ML19288A282

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Interim Storage Partners LLCs Answer Opposing the Appeal of LBP-19-7 by Dont Waste Michigan Et Al
ML19288A282
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 10/15/2019
From: Bessette P, Lighty R, Matthews T
Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, LBP-19-7, RAS 55366
Download: ML19288A282 (37)
v • d • e


Text

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 October 15, 2019 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING THE APPEAL OF LBP-19-7 BY DONT WASTE MICHIGAN et al.

Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 Phone: 202-739-5274 Email: timothy.matthews@morganlewis.com Email: paul.bessette @morganlewis.com Email: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC

TABLE OF CONTENTS Page i

I.

INTRODUCTION............................................................................................................. 1 II.

PROCEDURAL HISTORY............................................................................................... 2 III.

STANDARD OF REVIEW............................................................................................... 3 IV.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE JOINT PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION AS TO STANDING.................................................................................. 3 A.

Legal Standards for Standing................................................................................. 4 B.

The Board Correctly Rejected Joint Petitioners Standing Claims........................ 5 C.

The Commission May Reject Joint Petitioners Standing Claims on Other Grounds.................................................................................................................. 7 V.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE JOINT PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION AS TO CONTENTION ADMISSIBILITY............................................ 10 A.

The Board Correctly Denied Contention 1 (NEPA Transportation Analysis).............................................................................................................. 10 B.

The Board Correctly Denied Contention 4 (Low-Level Radioactive Waste)...... 12 C.

The Board Correctly Denied Contention 5 (Environmental Justice)................... 14 D.

The Board Correctly Denied Contention 6 (Oil And Gas Drilling)..................... 19 E.

The Board Correctly Denied Contention 8 (NEPA Project Alternatives)........... 23 F.

The Board Correctly Denied Contention 11 (Dry Transfer System)................... 25 G.

The Board Correctly Denied Contention 14 (Security Risks Analysis).............. 27 VI.

CONCLUSION................................................................................................................ 29

TABLE OF AUTHORITIES Page(s) i NRC Cases AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-07-8, 65 NRC 124 (2007)................................................................................................ 29 Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911 (2009)..................................... 5 Dominion Nuclear Conn. Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004)........................................................................................ 11, 25 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001).............................................................................................. 22 EnergySolutions, LLC (Radioactive Waste Import/Export Licenses),

CLI-11-3, 73 NRC 613 (2011).............................................................................................. 4, 9 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

CLI-12-15, 75 NRC 704 (2012).............................................................................................. 17 Entergy Nuclear Operations, Inc. et al. (Palisades Nuclear Plant),

CLI-08-19, 68 NRC 251 (2008)................................................................................................ 8 Exxon Nuclear Co. (Nuclear Fuel Recovery & Recycling Ctr.),

LBP-77-59, 6 NRC 518 (1977)................................................................................................. 8 Fansteel, Inc. (Muskogee, Oklahoma Site),

CLI-03-13, 58 NRC 195, 203 (2003)...................................................................................... 23 FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 & 2; Davis-Besse Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1),

CLI-06-2, 63 NRC 9 (2006)...................................................................................................... 7 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2),

CLI-89-21, 30 NRC 325, 329 (1989)........................................................................................ 5 Ga. Inst. of Tech. (Ga. Tech Research Reactor),

CLI-95-12, 42 NRC 111 (1995)................................................................................................ 5 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station),

CLI-00-6, 51 NRC 193 (2000).................................................................................................. 7 Interim Storage Partners LLC (Consolidated Interim Storage Facility),

LBP-19-7, 90 NRC __ (Aug. 23, 2019)........................................................................... passim Kan. Gas & Elec. Co. (Wolf Creek Generating Station),

ALAB-279, 1 NRC 559, 576-77 (1975)................................................................................... 8 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1),

CLI-83-25, 18 NRC 327 (1983)................................................................................................ 9 N. States Power Co. (Pathfinder Atomic Plant),

LBP-90-3, 31 NRC 40 (1990)................................................................................................... 8

ii Nuclear Fuel Servs., Inc. (Erwin, Tennessee),

CLI-04-13, 59 NRC 244 (2004)................................................................................................ 5 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant ISFSI),

LBP-02-23, 56 NRC 413 (2002)........................................................................................... 3, 9 Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2),

ALAB-778, 20 NRC 42 (1984)................................................................................................ 6 Powertech USA, Inc. (Dewey-Burdock In Situ Uranium Recovery Facility),

LBP-15-16, 81 NRC 618, 697 (2015)..................................................................................... 16 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant),

CLI-10-7, 71 NRC 133 (2010).................................................................................................. 5 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-05-1, 61 NRC 160 (2005).................................................................................................. 7 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-98-13, 48 NRC 26 (1998).................................................................................................. 4 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999).............................................................................................. 27 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station),

LBP-92-23, 36 NRC 120 (1992)............................................................................................... 4 Sequoyah Fuels Corp. & Gen. Atomics (Gore, Okla. Site),

CLI-94-12, 40 NRC 64 (1994).............................................................................................. 4, 8 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007)................ 25, 26 U.S. Dept of Energy (Plutonium Export License),

CLI-04-17, 59 NRC 357 (2004)........................................................................................ 3, 5, 6 UniTech Servs. Group, Inc. (Export of Low-Level Waste),

CLI-18-2, 87 NRC 78 (2018).................................................................................................... 9 Federal Court Cases Babbitt v. United Farm Workers Natl Union, 442 U.S. 289 (1979).................................................................................................................. 4 DuBois v. U.S. Dept of Agric.,

102 F.3d 1273 (1st Cir. 1996)................................................................................................. 24 L.A. v. Lyons, 461 U.S. 95 (1983).................................................................................................................... 4 N.J. Dept. of Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009).................................................................................................... 29 Nat. Res. Def. Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972).................................................................................... 11, 18, 25

iii Roosevelt Campobello Intl Park Commn v. EPA, 684 F.2d 1041 (1st Cir. 1982)................................................................................................. 24 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006)................................................................................................ 27 Stewart Park & Res. Coal, Inc. v. Slater, 352 F.3d 545 (2d Cir. 2003).................................................................................................... 11 Suffolk Cty. v. Secy of Interior, 562 F.2d 1368 (2d Cir. 1977).................................................................................................. 18 Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).................................................................................................. 11 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974)................................................................................................ 11 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 453 U.S. 591 (1978)................................................................................................................ 25 W. Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983).................................................................................................. 16 Whitmore v. Ark.,

495 U.S. 488 (1974).................................................................................................................. 4 Other Authorities 42 U.S.C. § 2239(a)........................................................................................................................ 4 Rules 10 C.F.R. § 2.309(f).......................................................................................................... 19, 20, 23 10 C.F.R. § 51.52, Table S-4........................................................................................................ 16 10 C.F.R. § 71.0.............................................................................................................................. 9 10 C.F.R. § 72.120(d)................................................................................................................... 21 10 C.F.R. § 73.37(b)(1)(vi)....................................................................................................... 9, 17 10 C.F.R. Part 71........................................................................................................................... 17 10 C.F.R. Part 73........................................................................................................................... 17 40 C.F.R. § 1508.7........................................................................................................................ 16 49 C.F.R. Part 107......................................................................................................................... 17 49 C.F.R. Parts 171-180................................................................................................................ 17 49 C.F.R. Parts 390-397................................................................................................................ 17

iv Treatises NUREG-1714, Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah (Dec. 2001)........................................................................................... 16 NUREG-2125, Spent Fuel Transportation Risk Assessment (Jan. 2014).................................. 8, 9 NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nucelar Fuel (Sept. 2014)................................................................................................. 11, 16

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 October 15, 2019 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING THE APPEAL OF LBP-19-7 BY DONT WASTE MICHIGAN et al.

