ML19288A228

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NRC Staff'S Answer in Opposition to Don'T Waste Michigan, Et Al.'S Appeal of LBP-19-7
ML19288A228
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 10/15/2019
From: Joe Gillespie, Kevin Roach, Thomas Steinfeldt, Wase Bell A
NRC/OGC
To:
NRC/OCM
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, LBP-19-7, RAS 55364
Download: ML19288A228 (30)
v • d • e


Text

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

NRC STAFF'S ANSWER IN OPPOSITION TO DON'T WASTE MICHIGAN, ET AL.'S APPEAL OF LBP-19-7 Kevin C. Roach Joe I. Gillespie III Alana Wase Bell Thomas Steinfeldt Counsel for NRC Staff October 15, 2019

TABLE OF CONTENTS Table of Contents .......................................................................................................................... ii Table of Authorities....................................................................................................................... iii Judicial Opinions ...................................................................................................................... iii Commission Legal Issuances ................................................................................................... iii Atomic Safety and Licensing Appeal Board Decisions ............................................................. iv Atomic Safety and Licensing Board Decisions ......................................................................... iv Statutes ..................................................................................................................................... v Regulations ............................................................................................................................... v Other Authorities ........................................................................................................................ v Introduction ................................................................................................................................... 1 Background ................................................................................................................................... 1 Discussion..................................................................................................................................... 3 I. Applicable Legal Standards ................................................................................................... 3 A. Review of Petitions to Intervene under 10 C.F.R. § 2.311 ................................................. 3 B. Legal Requirements for Standing ...................................................................................... 4

1. Traditional Standing Principles ....................................................................................... 4
2. Proximity-Plus Standing ............................................................................................... 5 C. Legal Requirements for Contention Admissibility .............................................................. 6 II. The Boards Standing Determination Was Correct ................................................................ 8 III. The Commission Should Affirm the Boards Determinations on Contention Admissibility ... 11 A. Contention 1 (NEPA Analysis of Transportation) ............................................................. 11 B. Contention 4 (Low-Level Radioactive Waste Volume) .................................................... 13 C. Contention 5 (Environmental Justice Impacts from Transportation)................................ 14 D. Contention 6 (Disclosure of Oil and Gas Drilling Activity) ............................................... 16 E. Contention 8 (Alternatives to the Proposed Project) ....................................................... 17 F. Contention 11 (Lack of Dry Transfer Facility) ................................................................... 19 G. Contention 14 (NEPA Terrorism Considerations) ............................................................. 21 Conclusion .................................................................................................................................. 23 ii

TABLE OF AUTHORITIES Judicial Opinions Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) .................................................................... 12 Bd. of Comm'rs, Cuyahoga Cty. v. Nuclear Assurance Corp., 588 F.Supp. 856 (N.D. Ohio 1984). ................................................................................................................................ 8, 10 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC __

(slip op.) .................................................................................................................................. 9 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .............................................................................. 4 N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 131 (3d Cir. 2009) .................................................... 22 Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (D.C. Cir. 2006) ................................................ 8 Supply Pro Sorbents, LLC v. RingCentral, Inc., 743 Fed. Appx. 124 (9th Cir. 2018) ................... 10 Warth v. Seldin, 422 U.S. 490, 499 (1975) .................................................................................. 10 Commission Legal Issuances AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006) .................................................................................................................... 6, 7 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124 (2007) ..................................................................................................................... 22 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-09-20, 70 NRC 911 (2009) ............................................................................................... 4 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185 (1999) ....................................................................................................................... 9 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207 (2003) ...................................................................................................................... 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231 (2008)....................................................................................................................... 3 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001) ............................................................................................... 6 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328 (1999) .................................................................................................................................7, 18 EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613 (2011)................................................................................................................................. 9 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131 (2016) ............... 7 Exelon Generation Co., LLC (Clinton ESP Site), CLI-05-29, 62 NRC 801 (2005) ........................ 7 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-15-25, 82 NRC 389 (2015) ........................................................................................... 4, 6 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215 (2017) ....................................................................................................................... 3 iii

Fla. Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325 (1989) .................... 5 Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111 (1995) ................................................................................................................................. 5 Int'l Uranium Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247 (2001) .......................... 4 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) .................................................................................................................................7, 18 Nuclear Fuel Servs., Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244 (2004) ............................ 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340 (2002) ............................................................................................................... 22 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125 (2004).......................................................................................................7, 10, 20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999) .................................................................................................................. 7 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010) ................................................................................................. 4 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214 (2011) ........................................................................................................................ 3 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-01-2, 53 NRC 9 (2001) ................................ 4 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64 (1994) ............................ 4 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603 (2012) ...................................................................................................................................... 6 U.S. Army Installation Command (Schofield Barracks, Oauhu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185 (2010) ................................ 5 U.S. Dep't of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357 (2004) ................ 9, 10 USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006) ....................................... 6 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309 (2005) ..................................... 5 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235 (1996) ......... 4 Atomic Safety and Licensing Appeal Board Decisions Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) .................................................................................................................................. 7 Atomic Safety and Licensing Board Decisions Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008)......................................................................................................................17 Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568 (2006) ................................................................................................................. 6 Hous. Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439 (1979) ............................................................................................................................. 10 iv

Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __ (slip op.) (Aug. 23, 2019) ................................................................................. passim La. Energy Servs, L.P. (Claiborne Enrichment Center), LBP-97-8, 45 NRC 67 (1997) ............... 16 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200 (1993)......................................................................................................................17 U.S. Army Installation Command (Schofield Barracks and Pokakulo Training Area),

