ML19322D106

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Internationals Answer Opposing Sierra Clubs Motion to File Late-Filed Contention 30
ML19322D106
Person / Time
Site: HI-STORE
Issue date: 11/18/2019
From: Gill W, Leidich A, Perkins K, Silberg J, Walsh T
Holtec, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
NRC/OCM
SECY RAS
References
ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55415
Download: ML19322D106 (37)
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4813-8745-0795.v3 November 18, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

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Docket No.

72-1051 Holtec International

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(HI-STORE Consolidated Interim Storage

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Facility)

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HOLTEC INTERNATIONALS ANSWER OPPOSING SIERRA CLUBS MOTION TO FILE LATE-FILED CONTENTION 30 William F. Gill Kathryn L. Perkins HOLTEC INTERNATIONAL Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 W.Gill@holtec.com K.Perkins@holtec.com Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8000 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com Counsel for HOLTEC INTERNATIONAL

i 4813-8745-0795.v3 TABLE OF CONTENTS I. Introduction............................................................................................................................... 1 II. Background............................................................................................................................... 2 III. Applicable Legal Standards...................................................................................................... 3 A. Requirements to Reopen Record (10 C.F.R. § 2.326)........................................................ 4 B. Standards for Late-filed Contentions (10 C.F.R. § 2.309(c)(1))......................................... 5 C. Substantive Requirements for Petition to Intervene (10 C.F.R. § 2.309(f)(1)).................. 6 IV. Sierra Clubs Late-Filed Contention 30 Must Be Rejected by the Commission for Failing to Meet the Requirements of 10 C.F.R. §§ 2.326, 2.309(c)(1) and 2.309(f)(1)............................ 9 A. Sierra Club Fails to Even Address or Meet the Requirements to Reopen the Record Under 10 C.F.R. § 2.326................................................................................................................ 9

1. Sierra Clubs Motion is Not Timely........................................................................... 11
2. Sierra Club Does Not Raise an Exceptionally Grave Issue........................................ 21
3. Sierra Club Makes No Effort to Show that a Different Result Would Occur............. 22 B. Sierra Club Fails to Meet the Late-filed Standards of 10 C.F.R. § 2.309(c)(1)................ 23 C. Sierra Clubs Contention 30 Is Inadmissible.................................................................... 23 V. Sierra Club Lacks Standing.................................................................................................... 34 VI. Conclusion.............................................................................................................................. 34

1 4813-8745-0795.v3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

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Docket No.

72-1051 Holtec International

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(HI-STORE Consolidated Interim Storage

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Facility)

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Holtec Internationals Answer Opposing Sierra Clubs Motion to File Late-Filed Contention 30 I.

Introduction Pursuant to 10 C.F.R. § 2.309(i)(1), Holtec International (Holtec) submits this answer opposing Sierra Clubs October 23, 2019 Motion to File a New Late Filed Contention.1 The Commission2 should dismiss the Motion because Sierra Club has failed to meet: (1) the standards for reopening the record under 10 C.F.R. § 2.326; (2) the requirements for late-filed contentions under 10 C.F.R. § 2.309(c)(1)(i)-(iii); and (3) the criteria for an admissible contention under 10 C.F.R. § 2.309(f)(1). The Commission should also deny Sierra Clubs Motion based on Sierra Clubs lack of standing, as shown in the Holtec Opposition to Sierra Clubs Appeal of LBP-19-4, which is currently pending before the Commission.3 1 Sierra Clubs Motion to File a New Late-Filed Contention (Oct. 23, 2019) (hereinafter, the Motion). Included with the Motion is Sierra Clubs Contention 30, which consists of eight un-numbered pages attached to the Motion (hereinafter, the Contention). In addition, Sierra Club filed with its Motion and the Contention: (1) the Declaration of Robert Alvarez in Support of Motion of Intervenor Sustainable Energy and Economic Development Coalition for Leave to File Late-Filed Contention (Oct. 23, 2019) (the Alvarez Declaration); (2) the Notice of Filing of Curriculum Vitae of Robert Alvarez and Mr. Alvarezs resume (Nov. 17, 2018) (Alvarez Resume); and (2) a report from the Nuclear Waste Technical Review Board (NWTRB) entitled Preparing for Nuclear Waste Transportation: Technical Issues that Need to Be Addressed in Preparing for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste (Sept. 2019) (the NWTRB Report).