I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Interim Storage Partners LLC (ISP) submits this Answer opposing the Appeal filed by Dont Waste Michigan (DWM), Citizens Environmental Coalition (CEC), Citizens for Alternatives to Chemical Contamination (CACC), Nuclear Energy Information Service (NEIS), Public Citizen, Inc. (PC), San Luis Obispo Mothers for Peace (SLOMFP), Sustainable Energy and Economic Development Coalition (SEED), and Leona Morgan, Individually (together, the Joint Petitioners).1 Joint Petitioners seek to appeal LBP-19-7, the August 23, 2019 Order of the Atomic Safety and Licensing Board (ASLB or Board)2 denying their Petition to Intervene and Request for an Adjudicatory Hearing (Petition).3 More specifically, Joint Petitioners seek reversal of that

1 Notice of Appeal of LBP-19-07 by Dont Waste Michigan (DWM), Citizens Environmental Coalition (CEC), Citizens for Alternatives to Chemical Contamination(CACC), Nuclear Energy Information Service (NEIS), Public Citizen, Inc.(PC), San Luis Obispo Mothers for Peace (SLOMFP), Sustainable Energy and Economic Development Coalition (SEED), and Leona Morgan, Individually, and Brief in Support of Appeal (Sept. 17, 2019) (ML19260J391) (Appeal).

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

(slip op.) (ML19235A165).

3 Petition of [DWM, CEC, CACC, NEIS, PC, SLOMFP, SEED], and Leona Morgan, Individually, to Intervene, and Request for an Adjudicatory Hearing (Nov. 13, 2018) (ML18317A433).

2 portion of LBP-19-7 that denied standing to the petitioners other than SEED and rejected the admission of seven proposed contentions: Contention 1, Contention 4, Contention 5, Contention 6, Contention 8, Contention 11, and Contention 14.4 As explained more fully below, Joint Petitioners have established no error of law or abuse of discretion by the Board. As a result, the Commission should deny the Appeal.

II.

PROCEDURAL HISTORY The detailed procedural history of this proceeding is set forth in ISPs Answer to Beyond Nuclear, Inc.s appeal of LBP-19-7,5 and incorporated herein by reference. Specific to Joint Petitioners Appeal, following oral arguments on standing and contention admissibility on July 10 and 11, 2019, in Midland, Texas, the Board found that only SEED demonstrated standing,6 and that the other Joint Petitioners alleged too remote and speculative an interest on which to establish standing.7 But the Board found that Joint Petitioners failed to proffer an admissible contention and therefore denied the Petition.8 Joint Petitioners now appeal LBP-19-7 on the denial of standing to the petitioners other than SEED, and the rejection of seven proposed contentions: Contention 1, Contention 4, Contention 5, Contention 6, Contention 8, Contention 11, and Contention 14.9

4 ISP, LBP-19-7, 90 NRC at __ (slip op. at 19-30).

5 Interim Storage Partners LLCs Answer Opposing Beyond Nuclears Appeal of LBP-19-7 at 1-4 (Oct. 9, 2019)

(ISP Ans. to BN Appeal).

6 SEED submitted a supporting declaration of one member who lives about five miles from the proposed project, a distanceaccording to the Boardwithin the limits that have been found to confer standing. Id. at __ (slip op. at 17-18). For the same reasons explained in ISPs appeal of LBP-19-7, the Boards decision in this regard is legally erroneous. See Brief in Support of Interim Storage Partners LLCs Appeal of LBP-19-7 at 6-14 (Sept.

17, 2019) (ML19260H452).

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

8 Id. at __ (slip op. at 67-93).

9 Appeal at 4-19. Joint Petitioners submitted 15 proposed contentions, but are only appealing the Boards rejection of these seven.

3 III.

STANDARD OF REVIEW The appellate standard of review is set forth in ISPs Answer to Beyond Nuclear, Inc.s appeal of LBP-19-7,10 and incorporated herein by reference.

IV.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE JOINT PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION AS TO STANDING Joint Petitioners11 originally asserted that they were entitled to standing because of their proximity to rail, highway, and barge routes by which spent nuclear fuel (SNF) might be transported.12 Joint Petitioners argued that they had a right to invoke a standing shortcut known as the proximity presumption.13 Joint Petitioners also argued that their allegations of transportation-related accidents or chance highway encounters with SNF shipments further satisfied the elements of traditional standing.14 In LBP-19-7, the Board correctly rejected these claims as too remote and speculative to establish standing.15 More specifically, the Board cited controlling Commission case law explaining that geographical proximity to transportation routes is an insufficient basis for standing.16 On appeal, Joint Petitioners do little more than repeat their earlier arguments from the Petition and raise entirely new arguments never presented

10 ISP Ans. to BN Appeal at 5-6.

11 For purposes of this section on standing only, the term Joint Petitioners excludes SEED to the extent the Board found standing based on one of its members, Ms. Brigitte Gardner-Aguilar.

12 Petition at 7. DWM, CEC, CACC, PC, NEIS, and SLOMFP sought representational standing in this proceeding. Petition at 20; see also individual member declarations for DWM (ML18317A439), CEC (ML18317A436), CACC (ML18317A435), PC (ML18317A440), NEIS (ML18317A446), and SLOMFP (ML18321A002). Ms. Morgan sought individual standing and submitted her own declaration (ML18317A437).

13 Appeal at 4-5; 13-14.

14 Id. at 12-13.

15 ISP, LBP-19-7, 90 NRC at __ (slip op. at 17-18).

16 Id. at __ (slip op. at 17) (citing U.S. Dept of Energy (Plutonium Export License), CLI-04-17, 59 NRC 357, 364 n.11 (2004) (in turn quoting Pac. Gas & Elec. Co. (Diablo Canyon Power Plant ISFSI), LBP-02-23, 56 NRC 413, 434 (2002))).

4 to the Board. Ultimately, as explained below, these new and repeated arguments identify no error of law or abuse of discretion in LBP-19-7.

A.

Legal Standards for Standing The Atomic Energy Act of 1954, as amended (AEA), allows individuals whose interest may be affected to intervene in NRC licensing proceedings.17 The Commission has long applied judicial concepts of traditional standing to determine whether a petitioners interest provides a sufficient basis for intervention.18 Essential to establishing [traditional]

standing are findings of (1) injury, (2) causation, and (3) redressability.19 The mere ability to imagine circumstances where a party could be affected is not enoughthe petitioner must show that the injury is certainly impending.20 In the NRC licensing context, unsupported general references to radiological consequences are insufficient to establish a basis for injury.21 Accordingly, standing will be denied when the threat of injury is too speculative.22

17 AEA § 189a (codified at 42 U.S.C. § 2239(a)).

18 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 30 (1998).

19 EnergySolutions, LLC (Radioactive Waste Import/Export Licenses), CLI-11-3, 73 NRC 613, 621 (2011). Both an individual and an organization may assert standing. An organization may assert standing in its own right (i.e., organizational standing), or may assert a right to represent the interests of its members (i.e.,

representational standing), which requires a showing, among other things, that at least one of its members would otherwise have standing in their own right. PFS, CLI-98-13, 48 NRC at 30-31.

20 Nw. Airlines, Inc. v. Fed. Aviation Admin., 795 F.2d 195, 201 (D.C. Cir. 1986) (emphasis in original) (citing Babbitt v. United Farm Workers Natl Union, 442 U.S. 289, 298 (1979)).

21 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-92-23, 36 NRC 120, 130 (1992).

22 Sequoyah Fuels Corp. & Gen. Atomics (Gore, Okla. Site), CLI-94-12, 40 NRC 64, 72 (1994) (finding detailed data and an expert affidavit demonstrating the technical plausibility of the alleged injury were sufficient to demonstrate standing) (citing Whitmore v. Ark., 495 U.S. 488, 494 (1974); L.A. v. Lyons, 461 U.S. 95, 105 (1983)).

