is to be located, with appropriate attention to the design bases for external events.); NUREG-1567 § 2.4.2 (requires applicants to identify products or materials produced, stored, or transported by nearby industries, and discuss any potential hazards to the ISFSI from activities or materials produced by nearby industries).

12 See FER Section 3.1.1 at 58; FER Section 8.1.3 at 272.

13 FER Section 3.10.

14 See Declaration of Stonnie Pollock at 2. (hereinafter Exhibit 1).

7 16,009 feet deep.15 Of these wells, 45 are horizontally drilled.16 Some of these horizontal wells come in close proximity to the HI-STORE CISF.17 Furthermore, the application indicates the presence of the Belco Shallow and Belco Deep drill island located approximately 0.25 and 0.5 miles from the CISF which are intended to accommodate multiple oil and gas well locations in the future.18 Given the large presence of active oil and gas extraction in the region, it is inappropriate for Holtec to conclude that it may limit oil and gas extraction, and suggest that producers will have extract minerals elsewhere.19 This is simply not the case and is contrary to assertions made by Holtec in its application.

The Letter clearly indicates that Holtec does not own the mineral rights below the site and does not have the ability to prevent others from extracting minerals below and adjacent to the site.20 In fact, oil and gas may be extracted anywhere within 330-660 feet from Holtecs site without impacting the correlative rights of those who actually own the minerals below the site.21 Because the application operates on the false premise that Holtec can prevent oil and gas extraction activity on and near the site, the application inevitably fails to evaluate how man[-

]induced events, specifically oil and gas extraction, may impact the safe operation of the site.

Applicants are required to support their arguments and assertions with appropriate and accurate references to legal authority and factual basis.22 Until Holtec examines the extent that drilling and extracting oil and gas near the site may have, Holtec will (1) not satisfy the 15 Id.

16 Id.

17 See Holtec International - HI-STORE CISF (Site Radius Map) (attached as Exhibit 2) 18 SAR Section 2.1.4 pg. 76.

19 FER Section 4.3.4 pg. 192 (oil and gas is widely available elsewhere in the region.).

20 See Exhibit 5, at 2.

21 Exhibit 1, at 2.

22 See supra f.n. 9.

8 requirements of 10 C.F.R. § 72.90(b), and (2) the NRC may not issue a license pursuant to 10 C.F.R. § 72.40. For this reason, Contention 2 is material.

b. Holtecs reliance on inaccurate information eliminates its ability to satisfy 10 C.F.R. § 72.103(a)(1).

Pursuant to 10 C.F.R. § 72.103(a)(1), applications for dry cask modes of storage east of the Rocky Mountain Front will be accepted by the NRC only if the results from onsite foundation and geological investigation, literature review, and regional geological reconnaissance show no unstable geological characteristics, soil stability problems, or potential for vibratory ground motion at the site.23 Contrary to part 72.103 requirements, Holtec has failed to identify the regional presence of 425 well bores24 within a five-mile radius of the site.25 Of the 425 total well bores located within the 5-mile radius of the site, 172 of these wells are abandoned and may have unstable characteristics.26 It is unknown how many orphan wells are located within this vicinity. While the application discusses the potential effect that a nearby oil recovery facility may have on the CISF,27 it does not analyze the impact that active oil and gas extraction activity may have on improperly abandoned and orphaned wells located on and within the sites vicinity.

Oil and gas extraction activities can majorly influence the integrity of improperly abandoned and orphaned wells. Some oil and gas extraction procedures include high pressure pumping of a mixture of water and proppant (sand) into an active wellbore from the surface to 23 (emphasis added) 24 Exhibit 1, at 2.

25 NUREG-1567 § 2.4.2 requires that an applicant regionally analyze all man-made facilities within a 5-miles radius of an ISFSI.