LBP-10-4, 71 NRC 216 (2010) .............................................................................................. 10 Statutes National Environmental Policy Act, 42 U.SC. § 4321 et seq ........................................................ 11 Regulations 10 C.F.R. § 2.309 ................................................................................................................ passim 10 C.F.R. § 2.311........................................................................................................................... 3 10 C.F.R. § 2.335 .....................................................................................................................7, 14 10 C.F.R. § 51.23 ......................................................................................................................... 13 10 C.F.R. § 71.47 ........................................................................................................................ 21 10 C.F.R. § 71.7 (1971) ................................................................................................................. 13 10 C.F.R. § 72.103 ....................................................................................................................... 16 10 C.F.R. § 72.90 ......................................................................................................................... 16 10 C.F.R. § 72.94 ......................................................................................................................... 16 10 C.F.R. § 73.26(b)(3) ................................................................................................................ 13 49 C.F.R. Subchapter C, Parts 171-178 ..................................................................................... 13 Other Authorities Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748 (Aug. 2003) ..................................................................................................... 19 Exec. Order No. 12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 11, 1994) .................... 15 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ....................... 7 Final Rule, Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed. Reg. 32,430 (June 22, 1995) ......................................................................................... 20 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel:

Final Report, Vol. 1, NUREG-2157 (Sept. 2014)..................................................................... 13 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018) ......................................................................... 2 v

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) .................................................................................................................................. 2 Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004) ............................................... 16 vi

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

NRC Staff's Answer in Opposition to Don't Waste Michigan, et al.'s Appeal of LBP-19-7 Introduction Pursuant to 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Commission Staff (NRC Staff) files this answer in opposition to the appeal filed by 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 (SEED), and Leona Morgan, individually (collectively, Joint Petitioners). In LBP-19-7, the Atomic Safety and Licensing Board found that, of the Joint Petitioners, only SEED demonstrated standing. However, the Board ruled that none of the contentions Joint Petitioners proffered are admissible. Because Joint Petitioners have not shown that the Board committed an error of law or abused its discretion, the Commission should affirm the Boards decision.

Background

By letter dated April 28, 2016, Waste Control Specialists, LLC (WCS) tendered an application for a specific license under 10 C.F.R. Part 72, requesting authorization to construct and operate a CISF for spent nuclear fuel (SNF) and reactor-related Greater-than-Class-C 1

waste in Andrews County, Texas. 1 About a year later, WCS 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. 2 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. 3 Shortly thereafter, a notice of opportunity to request a hearing and petition for leave to intervene for the Interim Storage Partners application was published in the Federal Register. 4 In response, Joint Petitioners submitted a petition to intervene and requested a hearing. 5 On August 23, 2019, the Board issued its decision, finding that while SEED demonstrated standing, 1

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).

2 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)).

3 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)). Specific references to the proprietary version of the SAR Revision 2 are designated as such.

4 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).

5 Petition of Don't Waste Michigan et al. to Intervene and Request for Adjudicatory Hearing (Nov. 13, 2018) (ML18317A433) (Joint Petition); see also NRC Staff Consolidated Answer (Dec. 10, 2018)

(ML18344A594) (NRC Staff Answer to Joint Petition); Interim Storage Partners LLCs Answer Opposing Hearing Request and Petition to Intervene Filed by Dont Waste Michigan et al. (Dec. 10, 2018) (ML18344A685) (ISP Answer to Joint Petition); Combined Reply of Dont Waste Michigan et al.

to ISP/WCS and NRC Answers (Dec. 17, 2018) (ML18351A640) (Joint Petitioners Reply).

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none of the contentions Joint Petitioners proferred met the requirements of 10 C.F.R.

§ 2.309(f)(1). 6 Joint Petitioners now appeal the Boards ruling with respect to standing and Contentions 1, 4, 5, 6, 8, 11, and 14.

Discussion I. Applicable Legal Standards A. Review of Petitions to Intervene under 10 C.F.R. § 2.311 The NRCs regulations at 10 C.F.R. § 2.311(c) provide an appeal as of right on the question of whether a petition to intervene or request for hearing should have been granted. On threshold matters such as standing and contention admissibility, the Commission gives substantial deference to board rulings unless the appeal points to an error of law or abuse of discretion which might serve as grounds for reversal of the boards decision. 7 The Commission has maintained that [r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient. 8 Rather, a valid appeal must point out the errors in the [b]oards decision. 9 In addition, an argument made before the board 6

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

(slip op. at 105-06) (Aug. 23, 2019).

7 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 NRC 214, 220 (2011); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

8 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017) (citations omitted).

9 Id.

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but not reiterated or explained on appeal is considered abandoned. 10 Finally, the Commission will not entertain an argument that is raised for the first time on appeal. 11 B. Legal Requirements for Standing

1. Traditional Standing Principles In addition to fulfilling the general standing requirements of 10 C.F.R. § 2.309(d)(1), a petitioner must demonstrate that it has an interest that may be affected by the proceeding. 12 The Commission applies contemporaneous judicial concepts of standing to evaluate whether the petitioner has demonstrated the requisite interest. 13 To this end, a petitioner must (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. 14 The injury claimed by the petitioner must be actual or threatened and both concrete and particularized. 15 The causation element of standing requires a petitioner to show that the injury is fairly traceable to the proposed action. 16 The redressability element of standing requires the intervenor to show that its actual or threatened injuries can be cured by some action of the tribunal. 17 10 Int'l Uranium Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); see Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245 (2010).