5 In nuclear materials proceedings,23 such as this one,24 a petitioner may invoke a standing shortcut known as the proximity plus presumption if it can affirmatively demonstrate an obvious potential for offsite consequences,25 and that the petitioner has sufficient interests that could face a realistic threat of harm due to a release of radioactive material.26 In all cases,

[t]he petitioner bears the burden to provide facts sufficient to establish standing.27 B.

The Board Correctly Rejected Joint Petitioners Standing Claims Based on their geographical proximity to various speculative transportation routes, Joint Petitioners claimed both traditional standing and entitlement to the proximity plus presumption. As the Board correctly found, both claims are wrong as a matter of law. In the DOE case, the Commission explained, mere geographical proximity to potential transportation routes is insufficient to confer standing.28 In other words, the proximity presumption does not apply to claims of proximity to potential transportation routes. Thus, the Board correctly relied on Commission precedent to conclude that such claims by Joint Petitioners were insufficient to confer a proximity-based standing presumption here.29 Joint Petitioners also argued that the inclusion in their Petition of speculative allegations of transportation-related accidents or chance highway encounters with SNF shipments somehow

23 In certain cases involving reactor facilities, the Commission will apply an automatic standing presumption based on proximity to the site. See, e.g., Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2),

CLI-89-21, 30 NRC 325, 329 (1989).

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

25 Ga. Inst. of Tech. (Ga. Tech Research Reactor), CLI-95-12, 42 NRC 111, 116 (1995).

26 Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 917 (2009).

27 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 NRC 133, 139 (2010).

28 DOE, CLI-04-17, 59 NRC at 364 n.11.

29 The unavailability of presumptive standing in no way impacts a petitioners ability to demonstrate traditional AEA-based standing. Joint Petitioners here made no such showing.

6 fortified their claims of proximity to speculative transportation routes to satisfy the elements of traditional standing. But speculative assertions are never enough to demonstrate standing. And, with or without such speculative allegations, the law remains the same: mere geographical proximity to potential transportation routes is insufficient to confer standing.30 Thus, Joint Petitioners have identified no error of law or abuse of discretion.

On appeal, Joint Petitioners seek to distinguish the DOE case. First, they argue that the DOE case involved a one-time shipment, while this case may entail multiple shipments.31 And second, they argue that the radiological profiles of the materials in the two cases are different.32 But Joint Petitioners fail to explain how these differences somehow are relevant or material to the Commissions acknowledgment that mere geographical proximity to potential transportation routes is insufficient to confer standing.33 The Commissions statement of law in this regard is agnostic to the number of shipments and the material profilesand Joint Petitioners fail to demonstrate otherwise. Furthermore, Joint Petitioners did not even attempt to distinguish the DOE precedent on these bases in the pleadings below. As a matter of law, [a] party cannot be heard to complain later about a decision that fails to address an issue no one sought to raise.34 Thus, Joint Petitioners have identified no error of law or abuse of discretion in the Boards application of the controlling DOE precedent in this proceeding.

30 DOE, CLI-04-17, 59 NRC at 364 n.11.

31 Appeal at 14.

32 Id. at 15.

33 DOE, CLI-04-17, 59 NRC at 364 n.11.

34 Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-778, 20 NRC 42, 47-48 (1984).

7 C.

The Commission May Reject Joint Petitioners Standing Claims on Other Grounds As a matter of law, the Commission is free to reject Joint Petitioners standing claims on any ground finding support in the record, whether relied on by the Board or not.35 Here, the record is filled with alternative grounds to reject Joint Petitioners standing. In general, Petitioners vague claims of speculative harm along random or unspecified transportation routes simply cannot meet their burden to demonstrate satisfaction of all three elements of traditional standing. Thus, Joint Petitioners standing claims may be rejected for any of the following reasons.

First, many of the standing declarations submitted by Joint Petitioners are facially or procedurally deficient. For example, several declarants did not fill in the blanks on their form-letter declarations with specific details about their alleged interests.36 Such declarations per se fail to provide sufficient detail to show an allegedly affected interest.37 And SLOMFP failed to timely submit any member declarations by the extended deadline for submission of hearing requests in this proceeding.38 As the Commission has explained, [t]his omission is not merely a

35 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005)

(redacted public version of decision) (citing federal court precedent).

36 The blank space for identification of one or more rail trackage/highway transport routes has not been replaced with text referencing any specific railroad or highway in any of the declarations submitted by CEC, PC, SEED, or NEIS. See generally PC Declarations, NEIS Declarations, CEC Declarations, and SEED Declarations (at ¶ 4 of each declaration). See also Morgan Declaration ¶ 4 (generically referencing a main rail line). The blank space for identification of whether the interest declarant asserts is at a certain distance from that route is their (home/place of work/place of recreation) remains entirely unedited in most of those same declarations. See generally PC Declarations, NEIS Declarations (Declaration of Arlene Hickory only), and CEC Declarations (the Declaration of Standing for Peter E. Swords does remove the parentheses, but adds an ambiguous and/or statement) (at ¶ 4 of each declaration).

37 See, e.g., FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 & 2; Davis-Besse Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 63 NRC 9, 16 (2006) (citing GPU Nuclear, Inc.

(Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 203 (2000) (holding that vague and general assertions unaccompanied by supporting factual details are insufficient to demonstrate standing).

38 Compare Office of the Secretary, Order (Oct. 25, 2018) (ML18302A329) (extending the deadline to file a hearing request to November 13, 2018) with SLOMFP Declarations (filed four days late).

8 matter of failing to cross a t or dot an i.39 Rather, standing must be denied altogether if a petitioner submitted no authorization affidavits with its petition to intervene.40 Second, Joint Petitioners dubious and unsupported suggestions of potential transportation accidents are far too remote and speculative to identify an injury-in-fact. The mere fact that... radioactive waste will be transported does not, per se, show an injury-in-fact vis--vis a higher likelihood of an accident; and any asserted injury on this basis is purely speculative and legally insufficient to demonstrate standing.41 Moreover, tenuous assumptions that a transportation accident might occur are entirely speculative in nature, and therefore fail to establish standing.42 Joint Petitioners, here, offer no more than tenuous assumptions that spills, leakage, and contamination of water somehow could occur.43 Third, Joint Petitioners allegations of de minimis radiological exposures (e.g., from chance encounters along speculative transportation routes) are insufficient to show injury-in-fact.44 Indeed, in 2011, the Commission categorically held that [m]ere potential exposure to minute doses of radiation within regulatory limits does not constitute a distinct and palpable

39 Entergy Nuclear Operations, Inc. et al. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 260 (2008).

40 Id. at 261. SLOMFPs untimely submission of those declarations does not cure this dispositive procedural defect. Id. (belatedly submit[ting] evidence regarding standing is not curative). And SLOMFP admits that it lacks good cause for its untimely filing. See SLOMFP Declarations at 1 (noting the tardy filing was merely counsels error). Cf. Kan. Gas & Elec. Co. (Wolf Creek Generating Station), ALAB-279, 1 NRC 559, 576-77 (1975) (experienced counsel are held to a high standard for procedural compliance).

41 N. States Power Co. (Pathfinder Atomic Plant), LBP-90-3, 31 NRC 40, 43 (1990).

42 Exxon Nuclear Co. (Nuclear Fuel Recovery & Recycling Ctr.), LBP-77-59, 6 NRC 518 (1977).

43 Petition at 13. Joint Petitioners claim ISPs Environmental Report openly admits that rail casks could release radioactivity in exceptionally severe accidents. Id. (citing ISP Environmental Report, Rev. 2 at 4-15 (July 19, 2018) (ER)). But they misread the ER, which simply quotes a generic NRC conclusion that only rail casks without inner welded canisters present such possibility. ER at 4-15 (citing NUREG-2125, Spent Fuel Transportation Risk Assessment at xxiv (Jan. 2014) (ML14031A323) (emphasis added)). In contrast, canisters sent to the WCS CISF must be welded shut. Application at 2-1; see also id. at 3-4 (only sealed canisters (welded) will be accepted for storage).