2 The captions for Sierra Clubs Motion indicates that it was submitted Before the Atomic Safety and Licensing Board. However, as discussed infra, the Licensing Board has terminated this proceeding and jurisdiction properly rests with the Commission.

3 Holtec Internationals Brief in Opposition to Sierra Clubs Appeal of LBP-19-4 at 2, 14-19 (June 28, 2019) (Holtec Opposition to Sierra Clubs Appeal).

2 4813-8745-0795.v3 II.

Background

Holtec previously summarized the relevant procedural history of this proceeding in the Holtec Opposition to Sierra Clubs Appeal of the Licensing Boards Order in LBP-19-4.4 In that Order, the Licensing Board found that none of the contentions proffered by Sierra Club met the admissibility requirements of 10 C.F.R. § 2.309(f)(1).5 Therefore, in accordance with 10 C.F.R.

§ 2.309(a), the Licensing Board denied Sierra Clubs intervention petition. In addition, because the Licensing Board also denied the other petitioners requests for hearing and petitions for leave to intervene, the Licensing Board terminated the proceeding.6 On June 3, 2019, Sierra Club filed its appeal of LBP-19-4, in which it challenged the Licensing Boards rulings denying the admission of eleven of its Contentions (Contentions 1, 4, 8, 9, 11, 15, 16, 17, 18, 19, and 26).7 Holtec opposed Sierra Clubs appeal because it failed to identify any error or abuse of discretion in the Licensing Boards rejection of all of Sierra Clubs contentions. Holtec therefore urged the Commission to affirm the Licensing Boards rejection of Sierra Clubs intervention petition.8 In addition, Holtec argued that the Commission should uphold the Licensing Boards rejection of the intervention petition on the independent grounds that Sierra Club had failed to demonstrate standing.9 On October 23, 2019, Sierra Club late-filed its new Contention 30. Contention 30 asserts that the Holtec Environmental Report (ER) for the proposed HI-STORE Consolidated Interim 4 Holtec Opposition to Sierra Clubs Appeal at 2-4.

5 LBP-19-4 slip op. at 2.

6 Id.

7 Sierra Clubs Petition for Review of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (June 3, 2019) (NRC ADAMS Accession No. ML19154A166) (Sierra Clubs Appeal).

8 Holtec Opposition to Sierra Clubs Appeal at 1, 6-27. The NRC Staff also opposed Sierra Clubs Appeal. NRC Staffs Answer in Opposition to the Sierra Clubs Appeal of LBP-19-4 (June 28, 2019) (NRC ADAMS Accession No. ML19179A254).

9 Holtec Opposition to Sierra Clubs Appeal at 27-30.

3 4813-8745-0795.v3 Storage Facility (CISF) did not address certain technical issues regarding the transportation of spent nuclear fuel (SNF) that are identified in the NWTRB Report.10 Sierra Club therefore claims that the ER inadequately evaluates SNF transportation to the proposed CISF.11 More specifically, the late-filed contention alleges that 18 technical issues identified in the NWTRB Report remain unresolved and pose barriers to the implementation of the Holtec CIS project [and]

are not discussed in Holtecs ER.12 The Contention claims that [t]he ER therefore does not adequately evaluate the environmental impact of the transportation of the nuclear waste from various reactor sites to the proposed CIS facility.13 Contention 30 refers to the Alvarez Declaration,14 notwithstanding the fact that the caption for the Alvarez Declaration states that it was prepared for a different proceeding, In the Matter of WCS Consolidated Interim Spent Fuel Storage Facility, Docket No. 72-1050, and the fact that the title of the Alvarez Declaration states that it was prepared for another entity (the Sustainable Energy and Economic Coalition) that has intervened in that proceeding.15 As discussed in detail below, the Commission should reject late-filed Contention 30 for multiple reasons.

III.

Applicable Legal Standards In order to be admitted, Contention 30 must meet the standards for reopening a closed record, for late-filed contentions, and for admissible contentions. Contention 30 meets none of 10 Contention at 1.