11 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 260 (1996) (rejecting an argument raised for the first time on appeal, which did not satisfy the factors for admission of late-filed contentions, on that basis alone).

12 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-15-25, 82 NRC 389, 394 (2015).

13 See id. at 394; see also Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).

14 Turkey Point, CLI-15-25, 82 NRC at 394; Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71 (1994); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

15 Int'l Uranium, CLI-01-21, 54 NRC at 250; see also Sequoyah Fuels, CLI-94-12, 40 NRC at 71 (stating that standing has been denied when the threat of injury is too speculative).

16 Sequoyah Fuels, CLI-94-12, 40 NRC at 75.

17 Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-01-2, 53 NRC 9, 15 (2001).

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2. Proximity-Plus Standing In cases involving reactor facilities, the Commission will apply a standing presumption based on proximity to the site. 18 No such automatic presumption exists for nuclear materials proceedings. 19 In such cases, to obtain standing based on geographic proximity to a facility, a petitioner must demonstrate that the proposed action involves a significant source of radioactivity producing an obvious potential for offsite consequences. 20 This proximity-plus standard is applied on a case-by-case basis, taking into account the nature of the proposed action and the significance of the radioactive source. 21 If there is no obvious potential for radiological harm at a particular distance frequented by the petitioner, it becomes the petitioners burden to show a specific and plausible means of how the challenged action may harm him or her. 22 [C]onclusory allegations about potential radiological harm are insufficient for this showing. 23 Where a petitioner is unable to demonstrate proximity-plus standing to intervene, traditional standing principles will apply. 24 18 See Fla. Power and Light Co. (St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989).

19 See Nuclear Fuel Servs., Inc. (Erwin, Tennessee), CLI-04-13, 59 NRC 244, 248 (2004).

20 Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995).

21 Id. at 116-17.

22 USEC, Inc. (American Centrifuge Plant), CLI-05-11, 61 NRC 309, 311-12 (2005) (quoting Nuclear Fuel Servs., CLI-04-13, 59 NRC at 248 (internal quotations omitted)).

23 Nuclear Fuel Servs., CLI-04-13, 59 NRC at 248.

24 See U.S. Army Installation Command (Schofield Barracks, Oauhu, Hawaii, and Pohakuloa Training Area, Island of Hawaii, Hawaii), CLI-10-20, 72 NRC 185, 189 (2010).

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On appeal, the Commission gives substantial deference to a licensing boards findings on standing, absent an error of law or abuse of discretion. 25 Unless the licensing boards conclusion [on standing] is irrational, the Commission will not disturb its decision. 26 C. 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. 27 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. 28 The Commission has strictly applied these contention admissibility requirements in NRC adjudications. 29 Failure to comply with any one of these criteria is grounds for the dismissal of a 25 Strata Energy, Inc. (Ross In Situ Uranium Recovery Project), CLI-12-12, 75 NRC 603, 608 (2012)

(citations and internal quotation marks omitted).

26 Turkey Point, CLI-15-25, 82 NRC at 394 n.32 (citations and internal quotations omitted).

27 Entergy Nuclear Vt. Yankee, LLC (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).

28 10 C.F.R. § 2.309(f)(1).

29 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), pet. for recons. denied, CLI-02-01, 55 NRC 1 (2002)).

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contention. 30 The requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision. 31 The Commission has stated that it should 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. 32 The Commission has emphasized that attempting to satisfy these requirements by [m]ere notice pleading does not suffice. 33 A contention must be rejected where, rather than raising an issue that is concrete or litigable, it reflects nothing more than a generalization regarding the petitioners view of what the applicable policies ought to be. 34 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. 35 The hearing process is reserved for genuine, material controversies between knowledgeable litigants. 36 In addition, 10 C.F.R. § 2.335(a) prohibits, absent waiver, a challenge to a Commission rule or regulation in any adjudicatory proceeding subject to 10 C.F.R. Part 2.

30 Private Fuel Storage, LLC (Independent 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).

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

32 Id.

33 Oyster Creek, CLI-06-24, 64 NRC at 119 (quoting Exelon Generation Co., LLC (Clinton ESP Site),

CLI-05-29, 62 NRC 801, 808 (2005)).

34 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 129 (2004) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974)).

35 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 307 (2012) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 335 (1999)).

36 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)).

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II. The Boards Standing Determination Was Correct The Commission should affirm the Boards well-supported finding that none of the Joint Petitioners except for SEED demonstrated standing. 37 Joint Petitioners based their claims of standing on the proximity of their members to what they assert will be routes (e.g., highways or railways) by which spent nuclear fuel could be transported to the proposed facility. They accordingly assert standing based on potential harm from the risks of accidents and radiological releases that might occur from such shipments in their residences and workplaces or other exposures while stopped in traffic. 38 However, the Board observed that seven of the eight Joint Petitioners based their standing claims on their members proximity to potential transportation routes instead of proximity to the proposed facility and determined that the interest described is simply too remote and speculative to satisfy contemporary judicial concepts of standing. 39 Joint Petitioners have not demonstrated a legal error by the Board or otherwise illustrated how its decision could be considered an abuse of discretion.

