ML19252A322
| ML19252A322 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 09/09/2019 |
| From: | Bessette P, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55255 | |
| Download: ML19252A322 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 September 9, 2019 INTERIM STORAGE PARTNERS LLCS MOTION TO DISMISS SIERRA CLUBS CONTENTION 13 AS MOOT AND TERMINATE THIS PROCEEDING I.
INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), Interim Storage Partners LLC (ISP), the applicant in the above-captioned proceeding, submits this Motion requesting the Atomic Safety and Licensing Board (Board) dismiss Sierra Clubs Contention 13 (SC-13) as moot. As admitted by the Board, SC-13 is solely a contention of omission as to the five references in section 3.5.16 of ISPs Environmental Report (ER).1 As discussed below, ISP has now supplemented its ER with copies of (or the applicable ADAMS accession numbers for) all references in ER Section 3.5.16.2 As a result, the alleged omission has been cured, and SC-13 should be dismissed as moot. Furthermore, because SC-13 was the sole contention admitted in this proceeding, ISP respectfully requests that, upon dismissing SC-13, the Board terminate this proceeding.
1 Interim Storage Partners LLC (Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __, __ (Aug. 23, 2019) (slip op. at 54).
2 Letter from J. Boshoven, ISP, to NRC Document Control Desk, E-55041, Supplemental Information regarding References from the ISP Environmental Report (ER) Chapter 3, Description of the Affected Environment. Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002 (Sept. 4, 2019) (including attachments) (Letter E-55041).
2 II.
PROCEDURAL HISTORY On June 8, 2018, ISP requested that NRC staff resume their review of a license application for a Consolidated Interim Storage Facility (CISF) for spent nuclear fuel in Andrews County, Texas.3 On November 13, 2018, the Sierra Club filed a Petition to Intervene and Request for Adjudicatory Hearing, alleging 17 separate contentions.4 SC-13 claimed that ISPs ER identified two species of concernthe Texas horned lizard and the dunes sagebrush lizardbut did not discuss the ecological studies or surveys used to determine the presence of the species at the site and the impact of the project on these species, and did not describe these ecological studies well enough to allow members of the public to access them.5 Following oral argument in Midland, Texas on July 10-11, 2019, the Board rejected all of Sierra Clubs other contentions, and narrowed and admitted SC-13 solely as a contention of omission, insofar as none of the five references in section 3.5.16 of ISPs Environmental Report is either sufficiently described to judge its technical adequacy or made publicly available.6 On September 4, 2019, ISP submitted Letter E-55041 to the U.S. Nuclear Regulatory Commission (NRC) Staff.7 In Letter E-55041, ISP provided supplemental information for ER Chapter 3, Description of the Affected Environment and transmitted electronic copies of, or
3 Letter from J. Isakson, Submittal of License Application Revision 2 and Request to Restart Review of Application for Approval of the WCS CISF, Docket 72-1050 (June 8, 2018) (ML18166A003).
4 Sierra Club Petition to Intervene and Request for Adjudicatory Hearing (Nov. 13, 2018) (ML18317A411)
(Petition).
5 Id. at 78-79.
6 ISP, LBP-19-7, 90 NRC at __ (slip op. at 56).
7 See Letter E-55041. On September 5, 2019, counsel for ISP also submitted a letter to the Board which was served on all parties through the NRCs E-filing system, informing them of the submission of Letter E-55041 and providing copies of the referenced studies or their ADAMS accession numbers. See Letter from P.
Bessette, Counsel for ISP, to the Board, Licensing Board Notification Regarding ISP Letter E-55041 (Sept. 5, 2019).
3 provided ADAMS accession numbers for, the ecological studies referenced in ER Section 3.5.16 (six in total, as there are two for the National Enrichment Facility).8 III.
THE ECOLOGICAL STUDIES REFERENCED IN ER SECTION 3.5.16 HAVE BEEN APPENDED TO THE APPLICATION, THUS CONTENTION SC-13 IS MOOT AND SHOULD BE DISMISSED As explained by the Commission, where a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant
... the contention is moot.9 Contentions of omission rendered moot through this process are subject to dismissal.10 That is precisely the case here. SC-13 alleges the omission of particular informationspecifically, the ecological studies referenced in ER Section 3.5.16.11 And the Board admitted SC-13 solely as a contention of omission.12 But these referenced studies have now been appended to the application, thereby curing the alleged omission.13 Thus, Contention SC-13 is now moot and should be dismissed.
IV.
BECAUSE THE SOLE ADMITTED CONTENTION MUST BE DISMISSED, THIS PROCEEDING SHOULD BE TERMINATED As Sierra Clubs sole contention must be dismissed as moot, there remains no pending contentionnor any other contested matterbefore the Board in this proceeding. The Commission has explicitly held that a Licensing Boards jurisdiction terminates when there are
8 See Letter E-55041.
9 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 383 (2002) (citing Duke Power Co., (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1050 (1983)).
10 See, e.g., Fla. Power & Light Co. (Turkey Point Units 6 & 7), ASLB Memorandum and Order (Granting FPLs Motion to Dismiss Joint Intervenors Contention 2.1 and CASEs Contention 6 as Moot) at 5 (Jan. 26, 2012)
(Where, as here, the applicant subsequently includes in its application the allegedly improperly excluded information, the contention of omission has been cured and is subject to dismissal on grounds of mootness.)
(ML12026A438) (unpublished).
11 Petition at 78-79.
12 ISP, LBP-19-7, 90 NRC at __ (slip op. at 56) (emphasis added).
13 See Letter E-55041.
4 no longer any contested matters pending before it.14 Moreover, when it is clear that no genuinely contested matter remains pending before the Boardas is the case herethe mere possibility that a party may seek to raise a new contested matter in the future does not confer continuing jurisdiction.15 Accordingly, ISP respectfully requests that the Board issue an order terminating this proceeding.
V.
CONCLUSION As shown above, the alleged omission raised in SC-13, as admitted by the Board in LBP-19-7, is now moot because ISP provided the studies referenced in ER Section 3.5.16. For these reasons, SC-13 should be dismissed. And because there are no longer any contested matters remaining before the Board, this proceeding should be terminated.
14 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-10, 81 NRC 535, 564 n.46 (2015).
15 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-15-29, 82 NRC 246, 253-54 (2015).
5 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 E-mail: timothy.matthews@morganlewis.com E-mail: paul.bessette @morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.
this 9th day of September 2019
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 September 9, 2019 MOTION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), counsel for ISP certifies that a sincere effort was made to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this Motion, and to resolve those issues, and certifies that such efforts have been unsuccessful. Sierra Club opposes the Motion. The NRC staff agrees that the documents and references provided cure the omission identified in the Boards order. The NRC staff, therefore, supports the proposed motion.
Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 E-mail: timothy.matthews@morganlewis.com Counsel for Interim Storage Partners LLC
DB1/ 106834986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
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Docket No. 72-1050 September 9, 2019 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Motion To Dismiss Sierra Clubs Contention 13 As Moot and Terminate This Proceeding was filed through the E-Filing system.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC