ML19260H452

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Interim Storage Partners LLCs Notice of Appeal of LBP-19-7 and Brief in Support of Appeal
ML19260H452
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 09/17/2019
From: Bessette P, Lighty R, Matthews T
Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, LBP-19-7, RAS 55291
Download: ML19260H452 (29)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 September 17, 2019 INTERIM STORAGE PARTNERS LLCS NOTICE OF APPEAL OF LBP-19-7 Pursuant to 10 C.F.R. § 2.311, Interim Storage Partners LLC files this Notice of Appeal of the Atomic Safety and Licensing Boards (Boards) August 23, 2019 Memorandum and Order LBP-19-7.1 In that decision, the Board granted a petition to intervene and request for adjudicatory hearing filed by Sierra Club (Petition).2 The Board concluded that Sierra Club demonstrated standing and proffered one admissible contention (Contention SC-13), and admitted that contention for litigation.3 As shown in the accompanying Brief in Support of Interim Storage Partners LLCs Appeal of LBP-19-7, the Boards conclusions are based on an error of law or abuse of discretion, and the Petition should have been wholly denied.

1 Interim Storage Partners LLC (Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __ (Aug. 23, 2019)

(slip op.) (ML19235A165). Under 10 C.F.R. § 2.311(b), appeals of Board orders on hearing requests and petitions to intervene are due within 25 days after the service of the order. Thus, this appeal is timely.

2 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Nov. 13, 2018) (ML18317A411).

3 ISP, LBP-19-7, 90 NRC __, __ (slip op. at 16-17, 54-56, 105-06).

2 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 17th day of September 2019

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 September 17, 2019 BRIEF IN SUPPORT OF INTERIM STORAGE PARTNERS LLCS APPEAL OF LBP-19-7

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

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

ii TABLE OF CONTENTS

INTRODUCTION............................................................................................................. 1

PROCEDURAL HISTORY............................................................................................. 3

LEGAL STANDARDS..................................................................................................... 4 A.

Standard of Review................................................................................................. 4 B.

Standing.................................................................................................................. 5 C.

Contention Admissibility........................................................................................ 6

THE BOARDS DETERMINATION THAT SIERRA CLUB DEMONSTRATED STANDING IS LEGALLY ERRONEOUS AND SHOULD BE REVERSED.............................................................................................. 6 A.

The Board Failed to Reach Explicit Conclusions Regarding the Elements of Proximity Plus Standing.................................................................................. 7 B.

To the Extent LBP-19-7 Could Be Read to Contain Implied Conclusions Regarding the Elements of Proximity Plus Standing, Those Conclusions Improperly Disregard Controlling Law and the Case-Specific Facts At Issue Here................................................................................................................ 8 1.

As a Matter of Law, Material Quantity Alone Is Insufficient to Establish an Obvious Potential for Offsite Radiological Consequences.............................................................................................. 9 2.

As a Matter of Law, a Case-By-Case Analysis Is Prerequisite to Establishing the Existence of an Obvious Potential for Offsite Radiological Consequences...................................................................... 10 3.

As a Matter of Law, Comparisons to Dissimilar Facilities Alone are Insufficient to Establish the Appropriate Presumptive Radius........... 13

THE BOARDS DECISION TO ADMIT SC-13 IS LEGALLY ERRONEOUS AND SHOULD BE REVERSED........................................................ 14 A.

The Board Erred and Abused Its Discretion by Denying ISPs Motion to Strike the References to CEQ Regulations in Sierra Clubs Reply...................... 16 B.

The Boards Conclusion that CEQ Regulations Impose Obligations on NRC License Applicants Is Legally Erroneous.................................................... 18 C.

The Boards Conclusion that CEQ Regulations Require Source Materials to Be Appended to Environmental Documents Is Contrary to the Plain Language of the Regulations and Thus Constitutes Error of Law........................ 19

CONCLUSION............................................................................................................... 20

iii TABLE OF AUTHORITIES NRC CASES AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)................................................................................................ 4 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009).................................................................................................. 4 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911 (2009)................................................................................................ 5 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),

LBP-99-25, 50 NRC 25 (1999)............................................................................................... 13 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2),

CLI-00-5, 51 NRC 90 (2000).................................................................................................... 5 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11 (2014)........................ 4 Crow Butte Res., Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535 (2009)................. 6 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001)................................................................................................ 6 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328 (1999)................................................................................................ 6 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1),

LBP-88-10A, 27 NRC 452 (1988).......................................................................................... 13 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991)........................................................................................ 4, 17 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991)................................................................................................ 4 Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.),

CLI-95-12, 42 NRC 111 (1995)....................................................................................... passim Interim Storage Partners LLC (Consolidated Interim Storage Facility),

LBP-19-7, 90 NRC __ (Aug. 23, 2019) (slip op.)........................................................... passim Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559 (1975).......................................................................... 17 La. Energy Servs. LP (Natl Enrichment Facility), CLI-04-32, 60 NRC 223 (2004)................... 17 La. Energy Servs. LP (Natl Enrichment Facility), CLI-04-35, 60 NRC 619 (2004)................... 17 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4),

CLI-12-7, 75 NRC 379 (2012).................................................................................................. 4 Ne. Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3),

