ML19280D549

NRC Staff Answer Opposing Sierra Club'S Amended Contention 13

ML19280D549
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	10/07/2019
From:	Sara Kirkwood, Thomas Steinfeldt NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55352
Download: ML19280D549 (20)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

NRC STAFF ANSWER IN OPPOSITION TO SIERRA CLUB'S AMENDED CONTENTION 13 Thomas Steinfeldt Sara B. Kirkwood Counsel for NRC Staff October 7, 2019

TABLE OF CONTENTS Introduction ................................................................................................................................ 1 Background................................................................................................................................ 1 Discussion ................................................................................................................................. 4 I. Applicable Legal Standards ................................................................................................ 4 A. Standards for Amended Contentions .............................................................................. 4 B. Legal Requirements for Contention Admissibility ............................................................ 5 II. Sierra Club Fails to Meet the Standards of 10 C.F.R. § 2.309(c)(1) ..................................... 6 III. Sierra Club Fails to Meet the Standards of 10 C.F.R. § 2.309(f)(1) ....................................10 Conclusion ................................................................................................................................15 ii

TABLE OF AUTHORITIES Commission Legal Issuances AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006) ............................................................................................................................. 5 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009) .................................................................................................................................. 4 Fla. Power & Light Co. (Turkey Point Units 6 and 7), CLI-17-12, 86 NRC 215 (2017) ....................7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207 (2003) ................................................................................................................... 6 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001)......................................................................................... 5, 14 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-02-1, 55 NRC 1 (2002)................................................................................................................... 5 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328 (1999) ................................................................................................................................... 6 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131 (2016) ................ 5 NextEra Energy Seabrook, LLC (Seabrook Station Unit 1), CLI-12-5, 75 NRC 301 (2012) ........... 6 Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219 (2016) ................................................................................................................7 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999) ............................................................................................................... 5 USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006) ..................................... 5 Atomic Safety and Licensing Board Decisions Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568 (2006) ......................................... 5 Fla. Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37 (2017)......................7 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __ (slip op.).................................................................................................................. 3 Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-15-16, 81 NRC 618 (2015). ................................................................................................................7 iii

Regulations 10 C.F.R. § 2.309(c)(1) ................................................................................................ 1, 4, 6, 7, 10 10 C.F.R. § 2.309(f)(1)........................................................................................... 1, 4, 6, 10, 11, 14 10 C.F.R. § 51.45 ........................................................................................................................11 Other Authorities Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg.

46,562 (Aug. 3, 2012) ............................................................................................................7 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ...................5, 6 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018) ....................................................................... 2 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

NRC Staff Answer in Opposition to Sierra Club's Amended Contention 13 Introduction The U.S. Nuclear Regulatory Commission Staff (Staff) submits this answer opposing Sierra Club's motion to amend Contention 13 1 and its amended Contention 13. 2 For the reasons set forth below, the Atomic Safety and Licensing Board (Board) should deny the proposed new contention because it fails to meet the requirements of 10 C.F.R. §§ 2.309(c)(1) and 2.309(f)(1) and is therefore inadmissible.

Background

By letter dated April 28, 2016, Waste Control Specialists, LLC (WCS) tendered a specific license application under 10 C.F.R. Part 72, requesting authorization to construct and operate a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF) and reactor-related Greater than Class C (GTCC) waste in Andrews County, Texas. 3 On April 18, 2017, WCS 1 Sierra Clubs Motion to Amend Contention 13 (Sept. 13, 2019) (ADAMS Accession No. ML19256C635) (Sierra Club Motion).

2 Sierra Clubs Amended Contention 13 (Sept. 13, 2019) (ML19256C638) (Sierra Club Amended Contention 13).

3 Letter from J. Scott Kirk, WCS, to Mark Lombard, NRC, License Application to Construct and Operate a Consolidated Interim Storage Facility for Spent Nuclear Fuel in Andrews County, Texas, Docket 72-1050 (Apr. 28, 2016) (ML16132A533).

