ML19287A021

Sierra Clubs Reply to NRC Staffs Answer to Sierra Clubs Motion to Amend Contention 13

ML19287A021
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	10/14/2019
From:	Taylor W Law Offices of Wallace L. Taylor, Sierra Club
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55362
Download: ML19287A021 (13)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION IN THE MATTER OF:

) Docket No. 72-1050

)

INTERIM STORAGE PARTNERS LLC

) ASLB No. 19-959-01-ISFSI-BD01

)

(Consolidated Interim Storage Facility)

) October 14, 2019 SIERRA CLUBS REPLY TO NRC STAFFS ANSWER TO SIERRA CLUBS MOTION TO AMEND CONTENTION 13 INTRODUCTION The thrust of Sierra Club Amended Contention 13, just as with the original Contention 13, is that the conclusion in the ER submitted by ISP that there would be no impact on the Texas horned lizard and the dunes sagebrush lizard is not supported by reliable evidence. The sources which the ASLB determined should be made available to the public bolster this contention.

Although the ER makes the unsupported statements that the two species and their habitats are present at the CIS site, the sources were not available in order to determine if there was actually any basis for the claim in the ER that the CIS project would have no adverse impact on the species. That is the reason the ASLB determined that the sources must be available for public scrutiny.

Now that the sources are available, it is apparent that they do not provide support for the conclusion in the ER that the CIS project will have no impact on the Texas horned lizard and the dunes sagebrush lizard. This is information supporting Sierra Clubs contention that was not available before the sources were provided to Sierra Club.

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With respect to the three criteria for allowing a late-filed contention set forth in 10 C.F.R. § 2.309(c)(i)-(iii), there is no question that the information on which the amended contention is based was not previously available and that Sierra Club has filed its amended contention in a timely fashion. The NRC Staff admits this. The only issue is whether the information on which the amended contention is based is materially different from information previously available. As noted above, the material in the sources now revealed substantiate with information not previously available, that there is no basis for the conclusion in the ER that the CIS project will have no adverse impact on the two lizard species.

It is important to understand the standard for determining what is materially different information supporting a new contention. In Fla. Power & Light Co. (Turkey Point Units 6 and 7), 86 NRC 37, 48 (2017), the ASLB stated:

[T]he regulatory language [ ] does not require a petitioner to show that the new information is material to the contention. Rather, a petitioner satisifies section 2.309(c)(1)(ii) simply by showing that the new information upon which the contention is based is materially different from previously available information. Materially in this context 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 importantly.

In this case, the new information provided in the sources now disclosed by ISP is importantly different than the unsupported conclusory statements in the ER. That is exactly the reason the ASLB required that it be disclosed.

In the Fla. Power & Light decision described above, the ASLB in that case further explained in a footnote that [m]ateriality in the context of section 2.309(c)(1)(ii) relates to the magnitude of the difference between previously available information and currently 2

available information. In other words, the new information does not have to be something that was not discussed or presented in the ER. It simply has to be more important than the previous information. As applied to this case, while there were statements previously available in the ER that the two species were or could be present at the CIS site and the ER made the unsupported conclusion that there would be no impact to the species, the new information is of a different magnitude. That brings it within the parameters of § 2.309(c)(1)(ii).

THE FOUR SOURCES RELIED ON BY ISP PRESENT NEW INFORMATION MATERIALLY DIFFERENT THAN INFORMATION PREVIOUSLY AVAILABLE A. The 1997 Report The 1997 ecological assessment, at p. 4, states that extensive surveys, including specimen collections, were done for plants, birds, mammals, and insects, but only casual observations were made for reptiles and no specimens were collected. As described on page 7 et seq. of the 1997 report, the five study sites referred to on page 9 of ISPs Answer, previously filed herein (Accession No. ML19274E207) were for the study of plants, not reptiles. There is no indication in the 1997 report that the five sites were used to study reptiles. According to pages 103 and 105-106 of the report, insects and small mammals were collected at the five sites, but there is no reference to reptiles.

This review of the 1997 report demonstrates that none of the statements in the ER were credibly based on that report. In sections 3.5 and 4.5 of the ER there is no reference to the 1997 report. So now having the 1997 report to review, it is established that the Texas horned lizard and the dunes sagebrush lizard were likely in the area of the proposed 3

CIS site and that there was no basis established from this report that there would be no impact to the species from the CIS project.

B. The 2004 Species Survey The 2004 report states on page 4 that it is based on a one-day field survey conducted from 7:00 a.m. to 5:30 p.m. There is very little narrative regarding the presence of and impact to the Texas horned lizard and the dunes sagebrush lizard. The report does confirm, however, that the two species are or are likely in the area.

The report concludes as follows:

Development and operation of the proposed low level radioactive waste facility at the site will potentially result in the loss of some individual horned lizards and an incrementally small area of potential habitat. As suitable habitat for the sand dune lizard does not occur on or within 1.5km of the proposed areas of site disturbance, no impacts are anticipated. Protection of the area immediately surrounding the site may result in improved habitat quality for both species over time.