44 Sequoyah Fuels, CLI-94-12, 40 NRC at 72.

9 injury on which standing can be founded.45 As a result, Joint Petitioners claims on this basis cannot establish traditional standing.

Finally, Joint Petitioners vague references to general transportation routes fail to satisfy the causation and redressability elements of traditional standing. To begin with, identifying specific transportation routes at this stage is pure conjecture. Route selections will be considered by knowledgeable, responsible shippers and regulators years from now under a separate review and approval processand thus are not redressable here.46 Thus, Joint Petitioners speculative assertions that some road, railroad, or body of water couldin theorybe used to transport SNF somewhere falls far short of a demonstration that such routes will be used to transport SNF to the WCS CISF.47 Ultimately, Joint Petitioners have not pled or alleged sufficient facts to demonstrate causation or redressability in this proceeding.

45 EnergySolutions, CLI-11-3, 73 NRC at 623 (emphasis added). See also Diablo Canyon ISFSI, LBP-02-23, 56 NRC 413, 428 (2002) (simply showing the potential for any radiological impact, no matter how trivial, is not sufficient to meet the requirement of a showing of a distinct and palpable harm under standing element one)

(emphasis added). Compare id. at 429 (an alleged radiological exposure four or five orders of magnitude below average natural background radiation levels... clearly falls below the level that can be considered substantial enough for standing purposes) with NUREG-2125 at xxiv (presenting the NRCs generic conclusion that potential public radiological exposures from routine transportation of SNF are approximately four to five orders of magnitude less than the collective background radiation dose).

46 See 10 C.F.R. §§ 71.0, 73.37(b)(1)(vi). See also UniTech Servs. Group, Inc. (Export of Low-Level Waste),

CLI-18-2, 87 NRC 78, 81-82 (2018) (finding allegations of transportation-related harms had an insufficient nexus to a non-transportation licensing proceeding to establish standing because transportation is separately authorized... by transportation licensing requirements).

47 Indeed, to the extent that Joint Petitioners identify specific reactors from which SNF purportedly would originate and be sent to the WCS CISF, those assertions are factually erroneous. ISP seeks authorization to store only certain dry cask storage systems. Application at 2-1. Whereas the reactors identified by Joint Petitioners (i.e., Fermi 2, Palisades, Diablo Canyon, and the Big Rock Point ISFSI) do not use any storage system listed in the Application. See ISP Answer at 14-15 (providing more cask-specific details). Indeed, by citing Department of Energy maps of rail and highway transportation routes from a separate proceeding, see, e.g., Appeal at 9, Joint Petitioners implicitly concede that their assertions are not specific to this proceeding. A generalized grievance shared in substantially equal measure by all or a large class of citizens is not enough to support standing. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983).

10 In summary, Joint Petitioners have identified no error of law or abuse of discretion in the Boards decision to reject Joint Petitioners standing claims.

V.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE JOINT PETITIONERS IDENTIFY NO ERROR OF LAW OR ABUSE OF DISCRETION AS TO CONTENTION ADMISSIBILITY A.

The Board Correctly Denied Contention 1 (NEPA Transportation Analysis)

In rejecting Contention 1,48 the Board cited Joint Petitioners failure to show the existence of a genuine dispute with the Application.49 The Board also rejected Contention 1 because it raises an issue outside the scope of this proceeding and improperly challenges the adequacy of NRC regulations in Part 72.50 On appeal, Joint Petitioners identify no error of law or abuse of discretion in the Boards ruling and provide no more than a recitation of their arguments below. For these reasons, their appeal of the Boards rejection of Contention 1 should be denied.

According to Joint Petitioners, Contention 1 is a contention of omission in that ISPs ER excludes the details and environmental impacts of a planned 20-year shipping campaign of SNF and Greater Than Class-C (GTCC) waste to ISP.51 But as the Board correctly concluded, the contention is not admissible because ISP included an analysis of environmental impacts from transportation, and Joint Petitioners did not address or dispute them.52 On appeal, Joint

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

49 ISP, WCS CISF License Application, Rev. 2 (ML18206A595) (including the Safety Analysis Report, Rev. 2 (SAR) and ER) (Application).

50 ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69).

51 Petition at 41-42; Appeal at 19.

52 ISP, LBP-19-7, 90 NRC at __ (slip op. at 68). The transportation analyses are in two sections of ISPs ER. ER Section 3.2 describes the transportation of SNF to the facility. ER at 3-5 to 3-7. And ER Section 4.2 discusses the environmental impacts of transportation activities during facility construction and operation, and the radiological impacts from the transportation of SNF and GTCC Wastes to the proposed CISF. ER at 4-3 to 4-

13.

11 Petitioners have not disputed the Boards conclusion in this regard, which by itself is grounds to reject their appeal.53 Instead, Joint Petitioners repeat the same arguments on segmentation,54 National Environmental Policy Act (NEPA) requirements,55 and the Continued Storage Generic Environmental Impact Statement (Continued Storage GEIS)56 that they made before the Board and that the Board rejected.

Nor do Joint Petitioners address the Boards conclusion that Contention 1 presents an argument (that ISP must identify all probable transportation routes) that is outside the scope of this proceeding. As the Board correctly concluded, NEPA does not require ISP to divulge all transportation routes of casks coming from unknown customers over 20 years, and NEPA does not require ISP to hypothesize about who will be sending what fuel at this time.57 On appeal, Joint Petitioners fail to dispute these conclusions.58 Instead, the focus of Joint Petitioners Appeal is the Boards rejection of their segmentation argument.59 They claim that the Board wrongly rejected this argument because separating transportation analysis from storage results in an unintegrated project which cannot

53 Dominion Nuclear Conn. Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004) (failure to challenge the Boards ruling on an admissibility factor is in and of itself, sufficient justification to reject a petitioners appeal).

54 Compare Petition at 44 with Appeal at 20 (discussing segmentation and citing Stewart Park & Res. Coal, Inc. v.

Slater, 352 F.3d 545, 559 (2d Cir. 2003)).

55 Compare Petition at 43-46 with Appeal at 21-22 (discussing NEPAs requirement to consider all connected actions in an EIS and citing Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974) and Thomas v.

Peterson, 753 F.2d 754, 758 (9th Cir. 1985)).

56 Compare Petition at 42 with Appeal at 20-21 (quoting Continued Storage GEIS, NUREG-2157, § 3.15, p. 3-38).

57 ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69) (citing Nat. Res. Def. Council v. Morton, 458 F.2d 827 (D.C.

Cir. 1972)).

58 See Appeal at 19-22.

59 Id.

12 be logically understood and frustrates the purpose of NEPA.60 Joint Petitioners argument, however, ignores the fact that ISPs ER did not separate transportation from storage and discussed and analyzed transportation in two sections of the ER.61 Since no segmentation occurred, Joint Petitioners appeal lacks a factual basis and could be denied for that reason alone.

Finally, as the Board correctly concluded, Joint Petitioners argument that ISP must provide analysis beyond that required by 10 C.F.R. Parts 51 and 72 amounts to an attack on the adequacy of those regulations, and is not allowed by 10 C.F.R. § 2.335.62 Joint Petitioners fail to address or dispute the Boards conclusion in this regard. Thus, their appeal demonstrates no error of law or abuse of discretion as to the Boards rejection of Contention 1.

B.