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requested that the NRC temporarily suspend all review activities associated with its application, and the next day WCS and the NRC Staff jointly requested that the then pending hearing opportunity be withdrawn. 4 By letters dated June 8 and July 19, 2018, WCS requested that the NRC resume the review of its application, and it provided a revised application, reflecting, among other changes, a new applicant, Interim Storage Partners (ISP), a joint venture between WCS and Orano CIS, LLC. 5 On August 29, 2018, a notice of opportunity to request a hearing and petition for leave to intervene for the ISP application was published in the Federal Register. 6 On November 13, 2018, the NRC received Sierra Clubs petition to intervene and request for a hearing regarding the ISP application. 7 Multiple other petitioners also filed hearing requests and petitions to intervene. 8 On December 10, 2018, NRC Staff and ISP answered 4 Joint Request to Withdraw the Federal Register Notice Providing an Opportunity to Submit Hearing Requests (Apr. 19, 2017) (ML17109A480) (attaching letter to NRC Document Control Desk from Rod Baltzer, WCS (Apr. 18, 2017)).

5 Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC (July 19, 2018) (ML18206A482);

Letter from Jeffery Isakson, ISP, to Document Control Desk, NRC, 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).

ISPs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/wcs/wcs-app-docs.html, also available at https://go.usa.gov/xPJKr. Unless otherwise specified, all of the NRC Staffs citations are to Revision 2 of the License Application (ML18221A397 (package)), Environmental Report (ER) (ML18221A405 (package)), and Safety Analysis Report (SAR) (ML18221A408 (package)).

6 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed.

Reg. 44,070 (Aug. 29, 2018), corrected, 83 Fed. Reg. 44,680 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018), 83 Fed. Reg. 45,288 (Sept. 6, 2018)

(correcting the title of the August 31, 2018 correction).

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

(ML18317A411).

8 Beyond Nuclear, Inc.s Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242);

Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412); Petition of Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition, and Leona Morgan, Individually, to Intervene and Request for an Adjudicatory Hearing (Nov. 13, 2018) (ML18317A433).

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Sierra Clubs petition. 9 On December 17, 2018, Sierra Club submitted its reply. 10 On July 10-11, 2019, the Board held oral argument on standing and contention admissibility. 11 On August 23, 2019, the Board issued its Memorandum and Order LBP-19-7 granting Sierra Clubs petition and denying the other petitions. 12 The Board held that Sierra Club demonstrated standing and admitted Sierra Club Contention 13, in part, solely as a contention of omission regarding the availability of ecological studies referenced in ISPs Environmental Report (ER). 13 On September 4, 2019, ISP provided the ecological studies to the NRC to supplement its ER and the next day served them on the docket of this proceeding via Electronic Information Exchange. 14 On September 9, 2019, ISP filed a motion to dismiss Sierra Club Contention 13 as moot, arguing that the studies it provided cured the omission. 15 NRC Staff agreed that ISP had cured the omission, and Sierra Club opposed the motion to dismiss. 16 On September 13, 2019, 9 NRC Staff Consolidated Answer to Petitions to Intervene and Requests for Hearing (Dec. 10, 2018)

(ML18344A594); Interim Storage Partners LLCs Answer Opposing Hearing Request and Petition to Intervene File by Sierra Club (Dec. 10, 2018) (ML18344A684).

10 Sierra Clubs Reply to Answers Filed by Interim Storage Partners LLC and NRC Staff (Dec. 17, 2018)

(ML18351A531).

11 Transcript of Oral Argument in Interim Storage Partners LLC (July 10, 2019), at 1-207 (ML19198A218) and (July 11, 2019), at 208-342 (ML19198A219).

12 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __, __

(slip op. at 106).