So, rather than support the claim in the ER that the CIS project will have no impact on the species, the 2004 report actually says that the area around the existing LLRW site, which would include the CIS site, should be protected to improve the habitat for the species.

The ER, 3.5.6, refers to an October 2003 survey allegedly showing that the CIS site does not support habitat for the dunes sagebrush lizard. At first blush, one would assume that the October 2003 survey must be referred to in the 2004 report. But, as noted above, the survey on which the 2004 report is based occurred in October of 2004, not 2003. It appears that the reference to an October 2003 survey may be taken from another document that was produced by ISP in response to the ASLB Ruling, a report on the status and habitat of the dunes sagebrush lizard in Lea County, New Mexico, prepared for the National Enrichment Facility project (Accession No. ML040850611). That report was 4

focused on a site in New Mexico, not the ISP CIS site in Texas. So the ER, 3.5.6, was incorrect in claiming that an October 2003 survey showed that the ISP site does not contain habitat for the dunes sagebrush lizard. Any reference to the New Mexico survey is completely irrelevant to the ISP facility.

The October 2003 New Mexico survey is also referenced in section 3.5.8 of the ER, That section also references a June 2004 survey. That June 2004 survey obviously comes from somewhere other than the 2004 report. It apparently comes from another document submitted by ISP in response to the ASLB Ruling, a report on the habitat and geographic range of the dunes sagebrush lizard in Lea County, New Mexico (Accession No. ML042170040). Just like the 2003 New Mexico report, this report does not cover the area of the ISP project in Texas.

C. The 2007 Report The 2007 report is also focused on the LLRW site, not the CIS site. In § 2.2, the report says habitat for the dunes sagebrush lizard does not occur on the LLRW site, but does occur north of that site. That location, of course, could include the CIS site. Section 4.0 of the 2007 report says that the LLRW project would have an impact on the Texas horned lizard and even cause the loss of some individual lizards. Of course, that says nothing about the impact of the CIS project on the horned lizard, but since the habitat for the horned lizard exists throughout the area, one can assume the same impacts from the CIS project.

D. The 2008 Report 5

Just like the previous reports purportedly relied upon in the ER, the 2008 report is limited to the LLRW site. Moreover, it simply reiterates what was in the previous reports.

Furthermore, it addresses only the LLRW site, not the area of the CIS site. So, the 2008 report does not support the assertion in the ER that the CIS project will have no impact on the Texas horned lizard and the dunes sagebrush lizard.

THE NEW INFORMATION IN THE REPORTS SUBMITTED BY ISP DO NOT SUBSTANTIATE THE CONCLUSION IN THE ER THAT THE CIS PROJECT WILL HAVE NO IMPACT ON THE TEXAS HORNED LIZARD AND THE DUNES SAGEBRUSH LIZARD The point of Sierra Club Amended Contention 13, just as in the original contention, is that the statements in the ER about the presence of the Texas horned lizard and the dunes sagebrush lizard and their habitats do not support the claim in the ER that the CIS project will have no impact on the two species. The new information now provided by ISP is materially different in that it provides the actual information on which ISP claims to have relied in preparing the ER. As described above, the sources were all focused on the LLRW site, not the CIS site, and to the extent that they discuss the area of the CIS project, they say that the species could be present there and that the area should be protected. None of that information appears in the ER and it has only been made available in the new information provided by ISP in response to the ASLB ruling.

The NRCs Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748, states,The ER should present a detailed and thorough description of each affected resource for evaluation of potential impacts to the environment. It is axiomatic that the discussion of the impacts of a proposed project must be thorough and accurate, since that is the purpose of an environmental report.

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Likewise, Council of Environmental Quality regulation, 40 C.F.R. § 1502.16, states:

This section [Environmental Consequences] forms the scientific and analytic basis for the comparisons [of alternatives].... The discussion will include the environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented.

The requirement for a thorough and accurate discussion of environmental impacts has been upheld by the courts. See, WildEarth Guardians v. Montana Snowmobile Assn, 790 F.3d 920 (9th Cir. 2015); Oregon Nat. Res. Council Fund v. Goodman, 505 F.3d 884 (9th Cir. 2007).

Therefore, the ER in this case violates NEPA and NRC guidance in making the claim that the CIS project will have no adverse impact on the Texas horned lizard and the dunes sagebrush lizard. In fact, the sources on which ISP purports to rely do not support that assertion, and in fact, appear to contradict it. That is exactly why the ASLB held that the ER was deficient in not providing access to the sources of information on which the ER claimed to rely.

SIERRA CLUB AMENDED CONTENTION 13 IS ADMISSIBLE A. Standards for Admissibility of Contentions Pursuant to 10 C.F.R. § 2.309(f), a petitioners contentions must: (1) provide a specific statement of the issue of law or fact to be raised or controverted; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised in the contention is within the scope of the proceeding; (4) demonstrate that the issue raised 7

in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with reference to specific sources and documents on which the petitioner intends to rely; (6) provide sufficient information to show that a genuine dispute exists with the licensee on a material issue of law or fact.