The Board Correctly Denied Contention 4 (Low-Level Radioactive Waste)

Contention 4 raised three claims about ISPs Application, alleging that: (1) repackaging SNF poses unconsidered management difficulties, increased waste generation, and unforeseen and undisclosed costs;63 (2) ISP grossly underestimates the concrete Low-Level Radioactive Waste (LLRW) at the CISF site;64 and (3) ISP allegedly fails to conduct an acceptable life cycle estimate of LLRW volumes and associated expenses.65 The Board rejected all three claims. Joint Petitioners appeal the Boards rejection of this contentionbut only on whether repacking of spent fuel falls outside the scope of this proceeding (claim 1).66 They make no

60 Id. at 20.

61 ER at 3-5 to 3-7 and 4-3 to 4-13.

62 ISP, LBP-19-7, 90 NRC at __ (slip op. at 69).

63 Id. at __ (slip op. at 73) (citing Petition at 66-71); Appeal at 22.

64 ISP, LBP-19-7, 90 NRC at __ (slip op. at 73) (citing Petition at 72-74); Appeal at 22.

65 ISP, LBP-19-7, 90 NRC at __ (slip op. at 73) (citing Petition at 74-76); Appeal at 22.

66 See Appeal at 22-23.

13 arguments on the Boards rejection of their LLRW claims (claims 2 and 3), and thus they are abandoned.

The Board ruled that claim 1 is outside the scope of this proceeding because ISPs Application is for a 40-year license, and the Application does not convey any intent or request to repackage spent fuel.67 But Joint Petitioners claim the Board made two errors. First, according to Joint Petitioners, the Board ignored ISPs own description of the projects scope at p. 1-1 of the ER, and second, the Board arbitrarily segmented what should have been a single, unified project review, leaving two sub-projects insulated from the impacts of one another.68 Based on Joint Petitioners reference to the projects scope as described in the ER and their reference to sub-projects, they appear to be arguing that because ISP anticipates expanding the project in later phases, the license will be for more than 40 years, and they speculate that this may require some SNF to be repackaged.

As the Board correctly concluded, this contention is outside the scope of this proceeding because ISPs Application is for a 40-year license, and under the Continued Storage Rule, ISP need not include an analysis on repackaging spent fuel.69 This conclusion is firmly rooted in ISPs Application as it explicitly states that [n]o handling of bare spent nuclear fuel will occur at the CISF since operations will be restricted to handling of sealed canisters.70 But Joint Petitioners point to a sentence in ISPs ER stating that it is analyzing the environmental impacts of possession and storage of 40,000 [Metric Tons of Uranium] MTUs of SNF and GTCC waste (eight times more than specified in the Application, which requests a license to store only 5,000

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

68 Appeal at 23.

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

70 Application at 1-2 (emphasis added).

14 MTUs) to argue that the project will extend beyond the 40-year license. Joint Petitioners argue that the Board is ignoring 80 years of anticipated operations, and somehow this presumed longer licensed life will require repackaging spent fuel.71 But Joint Petitioners argument is based on a misreading of the ER. In the section of the ER relied on by Joint Petitioners, ISP states that it is seeking a 40-year license to possess and store 5,000 MTUs but anticipates requesting license amendments for seven subsequent expansions of 5,000 MTUs each. These expansions (if separately requested by ISP and separately authorized by the NRC) would occur over 20 years and, when complete, authorize the storage of up to 40,000 MTUs.72 These expansions will not, as Joint Petitioners appear to believe, change the length of ISPs license. The amendments will change only the amount of SNF and GTCC that ISP may possess and store at the CISF; the license will remain a 40-year license. And as noted above, ISP is not planning to and is not seeking NRC authorization to repackage spent fuel.

Because Joint Petitioners argument on appeal is based on their misunderstanding of the Application and ER, they failed to show the Boards rejection of this contention was based on an error of law or abuse of discretion.

C.

The Board Correctly Denied Contention 5 (Environmental Justice)

Contention 5 alleges that ISP improperly segmented the proposed action by excluding the transportation of SNF shipping casks from commercial power reactors to the proposed WCS

71 Appeal at 23 (quoting ER at 1-1).

72 ER at 1-1. If the requested license is issued by the NRC, ISP anticipates subsequently requesting amendments to the license to request authorization to possess and store an additional 5,000 MTUs of SNF for each of seven subsequent expansion phases to be completed over 20 years. Ultimately, ISP anticipates that 40,000 MTUs of SNF and related GTCC would be stored at the CISF upon completion of all eight phases. Id.

15 CISF from the Application.73 Joint Petitioners therefore claim the ER improperly omits an environmental justice (EJ) analysis of potentially affected populations along the anticipated rail, truck and barge routes.74 In essence, they assert that the ER must include a detailed EJ analysis of millions of potentially affected people on not-yet-determined transportation routes from every reactor in the United States to the WCS CISF.75 Joint Petitioners further contend that EJ considerations also must be factored into the selection of transportation routes.76 The Board rejected Contention 5 in a succinct fashion, holding that Joint Petitioners failed to raise an issue that is material to the NRC Staffs required NEPA findings in this proceeding:

Joint Petitioners claim that an environmental justice investigation must extend to the populations in the shipping corridors covering thousands of miles of rail, truck and barge routes has no bearing on this proceeding. The authorities cited by Joint Petitioners (including Executive Order 12898 and the NRCs Environmental Justice Policy Statement) were promulgated to implement NEPA. And, under NEPA, an environmental justice assessment need only assess the disproportionately high and adverse human health or environmental impacts of the proposed action and its reasonable alternatives. The area for assessment of environmental justice impacts is based on the location of the proposed facility itself, not proximity to possible transportation routes. Accordingly, Joint Petitioners have not raised an issue that is material to the findings the NRC must make in this proceeding.77

73 ISP, LBP-19-7, 90 NRC at __ (slip op. at 74) (quoting Petition at 76).

74 Id. (quoting Petition at 77).

75 See, e.g., Petition at 87 (criticizing the ER for failing to identify and evaluate all routes through an Environmental Justice lens) (emphasis added); see also Appeal at 24 (The Joint Petitioners maintain that ISPs ER improperly excludes Environmental Justice analysis on behalf of millions of potentially affected people who live within 50 miles of likely spent fuel and GTCC waste transportation routes to the ISP CISF.).

76 See, e.g., Petition at 87 (demanding consideration of alternate routes through major urban zones, evacuation preparations, and time-of-day and traffic aspects in making ultimate routing decisions).

77 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 75-76) (emphasis added).

16 On appeal, Joint Petitioners reassert their argument that ISP (and now the ASLB) has wrongfully segmented transportation from CISF operations and thereby limited the area for assessment of EJ impacts to the location of the proposed CISF.78 Claiming that the Board rejected Contention 5 for the same reasons it rejected Contention 1, Joint Petitioners incorporate by reference the arguments contained on pages 20 to 22 of their Appeal.79 Those arguments are summarized in ISPs discussion of Contention 1 above and, as explained there, are meritless.

To begin with, the Board correctly concluded that ISP has not segmented the proposed action to avoid compliance with NEPA. Segmentation occurs when an agency avoid[s] the

[NEPA] requirement that [an EIS] be prepared for all major federal actions with significant environmental impacts by segmenting an overall plan into smaller parts involving action with less significant environmental effects.80 That is not the case here. As ISP explained in its response to Contention 1, the ER addresses radioactive material transportation impacts as a connected action under NEPA.81 ISP analyzed SNF transportation impacts based on representative routes, an approach the NRC has used to evaluate transportation impacts in EISs several times.82 Although Joint Petitioners allude to a wide range of possible transportation modes and routes that theoretically could be analyzed, they never explained why ISPs approach

78 Appeal at 24.

79 Id.

80 W. Chicago v. NRC, 701 F.2d 632, 650 (7th Cir. 1983).

81 See ISP Answer at 24-28; ER at 3-5 to 3-6, 4-9 to 4-22. See 40 C.F.R. § 1508.7 (defining connected action);

Powertech USA, Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-15-16, 81 NRC 618, 697 (2015) (same).