13 Id. at __ (slip op. at 17, 56). These studies are referenced at ER § 3.5.16.

14 See Letter from Jack Boshoven, ISP, to Document Control Desk, NRC, ISP Transmittal Letter E-55041 Providing Supplemental Information Regarding References from the Environmental Report Chapter 3, Description of the Affected Environment, Docket 72-1050 (Sept. 4, 2019) (ML19248C915);

Letter from Paul Bessette, Counsel for ISP, to the Board, Licensing Board Notification Regarding ISP Letter E-55041 (Sept. 5, 2019) (ML19248C912).

15 Interim Storage Partners LLCs Motion to Dismiss Sierra Clubs Contention 13 as Moot and Terminate This Proceeding (Sept. 9, 2019) at 3 (ML19252A322).

16 Sierra Club Resistance to ISPs Motion to Dismiss Sierra Clubs Contention 13 (Sept. 13, 2019)

(ML19255G961).

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Sierra Club filed an amended Contention 13 based on the four newly-provided studies. 17 These documents are a 1997 study, 18 a 2004 study, 19 a 2007 study 20, and a 2008 study. 21 NRC Staff responds to Sierra Clubs amended contention below.

Discussion I. Applicable Legal Standards A. Standards for Amended Contentions An amended contention submitted after the initial date for hearing requests must meet the requirements of 10 C.F.R. § 2.309(c)(1). To do so, a party must demonstrate good cause by showing that the following three conditions are met:

(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 (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information. 22 The petitioner has the burden of demonstrating that any amended contention meets the standards in 10 C.F.R. § 2.309(c)(1). 23 17 Sierra Club Motion; Sierra Club Amended Contention.

18 Ecology Grp., Ecological Assessment of the Low Level Waste Depository, Andrews County, Texas (May 1997) (ML19248C918) (1997 Study).

19 Doug Reagan & Assocs., LLC, Habitat Characterization and Rare Species Survey for the Proposed Low Level Waste Repository, Andrews County, Texas (Oct. 25, 2004) (ML19248C922) (2004 Study).

20 URS Corp., Supplemental Survey to Ecological Assessment of the Low Level Waste Depository, Andrews County, Texas, Rev. 12a (Mar. 2007) at 2.9.1 2.9.1-63 (ML19248C925) (2007 Study).

21 Waste Control Specialists, LLC, Environmental Assessment Report Prepared for Application for Renewal of Radioactive Material License R04971, Rev. 0 (July 3, 2008) (ML19248C927) (2008 Study).

22 See 10 C.F.R. § 2.309(c)(1).

23 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

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B. Legal Requirements for Contention Admissibility 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible. 24 Pursuant to that section, a contention must:

(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, including references to specific sources and documents, that support the petitioner's position and upon which the petitioner intends to rely at hearing; and (vi) provide information sufficient to show that a genuine dispute with the applicant/licensee exists in regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case of an application that is asserted to be deficient, the identification of such deficiencies and supporting reasons for this belief. 25 The Commission has strictly applied these contention admissibility requirements in NRC adjudications. 26 Failure to comply with any one of these criteria is grounds for the dismissal of a contention. 27 The requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 28 The Commission has stated that it should 24 Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 571-72 (2006); see also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

25 See 10 C.F.R. § 2.309(f)(1).

26 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006)

(citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-1, 55 NRC 1 (2002)).

27 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999). See also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

28 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

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not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing as indicated by a proffered contention that satisfies all of the 10 C.F.R. § 2.309(f)(1) requirements. 29 The Commission has also emphasized that contentions shall not be admitted if at the outset they are not described with reasonable specificity or are not supported by some alleged fact or facts demonstrating a genuine material dispute with the applicant. 30 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 31 II. Sierra Club Fails to Meet the Standards of 10 C.F.R. § 2.309(c)(1)

Sierra Club demonstrates that it meets two of the three requirements to submit an amended contention after the initial deadline because it based the amended contention on new information and timely submitted it to the Board. 32 Sierra Club bases its amended Contention 13 on four ecological studies ISP first made available to Sierra Club on September 5, 2019, and timely filed its amended contention on September 13, 2019. 33 Thus, Sierra Club satisfies 10 C.F.R. § 2.309(c)(1)(i) and (iii).