The NRC has made clear that the burden on a petitioner in stating its contentions is not heavy. In Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2

& 3), CLI-01-24, 54 NRC 349, the NRC described the contention admissibility standards as insist[ing] upon some reasonably specific factual and legal basis for the contention.

Id., 54 349,359. The NRC further explained in Millstone that the standards for contention admissibility were meant to prevent contentions based on little more than speculation and intervenors who had negligible knowledge of nuclear power issues and, in fact, no direct case to present. Id. at 358. Rather, petitioners are required only to articulate at the outset the specific issues they wish to litigate. Id. at 359.

The NRC and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner. The petitioner only needs to com[e] forward with factual issues, not merely conclusory statements and vague allegations. Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The NRC described the threshold burden in stating a contention as requiring a petitioner to raise any specific, germane, substantial, and material factual issues that are relevant to the... request for a license... and that create a basis for calling on the [licensee] to satisfy the ultimate burden of proof. Id.

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Also, in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978), the United States Supreme Court affirmed the NRC in finding that the proper standard to apply required intervenors to simply make a showing sufficient to require reasonable minds to inquire further, a burden the NRC found to be significantly less than that of making a prima facie case.

The ASLB in the Yucca Mountain case observed:

The Commission therefore amended its rules to require that contentions have at least some minimal factual and legal foundation in support. That is all. That is what DOE agreed at oral argument is the standard. As the Commission emphasized in Oconee, the contention requirements were never intended to be turned into a fortress to deny intervention.

B. Amended Contention 13 Has Factual Support NRC Staff claims that Sierra Clubs contention contains misinformation and incorrect statements. Sierra Clubs contention is based on information from the four sources produced by ISP. Significantly, NRC Staff primarily cites to the sections of the ER, rather than the information in the four reports. Sierra Club has correctly stated the information from those reports.

NRC Staff first refers to the statement in the ER, 4.5.8, that there will be no impact to communities or habitats within the 135ha (332 acre) site. But the Staff does not cite to any of the reports to show that that statement is correct or based on any of the sources.

Staff also states that neither lizard species in federally listed as threatened or endangered. But the Texas horned lizard is listed by the State of Texas as threatened and the dunes sagebrush lizard is a candidate for federal listing. Staff then states that the 9

existence of suitable habitat does not mean the lizards are present at the site. But, as discussed above, the reports on which the ER purports to rely state that the species are or could be present on the site. The Staff Answer, p. 12, relies on the statement in the ER, 3.5.4, that the lizards are not present on the CIS site. But, as described above, the reports do not say that.

NRC Staff also claim that Sierra Club has contradicted itself regarding the 2004 report. The Staff Answer, p. 12, claims that at one point Sierra Club claims that the 2004 report did not cover the CIS site but at another point claims that it did. In fact, Sierra Clubs Amended Contention 13 is not inconsistent. At page 3 of the Amended Contention it is noted that the 2004 report covered an area within a 3.1 mile radius of the LLRW site.

The CIS site was not even identified at that time. Page 4 of the Amended Contention makes that point, but notes that the 3.1 mile radius of the LLRW site would include the area that is now designated as the CIS site.

Regarding impacts, NRC Staff asserts that the ER, 4.5.10, only claims there would be no impact to the species from pollution. But if the species are present and their habitat exists there, they would be impacted by pollution. Furthermore, the ER gives no justification for stating that there would be no impact from pollution. For example, what pollutants are the species adaptable to and what pollutants would be contaminating the site? And what proof is there that the species are adaptable? And the construction of a radioactive waste facility on the site where the species have been found and where their habitat exists obviously creates an impact on the species. The Staff Answer does not address this point.

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NRC Staff also claims that Amended Contention 13 is incorrect in stating that the statements in the ER concerning the two lizard species are not supported by scientifically valid surveys. While the surveys for plants and animals, other than reptiles, appear to be conducted over an extended period of time and with thorough study, there were only casual observations of reptiles, with no effort to capture any. NRC Staff attempts to shift the burden of presenting valid information to Sierra Club, rather than accepting the requirement under NEPA and NRC guidance that the ER must present accurate scientific analysis. 40 C.F.R. § 1500.1(b).

Amended Contention 13 states that the reports on which the ER relied are out of date. There is no question that the reports are 11-22 years old. Staff improperly expects Sierra Club to carry the burden of presenting current information, but itself presents information that does not provide the thorough and accurate information required.

C. Amended Contention 13 Raises a Genuine Material Dispute with the ER As explained above and in Amended Contention 13, the contention raises a genuine material dispute with the ER. First, the contention shows that the reports on which the ER relies do not support what the ER states about the lizard species and their habitats. Second, the contention shows that the claim in the ER that the CIS project will have no impact on the species is not supported by the sources on which the ER purports to rely.

Sierra Club has certainly satisfied the standard for admissibility in this regard.

CONCLUSION 11

Sierra Club Amended Contention 13 satisfies all the requirements for admissibility and should be admitted.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 12

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF

)

) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC

)

)

(WCS Consolidated Interim Storage

) October 14, 2019 Facility)

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Sierra Clubs Reply to NRC Staffs Answer to Sierra Clubs Motion to Amend Contention 13 were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 13