ML19288A287

Interim Storage Partners LLCs Answer Opposing Beyond Nuclears Appeal of LBP-19-7

ML19288A287
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 55368
Download: ML19288A287 (19)

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 BEYOND NUCLEARS APPEAL OF LBP-19-7 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

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

PROCEDURAL HISTORY............................................................................................... 1 III.

STANDARD OF REVIEW............................................................................................... 5 IV.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE BEYOND NUCLEAR IDENTIFIED NO ERROR OR ABUSE OF DISCRETION BY THE BOARD.............................................................................................................................. 6 A.

The Board Correctly Found Beyond Nuclears Contention Failed to Show A Genuine Dispute Exists With The Application on A Material Issue of Law or Fact............................................................................................................ 8 B.

Beyond Nuclears APA Claim Is Without Merit And Does Not Support Admission of the Contention............................................................................... 10 C.

Beyond Nuclear Seeks Relief Beyond That Sought In Its Contention Without Seeking Leave to Amend....................................................................... 13 V.

CONCLUSION................................................................................................................ 14

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

CLI-09-7, 69 NRC 235 (2009).................................................................................................... 5 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),

ALAB-443, 6 NRC 741 (1977)................................................................................................. 12 Crow Butte Res., Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)...................................................................................................... 5 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004).................................................................................................. 5 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

ALAB-952, 33 NRC 521 (1991)................................................................................................. 5 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-91-13, 34 NRC 185 (1991).................................................................................................. 5 Hydro Res., Inc. (Rio Rancho, NM),

CLI-01-4, 53 NRC 31 (2001).................................................................................................... 12 Interim Storage Partners LLC (Consolidated Interim Storage Facility),

LBP-19-7, 90 NRC __ (Aug. 23, 2019)............................................................................. passim La. Energy Servs., L.P. (National Enrichment Facility),

CLI-04-35, 60 NRC 619 (2004)............................................................................................ 6, 13 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-02-16, 55 NRC 317 (2002)................................................................................................ 12 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),

CLI-16-9, 83 NRC 472 (2016).................................................................................................... 5 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 125 (2004)............................................................................................ 6, 13 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-05-1, 61 NRC 160 (2005).................................................................................................... 6 S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3),

ALAB-171, 7 AEC 37 (1974)................................................................................................... 12 Shieldalloy Matallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007).............................................. 5 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (2018).................................................................................................... 5 USEC, Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451 (2006)............................................................................................ 6, 13

ii Federal Court Cases Beyond Nuclear v. U.S. Nuclear Reg. Commn, No. 18-1340 (D.C. Cir. June 13, 2019)....................................................................................... 3 Bullcreek v. Nuclear Reg. Commn, 359 F.3d 536 (D.C. Cir. 2004).................................................................................................. 13 Other Authorities 42 U.S.C. § 10143....................................................................................................................... 3, 7 42 U.S.C. § 10222(a)(5).................................................................................................................. 3 42 U.S.C. § 10222(a)(5)(A)........................................................................................................ 3, 7 5 U.S.C. § 706(2)(A)....................................................................................................................... 3 5 U.S.C. § 706(2)(C)....................................................................................................................... 3 Rules 10 C.F.R. § 2.309............................................................................................................................ 3 10 C.F.R. § 2.309(f)(1)(i)-(vi)........................................................................................................ 5 10 C.F.R. § 2.311(b)....................................................................................................................... 1 10 C.F.R. § 2.311(c)........................................................................................................................ 5 10 C.F.R. § 72.30............................................................................................................................ 4 Treatises Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018).......................................................................................... 2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,680 (Aug. 31, 2018).......................................................................................... 2

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 BEYOND NUCLEARS APPEAL OF LBP-19-7 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Interim Storage Partners LLC (ISP) submits this Answer opposing the Appeal filed by Beyond Nuclear, Inc. (Beyond Nuclear).1 Beyond Nuclear seeks to appeal LBP-19-7, the August 23, 2019 Order of the Atomic Safety and Licensing Board (ASLB or Board) denying its Hearing Request and Petition to Intervene (Petition).2 As explained more fully below, Beyond Nuclear showed no error of law or abuse of discretion by the Board. Accordingly, the Commission should deny the Appeal.

II.

PROCEDURAL HISTORY ISP is a joint venture of Waste Control Specialists, LLC (WCS) and Orano CIS, LLC.