26 Exhibit 1, at 3.

27 SAR Section 2.1.2.

9 the subsurface hydrocarbon reservoir.28 The high pressures from pumping have the ability to collapse wellbore casings of proximal existing wellborescaus[ing] surface disruptions of existing wellbores that are not properly abandoned. Integrity issues become more prevalent with the existence of well bores pre-dating 1967. The integrity of these wells is highly unknown because little or no information is available to determine the adequacy of subsurface construction and whether the well(s) have been properly plugged and abandoned.29 Inherently, the existence of wells drilled before 1967 provide many questions as to well casing integrity. These questions must be investigated and answered, and Holtec has not met the burden of doing so.

Active drilling and extraction activities have the potential to cause improperly abandoned and orphan wells to collapse. Casing collapse retroactively impacts the integrity and stability of the ground surface. Currently, within the 5-mile region of the site, there are 83 dry and abandoned wells that have been drilled before 1967.30 The application also identifies 18 plugged and abandoned oil and gas wells located on the property.31 These wells are estimated to be between 30-70 years old.32 It is troubling that Holtec, to some extent, discusses the issue of casing corrosion, but fails to analyze the 18 wells identified in its application for potential casing integrity issues.33 The application has not provided an integrity analysis for the on-and off-site wells that have been drilled before 1967.34 Thus, contrary to 10 C.F.R. § 72.103, Holtec has not evaluated the potential impact these regional wells may have on the sites stability.

28 Exhibit 1, at 3.

29 Id. at 2.

30 Id.

31 FER Section 4.1.1; SAR Section 2.1.2.

32 Id.

33 Exhibit 1, at 3.

34 Holtec merely states that there are no plans to use any of the plugged and abandoned wells on the Site. FER Section 4.1.1; SAR Section 2.1.2.

10 Applicants are required to support their arguments and assertions with appropriate and accurate references to legal authority and factual basis.35 Because the application relied on inaccurate information, Holtec has inevitably failed to evaluate the effect that active, abandoned, and orphan wells may have on the sites stability. Holtec cannot prevent the extraction of minerals below the site because they do not own the minerals.36 Until it identifies and analyzes the effect that improperly abandoned and orphan wells can have on the surface due to active oil and gas extraction activity, Holtec will not satisfy the requirements of 10 C.F.R. § 72.90(b) and the NRC cannot issue a license pursuant to 10 C.F.R. § 72.40(a)(2). For these reasons, Contention 2 is material.

iii.

Contention 2 is material insofar as 10 C.F.R. § 72.12 applies Pursuant to 10 C.F.R. § 72.12, an applicant must not [e]ngage in deliberate misconduct that causes or would have caused, if not detectedapplicant to be in violation of any rule or regulation issued by the NRC.37 Holtec knew or should have known that its application was inaccurate because it acknowledged that the state of New Mexico owns the mineral estate.38 Furthermore, the Letter provides evidence that Holtec intended to be covert, and potentially deliberate in its misidentification of mineral ownership. The Letter indicates that when Holtec submitted its initial license application, it sent notice to over 60 elected and appointed government officials, but failed to include the State Land Office.39 The Letter also explains how Holtec continue[s] to ignore the State Land offices legal interest in the Site.40 35 See supra f.n. 9, 22.

36 See Exhibit 5, at 2.

37 10 C.F.R. § 72.12(a)(1) 38 See FER, Section 3.1.2 at 58 The surface estate is privately owned (ELEA 2007, Section 2.1.1.1), and the subsurface minerals are owned by the state of New Mexico. (emphasis added).

39 Exhibit 5, at 2.

40 Id.

11 Furthermore, in Table 1.4.1 of the FER, Holtec lists all applicable regulatory requirements, permits and required consultations, but conspicuously omits any reference to the State Land Office.41 Holtec knew that the minerals were owned by the State because the application admits this fact.42 The Letter clearly provides new information that Holtecs license application and surrounding representations are materially inaccurate and misleading. Without the Letter, Holtecs inaccurate statements regarding ownership of mineral rights would not have been detected. Without the Letter, Holtecs deliberate refusal to answer the State Land Offices questions on February 19, 2019over five months agowould not have been apparent.43 When Holtecs admission is coupled with the new information provided by the Letter, Holtec cannot, in good faith, suggest that it controlled the mineral estate below the Site.44 Given Holtecs propensity to ignore both the State Land Offices legal interest in the site and the Offices requests for answers, there is reason to doubt Holtecs sincerity that it did not deliberately and covertly mislead the NRC and Petitioners to believe that it owned the mineral rights below the site. If the NRC concludes that Holtec has violated 10 C.F.R § 72.12, Contention 2 is material.