82 See, e.g., NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel; Final Report, Vol. 1 at 5-52 (Sept. 2014) (ML14196A105); NUREG-1714, Final Environmental Impact Statement for the Construction and Operation of an Independent Spent Fuel Storage Installation on the Reservation of the Skull Valley Band of Goshute Indians and the Related Transportation Facility in Tooele County, Utah at 5-59 (Dec. 2001) (ML020150217); see also 10 C.F.R. § 51.52, Table S-4 (deriving generic effects of transportation and fuel waste for one power reactor based on survey of then-existing power plants).

17 in the ER is an unreasonable method of analyzing and informing the public of the potential environmental effects of SNF transportation to the CISF facility.83 ISPs approach adheres to NEPA and case law construing that statute. NEPA does not require that an applicant or agency wait until inchoate information matures into something that

[possibly] might affect [its] review; rather, it requires that it conduct [its] review with the best information available now.84 ISP did precisely that in the ER by analyzing, in bounding fashion, SNF transportation impacts based on representative routes.85 As ISP further explained, it is premature and impracticable for ISP to identify specific transportation routes, and to evaluate environmental impacts related to the use of those routes, at this time.86 SNF transportation route identification requires separate review and approval by the NRC and other authorities and thus is outside the scope of this proceeding.87 The Board recognized as much in its ruling.88 Second, because ISP has not entered into agreements with any customers to store SNF at the WCS CISF, actual transportation routes are not yet known. Finally, optimal routes can change over time, as evidenced by the fact that the NRC generally approves road routes for five-year periods and rail routes for seven-year periods.89 Thus, the alleged need to

83 See ISP Answer at 29-30.

84 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 727 (2012)

(internal quotation marks and citation omitted).

85 See ISP Answer at 29, 32.

86 See id. at 31-32, 61-66.

87 SNF transportation must comply with NRC and DOT regulations, specifically 10 C.F.R. Parts 71 and 73, and 49 C.F.R. Parts 107, 171-180, 390-397, as applicable to the mode of transport. 10 C.F.R. § 73.37(b)(1)(vi) requires that routes used for shipping SNF comply with applicable DOT requirements.

88 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 75) (Joint Petitioners are correct that transportation routes will eventually need to be established, and impacts from those routes will need to be analyzed, should ISPs proposed facility be licensed and become operational. Joint Petitioners are also correct that the U.S. Department of Transportation will need to be involved in that analysis.)

89 See NUREG-0561, Physical Protection of Shipments of Irradiated Reactor Fuel, Rev. 2 at 5 (Apr. 2013).

18 identify specific transportation routes now is inconsistent with NEPAs rule of reason, which requires reasonable forecasting90 rather than a crystal ball inquiry.91 As the U.S. Court of Appeals for the Second Circuit noted in County of Suffolk v. Secretary of the Interior, a case analyzed in ISPs answer to Contention 5, [t]here comes a point when the chain of ifs gets too long and too tenuous to be of any practical use.92 In denying the admission of both Contentions 1 and 5, the Board reached the same conclusion based on its own review of the applicable requirements and sound application of the controlling legal principles.93 It also found that Joint Petitioners failed to dispute the sections of ISPs ER that discuss transportation issues, and that Joint Petitioners unlawful segmenting argument is outside the scope of this proceeding because it challenges the NRCs Part 72 and NEPA-implementing regulations under Part 51 in violation of 10 C.F.R. § 2.335.94 In short, in rejecting Contention 5, the Board correctly concluded that [t]he area for assessment of [EJ]

impacts is based on the location of the proposed facility itself, not proximity to possible transportation routes.95 The analysis sought by Joint Petitioners is not reasonable or material to the NRCs decision on the Application. Joint Petitioners essentially seek a detailed, block-group-by-block-group EJ analysis of more than three-quarters of the U.S. populationin countless permutations of hypothetical future routing scenarios involving every highway,

90 Scientists Inst. For Pub. Info., Inc. v. AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973).

91 Morton, 458 F.2d at 837.

92 Suffolk Cty. v. Secy of Interior, 562 F.2d 1368 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978) (concluding that at a projection of specific oil pipeline routes by the Secretary of the Interior was neither meaningfully possible, nor reasonably necessary under the circumstances).

93 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 68-69) (noting that NEPA does not require ISP to divulge all transportation routes of casks coming from customers, unknown at this time, for the 20-year transportation and loading campaign).

94 Id. at __ (slip op. at 69).

95 Id. at __ (slip op. at 76).

19 railroad, and navigable waterway across the United States.96 Yet they never explained how a speculative EJ analysis of potential future routeswhich will be separately selected by different entities and approved years from nowwould be meaningful to the NRCs assessment of CISF-specific environmental impacts. Nor did they explain how the lack of such an analysis purportedly would preclude consideration of alternate routes in the transportation route selection process or result in de facto discrimination against EJ populations.97 In short, the analysis sought by Joint Petitioners is plainly contrary to NEPAs rule of reason.

In conclusion, the Boards rejection of Contention 5 under 10 C.F.R. § 2.309(f)(1)(iv) for failure to raise a material issue is manifestly correct in view of the proposed action under consideration (i.e., CISF licensing) and the controlling law discussed above. And Joint Petitioners identify no error of law or abuse of discretion in the Boards conclusion that they failed to provide adequate support for their contention and to directly controvert the relevant discussion in the ER, as required by 10 C.F.R. §§ 2.309(f)(1)(v) and (vi), respectively.

D.

The Board Correctly Denied Contention 6 (Oil And Gas Drilling)

Contention 6 alleges that it is technologically and legally possible that oil and gas fracking activities will occur beneath the waste storage areas of the proposed WCS CISF site.98 Such activities, Joint Petitioners claim, have the potential for inducing or expediting geological problems, including seismicity and groundwater movement at or near the WCS CISF site.99 They further assert that ISPs ER and Safety Analysis Report (SAR) are inadequate because

96 Petition at 87-88.

97 Id. at 87, 89.

98 Id. at 97-98.

99 Id. at 98.

20 they do not identify legal controls over present or potential oil and gas drilling directly beneath the site.100 The Board correctly rejected Contention 6 because it fails to raise a genuine dispute with the Application as required by 10 C.F.R. § 2.309(f)(1)(vi).101 On appeal, Joint Petitioners suggest that the Board missed the point of their contention, and accuse them of not reading the available information in the ER and other documents.102 They further accuse ISP of dereliction by allegedly failing to investigate, project and disclose prospective geological changes at the WCS CISF site purportedly resulting from oil and gas extraction activities.103 But Joint Petitioners point to no error of law or abuse of discretion in LBP-19-7.

The Board correctly rejected Contention 6 for failure to raise a genuine material dispute.

Although Contention 6 asserts that the SAR and the ER are deficient, it lacks a single citation to the SAR.104 Moreover, aside from a couple of prefatory sentences, the contention does not directly challenge any aspect of the ERs analysis or related conclusions on any of the topics raised in the contention.105 Thus, Joint Petitioners left the Board with no tenable choice but to conclude (correctly) that they failed to acknowledge (much less dispute) relevant portions of ISPs application that address their concerns.106

100 Id.

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

102 Appeal at 25-26.

103 Id. at 26.

104 See ISP Answer at 71 n.294 (citing Petition at 97-102) (Petitioners do not reference the SAR in any manner, and only provide two citations to the ER, both about land use.); NRC Staff Answer at 44.