This proceeding stems from ISPs submittal of a revised license application to the NRC on August 29, 2018, to construct and operate a consolidated interim storage facility (CISF) on a WCS-owned site in Andrews County, Texas for a 40-year term (Application).3 Relevant to

1 Beyond Nuclears Notice of Appeal of LBP-19-7 (Sept. 17, 2019) (ML19260G875).

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

(slip op.) (ML19235A165).

3 Interim Storage Partners LLC License Application, Rev. 2 at 1-1 to 1-2 (ML18206A483) (Application).

2 this appeal, the Application states that the customers for the proposed CISF will be either the owners of nuclear power plants from which the spent fuel originates (i.e., the SNF Title Holders) or the U.S. Department of Energy (DOE).4 After receiving ISPs Application, the NRC issued a Federal Register notice allowing members of the public to request a hearing by submitting a petition to intervene by October 29, 2018.5 The Secretary later extended the deadline to submit petitions to intervene to November 13, 2018.6 On September 14, 2018, Beyond Nuclear filed a motion with the Commission seeking the dismissal of the licensing proceeding arguing that the NRC lacked jurisdiction over the Application because it purportedly hinges on the DOE taking title to the spent fuel in violation of the Nuclear Waste Policy Act (NWPA) (the Motion to Dismiss).7 The Commission denied Beyond Nuclears Motion to Dismiss on October 29, 2018, stating that NRC regulations do not provide for the filing of threshold motions to dismiss a license application.8 The Commission also noted that Beyond Nuclears recently filed Petition9 incorporated by reference the arguments made in the Motion to Dismiss and identified those arguments as a proposed

4 Application at 1-1 to 1-2 (stating that [DOE] or other holders of the title to SNF at commercial nuclear power facilities (SNF Title Holder(s)) will hold title to the SNF during transportation to and from and while in storage at the CISF.).

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

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

7 Beyond Nuclears Motion to Dismiss Licensing Proceedings for HI-STORE Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violation of the Nuclear Waste Policy Act (Sept.

14, 2018) (ML18257A312).

8 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), Order (Denying Motions to Dismiss) at 2 (Oct. 29, 2018) (unpublished) (ML18302A329) (Oct. 29 Order).

9 Beyond Nuclears Hearing Request and Petition to Intervene (Oct. 3, 2018) (ML18276A242) (Petition).

3 contention.10 The Commission referred the hearing request to the Board for consideration under the hearing procedures in 10 C.F.R. § 2.309.11 Beyond Nuclears Petition proposed only one contention which seeks the same relief as its Motion to Dismiss. Beyond Nuclears contention, as proffered, asks the Commission to dismiss ISPs application and terminate the licensing proceeding because the application violates the NWPA. The proceeding must be dismissed because the central premise of ISPs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facility - violates the NWPA. Under the NWPA, the DOE is precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.12 In its Petition, Beyond Nuclear conceded that its contention does not... lie[] within the scope of this licensing proceeding.13 But even so, Beyond Nuclear sought to intervene and have the Commission terminate the licensing proceeding because, according to Beyond Nuclear, ISPs application violates the NWPA.14 Beyond Nuclear also contends that by even considering ISPs application, the Commission is violating the Administrative Procedure Act (APA) which prohibits federal agency action not in accordance with the law, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.15

10 Oct. 29 Order at 2; see also Petition.

11 Oct. 29 Order at 2. Beyond Nuclear petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the Commissions Order. The D.C. Circuit granted the NRCs motion to dismiss on June 13, 2019. Beyond Nuclear v. U.S. Nuclear Reg. Commn, No. 18-1340 (D.C. Cir. June 13, 2019) (unpublished).