The Boards decision with respect to the Joint Petitioners other than SEED rests on one fundamental factor. The Board found that geographical proximity to potential transportation routes is too remote and speculative to establish standing. 40 The Board explained its decision by citing to NRC decisions denying standing, including the recent decision in the Holtec 37 ISP, LBP-19-7, 90 NRC at __ (slip op. at 17-18). The Board found that SEED had standing based on their members five-mile proximity to the proposed ISP facility, however the Joint Petitioners appeal is focused on standing based on proximity to transportation routes by which spent fuel might travel to the proposed facility.

38 See, e.g., Declaration of Cemelli de Aztlan (in support of Public Citizen) ¶ 3; Joint Petition at 11-20.

39 ISP, LBP-19-7, 90 NRC at __ (slip op. at 17-18)); see Nuclear Info. & Res. Serv. v. NRC, 457 F.3d 941 (D.C. Cir. 2006) (finding no standing where there was no clearly alleged harm); see also Bd. of Comm'rs, Cuyahoga Cty. v. Nuclear Assurance Corp., 588 F.Supp. 856 (N.D. Ohio 1984) (finding that lack of preparedness to respond to a nuclear transportation accident and associated fear is an insufficient injury to confer standing).

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

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proceeding involving the same Joint Petitioners challenge to a different proposed interim storage facility. 41 In Holtec, the Board explained that even assuming that transportation accidents are possible, this fact would not establish that a there is a reasonable opportunity for an accident to occur at any particular location or that radioactive materials will escape in an accident. 42 Second, the Board in Holtec found that the sources of spent fuel and precise routes that might be used for the facility have not been established, which makes Joint Petitioners standing claims even more speculative. 43 On appeal, Joint Petitioners advance numerous theories as to how they might establish standing. Specifically, Joint Petitioners argue that the Board erred in its standing determination and state that ISP has established likely customers; 44 that use of Department of Energy route projections for the ISP site are highly probable; 45 that individuals within 50 miles of transportation routes are within the zone of danger of spent nuclear fuel transportation; 46 that 41 Id. at (slip op. at 17 n. 93) (citing U.S. Dept of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004)(quoting Diablo Canyon ISFSI, LBP-02-23, 56 NRC at 434); see also EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613, 623 (2011) (denying petitioners standing claim for failing to show there would be any impact from the transport of radioactive materials to be imported); Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC __, __ (slip op. at 14-15) (discussing cases).

42 Holtec, LBP-19-4, 89 NRC at __ (slip op. at 14-15) (discussing cases).

43 Id.

44 Joint Petitioners Appeal at 5-7.

45 Id. at 7-8. In their appeal, Joint Petitioners also introduce several additional assertions not raised before the Board. These include assertions about ISPs potential customers, as well as further claims regarding why Joint Petitioners believe transportation routes evaluated by the Department of Energy would be used in some way for transportation of spent nuclear fuel to the ISP site. See, e.g., Joint Petitioners Appeal at 5-8. Such new factual arguments raised for the first time on appeal are impermissible, and on that basis alone, they provide no grounds to disturb the Boards ruling.

Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 193-94 (1999). But in any event, none of these new assertions demonstrates error in the Boards underlying determination that the mere proximity to potential spent nuclear fuel transportation along a hypothetical route is an insufficient claim of harm to confer standing. U.S. Dep't of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004).

46 Joint Petitioners Appeal at 8-14.

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the sites canister acceptance criteria will increase the number of shipments; 47 and that prior board and Commission decisions do not apply to the types of transportation that will occur in this case. 48 None of these theories demonstrates that the Boards decision was incorrect. As the Board found in its decision, the Commission has held that geographical proximity to potential transportation routes is insufficient to confer standing. 49 The mere fact that material may ultimately be transported to the ISP facility does not establish that there is a likely harm to any individual along that route. 50 Courts, the Commission, and the licensing boards have repeatedly found that certain de minimis injuries are insufficient to confer standing. 51 Joint Petitioners have not established any clear, non-speculative theory as to how or why these activities would uniquely harm them. 52 47 Id. at 14. The proposed license states that only sealed canisters (welded) will be accepted for storage and the facility does not open canisters at any time. Proposed License, Appendix D, § 3.1.3 at 3-4.

While the Board did not specifically address this in its discussion of Joint Petitioners standing, the Board noted in its discussion of Contention 11 that accidental canister breach is not a credible scenario. ISP, LBP-19-7, 90 NRC at __ (slip op. at 85-86). Additionally, the same regulations and requirements apply to both shipments that do not meet the site acceptance criteria and those that do.

NRC Staff Answer to Joint Petition at 59 n.262; Private Fuel Storage, CLI-04-22, 60 NRC at 138-39.

48 Joint Petitioners Appeal at 14-18.

49 U.S. Dep't of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 (2004); see also ISP, LBP-19-07, 90 NRC at __ (slip op. at 17 n. 93) (identifying cases denying standing for petitioners located along transportation routes).

50 Dep't of Energy, CLI-04-17, 59 NRC at 364.

51 See Supply Pro Sorbents, LLC v. RingCentral, Inc., 743 Fed. Appx. 124 (9th Cir. 2018) (finding de minimis financial injury insufficient to confer standing); U.S. Army Installation Command (Schofield Barracks and Pokakulo Training Area), LBP-10-4, 71 NRC 216, 232 (2010), affd, CLI-10-20, 72 NRC 185 (2010) (finding no injury from de minimis radiation exposures); Cuyahoga Cty., 588 F.Supp. at 858-65; Hous. Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 456 (1979), affd, ALAB-549, 9 NRC 644 (1979) (rejecting proximity standing where individual came within 50 miles of a reactor about once a month).