105 See id.

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

21 Joint Petitioners claim in Contention 6 that ISPs ER violates 10 C.F.R. § 72.120(d)a safety regulationbecause ISP allegedly has ignored and failed to integrate evidence of groundwater at the site as related to induced faults from fracking, associated seismic activity, and waste water injection wells from area petroleum exploration.107 They broadly suggest that the ER must address the chemical status of water from the Ogallala Aquifer, its connected smaller aquifers, the area soils, and the soils possible corrosive effects on the casks, concrete bunkers and pads, and artificial substrate materials.108 As the Board noted, however, ISP analyzed these issues in SAR Chapter 2, Attachment D (Seismic Hazard Evaluation for WCS CISF), a proprietary portion of the Application to which Joint Petitioners did not seek access, as permitted by NRC rules.109 The Seismic Hazard Evaluation describes the site-specific probabilistic seismic hazard analysis (PSHA) performed for the CISF site, and Section 4.3 thereof discusses induced seismicity.110 As the Staff noted, ISP summarized the PSHA in the public portion of the SAR that discusses vibratory ground motion.111 Specifically, SAR Subsection 2.6.2 describes the PSHA objectives, and states that the low to moderate rate of background seismicity, even that associated with petroleum recovery activities, results in relatively low seismic hazard at the [site].112

107 Petition at 100. As the Board noted in LBP-19-7, in their Reply, Joint Petitioners attempt[ed] to transform their contention of omission into one of inadequacy by claiming that the ERs discussion of induced seismicity, which they overlooked in their contention as originally proffered, is inadequate because there must be an accounting of prospective drilling trends and density in the immediate region of the CISF. ISP, LBP-19-7, 90 NRC at __ (slip op. at 78) (quoting Reply at 38). The Board properly rejected that belated argument because Joint Petitioners do not explain what authority requires this analysis. Id.

108 Petition at 100.

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

110 See ISP Answer at 72; NRC Staff Answer at 44.

111 NRC Staff Answer at 44-45.

112 SAR at 2-28 to 2-29 (emphasis added). This same description of the sites seismic hazard also appears in the publicly-available SAR on site design criteria and structural safety in the discussion of design response spectra.

22 Additionally, as the Board correctly observed, the analyses that ISP performed to demonstrate compliance with Part 72s safety requirements appropriately are in the SARnot in the ER, the contents of which are governed by Part 51.113 Notably, Joint Petitioners did not acknowledge or challenge any of the multiple SAR sections that contain discussion relevant to the various issues raised in Contention 6, including Section 2.2,114 Section 2.5,115 Section 2.6,116 Section 2.7,117 Section 11.5,118and Section 15.1.4.119 Thus, despite making numerous references to Part 72 regulations in their contention, Joint Petitioners failed to address any portion of the SAR. As the Board aptly put it, they therefore failed to identify what section is allegedly devoid of a required analysis.120 Joint Petitioners fared no better with respect to the ER, which they also allege is inadequate. As ISP and the Staff explained, Joint Petitioners ignored relevant information in ER

See id. at 3-9. ER Section 3.3.3 similarly refers to the low to moderate rate of background seismicity, even that associated with petroleum recovery activities. ER at 3-11.

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

114 SAR § 2.2 (Nearby Industrial, Transportation and Military Facilities) provides ISPs analysis of the potential for, and severity of, man-induced events.

115 Id. § 2.5.1 at 2-25. (Subsurface Hydrology) discusses the locations of various aquifers relative to the WCS CISF site and, referencing Attachment F, also explains that [i]nvestigations showed that no features in the study area at and around the WCS CISF indicated any past dissolution, and the hydrologic systems at the site limit the potential for future dissolution and/or sinkholes.

116 Id. § 2.6 (Geology and Seismology) discusses, among other things, site geological features, soil characteristics, and the stability of subsurface materials.

117 Id. § 2.7 at 2-35. (Summary of Site Conditions Affecting Construction and Operating Requirements) summarizes key aspects of SAR Chapter 2, and concludes that [s]ubsurface soils at the WCS CISF are suitable for supporting conventional foundations under both the static and dynamic loading conditions, and that

[t]here is no potential for liquefaction, collapse, or excessive settlement of these soils.

118 Id. § 11.5 at 11-6 states that [t]here is no significant degradation of any safety components caused by the effects of galvanic or chemical reactions or by the effects of the reactions combined with the effects of long-term exposure of the materials to neutron or gamma radiation, high temperatures or other possible conditions.

119 Id. § 15.1.4 at 15-3 concludes that because only previously loaded canisters will be accepted at the WCS CISF, various topics (including galvanic and corrosive reactions) remain unchanged from earlier reviews.

120 ISP, LBP-19-7, 90 NRC at __ (slip op. at 78) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

23 Section 3.1 (Land Use), Section 3.3 (Geology and Soils), Section 3.4 (Water Resources),

and Section 4.3 (Geology and Soils Impacts).121 Their failure to challenge these ER sections also contravenes 10 C.F.R. § 2.309(f)(1)(vi).

The Board properly rejected Contention 6 for the foregoing reasons. Nevertheless, Contention 6 also fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(v). Joint Petitioners arguments on mineral interests and legal controls, geological hazards, radiological releases, and corrosive effects are factually unsupported.122 In short, Joint Petitioners failed to:

(1) identify any plans for mineral development or other information that would challenge the conclusions in the Application (which considered mineral development and concluded that the potential does not exist); (2) support the claim that fracking and waste well activity can cumulatively contribute to the potential for induced seismicity; (3) support the assertion that fracking poses radiological safety or environmental concerns at the CISF; and (4) substantiate their claims about possible corrosive effects of soils on steel casks, concrete bunkers, pads, and artificial substrate materials.123 Their reliance on bare assertions and speculation instead of credible factual support renders Contention 6 inadmissible under Section 2.309(f)(1)(v).124 In conclusion, Joint Petitioners fail to demonstrate any error of law or abuse of discretion in LBP-19-7.

E.

The Board Correctly Denied Contention 8 (NEPA Project Alternatives)

Proposed Contention 8 claims that ISPs discussion of the no-action alternative in the ER is deficient because it does not discuss five purported alternatives to the proposed CISF,

121 See ISP Answer at 69-72; NRC Staff Answer at 43-45.

122 See ISP Answer at 69-72.

123 See id.

124 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

24 including Hardened On-Site Storage (HOSS).125 In rejecting this contention, the Board ruled that ISPs ER is only required to analyze a no-action alternative of maintaining the status quo.126 And because none of the five alternatives proposed by Joint Petitioners, including HOSS, maintain the status quo, Joint Petitioners failed to show why a discussion of these alternatives is material to the no-action alternative.127 On appeal, Joint Petitioners argue that [t]he ASLB strayed from the law when it opined, Joint Petitioners do not explain why these five alternatives must be evaluated by ISP in its

[ER].128 According to Joint Petitioners, they do not have to explain because the existence of reasonable but unexamined alternatives renders an EIS inadequate,129 and because NEPA requires the... study of all alternatives that appear reasonable and appropriate for study at the time of the drafting the EIS.130 But contrary to those arguments, the Supreme Court has made clear that the concept of alternatives must be bounded by some notion of feasibility, and that:

NEPA was not meant to require detailed discussion of...

alternatives [] deemed only remote and speculative possibilities...

not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed.... [Moreover, NEPA documents] cannot be found wanting simply because the [author]

failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that [a NEPA document] fails because the [author] failed to

125 ISP, LBP-19-7, 90 NRC at __ (slip op. at 79-81). The five proposed alternatives include (1) HOSS; (2) establishment of a dry transfer system; (3) modification of ISPs emergency response plan to include preparations for emissions mitigation; (4) modification of the CISF design to prevent malevolent acts; and, (5) Federal Government control of the ISP facility. Petition at 107-08.

126 Id. at __ (slip op. at 81).

127 Id. at __ (slip op. at 80-81).

128 Appeal at 27 (citing ISP, LBP-19-7, 90 NRC at __ (slip op. at 80)).

129 Id. at 27 (citing DuBois v. U.S. Dept of Agric., 102 F.3d 1273, 1287 (1st Cir. 1996), cert. denied, 521 U.S.

1119 (1997)).