12 Petition at 8-9.

13 Id. at 1-2, 9.

14 Id. at 2, 8-9 (citing 42 U.S.C. §§ 10222(a)(5), 10143).

15 Id. at 9, 12 (quoting 5 U.S.C. §§ 706(2)(A), (C)).

4 ISP opposed Beyond Nuclears Petition arguing that Beyond Nuclear failed both to demonstrate standing and submit an admissible contention.16 In particular, ISP argued that its Application contemplated ownership of the spent fuel either by private entities or DOE, and therefore the central premise of Beyond Nuclears contention (DOE taking title to the spent fuel) was factually unfounded.17 ISP also argued that NRC has the legal authority to license the CISF despite possible NWPA constraints on DOEs current ability to contract with ISP.18 The Board heard oral arguments on standing and contention admissibility on July 10 and 11, 2019, in Midland, Texas. In LBP-19-7, the Board ruled that Beyond Nuclear had standing, but denied the Petition for failure to proffer an admissible contention.19 The Board construed Beyond Nuclears contention arguments as encompassing three claims and ruled that the first two claims are moot based on ISPs response to the Boards written questions (confirmed at oral argument) and ISPs withdrawal of the proposed exemption request.20 The Board ruled that the third claim does not raise a genuine dispute with ISPs Application.21 Beyond Nuclear appeals LBP-19-7 and asks the Commission to not only reverse the Boards decision denying the admission of its contention but order an immediate denial of ISPs license application.22

16 ISPs Answer Opposing Beyond Nuclear Inc.s Hearing Request and Petition to Intervene (Oct. 29, 2018)

(ML18302A413).

17 Id. at 27-28.

18 Id. at 32-34.

19 For the same reasons explained in ISPs appeal of LBP-19-7, the Boards conclusion that Beyond Nuclear demonstrated standing is legally erroneous. See Brief in Support of Interim Storage Partners LLCs Appeal of LBP-19-7 at 6-14 (Sept. 17, 2019) (ML19260H452).

20 Id.; see also ISP Board Notification re: IS Letter E-54257 at 1 (June 3, 2019) (ML19154A586) (ISP Board Notification) (citing Attachment 4 to ISP Letter E-54257 which removed from the License Application ISPs request for an exemption form the financial assurance requirements in 10 C.F.R. § 72.30).

21 ISP, LBP-19-7, 90 NRC at __ (slip op. at 26-27).

22 Beyond Nuclears Brief on Appeal of LBP-19-07 at 3 (Sept. 17, 2019) (ML19260G878) (Appeal).

5 III.

STANDARD OF REVIEW An order denying a petition to intervene, and/or request for hearing... is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.23 The Commission generally defers to Board decisions on standing and contention admissibility, but will reverse a Boards ruling if there has been an error of law or abuse of discretion.24 The Commission reviews questions of law de novo,25 and will reverse a licensing boards legal rulings if they are a departure from, or contrary to, established law.26 Under the abuse of discretion standard, the appellant must persuade the Commission that a reasonable mind could reach no other result to prevail.27 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments does not constitute a valid appeal.28 When a licensing board holds that a contention is inadmissible for failing to meet more than one of the requirements specified in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.29 Furthermore, when considering an appeal, the Commission is free to affirm

23 10 C.F.R. § 2.311(c).

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

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

26 See id. (citation omitted).

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

28 Shieldalloy Matallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

29 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

6 a board decision on any ground finding support in the record, whether or not relied on by the Board.30 A petitioner is also limited to the contention as initially filed and may not seek to remedy its deficiencies through an appeal.31 As the Commission explained, absent extreme circumstances, [it] will not consider on appeal either new arguments or new evidence supporting the contnetion[s], which the Board never had the opportunity to consider.32 Any new claims on appeal are prohibited because [a]llowing petitioners to file vague, unsupported contentions, and later on appeal change or add contentions at will would defeat the purpose of [the NRCs]

contention-pleading rules.33 This aligns with the purpose of an appeal, which is to point out error made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board.34 IV.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE BEYOND NUCLEAR IDENTIFIED NO ERROR OR ABUSE OF DISCRETION BY THE BOARD Beyond Nuclears sole proposed contention asserts the Commission should dismiss ISPs application and terminate the licensing proceeding because, in its view, the application violates the NWPA. The proceeding must be dismissed because the central premise of ISPs application - that the U.S. Department of Energy (DOE) will be responsible for the spent fuel that is transported to and stored at the proposed interim facility - violates the NWPA. Under the NWPA, the DOE is

30 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).