CONCLUSION The State Land Office has made it clear that Holtec does not, and will not, own the mineral estate below the CISF until Holtecs agreement with Intrepid is approved by the State 41 Id.

42 See supra, f.n. 38.

43 See Exhibit 5, at 3.

44 To the extent Holtec knew its application was inaccurate and misleading, Holtec should be subject to an enforcement action pursuant to 10 C.F.R. § 72.12 in accordance with the procedures found in 10 C.F.R. part 2, subpart B.

12 Land Office.45 So far, the agreement has not been approved. Furthermore, Holtecs conclusion that the [e]conomic mineral resources located beneath the CIS Facility would be unavailable for exploitation is inaccurate because (1) Holtec has no control over the minerals below the site, and (2) Holtec has not submitted any State Land Office-approved agreements that would prevent surrounding oil and gas lessees from extracting minerals under the CISF.46 This area is currently, and will continue to be, played out for minerals.

The NRC emphasizes the importance of completeness and accuracy of information submitted by applicants and licensees and demands [n]othing less than candor.47 Holtec has failed to meet the level of candor required by the NRC pursuant to 10 C.F.R. § 72.11 and may not rely on its inaccurate statements to satisfy 10 C.F.R. § 72.90 or 10 C.F.R. § 72.103. For these reasons, Holtecs application should be suspended due to its reliance on inaccurate information and the NRC should not issue a license pursuant to 10 C.F.R. § 72.40. Moreover, if the inaccurate information found in Holtecs application is found to be deliberate and in violation of 10 C.F.R. § 72.12, Holtec should also be subject to any enforcement actions deemed necessary by the NRC.

Based on the above arguments and authorities, Petitioners pray the Commission grants leave for them to file this new contention.

Respectfully submitted,

/electronically signed by/

Robert V. Eye, KS S.C. No. 10689 Robert V. Eye Law Office, L.L.C.

4840 Bob Billings Pky., Suite 1010 Lawrence, Kansas 66049 45 Exhibit 5, at 2.

46 Id. at 2-3.

47 Randall C. Orem, D.O., CLI-93-14, 37 N.R.C. 423, 427 (1993) (citing Petition for Emergency and Remedial Action, CLI-78-6, 7 N.R.C. 400, 18 (1978).

13 785-234-4040 Phone 785-749-1202 Fax bob@kauffmaneye.com Attorney for Petitioners August 1, 2019 Certificate of Consultation Undersigned certifies that communications to counsel for participants in these dockets regarding their positions regarding the above Motion for Leave to File a New Contention yielded no objection from Joint Petitioners and Sierra Club. Beyond Nuclear and NRC Staff took no position on the motion. Holtec International opposed the motion.

/signed electronically by/

Robert V. Eye Certificate of Service Undersigned certifies that a true and correct copy of the above and foregoing was submitted to the NRCs Electronic Information System for filing and service on participants in the above-captioned dockets.

/signed electronically by/

Robert V. Eye

Fasken and PBLROs Motion to File a New Contention:

Exhibit List Exhibit 1 - Declaration of Stonnie Pollock Exhibit 2 - Site Radius Map for Holtec International HI-STORE CISF Exhibit 3 - Wellbore Count Tables Exhibit 4 - Resume of Stonnie Pollock Exhibit 5 - Letter of New Mexico State Land Commissioner Stephanie Garcia Richard

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of:

)

)

Docket No. 72-1051 Holtec International

)

)

July 30, 2019 (HI-STORE Consolidated

)

Interim Storage Facility)

)

DECLARATION OF STONNIE POLLOCK

1. My name is Stonnie Pollock and I am a degreed geologist and geoscientist. Since 2003 I have been employed by Fasken Oil & Ranch, Ltd. as Petroleum Geologist. In that capacity, my duties include geological evaluation, analysis, and interpretation of oil and gas prospects, plays and reservoirs. I also conduct geohydrological evaluation and assessment of aquifers.