However, Sierra Club fails to meet 10 C.F.R. § 2.309(c)(1)(ii) because it does not show that the newly-available ecological studies provide materially different information than what the ER already contains. According to the board, materially describes the type or degree of difference between the new information and previously available information that a petitioner must establish, and it is synonymous with, for example, significantly, considerably, or 29 Id.

30 NextEra Energy Seabrook, LLC (Seabrook Station Unit 1), CLI-12-5, 75 NRC 301, 307 (2012)

(emphasis in original) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 NRC 328, 335 (1999)).

31 Seabrook, CLI-12-5, 75 NRC at 307 (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

32 See 10 C.F.R. § 2.309(c)(1)(i) and (iii).

33 Sierra Club Motion at 1.

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importantly. 34 The Commission has affirmed that a contention fails to meet 10 C.F.R. § 2.309(c)(1)(ii) when the information is not materially different from information already in the record. 35 Here, Sierra Club does not show that information in the studies is significantly or considerably different than what the ER already describes.

The ecological studies, produced in 1997, 2004, 2007, and 2008, assessed the area around the WCS low level radioactive waste (LLRW) disposal facility located just south of the proposed CISF site. ER Section 3.5.1 discusses these studies on which ISP relies to describe the ecology at the proposed CISF site. 36 Information from these studies, which includes descriptions about the Texas horned lizard and the dunes sagebrush lizard 37 at issue in amended Contention 13, is referenced in ER Sections 3.5 and 4.5. Sierra Club describes the studies and their descriptions of the lizards but does not adequately (or accurately) explain how this information materially differs from descriptions already in the ER. 38 Sierra Club asserts that the 1997 study supports its amended contention that the two

[lizard] species are or likely are present at the [proposed CISF] site and more current scientifically supported surveys should be conducted because the 1997 study did not consider species at the CISF site. 39 But the ER already addresses this asserted deficiency. Namely, ER Section 3.5.1 states that the 1997 study was updated in 2003-2004 and supplemented in 2006-34 Fla. Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37, 48 (2017), affd, CLI 12, 86 NRC 215 (2017) (citing Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566 (Aug. 3, 2012).

35 Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219, 240 (2016), affg LBP-15-16, 81 NRC 618, 704-05 (2015).

36 ER at 3-29.

37 The dunes sagebrush lizard is also known as the sand dune lizard. See Dunes Sagebrush Lizard (Sand Dune Lizard), U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/NewMexico/

documents/Dunes_Sagebrush_Lizards_Handout.pdf (last visited Oct. 7, 2019). NRC Staff refers to this lizard species as the dunes sagebrush lizard throughout this document. The ER uses the term sand dune lizard.

38 Sierra Club Motion at 2-3.

39 Id. at 2.

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2007. 40 ER Section 4.5.8, which describes findings from the 2004 study that included the CISF site area, discusses the two lizard species and their habitat. 41 And ER Section 3.5.4 states that the proposed CISF site is within the known range of the two lizard species. 42 Thus, Sierra Club does not show that the 1997 study provides materially different information from the ER.

Sierra Club refers to information in the 2004 study that also repeats information described in the ER. The 2004 study described a survey of a 3.1-mile study area around the LLRW facility on the WCS property that included the area of the proposed CISF site. 43 Sierra Club states that the 2004 study found that the two lizard species occur within the area that includes the CISF site and that the dunes sagebrush lizard was observed in the area. 44 This information is consistent with ER Section 3.5.2, which states the Texas horned lizard and dunes sagebrush lizard occur within the area of the proposed CISF, and ER Section 3.5.4, which states the proposed CISF is within the known range of two [lizard] species of concern. 45 ER 3.5.4 also restates a finding from the 2004 study, which Sierra Club references on page of 2 of its filing, that [a]reas west, north, northeast, south, and southeast of the CISF have the potential to be suitable habitat for the dunes sagebrush lizard. 46 Further, Sierra Club misstates that the 2004 study found that the study area, including the CISF site area, should be protected to preserve habitat for both [lizard] species. 47 Rather, the 2004 study only suggested that potential benefits of protecting the area may result in improved habitat quality for both species over 40 ER at 3-29.