31 See USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).

32 USEC, CLI-06-10, 63 NRC at 458 (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 140 (2004)).

33 Id. (citing La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004)).

34 USEC, CLI-06-10, 63 NRC at 458 (citation omitted).

7 precluded from taking title to spent fuel unless and until a permanent repository has opened. 42 U.S.C. §§ 10222(a)(5)(A), 10143.35 The Board, in its analysis of Beyond Nuclears supporting arguments, described the contention as containing three claims, as follows:

First, as the law now stands, DOE cannot, consistent with the NWPA, presently take title to private power companies spent nuclear fuel.36 Second, ISP therefore cannot properly seek an exemption from NRC regulations based on the possibility of DOEs taking title.37 Third, references in ISPs application to the option of private ownership are allegedly meaningless and unsupported serving as nothing more than fig leaves over the essential premise of ISPs proposal - that its storage facility will be built only if DOE owns the waste.38 The Board then addressed each aspect of the contention and correctly rejected eachthe first two as moot, and the third as raising no material dispute with ISPs applicationand accordingly rejected the proposed contention.39 On appeal, Beyond Nuclear argues that the Board erred in reaching this conclusion, but offers no cogent explanation for how the Boards decision was based on an error of law or an abuse of discretion. Instead, Beyond Nuclear seeks to amend its contention to include a new argument and alternative relief, neither of which were plead in its Petition. Both are improper for an appeal, and as a result, Beyond Nuclears Appeal should be denied.

35 Petition at 8-9.

36 ISP, LBP-19-7, 90 NRC at __ (slip op. at 26) (citing Petition Ex. 1 at 19-22).

37 Id. at __ (slip op. at 26) (citing Petition Ex. 1 at 18-19).

38 Id. (citing Petition Ex. 1 at 19) (quotation and emphasis in original).

39 Id. at __ (slip op. at 26-27).

8 A.

The Board Correctly Found Beyond Nuclears Contention Failed to Show A Genuine Dispute Exists With The Application on A Material Issue of Law or Fact ISP agrees with Beyond Nuclears statement that the admissibility of a contention must be judged on the contentions terms and basis.40 And the Board did exactly that in LBP-19-7.

It reviewed the contentions terms and basis, identified the three supporting arguments, and concluded, based on the record, that the three issues were either moot or did not raise a genuine dispute with ISPs application, and was thus not admissible.

As to the first issue, whether DOE can, under current law, take title to private power companies SNF, the Board found that the issue was moot because of ISPs response to its pre-hearing questions. In its response, ISP agreed that absent new legislation, the DOE could not lawfully assume ownership of the spent nuclear fuel in the proposed interim storage facility.41 The Board correctly concluded that, based on this response, there is no disagreement between ISP and Beyond Nuclear on this issue and that this portion of the contention is moot.42 As to the second issue, regarding ISPs request for an exemption from financial assurance requirements, the Board noted that ISP amended its Application and withdrew its request for an exemption.43 Following this amendment, the NRC Staff, who at first agreed that Beyond Nuclear proffered an admissible contention but only to the extent that it challenges the adequacy of the basis for the proposed exemption from the decommissioning financial assurance

40 Appeal at 11 (citations omitted).

41 ISP, LBP-19-7, 90 NRC at __ (slip op. at 26) (citing ISPs Response to the [ASLBs] Questions Regarding the U.S. Department of Energys Authority under the Nuclear Waste Policy Act at 1 (June 28, 2019)

(ML19179A311)).

42 Id.

43 Id. (citing Attachment 4 (Additional Changes Not Associated with RAIs) to ISP Board Notification).

9 requirements,44 reversed their position during oral argument and no longer viewed the exemption issue as grounds for an admissible contention.45 And the Board thus concluded that this element of Beyond Nuclears proffered contention was now moot.46 As to the third issue, whether ISPs reference to private ownership of SNF was nothing more than a fig leaf and their conclusion that the WCS-CISF will be built only if DOE owns the waste, the Board found that it did not raise a genuine dispute with the application.47 As the Board explained, whether ISP will find that alternative [commercial, non-DOE ownership of the SNF] commercially viable is not an issue before the Board.48 And the Board correctly noted that Beyond Nuclears mere skepticism about ISPs commercial business model did not create a genuine dispute with ISPs application.49 On appeal, Beyond Nuclear claims that the Board erredapparently for reading and construing the contention as proffered by Beyond Nuclear in its Petition and its related Motion to Dismissby reframing its contention to include these three issues despite their firm rooting in the text of Beyond Nuclears proffered contention. Beyond Nuclear argues that by reframing its contention, the Board read Beyond Nuclears central claim out of its contention.50 But Beyond Nuclear provides no cogent explanation on how the Boards consideration of the three issues is

44 NRC Staff Response to Beyond Nuclears Hearing Request and Petition to Intervene at 12 (Oct. 29, 2018)

(ML18302A365); see also Transcript of Oral Arguments in the Matter of [ISP] at 51 (July 10, 2019)

(ML19198A218) (July 10 Tr.).