2. MS in Geology, New Mexico State University, Las Cruces NM - July 1999 BS in Geology, Southern Utah University, Cedar City UT - June 1997

3. For a more complete compilation of my relevant professional experience please reference my resume that is included with my Declaration.

4. The information below provides my analysis of Holtec Internationals HI-STORE CISF and the concerns I have regarding its application.

I.

Area Production of Oil and Gas and the Impact it Will Have on the Operation of the CISF Holtecs application indicates that the immediate area around the site has been the focus of intense petroleum exploration and development activities since the 1920s. The application repeatedly, and inaccurately, states that Holtec controls the mineral rights on the site and that mineral resources located beneath the site would be unavailable for exploitation during the life of the project. To the contrary, the New Mexico State Land Office has not approved the agreement between Holtec and the true owner of the mineral estate below the site. Because the agreement has not been approved, the petroleum industry will likely continue to explore and extract minerals directly adjacent to and below the site.

a.

High Potential for Mineral Extraction Within Vicinity of Site To determine the extent of oil and gas activities in the vicinity of the site, Fasken and PBLRO use Petra, a commercially available petroleum industry GIS-based software to review current and former oil and gas drilling activity within the area.

Exhibit 1

2 Within a 5-mile radius of the site, there have been a total of 425 well bores drilled. Presently 253 of these well bores are still in production. 45 of these wells are recently drilled horizontal wells.

149 wells have been identified as dry holes. Of the 425 wells within five miles of the site, 19 have been recorded as permanently plugged and abandoned. Of the dry and abandoned wells, 83 of these were drilled before 1967. The depth of these wells range from 710 feet deep to 16,009 feet deep, depending on the type of well. This clearly shows that the area around the site is still under active exploration and active production.

The application admits that oil and gas extraction activities take up most of the activity within the sites vicinity. The application also notes the presence of the Belco Shallow and Belco Deep drill island which are intended to accommodate multiple oil and gas well locations within 0.25 to 0.5 miles away from the site. The New Mexico Oil Conservation Commission (Commission) has concluded that a setback distance of 330 feet for oil wells and 660 feet from a gas is reasonable. This distance is calculated perpendicular from the lateral to the boundary of each unit the lateral extends to. Essentially what this means is that oil and gas may be extracted anywhere within 330-660 feet from Holtecs site without impacting the correlative rights of those who actually own the minerals below the site. Holtecs unenforceable moratorium on mineral extraction has no impact on the ability of others to extract minerals below and adjacent to the site as long as they abide by the setback distances established by the Commission.

Given the applications inaccurate blanket statement that Holtec can prevent extraction activities below the site, the application has failed to analyze the impact that oil and gas extraction will have on the site. The application must analyze this impact.

b. Impact of Dry, Abandoned, and Orphan Wells on the Site A complicating factor in identifying the presence of wellheads is that there is no definitive index to adequately count all the well bores drilled in any given area. The current API numbering system was introduced in the early 1960s and formally adopted by petroleum producing states at the beginning of 1967. Wells drilled after 1967 were assigned an API number and can be tracked with some certainty. Wells drilled prior to this date may or may not have an API number assigned to it and wells that were out of use almost certainly did not have an API number assigned. The count of nearly 107 individual wells made by Fasken and PBLRO may be low.

For older well bores, there may be little or no information to determine the adequacy of subsurface construction or whether the well(s) have been properly plugged and abandoned.