41 ER at 4-37.

42 ER at 3-33.

43 2004 Study at 4. See also Figure 1.2-2 at ER 1-16 (showing a map of the proposed CISF site located directly north of the WCS facility).

44 Sierra Club Motion at 2-3.

45 ER at 3-30, 3-33.

46 ER at 3-34.

47 Sierra Club Motion at 3.

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time. 48 Because information Sierra Club references from the 2004 study is the same information described in the ER, Sierra Club fails to show that the 2004 study provides materially different information.

Similarly, Sierra Club does not adequately explain how information in the 2007 and 2008 ecological studies is materially different than the information described in the ER. Sierra Club states that the CISF site is within the area of suitable dunes sagebrush lizard habitat discussed in the 2007 study. 49 But the ER already describes the dunes sagebrush lizard habitat in relation to the CISF site multiple times. ER Section 3.5.2 states that the dunes sagebrush lizards specialized habitat occurs throughout much of the region of the proposed CISF. 50 ER Section 3.5.4 explains that dunes sagebrush lizard habitat is found in much of the study area (which includes the CISF site area), but the areas of habitat are small and isolated from each other. 51 ER Figure 3.5-1, based on 2013 and 2014 data from the Texas Parks and Wildlife Department, shows that the nearest known occurrence of the dunes sagebrush lizard was more than 20 miles from the CISF site. 52 Sierra Club also asserts that the 2007 study stated that the Texas horned lizard was observed on the LLRW site but that the study did not provide further discussion. 53 However, the ER addresses this supposed deficiency. ER Section 3.5.2 states that the lizards occur within the 3.1-mile radius of the proposed CISF. 54 ER Section 3.5.4 describes 48 2004 Study at 7.

49 Sierra Club Motion at 3.

50 ER at 3-30.

51 ER at 3-34.

52 ER at 3-104.

53 Sierra Club Motion at 3.

54 ER at 3 3-30.

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the Texas horned lizard as being observed on the WCS property in the past, but not on the CISF site, and that suitable lizard habitat exists throughout much of the area. 55 Regarding the 2008 study, Sierra Club appears to assert that the studys focus on the LLRW site is too narrow to adequately assess the proposed CISFs impacts on the lizards.

Sierra Club states that the study only described the Texas horned lizard as in the area and that dunes sagebrush lizard habitat did not exist on the LLRW facility site. 56 But the ER, relying on information from several studies, provides descriptions of the lizard communities and their habitat in relation to the CISF site, as discussed above. 57 Accordingly, Sierra Club does not show that the 2007 and 2008 studies provide materially different information from the ER.

In sum, Sierra Club does not show that the ecological studies offer significantly different information than what the ER already includes about the affected environment and impacts on the lizard species from the proposed CISF project. Therefore, Sierra Club does not demonstrate that the four ecological studies on which it bases its amended contention provide materially different information than what is in the ER. Thus, Sierra Club fails to meet 10 C.F.R. 2.309(c)(1)(ii) and its amended Contention 13 is therefore inadmissible.

III. Sierra Club Fails to Meet the Standards of 10 C.F.R. § 2.309(f)(1)

Sierra Club amended Contention 13 states:

The ER states that two species of concern, the Texas horned lizard and the dune sagebrush lizard, have been seen at the ISP site or may be present. The ER then makes the unsupported statement that the CIS project will have no impact on the species. The sources on which the discussion of the species were initially unavailable to the public. They have now been made available, but do not support the allegation in the ER that the CIS project will have no impact on the species, and in fact, they confirm the opposite conclusion. Furthermore, the sources are 11-22 years out of date. The ER does not reference any current 55 ER at 3-34.