45 July 10 Tr. at 52-53, 201-03.

46 ISP, LBP-19-7, 90 NRC at __ (slip op. at 28-29).

47 Id. at __ (slip op. at 26).

48 Id. at __ (slip op. at 27).

49 Id.

50 Appeal at 11.

10 inconsistent with the proffered contention or how its conclusions on any of these issues was based on an error of law or an abuse of discretion.51 B.

Beyond Nuclears APA Claim Is Without Merit And Does Not Support Admission of the Contention At oral argument, Beyond Nuclear argued for the first time in this proceeding what it now asserts on appeal as its APA claimthat the mere mention of DOE as a possible customer violates the APA.52 The Board properly recognized the invalidity of this new argument specifically, that nothing NRC includes in or excludes from the requested license will do anything to authorize or sanction any future DOE use of ISPs CISF absent a change in the NWPA.53 The NWPA remains the law of the land regardless of the ISP CISF license, and DOE has publicly acknowledged several times that under the NWPA as currently enacted, it cannot take title to nearly all commercial SNF.54 On Appeal, Beyond Nuclear appears to be seeking to amend its contention55 to include this already rejected argument.56 While such an attempt to amend its contention on appeal

51 Appeal at 11-12.

52 ISP, LBP-19-7, 90 NRC at __ (slip op. at 27) (citing Tr. at 17).

53 Id. at __ (slip op. at 27).

54 Id. at __ n.159 (slip op. at 27).

55 Beyond Nuclears Procedural and Factual Background Section (Appeal at 3) conflates its filings in this proceeding with those in the separate Holtec CISF proceeding. Although Beyond Nuclear filed a single document styled as a motion to dismiss on both dockets in a single pleading (see Motion to Dismiss Licensing Proceedings for Hi-Store Consolidated Interim Storage Facility and WCS Consolidated Interim Storage Facility for Violations of the Nuclear Waste Policy Act (Sept. 14, 2018) (ML18257A312) (ISP Proceeding) and (ML18257A318) (Holtec Proceeding)), and filed identical proposed contentions on both dockets (see Petition (ISP Proceeding) and Hearing Request and Petition to Intervene (Sept. 14, 2018) (ML18257A324) (Holtec proceeding)), it amended its contention only in the Holtec proceeding. See Motion to Amend Contentions Regarding Federal Ownership of Spent Fuel to Address Holtec Internationals Revised License Application (Feb. 6, 2019) (ML19037A127). Beyond Nuclear did not amend its contention in this proceeding.

56 Beyond Nuclears Appeal devotes six pages to its APA argument, which is new to the ISP proceeding. Unlike in the Holtec proceeding, Beyond Nuclear did not seek to amend its contention here.

11 violates Commission appellate precedent,57 even if considered, Beyond Nuclears appeal fails because the premise of the contention remains legally false. Nothing in ISPs requested NRC license can or will authorize DOE to take actions that Congress has prohibited. That the requested license includes language recognizing that DOE could eventually, during the life of the license, become a customer neither causes nor enables anyonenot DOE, NRC, or ISPto violate the NWPA. And Beyond Nuclear provides nothing to the contrary.

Even so, in pressing this argument, Beyond Nuclear takes liberty with the record in its unsupported assertion that ISP has conceded violations of federal law.58 ISP has made no such concession because nothing in the Application or requested license is contrary to the law.

Similarly baseless is Beyond Nuclears assertion that by issuing the requested license, NRC would circumvent Congress.59 Yet perhaps more than all others, this passage shows how far Beyond Nuclear has come untethered from either fact or law:

Here, there is complete agreement that ISPs license application contains provisions which, if implemented, would violate the NWPA. By permitting license provisions that would allow federal ownership of potentially all of the massive tonnage of spent fuel to be stored at the CISF, the ASLB is not proposing minor statutory additions or filling of gaps, but rather the wholesale reversal of a statutory scheme.60 That there is no agreement whatsoever on an NWPA violation in the Application is obvious.

Neither ISP, the NRC Staff, nor the Board has agreed with Beyond Nuclears assertion. And Beyond Nuclear cites no support because none exists. Simply put, NRC cannot reverse or

57 National Enrichment Facility, CLI-04-25, 60 NRC at 225.

58 Appeal at 13.

59 Id. at 13.

60 Id. at 14 (internal quotations and citations omitted, emphasis supplied).

12 overrule any part of the NWPA, and neither ISP, NRC Staff, nor the Board has ever suggested otherwise.