Records of these wells do exist, but may not be available in the respective state records. And these records may be incomplete. An example is that of an old well bore that was recently discovered leaking at the surface on Fasken's property. The well head was buried below ground surface and found by a rancher moving livestock through the area. After Fasken conducted an internal investigation, it was found that the well was drilled in 1962 by a company that had obtained an oil and gas lease from Fasken. The well was a noted as a dry hole and temporarily abandoned by the company that drilled it. Internal records indicate that the well has a surface casing with an open hole (no casing) below approximately 500 feet from ground surface-which was common for the period. Although this well appears on Texas Railroad Commission (RRC) public Geographic Information System mapping records, no information is available from RRC

3 to determine the status. Only Fasken records were able to provide the historical data. Wells of this type are called orphan wells. In most cases no data are available for an orphan well due to age, or the company that drilled it may be defunct. It is unknown how many orphan wells may exist near the site. With older orphan wells, the only knowledge that the well might exist is that a permit to drill the well was obtainedthese wells may or may not appear in a GIS. Finally, drilling an oil well is expensive and petroleum companies that drilled dry holes often did not permanently plug the wells due to funds expended. These well bores would be temporarily abandoned in order to save them for future opportunities that may arise.

Current oil and gas extraction procedures include high pressure pumping of a mixture of water and proppant (sand) into an active wellbore from the surface to the subsurface hydrocarbon reservoir. This is the practice of hydraulic fracturing. These active wells have large volumes, pumped at high pressures and rates that can collapse wellbore casings of proximal existing wellbores. Potential casing collapses could cause surface disruptions of existing wellbores that are not properly abandoned.

It is troubling that Holtec, to some extent, discusses the issue of casing corrosion, but fails to analyze the 18 wells identified in its application for potential casing integrity issues. Not only is Holtec required to analyze the impact that the wells on its property may have on the site, but it is also required to analyze the impact that unstable geological characteristics in the region may have on the site as well. There are currently 172 abandoned wells within 5-miles of the site that may have unstable characteristics. This number is likely larger when orphan wells are introduced.

Contrary to NRC regulations, Holtec has failed to analyze the status of surface wellheads and the potential existence of unstable characteristics present in many improperly abandoned and orphan wells. A more definitive well search and on-the-ground verification is needed. Holtec must analyze the integrity of abandoned wells and also identify and analyze the presence of any orphan wells located on or near the site.

Stonnie Pollock Petroleum Geologist Fasken Oil and Ranch, Ltd.

Eunice Carlsbad Loving Hobbs Hobbs Hwy 18 Center of HOLTEC Site WCS - Flying "W" Ranch WCS Site NEW MEXICO TEXAS Eunice LEA COUNTY EDDY COUNTY 10 mi radius 5 mi radius 17 mi radius Hwy 62 Hwy 176 Holtec Site Radius Map FEET 0

24,000 48,000 By: S.L. Pollock July 31, 2019 PETRA 7/31/2019 2:24:37 PM Holtec International - HI-STORE CISF (Site Radius Map)

[EXHIBIT 2]

Wellbore Type Symbol Count Producing Oil Wells OIL 3,810 Producing Gas Wells GAS 318 Plugged & Abandoned Oil & Gas Wells P&A 311 Temporaily Adandoned Oil & Gas Wells T&A 70 Injection Wells INJ 231 Salt Water Disposal Wells SWD 86 Water Supply Wells SRV 40 New Drilled Un-Completed Wells DUC's 18 Dry Holes DRY 2,555 Total Wellbores 7,439 Horizontal Wells 891 Permitted Wells 199 Wellbore Type Symbol Count Producing Oil Wells OIL 792 Producing Gas Wells GAS 158 Plugged & Abandoned Oil & Gas Wells P&A 96 Temporaily Adandoned Oil & Gas Wells T&A 18 Injection Wells INJ 28 Salt Water Disposal Wells SWD 23 Water Supply Wells SRV 14 New Drilled Un-Completed Wells DUC's 8

Dry Holes DRY 610 Total Wellbores 1,747 Horizontal Wells 252 Permitted Wells 85 Wellbore Type Symbol Count Producing Oil Wells OIL 195 Producing Gas Wells GAS 33 Plugged & Abandoned Oil & Gas Wells P&A 19 Temporaily Adandoned Oil & Gas Wells T&A 4

Injection Wells INJ 13 Salt Water Disposal Wells SWD 5

Water Supply Wells SRV 7

New Drilled Un-Completed Wells DUC's Dry Holes DRY 149 Total Wellbores 425 Horizontal Wells 45 Wellbore Count in 17 Mile Radius of Holtec Wellbore Count in 10 Mile Radius of Holtec Wellbore Count in 5 Mile Radius of Holtec Permitted Wells 5

Exhibit 3 1

Pre-1967 17 Mile Radius of Holtec Wellbore Type Symbol Count Producing Oil Wells OIL 472 Producing Gas Wells GAS 9

Plugged & Abandoned Oil & Gas Wells P&A 206 Temporaily Adandoned Oil & Gas Wells T&A 35 Injection Wells INJ 25 Salt Water Disposal Wells SWD Water Supply Wells SRV 2

New Drilled Un-Completed Wells DUC's Dry Holes DRY 1,260 Total Wellbores 2,009 Pre-1967 10 Mile Radius of Holtec Wellbore Type Symbol Count Producing Oil Wells OIL 63 Producing Gas Wells GAS 6

Plugged & Abandoned Oil & Gas Wells P&A 63 Temporaily Adandoned Oil & Gas Wells T&A 7

Injection Wells INJ Salt Water Disposal Wells SWD Water Supply Wells SRV 1

New Drilled Un-Completed Wells DUC's Dry Holes DRY 261 Total Wellbores 401 Pre-1967 5 Mile Radius of Holtec Wellbore Type Symbol Count Producing Oil Wells OIL 18 Producing Gas Wells GAS 3

Plugged & Abandoned Oil & Gas Wells P&A 14 Temporaily Adandoned Oil & Gas Wells T&A 2

Injection Wells INJ Salt Water Disposal Wells SWD Water Supply Wells SRV 1

New Drilled Un-Completed Wells DUC's Dry Holes DRY 69 Total Wellbores 107 2

Stonnie L. Pollock Senior Geologist Fasken Oil and Ranch, Ltd.

6101 Holiday Hill Road Midland Texas 79707-1631 Phone: 432-638-7296 (cell) Email: spollock@forl.com Professional Experience Senior Geologist - Fasken Oil and Ranch, Midland TX, 9-03 to present Unconventional Reservoirs: Vertical Wolfberry, Horizontal Wolfberry, and Eagle Ford Regional Analysis, Basin Analysis and Appraisal for Unconventional Reservoirs Geological Interpretation: Structural, Stratigraphic, Petrophysical, Geochemical, and Geomechanical Analyses from Core and Logs.

Microseismic Survey Analysis Well Planning: Well spacing, Well Orientation Designs Production Analysis Exploitation, Development, and Evaluation Evaluate and recommend outside generated prospects Assist in evaluation of acquisition targets Detailed mapping for infill and/or horizontal drilling in existing water and CO2 floods Volumetrics and reserves estimations Recommend and initiate new technology (e.g. horizontal drilling, surface geochemistry, cross-well seismic, petrophysical techniques)

Exploration Geologist Prospect Generator: Identify, map, and recommend drillable prospects using both traditional techniques and new technologies in the following plays:

o Spraberry (Gin Sand) stratigraphic targets in Dawson County o

Ellenburger, Fusselman and Devonian structural targets on Central Basin Platform, Midland Basin and Eastern Shelf o

Various Yates (Gas), Queen, Grayburg, San Andres, and Clear Fork prospects on Central Basin Platform and Northwest Shelf o

Mississippian, Pennsylvanian and Wolfcamp carbonate prospects on Central Basin Platform, Eastern Shelf and Northwest Shelf o

Wolfcamp tight-gas sandstones, thrusted Devonian and Strawn, and subthrust Strawn in the West Texas Overthrust o

Nevada: Exploration for large fold-thrust structures within the Great Basin Operations Geologist Prepare geological prognoses and recommend logging programs Hire and supervise mudloggers and wellsite geologists Evaluate pay zones on location Pick DST intervals, coring points, total depths and make casing decisions Assessment and Evaluation of Aquifers for Groundwater o

Map and Delineate Aquifers; including the Capitan Reef Complex, Dockum, Edwards-Trinity-Antlers, Ogallala, and Pecos Valley Aquifers o

Recommend drilling programs for water supply wells in the Dockum (Santa Rosa)

Map and Evaluate geologic formations for saltwater disposal Exhibit 4 1

Development Geologist, Texaco E&P Co. and ChevronTexaco, Midland TX, 6-00 to 9-03 Geostatistical Modeling of Clear Fork and San Andres Reservoirs Reservoir characterization & management of Clear Fork, San Andres, and Queen waterfloods Project Development for infill, horizontal, and exploitation drilling locations Geological evaluation of farm out requests and joint venture interests Economic and Risk analysis of capital drilling projects Identification and Recommendation of workovers in by-passed zones Field Geologist, Schlumberger Holditch Reservoir Technologies, Denver CO, 7-99 to 10-99 Contract geologist responsible for outcrop reservoir characterization of the Jurassic Morrison Formation Architectural Analysis of fluvial channels and shale layers as flow units and barriers Characterization was used as Alaskan North Slope reservoir analogs Education MS in Geology, New Mexico State University, Las Cruces NM, 7-99 BS in Geology & Spanish, Southern Utah University, Cedar City Utah, 6-97 Industry Training Open-Hole Log Analysis, Subsurface Mapping, Carbonate and Siliciclastic Sequence Stratigraphy, 3D Seismic Interpretation, Petroleum Economics, Risk Analysis, Geostatistics, GoCad Property Modeling, Petrophysical Applications, Geohydrology, Various Field Trips and Core Workshops Computer Applications Geological: Petra & Geographix Suite Petrophysical: Powerlog & HDS Production: IHS Energy tools Economics: Various Software for probalistic economics, risk, and decision analysis MS Office: Excel, Power Point, Word, Access, Publisher Other Experience Active Member of following associations and societies: American Association of Petroleum Geologists, West Texas Geological Society, Permian Basin Section of the Society of Sedimentary Geology, and Society of Petrophysicists and Well Log Analysts Current President of West Texas Geological Society, June 2019 to June 2020 Various Board & Chair positions with WTGS, PBS-SEPM, and AAPG Southwest Section Earth Science Week Representative at Public Schools 1997-to present Board of Directors: Gifts of Hope, Midland Texas Boy Scouts of America: Scoutmaster, Asst. Scoutmaster, Troop Committee Member Wldland Firefighter & Forestry Technician, US Forest Service, Escalante and Cedar City Utah, 1989, 1994-1997 Volunteer Humanitarian/Ecclesiastical Representative, The Church of Jesus Christ of LDS, Honduras &

Belize 1990-1992 2

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 SECRETARY Stephanie Garcia Richard State of New Mexico Commissioner of Public Lands 310 Old Santa Fe Trail P.O. Box 1148 Santa Fe, NM 87504-1148

Dear Commissioner Richard:

July 2, 2019 On behalf of the U.S. Nuclear Regulatory Commission, I am acknowledging receipt of your letter of June 19, 2019, addressed to Krishna Singh of Holtec and copied to Chairman Svinicki regarding the license application from Holtec International for a consolidated interim storage facility (CISF) in New Mexico.

Because your letter relates to subjects raised during adjudication of the application, some of which are currently before the Commission on appeal, a copy of your letter and this acknowledgment will be served on the parties in the Holtec CISF adjudication.

Sincerely, Denise L. McGovern Acting Secretary Exhibit 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

)

HOLTEC INTERNATIONAL

)

Docket No. 72-1051-ISFSI

)

)

(HI-STORE Consolidated Interim Storage

)

Facility)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Letter from NRC Acting Secretary Denise McGovern to Commissioner Richard have been served upon the following persons by Electronic Information Exchange (EIE).

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Paul S. Ryerson, Chair Administrative Judge Nicholas G. Trikouros Administrative Judge Dr. Gary S. Arnold Administrative Judge Joseph McManus, Law Clerk Taylor A. Mayhall, Law Clerk Molly Mattison, Law Clerk E-mail: paul.ryerson@nrc.gov nicholas.trikouros@nrc.gov gary.arnold@nrc.gov joseph.mcmanus@nrc.gov taylor.mayhall@nrc.gov molly.mattison@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Sheldon Clark, Esq.