LBP-00-2, 51 NRC 25 (2000)................................................................................................. 13

iv Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244 (2004).............. 7, 8, 12 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727 (2006)................. 17 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-16-9, 83 NRC 472 (2016).................................................................................................. 4 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413 (2002)............................................................. 9, 12, 13 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133 (2010)........... 5, 8 Private Fuel Storage, LLC (Indep. Spent Fuel Installation),

CLI-98-13, 48 NRC 26 (1998)................................................................................................ 14 Private Fuel Storage, LLC (Indep. Spent Fuel Installation),

LBP-98-7, 47 NRC 142 (1998)............................................................................................... 14 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 & 2),

LBP-09-10, 70 NRC 51 (2009)............................................................................................... 18 Sequoyah Fuels Corp. (Gore, Okla. Site), CLI-94-12, 40 NRC 64 (1994).................................... 6 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998).................................................................................................. 4 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project),

CLI-12-12, 75 NRC 603 (2012).................................................................................. 10, 12, 14 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (2018).................................................................................................. 4 U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185 (2010)........................... 9 USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006).............................................. 6 FEDERAL COURT CASES Sierra Club v. U.S. Envtl. Prot. Agency, 630 F.3d 1173 (9th Cir. 2017)...................................... 18 Sierra Club v. U.S. Envtl. Prot. Agency, 995 F.2d 1478, 1485 (9th Cir. 1993)............................ 18 OTHER AUTHORITIES Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage (MRS); Final Rule, 60 Fed. Reg. 32,430 (June 22, 1995).......................................................................... 11, 12, 14 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018)........................................................................................ 3 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,680 (Aug. 31, 2018)........................................................................................ 3 NUREG-0575, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (Aug. 1979) (ML022550127).............................. 11

v NUREG-1140, A Regulatory Analysis on Emergency Preparedness for Fuel Cycle and Other Radioactive Material Licensees (Jan. 1988) (ML12174A320).............................. 11, 12 REGULATIONS 10 C.F.R. § 2.311........................................................................................................................ 1, 4 10 C.F.R. § 51.20.......................................................................................................................... 18 10 C.F.R. § 51.21.......................................................................................................................... 18 10 C.F.R. § 51.45.......................................................................................................................... 18 40 C.F.R. § 1502.24...................................................................................................................... 19

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 September 17, 2019 BRIEF IN SUPPORT OF INTERIM STORAGE PARTNERS LLCS APPEAL OF LBP-19-7 INTRODUCTION Pursuant to 10 C.F.R. § 2.311, Interim Storage Partners LLC (ISP) files this Brief in Support of ISPs Appeal of the Atomic Safety and Licensing Boards (Boards) August 23, 2019 Memorandum and Order LBP-19-7.1 In that decision, the Board granted a petition to intervene and request for adjudicatory hearing filed by Sierra Club (Petition).2 The Board concluded that Sierra Club demonstrated standing and proffered one admissible contention (Contention SC-13), and admitted that contention for litigation.3 As explained further below, the Boards decision granting Sierra Club standing4 and admitting SC-13 is based on several legal errors and an abuse of discretion. Accordingly, the Petition should have been wholly denied and the proceeding terminated.

1 Interim Storage Partners LLC (Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __ (Aug. 23, 2019)

(slip op.) (ML19235A165).

2 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Nov. 13, 2018) (ML18317A411).

3 ISP, LBP-19-7, 90 NRC at __ (slip op. at 16-17, 54-56, 105-06).

4 The Board denied the other hearing requests submitted in this proceeding for failure to proffer an admissible contention, but the Boards finding of standing as to other petitioners is affected by the same legal error.

2 The Boards conclusion that Sierra Club demonstrated standing is based on several legal errors requiring reversal. First, the Board concluded that Sierra Club was entitled to standing under the proximity plus presumption, but failed to make explicit findings regarding the required legal elements of that presumption.5 Second, to the extent LBP-19-7 could be read to include implied conclusions regarding those legal elements, such conclusions are contrary to controlling law (as further explained below). Accordingly, the Boards determination as to Sierra Clubs standing should be reversed as legally erroneous.

With regard to admission of Sierra Clubs admitted contention, SC-13 asserts that ISPs Environmental Report (ER) did not append to the application or otherwise make publicly-available certain underlying studies or surveys referenced by ISP in the ERs discussion of two species of concernthe Texas horned lizard and the dunes sagebrush lizard.6 But the Boards decision to admit SC-13 is also based on several legal errors requiring reversal. First, the Boards conclusion that SC-13 identified a material issue appropriate for a hearing was based on new legal argument and authority improperly provided by Sierra Club for the first time in its Reply pleading.7 It was legal error and an abuse of discretion for the Board to deny8 ISPs Motion to Strike that new supplementation,9 and to rely on it for its admissibility determination.10 Second, it was legal error for the Board to conclude that CEQ regulations apply to ISP11they apply only to federal agencies, not private applicants for NRC licenses. And

5 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 16-17).

6 Id. at __ (slip op. at 54-56); Petition at 78-79.

7 ISP, LBP-19-7, 90 NRC at __ (slip op. at 55).

8 Id. at __ (slip op. at 56).

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[ISPs] Motion to Strike Portions of the Reply Filed by Sierra Club (Dec. 27, 2018) (ML18361A921) (Motion to Strike).

10 ISP, LBP-19-7, 90 NRC at __ (slip op. at 55).

11 Id.

3 finally, even assuming arguendo CEQ regulations somehow impose substantive obligations on NRC license applicants, the Boards interpretation of CEQs regulations is contrary to their plain text, and therefore legally erroneous. For these reasons, the Commission should reverse the Boards decision to grant standing and admit SC-13, and terminate this proceeding.