Beyond Nuclears assertion also evidences a clear misunderstanding of the significance of referencing DOE in ISPs Part 72 license application. The significance is that, in passing the NWPA, Congress intended DOE to own and possess the commercially generated SNF. And no one disagrees that DOE is still statutorily obligated to do so. The reference to possible future DOE ownership of commercially generated SNF in an application that seeks to store SNF for four decades is entirely supportive of the purpose of the NWPAthat DOE will one day be able to take title to SNF, as required. In short, Beyond Nuclear misconstrues the reference to DOE in the application as being contrary to the NWPA, when in fact the opposite is true. And ISPs Application does not seek from NRC any authority for DOE today or in the future, nor could it as only Congress can alter DOEs obligation to take title to SNF and/or change or remove the limitations currently preventing it from doing so.

In sum, Beyond Nuclear would have the Commission ignore its many decisions granting licenses where other governmental approvals or authorizations remain pending.61 Rather, Beyond Nuclear would elevate NRC beyond its statutory authority, to be the issuer of all necessary approvals required for any project that requires an NRC license. This position has

61 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-02-16, 55 NRC 317, 334 (2002) ([I]t would be productive of little more than untoward delay were each regulatory agency to stay its hand simply because of the contingency that one of the others might eventually choose to withhold a necessary permit or approval.); Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 748 (1977) (citing S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3),

ALAB-171, 7 AEC 37, 39 (1974)). Also, the fact that an applicant may face commercial or political uncertainties does not preclude issuance of a license where the NRC finds that the applicant has met all applicable safety and environmental requirements. It is the applicants prerogative to accept such risks. See, e.g., Hydro Res., Inc. (Rio Rancho, NM), CLI-01-4, 53 NRC 31, 48-49, 55 (2001) (noting that the NRC is not in the business of regulating the market strategies of licensees or of crafting broad energy policy involving other agencies, and that [i]t remains nonetheless within [the applicants] business discretion to determine whether market conditions warrant commencing [] operations).

13 never been the case and is not presented by ISPs application. NRC has all requisite authority to issue the requested Part 72 license, and nothing in the NWPA changes that.62 Beyond Nuclear seeks to bootstrap a false premise into pointless litigation. But all of Beyond Nuclears APA arguments fail because nothing in ISPs requested NRC license can or could alter DOEs authority. Accordingly, Beyond Nuclear has shown no legal error by the Board and the Appeal should be rejected.

C.

Beyond Nuclear Seeks Relief Beyond That Sought In Its Contention Without Seeking Leave to Amend Beyond Nuclear has not sought to amend its contention in this proceeding. Beyond Nuclearwhether in its Motion to Dismiss before the Commission or in its Petition before the Boardhas consistently sought only one remedy, the dismissal of ISPs Application. At oral argument, Beyond Nuclear mentioned, for the first time, an alternative remedy of striking those portions of the Application that it believes violates the NWPA.63 On appeal, Beyond Nuclear now formally advances this alternative remedy asking that the Commission either deny the application in its entirety or rule that all provisions of ISPs license application that violate the NWPA must be removed.64 Such an attempt to amend a contention or seek new relief on appeal is neither available nor appropriate and should be rejected.65

62 Bullcreek v. Nuclear Reg. Commn, 359 F.3d 536, 537-38 (D.C. Cir. 2004); see also Private Fuel Storage L.L.C. (Indep. Spent Fuel Storage Installation) CLI-02-29, 56 NRC 390, 403 (2002) (holding that [t]ere is no irreconcilable conflict between a law imposing one set of restritions on federal facilities (the NWPA), and another law imposing a different set of restrictions on private facilities (Part 72).).

63 See July 10 Tr. at 37 (requesting this alternative relief); see also id. at 43 (ISPs response to the new request for relief).

64 Appeal at 18.

65 USEC, CLI-06-10, 63 NRC at 458 (quoting PFS, CLI-04-22, 60 NRC at 140); Natl Enrichment Facility, CLI-04-35, 60 NRC at 622-23).

14 V.

CONCLUSION For the reasons set forth above, the Commission should deny Beyond Nuclears appeal of LBP-19-7.

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/ 107373117 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 Beyond Nuclears Appeal of LBP-19-7 was filed through the E-Filing system.

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

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

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