130 Id. (quoting Roosevelt Campobello Intl Park Commn v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982)).

25 ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been....131 In rejecting the contention, the Board correctly concluded that four of the proposed alternatives are not actually alternatives to the project (but ways to improve it), and that Joint Petitioners failed to explain why ISP must consider them.132 And on the fifth alternative HOSSthe Board correctly concluded ISP need not consider a hypothetical method of storage that [is not] licensed, much less implemented, at any reactor site.133 On appeal, Joint Petitioners merely purport to argue that their proposed alternatives are reasonable or feasible because, in their view, they are meaningful.134 But they point to no error of law or abuse of discretion by the Board. More is required from Joint Petitioners to prevail on appeal.135 F.

The Board Correctly Denied Contention 11 (Dry Transfer System)

Contention 11 claims that a lack of a dry transfer system (DTS) at the proposed CISF presents an impermissible risk and is not adequately addressed in ISPs ER.136 The Board rejected Contention 11 because it: (1) fails to address the relevant portions of ISPs Application and thus did not raise a genuine dispute with the Application; (2) fails to raise a plausible

131 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 453 U.S. 591, 551 (1978) (emphasis added)

(quoting Morton, 458 F.2d at 837-38).

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

133 Id. at __ (slip op. at 80-81).

134 Appeal at 27.

135 An appeal that simply restates the petitioners arguments does not constitute a valid appeal. Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 NRC 499, 503-05 (2007). And failure to rebut the Boards ruling is sufficient justification to reject an appeal. Millstone, CLI-04-36, 60 NRC at, 638.

136 ISP, LBP-19-7, 90 NRC at __ (slip op. at 84-87).

26 scenario and is analogous to a contention rejected in the Private Fuel Storage proceeding; and (3) is an impermissible challenge to the Continued Storage Rule.137 On appeal, Joint Petitioners do not address the Boards conclusions, which by itself is a sufficient ground for denying the Appeal.138 Instead, Joint Petitioners present a variation of their argument below that DTS capability is needed for the proposed CISF because:

(1) Transportation, Aging, and Disposal (TAD) canisters for a permanent repository are not yet designed or built; (2) closed reactor sites have no capability to repackage spent fuel; (3) no current storage or transportation canister has ever been opened once loaded and sealed; and (4) there is a lack of information on storage of high burnup fuel in dry casks.139 Joint Petitioners also argue that they need not prove their contention at this stage but only allege sufficient factual or legal bases to support their contention, which they assert they did.140 Missing from Joint Petitioners Appeal, however, is any explanation of how the Boards conclusions are based on an error of law or an abuse of discretion. Specifically, Joint Petitioners do not address the Boards conclusions that: (1) they failed to raise a genuine dispute with ISPs Application by not disputing specific portions of ISPs ER; (2) this contention is substantially similar to one rejected by the licensing board in the Private Fuel Storage proceeding and affirmed by the Commission; and (3) this contention, to the extent that it claims a DTS is necessary for the eventual shipment of SNF to a permanent repository, is an impermissible challenge to the Continued Storage Rule. In short, Joint Petitioners identify no error of law or

137 Id. at __ (slip op. at 85-87).

138 See Shieldalloy, CLI-07-20, 65 NRC at 503-05; Millstone, CLI-04-36, 60 NRC at 638.

139 Appeal at 29.

140 Id.

27 abuse of discretion, and therefore have not articulated a single reason for why the Boards rejection of this contention should be overturned.

G.

The Board Correctly Denied Contention 14 (Security Risks Analysis)

Proposed Contention 14, which comprises 25 wide-ranging sub-contentions,141 asserts primarily that ISPs ER should analyze terrorist attacks as a not so remote and highly speculative environmental impact.142 Joint Petitioners argue that ISPs alleged failure to analyze and discuss human-induced event risks, terrorism, and sabotage in the ER must be addressed and remedied as a matter of law.143 As putative support, they cite the Ninth Circuits ruling in San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1032 (9th Cir. 2006).

As explained in ISPs answer to Contention 14, the Board could have rejected Contention 14 on multiple, independent grounds.144 The Board appropriately denied admission of the contention the grounds that Contention 14 is outside the scope of this proceeding for the following reason:

The Commission takes the position (as upheld by the United States Court of Appeals for the Third Circuit) that for all licensing actions outside the Ninth Circuit, NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities. Unless the proposed facility would be located in one of the nine states in the Ninth Circuit, no terrorism analysis under NEPA is required. ISPs facility would be constructed in Texas, which is in the Fifth Circuit. ISPs [ER] accordingly need not conduct an analysis concerning terrorism under NEPA. Contention 14 is therefore outside the scope of this proceeding.145

141 See Petition at 142-59.

142 Id. at 150.

143 Id. at 148.

144 See generally ISP Answer at 114-22. See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318, 325 (1999) (A failure to comply with any of these [admissibility] requirements is grounds for dismissing the contention.).

145 ISP, LBP-19-7, 90 NRC at __ (slip op. at 93) (internal footnotes and citations omitted).

28 In their Appeal, Joint Petitioners argue Board error in unlawfully segmenting CISF licensing from the transportation component.146 They argue that [w]ere transportation properly included within the scope of the project, the hundreds of SNF cargoes coming from states within the geographical Ninth Circuit, as part of the project, would have to be analyzed under Mothers for Peace.147 Joint Petitioners arguments are contrary to fact and law. First, as explained above (see Contentions 1 and 5, supra), ISP has not segmented the CISF project to exclude consideration of SNF transportation impacts. On the contrary, the ER addresses SNF transportation impacts as a connected action under NEPA by analyzing those impacts based on representative routes.

Again, Joint Petitioners disputed no aspect of that analysis.

Second, the Board specifically consideredand rejectedJoint Petitioners baseless claim that because hundreds of [spent nuclear fuel] transport trips will come through the Ninth Circuits geographical area en route to Texas, Ninth Circuit law must be applied to require a terrorism analysis of the Texas storage facility in its ER.148 Joint Petitioners mere reiteration of that argument on appeal does not establish any error in the Boards ruling.

Finally, the Boards ruling follows established Commission precedent. The Commission has made clear that it will not apply the Ninth Circuits Mothers for Peace ruling outside that Circuit, because it continues to hold that NEPA does not require the NRC to consider the

146 Appeal at 30.

147 Id.

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

29 environmental consequences of hypothetical terrorist attacks.149 Joint Petitioners concede that the WCS CISF site is not located within the jurisdiction of the Ninth Circuit.150 In conclusion, Joint Petitioners have identified no error or abuse of discretion in the Boards decision, which, as mandated by Commission precedent, dismissed their proposed contention as outside the scope of this proceeding.

VI.

CONCLUSION For the reasons set forth above, the Commission should deny Joint Petitioners Appeal.

149 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-29 (2007) (concluding that the environmental effect caused by third-party miscreants is... simply too far removed from the natural or expected consequences of agency action to require a study under NEPA, and the claimed impact is too attenuated to find the proposed federal action to be the proximate cause of that impact).

The Third Circuit affirmed the Commissions ruling in CLI-07-8. See N.J. Dept. of Envtl. Prot. v. NRC, 561 F.3d 132, 140, 142 (3d Cir. 2009) (holding that the causation chain is too attenuated to require NEPA review of a hypothetical terrorist attack on a nuclear facility).

150 See ISP, LBP-19-7, 90 NRC at _ (slip op. at 92) (citing Joint Petitioners Reply at 56) (noting that Joint Petitioners acknowledge that Texas is not within the Ninth Circuit); Appeal at 30 (noting that ISP will build the CISF in Texas (within the U.S. Fifth Circuit)).

30 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 Email: timothy.matthews@morganlewis.com Email: paul.bessette @morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 Email: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC Dated in Washington, D.C.

this 15th day of October 2019

DB1/ 107436350 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 October 15, 2019 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing the Appeal of LBP-19-7 by Dont Waste Michigan et al. was filed through the E-Filing system.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 Email: ryan.lighty@morganlewis.com Counsel for Interim Storage Partners LLC

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