Joseph I. Gillespie, Esq.

Esther Houseman, Esq.

Sara B. Kirkwood, Esq.

Mauri Lemoncelli, Esq.

Patrick Moulding, Esq.

Carrie Safford, Esq.

Thomas Steinfeldt, Esq.

Alana M. Wase, Esq.

Brian Newell, Senior Paralegal E-mail: sheldon.clark@nrc.gov joe.gillespie@nrc.gov esther.houseman@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov patrick.moulding@nrc.gov carrie.safford@nrc.gov thomas.steinfeldt@nrc.gov alana.wase@nrc.gov krupskaya.castellon@nrc.gov brian.newell@nrc.gov

Docket No. 72-1051-ISFSI Letter from NRC Acting Secretary Denise McGovern to Commissioner Richard 2

Counsel for Holtec International Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street, NW Washington, DC 20036 Meghan Hammond, Esq.

Anne Leidich, Esq.

Michael Lepre, Esq.

Jay Silberg, Esq.

Timothy J. Walsh, Esq.

E-mail: meghan.hammond@pillsburylaw.com anne.leidich@pillsburylaw.com michael.lepre@pillsburylaw.com jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com Harmon, Curran, Spielberg & Eisenberg LLP 1725 DeSales Street NW Suite 500 Washington, DC 20036 Diane Curran, Esq.

E-mail: dcurran@harmoncurran.com Robert V. Eye Law Office, LLC 4840 Bob Billings Parkway Lawrence, KS 66049 Robert V. Eye, Esq.

Timothy J. Laughlin, Esq.

E-mail: bob@kauffmaneye.com tijay1300@gmail.com Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 Mindy Goldstein, Esq.

E-mail: magolds@emory.edu Dont Waste Michigan 316 N. Michigan Street, Suite 520 Toledo, OH 43604-5627 Terry J. Lodge, Esq.

E-mail: tjlodge50@yahoo.com Counsel for Sierra Club 4403 1st Avenue SE, Suite 402 Cedar Rapids, IA 52402 Wallace L. Taylor, Esq.

E-mail: wtaylor784@aol.com Counsel for NAC International Inc.

Robert Helfrich, Esq.

NAC International Inc.

3930 E Jones Bridge Rd., Ste. 200 Norcross, GA 30092 E-mail: rhelfrich@nacintl.com Hogan Lovells LLP 555 13th Street NW Washington, DC 20004 Sachin S. Desai, Esq.

Allison E. Hellreich, Esq.

E-mail: sachin.desai@hoganlovells.com allison.hellreich@hoganlovells.com Law Office of Nancy L. Simmons 120 Girard Boulevard SE Albuquerque, NM 87106 Nancy L. Simmons, Esq.

E-mail: nlsstaff@swcp.com Eddy-Lea Energy Alliance 102 S. Canyon Carlsbad, NM 88220 John A. Heaton E-mail: jaheaton1@gmail.com

Docket No. 72-1051-ISFSI Letter from NRC Acting Secretary Denise McGovern to Commissioner Richard 3

Eddy County, NM*

101 W. Greene Street Carlsbad, NM Rick Rudometkin E-mail: rrudometkin@co.eddy.nm.us

• Eddy County not served due to no representative for the County assigned at the time of Mr. Rudometkins departure.

Lea County, NM 100 N. Main Lovington, NM 88260 Jonathan B. Sena E-mail: jsena@leacounty.net City of Hobbs, NM 2605 Lovington Highway Hobbs, NM 88242 Garry A. Buie E-mail: gabuie52@hotmail.com City of Carlsbad, NM 1024 N. Edward Carlsbad, NM 88220 Jason G. Shirley E-mail: jgshirley@cityofcarlsbadnm.com

[Original signed by Krupskaya T. Castellon]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 2nd day of July, 2019