52 See Warth v. Seldin, 422 U.S. 490, 499 (1975) (standing will be denied when the asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens). In attempting to distinguish certain NRC cases cited by the Board, Joint Petitioners assert that their basis for standing did not depend solely on geographical proximity to transportation routes and that the Board did not recognize that their theory of harm encompasses both routine and non-routine threats. See Joint Petitioners Appeal at 15-19. However, those claims equally depend on the same 10

For these reasons, the Boards finding that Joint Petitioners failed to establish standing based on the speculative nature of the alleged harm was rational. Accordingly, the Commission should affirm the Boards finding that Joint Petitioners lack standing.

III. The Commission Should Affirm the Boards Determinations on Contention Admissibility In its decision, the Board also found that Joint Petitioners did not submit a contention that met the admissibility requirements of 10 C.F.R. § 2.309(f)(1). On appeal, Joint Petitioners claim the Board erred in its rejection of seven of these contentions. For the reasons stated below, the Commission should affirm the findings of the Board.

A. Contention 1 (NEPA Analysis of Transportation)

In proposed Contention 1, Joint Petitioners alleged that the Environmental Report excluded an analysis of transportation impacts, and as a result, failed to consider transportation as a connected action for purposes of review of the proposed action under the National Environmental Policy Act (NEPA). 53 The Staff opposed admission because the proposed contention failed to acknowledge, let alone allege a deficiency, in the analysis of transportation impacts that was included in the ISP Environmental Report. 54 And to the extent that Joint Petitioners claimed that the routes must be approved as part of this action, they failed to demonstrate this was within the scope of the action and thereby failed to articulate a genuine dispute. 55 underlying assumptions that the Board determined were unsupported by the petition: that transportation shipments are a likely source of harm, and that individuals located far from the ISP site are reasonably likely to encounter such shipments, let alone in a manner distinguishable from the public at large. ISP, LBP-19-7, 90 NRC at __ (slip op. at 17 n.93-8). Accordingly, Joint Petitioners fail to identify any error in the Boards logic.

53 See 42 U.S.C. § 4321 et seq.

54 10 C.F.R. § 2.309(f)(1)(vi).

55 10 C.F.R. § 2.309(f)(1)(iii), (vi).

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The Board denied the proposed contention using a similar rationale, noting that Joint Petitioners failed to dispute the transportation analysis that was included, and additionally, that the disclosure of precise transportation routes is outside the scope of a proceeding of a storage facility under Part 72. 56 The Commission should affirm the Boards decision. As has been repeatedly noted, NEPAs hard look is governed by a rule of reason in the face of potential uncertainty, and Joint Petitioners have not shown that the exact transportation routes are needed to fulfill this requirement. 57 And in any event, Joint Petitioners failure to acknowledge and challenge the applications transportation analysis is dispositive. 58 Specifically, the Environmental Report in fact examined the potential transportation impacts by using representative transportation routes from 12 different facilities. As the Board explained, Joint Petitioners failed to articulate a deficiency in this analysis. On appeal, Joint Petitioners have neither provided a legal basis to demonstrate why NEPAs rule of reason precludes such a representative route approach nor shown an error in the Boards conclusion that the petition accordingly did not meet 10 C.F.R. § 2.309(f)(1)(vi).

Additionally, as the Board noted, to the extent the Joint Petitioners assert that complete, precise analysis and disclosure of transportation routes is required at this stage, they have not identified how this claim is within the scope of this proceeding. 59 The application that has been submitted to the NRC is for an interim storage facility license under Part 72, not a specific transportation license under Part 71. 60 The specific routes for transportation of spent nuclear 56 ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69).

57 Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983).

58 10 C.F.R. § 2.309(f)(1)(vi).

59 ISP, LBP-19-7, 90 NRC at __ (slip op. at 68).

60 The NRC has previously issued a general license to licensees to transport material in approved transportation packages. See General Licenses, 10 C.F.R. Part 71, Subpart C (2018); General license 12

fuel would be determined near the time of shipment in accordance with separate NRC and DOE regulatory processes, all of which are outside the scope of this proceeding. 61 Because Joint Petitioners failed to challenge the actual content of the ERs transportation analysis and do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

B. Contention 4 (Low-Level Radioactive Waste Volume)

In Contention 4, Joint Petitioners asserted that the volumes of waste generated by the facility are underestimated. The sole aspect of this claim that Joint Petitioners discuss on appeal is that the application omits a discussion of repackaging, an activity that is not proposed by this application. 62 The Board found this portion of the contention outside the scope of the proceeding, because the effects of storage and activity after the term of the license has been generically addressed through the Continued Storage Rule and accompanying Continued Storage Generic Environmental Impact Statement (GEIS). 63 The Commission should affirm the Boards ruling. The language of 10 C.F.R. § 51.23 makes plain that an environmental report for an ISFSI is not required to discuss the environmental impacts of spent nuclear fuel storage in . . . an ISFSI . . . following the term of the

. . . ISFSI. Aside from the conclusory assertion that repackaging must be analyzed as a connected action under NEPA, Joint Petitioners provided no explanation in their original for shipment in DOT specification containers and in packages licensed for use by another licensee, 10 C.F.R. § 71.7 (1971) (issuing a general license for transportation in previously reviewed transportation packages).

61 Hazardous Materials Regulations, 49 C.F.R. Subchapter C, Parts 171-178 (2019); 10 C.F.R.

§ 73.26(b)(3) (requiring NRC approval of security arrangements).

62 Joint Petitioners Appeal at 22-23.

63 ISP, LBP-19-7, 90 NRC at __ (slip op. at 73); 10 C.F.R. § 2.309(f)(1)(iii); 10 C.F.R. § 51.23; NUREG-2157.

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petition as to how 10 C.F.R. § 51.23 does not foreclose this challenge. Joint Petitioners further failed to seek a waiver to challenge application of the rule to this action. 64 As a result, contrary to Joint Petitioners argument that this issue has been improperly segmented, the NRC has in fact made generic determinations regarding the post-license environmental impacts of spent fuel storage, none of which were previously challenged by Joint Petitioners. Consequently, the Board did not err in finding the proposed contention was outside the scope of this proceeding and impermissibly challenged NRC regulations. 65 Because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

C. Contention 5 (Environmental Justice Impacts from Transportation)

In Contention 5, Joint Petitioners asserted that the applicant, by excluding analysis of transportation of the SNF shipping casks from the originating commercial nuclear reactor to the WCS CISF, did not assess environmental justice impacts along potential transportation routes. 66 Joint Petitioners asserted that, as a result, compliance in the form of identification and analysis of potentially affected populations along the anticipated rail, truck and barge routes will be improperly excluded from disclosure in the NEPA document. 67 The Board found the proposed contention inadmissible on the basis that Joint Petitioners failed to raise a material dispute because the transportation of SNF and its impacts are not part of the NEPA review of the Part 72 application. 68 Rather, the Board quoted the application to show that transportation will be 64 10 C.F.R. § 2.335.

65 10 C.F.R. § 2.309(f)(1)(iii); 10 C.F.R. § 2.335.

66 Joint Petition at 76-77.

67 Id.

68 ISP, LBP-19-7, 90 NRC at __ (slip op. at 75).

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performed in accordance with 10 C.F.R. Part 71 and the originating reactor licenses and is not part of this License Application. 69 Therefore, the Board held that Joint Petitioners failed to raise[] an issue that is material to the findings the NRC must make in this proceeding. 70 On appeal, Joint Petitioners assert that the Board wrongfully segmented transportation from CISF operations, which limited consideration of environmental justice impacts to the proposed CISF location and excluded areas along potential transportation routes. 71 Joint Petitioners assert that, by allowing this segmentation, the Board wrongfully denied NEPA consideration of environmental effects along potential transportation routes. 72 Joint Petitioners fail to show that the Board committed legal error or abused its discretion by determining that such considerations are not material to this proceeding. As the Board stated, Joint Petitioners are correct that an analysis of transportation routes and impacts will need to be analyzed, should ISPs proposed facility be licensed and become operational. 73 But that assessment has no bearing on this proceeding. 74 Citing legal authorities used by Joint Petitioners, the Board explained that NEPA requires analysis of environmental justice impacts of the proposed action, which is based on the location of the proposed facility itself, not proximity to possible transportation routes. 75 Thus, the Board found that Joint Petitioners proposed contention was not material to findings the NRC must make on ISPs application.

69 Id. (quoting ISP License Application at 1-3). Further, as the Staff pointed out, Joint Petitioners failed to reference or challenge the information presented in the ER with respect to either transportation or environmental justice. See NRC Staff Answer to Joint Petition at 33 n.142.

70 ISP, LBP-19-7, 90 NRC at __ (slip op. at 75-76); see 10 C.F.R. § 2.309(f)(1)(iv).

71 Joint Petitioners Appeal at 24.

72 Id. at 20. Joint Petitioners incorporated the argument from their appeal regarding Contention 1, which concerned segmentation of SNF transportation from the proposed project.

73 ISP, LBP-19-7, 90 NRC at __ (slip op. at 75) (emphasis added).

74 Id.

75 Id. at __ (slip op. at 76). The Board cited Exec. Order No. 12,898 § 1-101, 59 Fed. Reg. 7629 (Feb.

11, 1994); Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory 15

Because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

D. Contention 6 (Disclosure of Oil and Gas Drilling Activity)

In Contention 6, Joint Petitioners argued that the prospects for mineral development at the site and the implications for inducing geological problems, including seismicity and groundwater movement, are unaddressed in the application. 76 Joint Petitioners cited 10 C.F.R.

§§ 72.103, 72.90, and 72.94 and claimed that the ER fails to comply with these regulations. 77 The Board found that Joint Petitioners had failed to acknowledge, much less dispute, relevant portions of the application in accordance with 10 C.F.R. § 2.309(f)(1)(vi). 78 The Board held that the relevant Part 72 analyses exist in the safety analysis report (SAR), and not in the ER, as they relate to safety. 79 As an example, the Board referenced the seismic analyses in SAR Chapter 2, Attachment D. 80 On appeal, Joint Petitioners assert that the Board missed Joint Petitioners point claiming that the application did not consider potential trends in drilling or fracking in the region. 81 Yet this shows no error in the Board ruling. A petitioner has an unavoidable duty to dispute specific portions of the application: [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue can be and Licensing Actions, 69 Fed. Reg. 52,040, 52,047 (Aug. 24, 2004); and La. Energy Servs, L.P.

(Claiborne Enrichment Center), LBP-97-8, 45 NRC 67, 103-04 (1997).

76 Joint Petition at 98.

77 Id. at 100-02.

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

79 Id. at 77-78.

80 Id. at 77.

81 Joint Petitioners Appeal at 25-26.

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dismissed. 82 Joint Petitioners cited a single page of the application, which only provided background information that oil and gas development occurs near the site. Neither in their petition nor their reply did they reference, let alone refute, the geologic, hydrologic, or seismic analyses contained in the SAR or ER. 83 Because Joint Petitioners failed to controvert the application, the Board correctly dismissed the contention.

Because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

E. Contention 8 (Alternatives to the Proposed Project)

In Contention 8, Joint Petitioners argued that the discussion of alternatives in the ER is deficient because it does not discuss several safer storage methods at reactor sites in the section evaluating the no-action alternative, which they argue is contrary to NEPA. 84 Joint Petitioners also argue that the ER should have acknowledged that the NRCs Continued Storage Rule. . . concludes that waste can be safety stored at reactor sites indefinitely. 85 The Board denied Contention 8, ruling that the safer storage methods at reactor sites 86 issues that Joint Petitioners argued should have been discussed do not appear to be alternatives to constructing ISPs proposed facility, but rather suggestions for improving it. 87 Therefore, these arguments do not demonstrate a genuine dispute on a material issue, as 82 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 433 (2008) (citing Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP 23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994)).

83 See e.g., SAR §§ 2.4 and 2.5 (discussing hydrology), 2.6 (discussing geology and seismology).

84 Joint Petition at 107.

85 Id.

86 Id.

87 ISP, LBP-19-7, 90 NRC at __ (slip op. at 80).

17

required by 10 C.F.R. § 2.309(f)(1)(vi). 88 The Board also rejected Joint Petitioners arguments regarding the Continued Storage Rule because they are based on a fundamental misunderstanding of the rule, which did not include an analysis of safety benefits or advocate for a particular method of storage. 89 On appeal, Joint Petitioners argue that the Board erred in dismissing Contention 8 for failing to demonstrate a genuine dispute on a material issue when it concluded that Joint Petitioners do not explain why these five alternatives must be evaluated by ISP in its Environmental Report. 90 Joint Petitioners assert that Petitioners do not have to explain; the existence of reasonable but unexamined alternatives renders an EIS inadequate. 91 Joint Petitioners are simply incorrect that they need not explain at the contention admissibility stage why issues they posit as reasonable alternatives must be evaluated in the ER. It is a basic requirement 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. 92 The Board correctly ruled that Joint Petitioners did not demonstrate a genuine dispute on a material issue because they failed to explain why the issues discussed in Contention 8 should have been evaluated as alternatives in the ER. 93 88 Id.

89 Id. at 81.

90 Joint Petitioners Appeal at 27.

91 Id. (citing DuBois v. U.S. Dept. of Agric., 102 F.3d 1273, 1287 (1st Cir. 1996), cert. denied, 117 S.Ct.

1567 (1997)).

92 Seabrook, CLI-12-5, 75 NRC at 332 (quoting Oconee, CLI-99-11, 49 NRC at 335.).

93 ISP, LBP-19-7, 90 NRC at __ (slip op. at 80).

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The Board also correctly identified that the alternatives 94 that Joint Petitioners assert should have been discussed are not alternatives at all, but rather speculative suggestions on improving the proposed facility. 95 The purpose of evaluating the no-action alternative is to understand what environmental impacts would occur if the proposed action did not take place as a baseline for comparing alternatives. 96 The alternatives identified by Joint Petitioners bear no relation to this purpose. As the Board correctly ruled, Joint Petitioners do not explain how considering the options put forward in their contention is necessary to analyzing the status quo of the proposed action not taking place. 97 Because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

F. Contention 11 (Lack of Dry Transfer Facility)

In Contention 11, Joint Petitioners claim that the applications lack of a dry transfer facility is contrary to the law and presents an impermissible risk beyond what is mandated by the Atomic Energy Act and is inadequately addressed in ISPs Environmental Report. 98 The Board, relying on the Commissions earlier holding in Private Fuel Storage, agreed with the Staff and ISP and denied the contention for failure to address the relevant contents of ISPs application, failure to raise a plausible scenario, and impermissibly challenging the NRCs Continued 94 Joint Petitioners alternatives are: (1) establishment of a dry transfer system; (2) modification of ISPs emergency response plan to include preparations for emissions mitigation; (3) modification of the CISF design to prevent malevolent acts; (4) Federal Government control of the ISP facility; and (5) implementation of HOSS at reactor sites.

95 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 80).

96 Environmental Review Guidance for Licensing Actions Associated with NMSS Programs, NUREG-1748 at 5-6 (Aug. 2003) (ML032450279).

97 ISP, LBP-19-7, 90 NRC at __ (slip op. at 81).

98 Joint Petition at 118-27; Joint Petitioners' Appeal at 28-29.

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Storage Rule. 99 On appeal, Joint Petitioners claim that Contention 11 must be admitted because arriving canisters might be damaged in transit and ISPs start clean/stay clean policy is unrealistic to address this concern. 100 As the Board correctly explained, the Commissions holding in Private Fuel Storage is dispositive. 101 In that case, the Commission held that to demonstrate a genuine dispute at the contention admissibility stage, a petitioner must give the Board reason to believe that contamination from a defective canister could find its way outside of the cask. 102 The Commission in Private Fuel Storage determined that accidental canister breach is not a credible scenario. 103 And just like the ISP applications start clean/stay clean framework, the Private Fuel Storage application contained analogous site acceptance criteria. 104 As the Staff explained in its answer to the petition, Joint Petitioners fail to dispute any portions of the application that address the proposed CISFs safety analyses, aging management plans, or quality assurance programs. 105 Further, a shipments failure to meet the 99 ISP, LBP-19-7, 90 NRC at __ (slip op. at 85-87).

100 Joint Petitioners' Appeal at 28.

101 ISP, LBP-19-7, 90 NRC at __ (slip op. at 86); Private Fuel Storage, CLI-04-22, 60 NRC at 136-37.

102 Private Fuel Storage, CLI-04-22, 60 NRC at 137.

103 See Private Fuel Storage, CLI-04-22, 60 NRC at 137 n.45 (citing Final Rule, Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed. Reg. 32,430, 32,438 (June 22, 1995)).

104 Compare ISP SAR (The SAR also discusses both surveillance activities and routine maintenance of the casks to identify and resolve any issues.). See generally SAR at 5-5 (Section 5.1.3.2, Surveillance of the Storage Overpacks); 5-5 to 5-6 (Section 5.1.3.5, Maintenance Operations); 5-7 (Section 5.1.5.5, Maintenance Techniques) to Private Fuel Storage Final Safety Analysis Report, Rev. 0 at 5.1-7 (ML061840346) (In order to maintain the PFSF philosophy of Start Clean/Stay Clean,

[health physics] personnel ensure that contamination levels on the canisters of incoming shipments are within the Technical Specification requirements.).

105 NRC Staff Answer to Joint Petition at 57.

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proposed site requirements does not mean that the external dose limits of 10 C.F.R. § 71.47 will not be met. 106 In accordance with the Private Fuel Storage decision and the strict-by-design contention admissibility standards, the Board did not err in finding that Joint Petitioners failed to articulate a plausible factual basis or expert opinion as to how the site acceptance criteria would contravene NRC regulations. Accordingly, because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards determination.

G. Contention 14 (NEPA Terrorism Considerations)

In Contention 14, Joint Petitioners raised a large number of issues with the application, relying on two reports. 107 The primary assertion, and the only issue raised on appeal, is that the Environmental Report should include an analysis of the environmental impacts of terrorist attacks. 108 The Board found the proposed contention out of scope because the action under consideration is a license for a storage facility that is not located in the Ninth Circuit. 109 On appeal, Joint Petitioners claim that because transportation has been segmented out of the action, the Board erred by not requiring such an analysis. 110 106 In its original answer and in this appeal, Joint Petitioners appear to conflate the site acceptance criteria for canisters with the dose rate limits for a canister loaded in approved transportation packaging (i.e., a cask). See NRC Staff Answer to Joint Petition at 59.

107 Joint Petition at 142.

108 Id.; Joint Petitioners Appeal at 30; ISP, LBP-19-7, 90 NRC at __ (slip op. at 92-93); Staff Answer at 70-73.

109 ISP, LBP-19-7, 90 NRC at __ (slip op. at 93).

110 Joint Petitioners Appeal at 30.

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The Commissions prior decisions on this issue are dispositive, and Joint Petitioners have not provided any new facts or law that would explain why a change in position is warranted. 111 As the Board correctly noted, the Commissions policy on the consideration of terrorism under NEPA has been affirmed by the United States Court of Appeals for the Third Circuit; the proposed facility will be located in Texas, which is within the jurisdiction of the United States Court of Appeals for the Fifth Circuit. 112 Because Joint Petitioners do not show that the Board committed an error of law or abused its discretion in finding that Joint Petitioners failed to present an admissible contention under 10 C.F.R. § 2.309(f)(1), the Commission should affirm the Boards decision.

111 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129-30 (2007), affd sub nom. N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 131, 140 (3d Cir. 2009); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002).

112 ISP, LBP-19-7, 90 NRC at __ (slip op. at 92-93).

22

Conclusion Joint Petitioners have not demonstrated an error of law or abuse of discretion by the Board in LBP-19-7. Accordingly, the Commission should affirm the Boards decision.

Respectfully submitted,

/Signed (electronically) by/

Kevin C. Roach Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (201) 521-2078 E-mail: Kevin.Roach@nrc.gov Counsel for NRC Staff Executed in Accord with 10 C.F.R. § 2.304(d)

Joe I. Gillespie III Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9184 E-mail: Joe.Gillespie@nrc.gov Counsel for NRC Staff Executed in Accord with 10 C.F.R. § 2.304(d)

Alana Wase Bell Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9095 E-mail: Alana.Bell@nrc.gov Counsel for NRC Staff Executed in Accord with 10 C.F.R. § 2.304(d)

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 Jersey City, NJ this 15th day of October 2019 23

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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's Answer in Opposition to Don't Waste Michigan, et al.'s Appeal of LBP-19-7, dated October 15, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System),

in the captioned proceeding, this 15th day of October 2019.

/Signed (electronically) by/

Kevin C. Roach Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (201) 521-2078 E-mail: Kevin.Roach@nrc.gov Counsel for NRC Staff Dated in Jersey City, NJ this 15th day of October 2019

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