PROCEDURAL HISTORY On August 29, 2018, ISP (a joint venture of Waste Control Specialists, LLC and Orano CIS, LLC) submitted a revised license application to construct and operate a consolidated interim storage facility (CISF) for a term of forty years.12 After receiving ISPs revised license application, the NRC issued a Federal Register notice allowing members of the public to request a hearing by submitting a petition to intervene by October 29, 2018.13 The Secretary subsequently extended the deadline to submit petitions to intervene to November 13, 2018.14 Sierra Club filed its Petition on November 13, 2018. On December 10, 2018, the NRC Staff and ISP filed answers thereto.15 Sierra Club replied on December 17, 2018.16 On December 27, 2018, ISP filed a motion seeking to strike portions of Sierra Clubs reply regarding SC-13.17 The Board heard oral arguments on standing and contention admissibility on

12 Letter from Jeffery D. Isakson, ISP, to NRC Document Control Desk (June 8, 2018) (ML18166A003). The application is to construct and operate a CISF on about 100 acres in Andrews County, Texas.

13 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070, 44,070-75 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (correcting the deadline for petitioners to request a hearing to Oct. 29, 2018).

14 Order of the Secretary at 2 (Oct. 25, 2018) (ML18298A335).

15 NRC Staff Consolidated Answer to Petitions to Intervene and Requests for Hearing (Dec. 10, 2018)

(ML18344A594); ISPs Answer Opposing Hearing Request and Petition to Intervene Filed by Sierra Club (Dec.

10, 2018) (ML18344A684) (ISP Answer).

16 Sierra Clubs Reply to Answers filed by [ISP] and NRC Staff (Dec. 17, 2018) (ML18351A531).

17 See Motion to Strike. See also Sierra Clubs Answer to [ISPs] Motion to Strike Portions of Sierra Clubs Reply (Jan. 2, 2019) (ML19002A472).

4 July 10 and 11, 2019.18 The Board issued its Memorandum and Order LBP-19-7 on August 23, 2019. Among other things, LBP-19-7 granted Sierra Clubs Petition, admitted SC-13 in part, and denied ISPs Motion to Strike.

LEGAL STANDARDS A.

Standard of Review Section 2.311 permits an appeal as of right on the question of whether an initial intervention petition should have been wholly denied, or alternatively, was granted improperly.19 The Commission generally defers to Board decisions on standing and contention admissibility, but will reverse a Boards ruling if there has been an error of law or abuse of discretion.20 The Commission reviews questions of law de novo,21 and will reverse a licensing boards legal rulings if they are a departure from, or contrary to, established law.22 Under the abuse of discretion standard, the appellant must persuade the Commission that a reasonable mind could reach no other result in order to prevail.23

18 See Transcript (Tr.) at 1-207 (July 10, 2019) (ML19198A218), and 208-342 (July 11, 2019)

(ML19198A219).

19 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 385 (2012) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998) (Adjudicatory Policy); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 125 (2006)).

20 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 121 (2018) (citing Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-16-9, 83 NRC 472, 482 (2016); Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 13-14 (2014)).

21 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009).

22 See id. (citation omitted).

23 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991).

5 B.

Standing As the Board correctly noted, the affirmative burden of demonstrating standing rests squarely with the petitioner.24 A petitioner may satisfy this burden either through a demonstration of traditional standing,25 or by establishing that it is entitled to invoke a Commission-established standing shortcut known as a proximity presumption.26 Under such a presumption, individuals who reside or have frequent contacts within a geographic zone of potential harm related to the proposed action are presumed to have standing.

For proceedings that involve certain licensing actions for power reactors, a pure proximity presumption applies, and the geographic zone of potential harm is established at a radius of 50-miles from the site.27 But in other proceedings such as this one, not involving a power reactor, a proximity plus standard is applicable.28 The difference between these standards is significant. Under a pure proximity standard, petitioners need only demonstrate that they reside within a certain distance of the facility that is the subject of the proposed action.

But under proximity plus, petitioners have the affirmative burden of demonstrating three things: (1) the existence of an obvious potential for offsite radiological consequences from the proposed action, (2) the radius at which such radiological consequences purportedly could

24 ISP, LBP-19-7, 90 NRC at __ (slip op. at 13) (citing Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-5, 51 NRC 90, 98 (2000)).

25 See id. (noting This requires a showing that a person or organization has suffered or might suffer a concrete and particularized injury that is: (1) fairly traceable to the challenged action; (2) likely redressable by a favorable decision; and (3) arguably within the zone of interests protected by the governing statutes, citing Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009)).

26 See id.

27 See id. (citing PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 138-39 (2010)).

28 See id. (citing Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), CLI-95-12, 42 NRC 111, 116-17 (1995)).

6 accrue, and (3) that they reside or have frequent contacts within that radius.29 The Commission has instructed presiding officers to evaluate these elements of proximity plus standing on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.30 C.

Contention Admissibility The Commissions rules on contention admissibility are strict by design.31 The rules were toughened... in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.32 The Commission has emphasized that the contention pleading rules are designed to ensure... that only well-defined issues are admitted for hearing.33 Failure to comply with any one of the six admissibility criteria in 10 C.F.R. § 2.309(f)(1) is grounds for rejecting a proposed contention.34 THE BOARDS DETERMINATION THAT SIERRA CLUB DEMONSTRATED STANDING IS LEGALLY ERRONEOUS AND SHOULD BE REVERSED In LBP-19-7, the Board concluded that Sierra Club demonstrated standing, but did not articulate the factual basis supporting that conclusion.35 The apparent foundation for the Boards finding was that the residence of one of Sierra Clubs members is within 6 miles of the WCS CISF.36 The Boards introductory discussion in the standing section of LBP-19-7 correctly described the legal standard for the proximity plus presumption. However, it failed to apply

29 See id. (citing Sequoyah Fuels Corp. (Gore, Okla. Site), CLI-94-12, 40 NRC 64, 75 n.22 (1994)).

30 See id. (citing Ga. Tech, CLI-95-12, 42 NRC at 116-17 (emphasis added)).

31 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

32 Id. (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

33 Crow Butte Res., Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009) (citations omitted).

34 USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006).

35 ISP, LBP-19-7, 90 NRC at __ (slip op. at 17).

36 Id. at __ (slip op. at 16-17).

7 that standard (or to apply it correctly) in its analysis of Sierra Clubs standing. More specifically, and as explained below, LBP-19-7 effectively disregarded the plus part of the standard because it failed to reach explicit conclusions for each of the required legal elements. In effect, the Board applied an automatic distance-based presumption to Sierra Clubs standing claim. As a matter of law, the automatic proximity presumption does not apply in materials licensing proceedings such as this one.37 Thus, the Boards analysis is legally erroneous.

Alternatively, even if LBP-19-7 could be read to include some implied conclusions regarding the plus elements of the presumption, such conclusions are contrary to, and thus improperly disregard, controlling law. For example, one of the plus elements of the presumption requires petitioners to demonstrate a plausible mechanism through which offsite radiological harm could occur. But Sierra Club proffered no arguments alleging such a mechanism. Thus, if LBP-19-7 could be read to include an implied conclusion that Sierra Club demonstrated proximity plus standing, that conclusion is based on error of law. In either case, the Boards conclusion that Sierra Club demonstrated standing is legal error and should be reversed.

A.

The Board Failed to Reach Explicit Conclusions Regarding the Elements of Proximity Plus Standing The sole basis provided by the Board for concluding that Sierra Club demonstrated standing is that [o]ne member... states that she lives about six miles away from ISPs proposed CISF.38 The Board expressly stated that an individual who lives that close to a potentially massive facility for storing much of the nations spent nuclear fuel [need not]

37 Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244, 248 (2004).

38 ISP, LBP-19-7, 90 NRC at __ (slip op. at 16).

8 demonstrate more.39 But contrary to the Boards statementas a matter of lawpetitioners are, in fact, required to demonstrate more. They must demonstrate an obvious potential for offsite radiological consequences from the WCS CISF, and they must demonstrate the distance from the WCS CISF at which such radiological consequences purportedly could accrue. Thus, the Boards conclusion is legally erroneous40 because it declined to consider two of the three legally-required elements to establish proximity plus standing. In essence, the Board improperly disregarded the plus part the standard. Thus, as a matter of law, the Boards determination as to Sierra Clubs standing should be reversed as legally erroneous.

B.

To the Extent LBP-19-7 Could Be Read to Contain Implied Conclusions Regarding the Elements of Proximity Plus Standing, Those Conclusions Improperly Disregard Controlling Law and the Case-Specific Facts At Issue Here The Boards standing analysis makes observations regarding the quantity of material that could eventually be stored at the WCS CISF, and the distances that have been found to confer standing in other proceedings.41 The Board concludes that, since these other proceedings involve smaller storage facilities, Sierra Club has demonstrated standing because its member lives within a distance of the WCS CISF found sufficient for proximity plus standing in those proceedings. But to the extent such statements could be construed as implied conclusions as to this proceeding, which does not involve an obvious potential for offsite consequences, the Board fails to undertake the required case-by-case analysis, and otherwise fails to acknowledge or account for controlling case law.

39 Id. at __ (slip op. at 17).

40 See Bell Bend, CLI-10-7, 71 NRC at 138-39.

41 ISP, LBP-19-7, 90 NRC at __ (slip op. at 16-17).

9

1.

As a Matter of Law, Material Quantity Alone Is Insufficient to Establish an Obvious Potential for Offsite Radiological Consequences LBP-19-7 mentions that ISPs application entails the storage of potentially up to 40,000 metric tons of spent fuel.42 And it concludes that Sierra Clubs standing is appropriate here because standing has been conferred in other proceedings involving much smaller storage facilities.43 Even if these assertions regarding material quantity could be construed as an implied conclusion that an obvious potential for offsite radiological consequences exists as to the WCS CISF, this conclusion would be contrary to law. Quantity of material, alone, does not create an obvious potential for offsite radiological consequences.44 Sierra Club argued that [t]he enormous quantity of radioactive waste proposed to be stored at the ISP facility, by itself, establishes a sufficiently obvious potential for offsite harm, establishing a proximity presumption.45 But as ISP explained in its Answer, Sierra Clubs assertion misstates the law:

The Commission has explained that the mere existence of a source of radiationeven a significant onedoes not, itself, demonstrate an obvious potential for offsite consequences. To demonstrate proximity-plus standing, Petitioner bears the further burden of demonstrating a plausible mechanism through which those materials could cause offsite harm. Petitioner simply has not done so....46 LBP-19-7 neither acknowledges the correct legal standard (i.e., that something more than a discussion of material quantity is required to demonstrate an obvious potential for offsite

42 Id. at 16.

43 Id. at 17.

44 U.S. Army Installation Command (Schofield Barracks, Oahu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 188-89 (2010).

45 Petition at 7 (citing Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation),

LBP-02-23, 56 NRC 413, 428-29 (2002)).

46 See ISP Answer at 8 (citing Schofield Barracks, CLI-10-20, 72 NRC at 189).

10 radiological consequences), nor does it conclude that Sierra Club made the required further demonstration (i.e., a plausible mechanism) as to the WCS CISF. Nor could itbecause Sierra Club made no further claims in this regard. This was legal error.

2.

As a Matter of Law, a Case-By-Case Analysis Is Prerequisite to Establishing the Existence of an Obvious Potential for Offsite Radiological Consequences The Commission has instructed that proximity plus standing is to be evaluated on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source.47 The Commission fully expects that this analysis may require complicated parsing of asserted harms.48 But LBP-19-7 fails to undertake the required facility-specific analysis here, much less attempt to parse any alleged harms. Moreover, as ISP noted in its Answer, a prior Commission generic determinationbased on scientific research casts serious doubt on the notion that a potential for offsite radiological consequences is in any way obvious in this proceeding.49 In promulgating its Part 72 emergency planning rule (declining to impose any offsite emergency planning requirements on away-from reactor ISFSIs), the Commission determined there simply is no objective basis for a claim that offsite radiological harm can accrue from

47 Ga. Tech, CLI-95-12, 42 NRC at 116-17 (emphasis added).

48 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 610 n.32 (2012).

49 See ISP Answer at 8-10, 13-14. Notably, LBP-19-7 somewhat misconstrues ISPs arguments below as asserting that standing may not be conferred unless a petitioner resides within a facilitys required offsite emergency planning zone. ISP, LBP-19-7, 90 NRC at __ (slip op. at 15). But ISPs argument was not so deterministic.

Rather, ISP argued that the 50-mile presumptive radius for reactor proceedings corresponds to the reactor EPZ (see Ross ISR, CLI-12-12, 75 NRC at 610 n.32) and thus it is a relevant consideration here (ISP Answer at 8), and that the Commissions technical basis for the EP rule casts serious doubt on any suggestion that offsite radiological consequences from the WCS CISF are plausible, much less obvious, even at a 1-mile radius (ISP Answer at 8-10, 13-14). But ISPs legal position has always been simply that Sierra Club failed to offer anything beyond conclusory assertions to demonstrate some purportedly obvious potential for radiological harm, much less one that could travel six miles to its members residence. See id. at 14.

11 facilities such as the WCS CISF (i.e., away-from-reactor ISFSIs storing only dry, cooled fuel with no fuel handling operations).50 As the Commission explained:

To be a potential radiological hazard to the general public, radioactive materials must be released from a facility and dispersed offsite. For this to happen:

The radioactive material must be in a dispersible form, There must be a mechanism available for the release of such materials from the facility, and There must be a mechanism available for offsite dispersion of such released material.

Although the inventory of radioactive material contained in 1000 MTHM of aged spent fuel may be on the order of a billion curies or more, very little is available in a dispersible form; there is no mechanism available for the release of radioactive materials in significant quantities from [the] facility; and the only mechanism available for offsite dispersion is atmosphere dispersion.51 The Commission generically concluded that: (1) [t]here exists no significant dispersal mechanism for the radioactive material contained within a storage cask;52 and (2) the postulated worst-case accident involving an ISFSI has insignificant consequences to the public health and safety.53 This objective, research-based conclusion stands in stark contrast to Sierra

50 See, e.g., Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage (MRS); Final Rule, 60 Fed. Reg. 32,430, 32,439 (June 22, 1995) (ISFSI EP Rule).

51 Id. at 32,431 (citing NUREG-0575, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, Vol. 1 § 4.2.2, Safety and Accident Considerations (Aug. 1979)

(ML022550127)) (emphasis added).

52 Id. at 32,439.

53 Id. at 32,431 (citing NUREG-1140, A Regulatory Analysis on Emergency Preparedness for Fuel Cycle and Other Radioactive Material Licensees (Jan. 1988) (ML12174A320)).

12 Clubs subjective, conclusory claim that offsite radiological consequences are even possible, much less obvious. 54 Here, the Board failed to scrutinize Sierra Clubs claim, or to evaluate the case-specific factors necessary to demonstrate an obvious potential for offsite consequences, such as:

(1) whether the material is in a dispersible form; (2) whether there exists any release mechanism from the storage canister or cask; (3) whether there exists any dispersal mechanism that could transport such released material offsite; and (4) whether such offsite dispersal would be in a form or concentration capable of causing harm.55 Thus, the Board failed to conduct the case-by-case analysis required by law.56 Moreover, elsewhere in LBP-19-7, the Board rejected Sierra Clubs conclusory assertions of offsite radiological harm as entirely unsupported.57 Its failure to do so herei.e., the Boards uncritical acceptance of Sierra Clubs conclusory standing assertionsconstitutes further legal error.58

54 Given that other boards also have requested clarification from the Commission regarding application of the proximity plus presumption in materials proceedings (see ISP, LBP-19-7, 90 NRC at __ (slip op. at 19 n.107);

Ross ISR, CLI-12-12, 75 NRC at 610 n.32), the Commission should consider leveraging its existing research as to the potential for offsite consequences from away-from-reactor ISFSIs to establish the appropriate radius on a generic basis, or to determine that the proximity plus presumption should not apply to this class of facilities, because the postulated worst-case accident involving an ISFSI has insignificant consequences to the public health and safety. ISFSI EP Rule at 32,431 (citing NUREG-1140).

55 See ISFSI EP Rule, 60 Fed. Reg. at 32,431 (explaining that these are appropriate considerations for any potential radiological hazard to the general public from an ISFSI). See also Diablo Canyon ISFSI, LBP 23, 56 NRC at 428 (concluding that alleged radiological exposures four or five orders of magnitude below average natural background radiation levels... clearly falls below the level that can be considered substantial enough for standing purposes.)

56 Ga. Tech, CLI-95-12, 42 NRC at 116-17.

57 See, e.g., ISP, LBP-19-7, 90 NRC at __ (slip op. at 48) (Sierra Club offers no... plausible facts to support its claim that a cask could rupture or that radioactive material could migrate offsite via groundwater).

58 NFS, CLI-04-13, 59 NRC at 248 (conclusory allegations about potential radiological harm are insufficient to demonstrate standing).

13

3.

As a Matter of Law, Comparisons to Dissimilar Facilities Alone are Insufficient to Establish the Appropriate Presumptive Radius The Boards discussion of standing as to Beyond Nuclear (cross-referenced in its discussion of Sierra Clubs standing) provides a string cite of four cases examining the presumptive distance that has been found sufficient in other proceedings that involved spent fuel facilities.59 To the extent this could be read as an implied conclusion that Sierra Club demonstrated the appropriate presumptive radius herethereby satisfying the third element of the proximity plus standardsuch a conclusion would be contrary to law and factually unsupported. The Boards string cite (which only refers only to other proceedings with dissimilar facilities) fails to supply the required case-by-case analysis.60 Thus, any implied conclusion in LBP-19-7 regarding an appropriate presumptive radius rests on legal error.

More specifically, the Boards string cite refers to proceedings involving spent fuel pool expansions and at-reactor ISFSIs.61 Given that the WCS CISF is an away-from-reactor ISFSI, the Board is comparing apples to oranges. Spent fuel pools and at-reactor ISFSIs entail wet storage, fresh spent fuel, and cask-loading or fuel-handling operations, whereas the WCS CISF entails only dry storage of longer-cooled fuel, and does not involve cask-loading or fuel-handling operations. These differences are relevant and material. The Commission has explicitly

59 ISP, LBP-19-7, 90 NRC at __ (slip op. at 15).

60 See id. (citing Ga. Tech., CLI-95-12, 42 NRC at 116-17).

61 ISP, LBP-19-7, 90 NRC at __ (slip op. at 15 n.83) (citing Diablo Canyon, LBP-02-23, 56 NRC at 429 (at-reactor ISFSI); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-99-25, 50 NRC 25, 29-31 (1999) (spent fuel pool expansion); Ne. Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3),

LBP-00-2, 51 NRC 25, 28 (2000) (re-racking and expansion in capacity of a spent fuel pool); and Fla. Power &

Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 454-55 (1988) (high-density re-racking of a spent fuel pool)).

14 acknowledged the distinction between the radiological hazards for these two types of facilities.62 Yet LBP-19-7 does not attempt any parsing of those differences here.63 Ultimately, the presumptive distance determinations in cases involving at-reactor ISFSIs and spent fuel pool expansions, which entail vastly different potential radiological harms, are inapt for the case-by-case analysis required here.64 Thus, the Boards reliance on these caseswithout any further analysis or explanationconstitutes legal error.

THE BOARDS DECISION TO ADMIT SC-13 IS LEGALLY ERRONEOUS AND SHOULD BE REVERSED In its Petition, Sierra Club acknowledged that ER § 3.5.16 describes two species of concern, the Texas horned lizard and the dunes sagebrush lizard, that have been seen or may be present at the proposed WCS CISF site. But it argued, in SC-13, that the ER is deficient because allegedly there is no discussion of any studies or surveys to determine if the species are present and the impact of the project on those species.65 Sierra Club claimed that the following facts

62 See, e.g., ISFSI EP Rule, 60 Fed. Reg. at 32,439 (In the case of an operating nuclear power plant, the dispersal mechanism for radioactive material in the spent fuel is either derived from the heat produced during the fission process or the decay heat which exists in the short period immediately following shutdown. During these times, the potential exists for an accident that could cause the fuel cladding to fail.... On the other hand, spent fuel stored in an ISFSI is required to be cooled for at least one year.... At this age, spent fuel has a heat generation rate that is too low to cause significant particulate dispersal in the unlikely event of a cask confinement boundary failure).

63 Cf. Ross ISR, CLI-12-12, 75 NRC at 610 n.32.

64 Although not relied on by the Board in LBP-19-7, Sierra Club cited other case law for the proposition that proximity plus standing has been granted in an away-from-reactor ISFSI proceeding. See Reply at 6 (citing Private Fuel Storage, LLC (Indep. Spent Fuel Installation), LBP-98-7, 47 NRC 142 (1998)). However, the PFS board evaluated standing on traditional grounds. It did not evaluate or even mention the proximity-plus presumption, articulate its associated legal standards, or conclude such standards had been satisfied. Moreover, the decision provides no basistechnical or otherwiseregarding any distance at which a plausible harm could accrue offsite. The Commission affirmed that decision as to the boards evaluation of frequent contacts (on traditional standing grounds), considering case-specific facts, but did not (and was not requested to) review the boards determination of appropriate distances for its injury-in-fact analysis. See Private Fuel Storage, LLC (Indep. Spent Fuel Installation), CLI-98-13, 48 NRC 26, 31-32 (1998)). Therefore, to the extent that the PFS precedent could be construed to establish some presumptive radius of harm applicable to other away-from-reactor facilities with different storage systems at other locations, such application would be arbitrary as unsupported by any identifiable basis.

65 Petition at 78-79.

15 support the contention: (1) there does not appear to have been an adequate survey conducted, and (2) the sources described [in the ER] are not described well enough to allow members of the public to access the sources.66 Sierra Club provided nothing more to support its contention. Indeed, the entirety of Sierra Clubs discussion of SC-13 in the Petition is comprised of approximately 1.5 pages of double-spaced type. But after ISP filed its Answer and identified the complete absence of support for SC-13, Sierra Club purported to provide supplemental support in its Replynamely, citation to regulations from the Council on Environmental Quality (CEQ). Because this alleged support for the contention was not provided in the Petition, ISP moved to strike it as untimely.

In LBP-19-7, the Board denied ISPs Motion to Strike and (based on the alleged materiality of the CEQ regulation cited by Sierra Club in its Reply) admitted SC-13 solely as a contention of omission, insofar as none of the references in ER § 3.5.16 is either sufficiently described to judge its technical adequacy or made publicly available.67 As detailed below, the Boards decision to admit SC-13 should be reversed for three reasons. First, it was legal error and an abuse of discretion for the Board to disregard controlling Commission precedent expressly prohibiting the use of reply briefs to provide the necessary threshold support for contentions. Second, it was legal error for the Board to conclude that CEQ regulations apply to ISPthey apply only to federal agencies, not private NRC applicants. And finally, even assuming arguendo CEQ regulations somehow impose substantive obligations on NRC license applicants, the Boards interpretation of those regulations is contrary to their plain

66 Id. at 79.

67 Id.

16 text, and therefore legally erroneous. Thus, for any or all of these reasons, the Boards decision to admit SC-13 should be reversed.

A.

The Board Erred and Abused Its Discretion by Denying ISPs Motion to Strike the References to CEQ Regulations in Sierra Clubs Reply In its Answer to Sierra Clubs Petition, among other things, ISP noted that Sierra Club cited no legal requirement for its assertion that underlying source materials must be made publicly available, and therefore Sierra Club had neither provided the requisite support for its contention nor raised a genuine, material issue appropriate for a hearing.68 In its Reply, Sierra Club citedfor the first timea general regulation from the CEQ for the proposition that public scrutiny [is] essential to implementing NEPA, which Sierra Club claimed provided the legal basis for its argument.69 ISP filed a Motion to Strike this belated attempt by Sierra Club to cure its clear (and now dispositive) defect in the original Petition.70 ISP explained that controlling law prohibits the use of reply briefs to supplyfor the first timethe necessary threshold support for a contention. In denying ISPs Motion to Strike, the Board disregarded this controlling law without basis or explanation. Rather, the Board simply said that the belated curative information was a legitimate amplification of Sierra Clubs original arguments.71 But this conclusion is an abuse of discretion and improperly disregards controlling law.

The Commission has conclusively held that new substantive arguments and alleged support, raised for the first time in a reply, are improper because answering parties are entitled

68 ISP Answer at 109.

69 Reply at 38-39.

70 Motion to Strike at 9-11.

71 ISP, LBP-19-7, 90 NRC at __ (slip op. at 56).

17 to be told at the outset, with clarity and precision, what arguments are being advanced.72 The Commission likewise has categorically held that using reply briefs to provide, for the first time, the necessary threshold support for contentions is impermissible.73 Here, it is indisputable (i.e.,

a reasonable mind could reach no other conclusion74) that: (1) Sierra Club did not identify those CEQ regulations as a basis for SC-13 until it filed its Reply, and (2) the Board relied on those CEQ regulations for its conclusion that Sierra Club provided the necessary threshold support for SC-13. As a result, ISP and the NRC Staff were improperly denied any opportunity to respond to Sierra Clubs dubious claim that CEQ regulations somehow apply to ISP, and somehow demonstrate a deficiency material to the findings the NRC Staff must make to grant the application. This is precisely the scenario the Commissions limitations on reply pleadings are intended to prevent.

As the Commission has explained, if the contention as originally pled did not cite adequate documentary support, a petition cannot remediate the deficiency by introducing in the reply documents that were available to it during the time frame for initially filing contentions.75 And a reply cannot be used to reinvigorate thinly supported contentions.76 Nevertheless, despite the Boards recognition that Sierra Clubs original contention was rather thin,77 the Board disregarded well-settled Commission precedent and allowed Sierra Club to proffer a new untimely theory and support for its contention at the reply stage. Thus, the Boards decision to

72 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).