11 Id.

12 Id.

13 Id.

14 Id. at 3.

15 Alvarez Declaration at cover page.

4 4813-8745-0795.v3 these requirements. Each of these failings, individually, provides ample justification to reject Contention 30.

A.

Requirements to Reopen Record (10 C.F.R. § 2.326)

The Licensing Board denied all six petitions to intervene in this proceeding, including Sierra Clubs.16 Thus, the record is closed. In order to submit a new or amended contention, Sierra Club must file a motion to reopen the record and address the standards for such a motion under 10 C.F.R. § 2.326.17 This is true notwithstanding the appeals pending before the Commission.18 The Commission considers reopening the record for any reason to be an extraordinary action,19 and places an intentionally heavy burden on parties seeking to reopen the record.20 Indeed, a party seeking to reopen a closed record to raise a new matter faces an elevated burden to lay a proper foundation for its claim. Commission practice holds that the standard for admitting a new contention after the record is closed is higher than for an ordinary late-filed contention.21 Obviously, there would be little hope of completing administrative proceedings if each newly arising allegation required an agency to reopen its hearings.22 A party seeking to reopen the record must include a motion that:

(1) is timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; 16 LBP-19-4, slip op. at 2.

17 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3) CLI-09-5, 69 N.R.C. 115, 120 (2009)

(The Board correctly determined that because it had already denied the intervention petition, a motion to file new or amended contentions must address the motion to reopen standards. (quotations omitted)).

18 See id.

19 Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 N.R.C. 151, 156 (2015).

20 Id. at 155.

21 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 N.R.C. 345, 350 (2005)

(citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-24 (1973)).

22 PFS, CLI-05-12, 61 N.R.C. at 350 n.18 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 555 (1978)).

5 4813-8745-0795.v3 (2) addresses a significant safety or environmental issue; and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.23 The motion must also be accompanied by an affidavit that separately addresses each of the applicable criteria in Section 2.326(a), with a specific explanation of why each criterion has been satisfied for each of petitioners allegations.24 In addition, a motion to reopen that relates to a new contention must also satisfy the 10 C.F.R. § 2.309(c) standards for a new or amended contention.25 B.

Standards for Late-filed Contentions (10 C.F.R. § 2.309(c)(1))

The Commissions regulations explicitly prohibit the consideration of contentions filed after the initial deadline, absent a finding of good cause for the late filing. Contentions filed after the intervention deadline will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause for the late filing.26 The good cause demonstration requires a petitioner to show that:

(i)

The information upon which the filing is based was not previously available; (ii)

The information upon which the filing is based is materially different from information previously available; and (iii)

The filing has been submitted in a timely fashion based on the availability of the subsequent information.27 This means that previously available information cannot be used as the basis for a new or amended contention filed after the deadline, including previously available information that is compiled for the first time in a new document.28 A document that collects, summarizes, and places 23 10 C.F.R. § 2.326(a).

24 10 C.F.R. § 2.326(b).

25 10 C.F.R. § 2.326(d).

26 10 C.F.R. § 2.309(c)(1) (emphasis added).

27 10 C.F.R. § 2.309(c)(1)(i)-(iii).

28 Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566 (Aug. 3, 2012).

6 4813-8745-0795.v3 into context the facts or previously available information does not make that information new or materially different.29 To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information... not previously available,30 and also be inconsistent with [the Commissions] longstanding policy that a petitioner has an iron-clad obligation to examine the publicly available documentary material... with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention.31 There simply would be no end to NRC licensing proceedings if petitioners could disregard [the Commissions] timeliness requirements and add new contentions at their convenience during the course of a proceeding based on information that could have formed the basis for a timely contention at the outset of the proceeding.32 Moreover, the petitioner bears the burden of demonstrating that a late contention merits submission.33 C.

Substantive Requirements for Petition to Intervene (10 C.F.R. § 2.309(f)(1))

Even if a petitioner is able to show the requisite good cause for the late filing, late-filed contentions must still meet the Commissions admissibility requirements set forth in 10 C.F.R.

§ 2.309(f)(1). Specifically, contentions must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; 29 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 N.R.C. 481, 496 (2010) (footnote omitted).