56 Sierra Club Motion at 3.

57 See, e.g., ER §§ 3.5.2, 3.5.4, 4.5.8.

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studies or surveys. Therefore, the ER is inadequate in describing the affected environment. 58 This amended contention focuses on four ecological studies on which ISP relies in its treatment in the ER of the Texas horned lizard and the dunes sagebrush lizard. The Sierra Club asserts that the ER inadequately describes the environment affected by the proposed CISF because these studies do not show that the CISF project will not impact the lizards and because the studies are outdated. Sierra Club, repeating verbatim from its original contention, also asserts that 10 C.F.R. § 51.45 requires the ER to discuss the environment affected by and environmental impacts of the proposed project, and that NRC guidance regarding environmental reviews for licensing actions directs that the ER must discuss impacts to important species and their habitats. 59 As discussed below, this contention is inadmissible because the Sierra Club fails to raise a genuine dispute with the applicant, in contravention of 10 C.F.R. § 2.309(f)(1)(vi).

Sierra Club repeatedly misconstrues statements in the ER and in the studies it relies on, and therefore fails to raise a material dispute with the applicant. The Sierra Club asserts that statements in Chapter 4 of the ER that there will be no adverse impact on the two lizard species or their habitat are demonstrably false. 60 However, it is Sierra Clubs characterization of the ER that is wrong. Sierra Club fails to show that the information described in ER Sections 4.5.8 and 4.5.10 - the only parts of Chapter 4 it discusses - is false. ER Section 4.5.8 states that the proposed CISF is not expected to impact communities or habitats defined as rare or unique or that support threatened and endangered species within the 135ha (332 acre) site. 61 ER Section 3.5.4, based on the ecological studies, states that suitable lizard habitat exists in 58 Sierra Club Amended Contention 13 at 1.

59 Id.

60 Id. at 4.

61 ER at 4-37.

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much of the area around the CISF site, demonstrating that their habitat is not rare or unique to the region of the proposed CISF. 62 Nor is either lizard federally listed as a threatened or endangered species. The existence of suitable lizard habitat in the CISF site area, however, does not mean the lizards are present at the site. 63 In fact, based on studies that included the CISF site area, the ER states that lizards occur in the area 64 but are not present on the CISF site. 65 This is contrary to Sierra Clubs inaccurate assertion that ER Section 3.5.4 states that the Texas horned lizard was present at the CISF site. 66 Rather, the ER states that the Texas horned lizard was present on the vastly larger WCS property, which spans over 14,000 acres, compared to the 332-acre CISF site. 67 Sierra Club makes other inaccurate statements regarding ER Section 4.5.8 and the 2004 study it describes. Indeed, Sierra Club contradicts itself in claiming that ER Section 4.5.8 incorrectly states that the 2004 survey was conducted at the CISF site. 68 Earlier in its argument, Sierra Club cites to the same 2004 survey, which used a study area of 3.1 miles around the WCS LLRW site, to show that this area did include the CISF site. 69 Although the CISF site was not yet identified in 2004, as Sierra Club points out, the 2004 study surveyed this same area.

62 ER at 3-34.

63 See ER § 3.5.4 at 3-34 (describing suitable habitat for both lizards is present in much of the study area).

64 ER § 3.5.2 at 3 3-30.

65 ER § 3.5.4 at 3-34 (no Texas horned lizard observed at the CISF site); ER § 4.5.8 at 4-37 (no dunes sagebrush lizard identified at the CISF site).

66 Sierra Club Amended Contention 13 at 2.

67 ER at 3-34. The size of the CISF site is approximately 2.37 percent of the 14,000-acre WCS property.

68 Sierra Club Amended Contention 13 at 4.

69 Id. at 3 (stating the area around the LLRW site (which would include the CIS site)). Id.

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Sierra Club then incorrectly asserts that the 2004 study determined that the CISF site should be protected to preserve the habitat for the lizards. 70 However, the study did not make this recommendation; it instead simply suggested that potential benefits of protecting the area may result in improved habitat quality for both species over time. 71 Sierra Club again misconstrues the ER by stating that Section 4.5.10 claims that the CIS project will have no impact on the species. 72 Importantly, this section discusses impacts from pollutants. Thus, the statement in ER Section 4.5.10 that the two lizard species either do not occur on the CISF or are highly adaptable refers to impacts from pollutants. 73 It is not an overall conclusion on impacts from the proposed CISF project on the lizards. Further, Sierra Club fails to show that the statement in ER Section 4.5.10 that two lizard species either do not occur on the CISF or are highly adaptable is not supported by the ecological studies. 74 Sierra Club confuses information in the 2004 and 2007 studies that the ER relies on regarding suitable lizard habitat in the CISF site area with the notion that lizards were present at the CISF site. 75 Suitable habitat does not equate to the presence of the lizards. Thus, the information described in ER Section 4.5.10 that the lizards are not on the CISF site does not conflict with the ecological studies it relies on. Therefore, because Sierra Club has not shown that the studies provide information contrary to the ER, it fails to demonstrate a genuine dispute with the ER.

70 Id.

71 2004 Study at 7.

72 Sierra Club Amended Contention 13 at 1.

73 ER at 4-38.

74 Sierra Club Amended Contention 13 at 4.

75 2004 Study at 6 (stating that suitable lizard habitat was present throughout much of the study area);

2007 Study at 2.9.1-59 (indicating suitable dunes sagebrush lizard habitat north and west of the LLRW facility).

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Sierra Club asserts that the ecological studies are outdated, 76 but it fails to accurately identify any inadequacies in the studies or point to a legal requirement regarding the age of a valid study. Sierra Clubs criticism that the studies did not focus on the CISF site is nullified by the fact, which Sierra Club acknowledges, that the 2004 and 2007 studies included the CISF site area. 77 Sierra Club directs its claim that the surveys were just casual observations at the 1997 study, 78 but overlooks the statement in ER Section 3.5.1 that 1997 study was updated with the 2004 and 2007 studies. 79 Sierra Club also inaccurately asserts that the studies show that the lizards are present at the CISF site and that, therefore, the ER falsely states the project will not impact the lizards. 80 However, information in the studies and described in the ER shows that the lizards occurred on other areas of the WCS property but not at the CISF site. 81 Sierra Club thus fails to show that the ER does not provide sufficient information to describe the affected environment and environmental impacts of the proposed project. Sierra Club also fails to identify any legal requirement for a study to be conducted within a certain number of years of submission of an ER. Thus, Sierra Clubs generalized claim that the studies are outdated does not show a material dispute with the applicant.

For these reasons, Sierra Club has not demonstrated a genuine dispute with the applicant under 10 C.F.R. § 2.309(f)(1)(vi). 82 Thus, because Sierra Club has not demonstrated that amended Contention 13 meets the requirements of 10 C.F.R. § 2.309(f)(1)(vi), the Board should find it inadmissible.

76 Sierra Club Amended Contention 13 at 5.

77 Id. at 3.

78 Id. at 2.

79 ER at 3-29.

80 Sierra Club Amended Contention 13 at 5.

81 See ER § 3.5.4 at 3-34 (describing that past surveys found the lizards present on the WCS property, but not at the CISF site).

82 See Millstone, CLI-01-24, 54 NRC at 358.

14

Conclusion For the reasons set forth above, the Board should deny admission of Sierra Clubs amended Contention 13.

Respectfully submitted,

/Signed (electronically) by/

Thomas Steinfeldt Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0034 E-mail: Thomas.Steinfeldt@nrc.gov Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Sara B. Kirkwood Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9187 E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 7th day of October 2019 15

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. 72-1050 (WCS Consolidated Interim Storage Facility)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC Staff Answer in Opposition to Sierra Club's Amended Contention 13, dated October 7, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 7th day of October 2019.

/Signed (electronically) by/

Thomas Steinfeldt Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0034 E-mail: Thomas.Steinfeldt@nrc.gov Counsel for NRC Staff Dated in Rockville, MD this 7th day of October 2019