73 La. Energy Servs. LP (Natl Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004) (emphasis added).

74 See Turkey Point, ALAB-952, 33 NRC at 532 (explaining the abuse of discretion standard).

75 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

76 La. Energy Servs. LP (Natl Enrichment Facility), CLI-04-32, 60 NRC 223, 224 (2004).

77 ISP, LBP-19-7, 90 NRC at __ (slip op. at 54).

18 deny ISPs Motion to Strike was an abuse of discretion and constitutes error of law and should be reversed by the Commission.

B.

The Boards Conclusion that CEQ Regulations Impose Obligations on NRC License Applicants Is Legally Erroneous In admitting SC-13, the Board relied on CEQ regulations cited by Sierra Club in its Reply for the proposition that public scrutiny [is] essential to implementing NEPA.78 Furthermore, the Board relied on CEQ regulations for its conclusion that ISPs failure in ER § 3.5.16 either to use publicly-available source materials, or to append the underlying source materials to the application, was an omission material to some finding the NRC Staff allegedly must make to grant ISPs application.79 But the Boards ruling misses a critical pointNEPA and CEQ regulations apply only to agencies of the Federal Government and do[] not apply to applicants for NRC licenses.80 Further, as the Board properly recognized, CEQ regulations do not impose legal obligations on the NRC, which at best treats them as mere guidance.81 NEPA requires the NRC to prepare an Environmental Impact Statement (EIS), while Part 51 requires ISP to submit an ER.82 Different standards apply to these two related but legally distinct documents. Part 51 governs the adequacy of the ER... not NEPA.83 And although the ER is not the EIS,84 LBP-19-7 seeks to impose NEPA and CEQ requirements on ISP.

78 Id. at __ (slip op. at 55).

79 Id. at __ (slip op. at 54-56).

80 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 & 2), LBP-09-10, 70 NRC 51, 87 (2009) (citations omitted) (emphasis added); see also Sierra Club v. U.S. Envtl. Prot. Agency, 995 F.2d 1478, 1485 (9th Cir. 1993) (NEPA does not regulate the conduct of private parties... [i]t regulates the federal government) abrogated on other grounds 630 F.3d 1173 (9th Cir. 2017).

81 ISP, LBP-19-7, 90 NRC at __ (slip op. at 55) (citing Pac. Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-11-11, 74 NRC 427, 443-44 & n.95 (2011)).

82 Compare 10 C.F.R. §§ 51.20 and 51.21 with 10 C.F.R. § 51.45.

83 Levy County, LBP-09-10, 70 NRC at 87.

84 Id. at 88.

19 More specifically, the Boards decision finds fault in the ER because purportedly no interested member of the public could access any of [the underlying studies referenced in ER § 3.5.16], or learn how many people performed them, what their qualifications were, or how much time they spent.85 But the Board cites no corresponding provision in Part 51 for the proposition that ISP is obligated by law to provide information regarding, for example, how much time someone spent preparing an underlying study that ISP examined and summarized when preparing its ER.

Nor is there such a requirement in Part 51. Ultimately, the Boards strained reading of CEQ regulations as imposing a substantive obligation on ISP as to the content of an ER is a clearly-erroneous new requirement and contrary to law.

C.

The Boards Conclusion that CEQ Regulations Require Source Materials to Be Appended to Environmental Documents Is Contrary to the Plain Language of the Regulations and Thus Constitutes Error of Law Assuming arguendo CEQ regulations somehow imposed substantive obligations on NRC license applicants, the ER fully complies with the CEQ provision regarding the proper treatment of underlying source materials. As noted by the Board, CEQ regulations provide that environmental documents must make explicit reference by footnote to the scientific and other sources relied upon for conclusions.86 It is entirely undisputed in this proceeding that the ER makes explicit reference to the sources relied upon for conclusions in the ER. Thus, the ER is fully compliant with this standard.

The Board then extends this standard (without an articulated rationale) into a purported further requirement that surely some of [the underlying sources] must be [publicly available], or must be appended to the document.87 But the Board cites no such explicit requirement even in

85 ISP, LBP-19-7, 90 NRC at __ (slip op. at 54-55).

86 Id. at __ (slip op. at 55) (citing 40 C.F.R. § 1502.24).

87 Id. at __ (slip op. at 55-56).

20 CEQ regulations (much less in Part 51)nor is there one. And its conclusion that failing to append or make the underlying source materials publicly available somehow is material to a finding the NRC Staff must make to grant the application is factually unsupported, particularly when the results of the underlying source materials are presented in the ER itself.88 Ultimately, despite the Boards unfounded concern that the references were not publically available or searchable by Google,89 nothing in CEQs (or the NRCs) regulations require them to be. Thus, the Boards contrary interpretation of CEQ regulation is legally erroneous, and its decision to admit SC-13 should be reversed.

CONCLUSION For all the reasons explained above, the Commission should reverse the Boards decision to grant standing and admit SC-13, and terminate this proceeding.

88 See, e.g., ER § 3.5.

89 Tr.at 274. In fact, ISP has since provided all of the cited references to the parties and the Board, two of which were already in ADAMS. See Letter from P. Bessette, Counsel for ISP, to the Board, Licensing Board Notification Regarding ISP Letter E-55041 (Sept. 5, 2019) (ML19248C912)

21 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 17th day of September 2019

DB1/ 106930633 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

)

)

)

)

)

)

)

Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 September 17, 2019 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Notice of Appeal of LBP-19-7 and Brief in Support of Interim Storage Partners LLCs Appeal of LBP-19-7 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

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