30 Id. (quotation omitted) (emphasis in original).

31 Id. (emphasis added) (quotation and footnote omitted).

32 Id. (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 271-72 (2009) (footnotes and internal quotation marks omitted)).

33 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-28, 52 N.R.C. 226 (2000). See also Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 N.R.C. 1041 (1983); 54 Fed. Reg.

33,168, 33,172 (1989).

7 4813-8745-0795.v3 (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.103, provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.34 These standards are enforced rigorously. If any one... is not met, a contention must be rejected.35 A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information. Under these standards, a petitioner is obligated to provide the

[technical] analyses and expert opinion showing why its bases support its contention.36 Where a petitioner has failed to do so, the [Licensing] Board may not make factual inferences on [the]

petitioners behalf.37 34 10 C.F.R. § 2.309(f)(1)(i)-(vi).

35 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N.R.C. 149, 155 (1991) (citation omitted); USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 437 (2006)

(These requirements are deliberately strict, and we will reject any contention that does not satisfy the requirements. (footnotes omitted)).

36 Georgia Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 N.R.C. 281, 305, vacated in part and remanded on other grounds, CLI-95-10, 42 N.R.C. 1 (1995), affd in part, CLI-95-12, 42 N.R.C. 111 (1995).

37 Id. (citing Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N.R.C. 149 (1991). See also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 N.R.C. 142, 180 (1998) (explaining that a bald assertion that a matter ought to be considered or that a factual dispute exists... is not sufficient; rather, a petitioner must provide documents or other factual information or expert opinion... to show why the proffered bases support [a] contention (citations omitted)).

8 4813-8745-0795.v3 Further, admissible contentions must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application].38 In particular, this explanation must demonstrate that the contention is material to the NRCs findings and that a genuine dispute on a material issue of law or fact exists.39 The Commission has defined a material issue as meaning one where resolution of the dispute would make a difference in the outcome of the licensing proceeding.40 Furthermore, a statement that simply alleges that some matter ought to be considered does not provide a sufficient basis for a contention.41 Similarly, [m]ere reference to documents does not provide an adequate basis for a contention.42 Rather, NRCs pleading standards require a petitioner to read the pertinent portions of the license application, including the safety analysis and the environmental report, state the applicants position and the petitioners opposing view, and explain why it has a disagreement with the applicant.43 If the petitioner does not believe these materials address a relevant issue, the petitioner is to explain why the application is deficient.44

[A]n allegation that some aspect of a license application is inadequate or unacceptable does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the 38 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 N.R.C. 349, 359-60 (2001).

39 10 C.F.R. § 2.309(f)(1)(iv), (vi).

40 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (emphasis added).

41 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 N.R.C. 200, 246 (1993),

review declined, CLI-94-2, 39 N.R.C. 91 (1994).

42 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 348 (1998).

43 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170-171 (Aug. 11, 1989); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 N.R.C. 349, 358 (2001).

44 54 Fed. Reg. at 33,170. See also Palo Verde, CLI-91-12, 34 N.R.C. at 156.

9 4813-8745-0795.v3 application is unacceptable in some material respect.45 Likewise, mere speculation is not sufficient to raise a genuine dispute with the application.46 Finally, Commission regulations expressly provide that contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee....47 IV.

Sierra Clubs Late-Filed Contention 30 Must Be Rejected by the Commission for Failing to Meet the Requirements of 10 C.F.R. §§ 2.326, 2.309(c)(1) and 2.309(f)(1).

In order to successfully introduce a new contention at this late stage, Sierra Club must meet the requirements of 10 C.F.R. §§ 2.326, 2.309(c)(1) and 2.309(f)(1). Sierra Club has ignored the reopening requirements of 10 C.F.R. § 2.326 and has not even attempted to justify reopening of the record. Sierra Clubs Motion has also failed to meet the requirements for late-filed contentions under 10 C.F.R. § 2.309(c)(1) and the substantive contention admissibility standards under 10 C.F.R. § 2.309(c)(1). Each of these failings justifies denying Sierra Clubs Motion and rejecting Contention 30.

A.

Sierra Club Fails to Even Address or Meet the Requirements to Reopen the Record Under 10 C.F.R. § 2.326.

Sierra Clubs Motion to admit Contention 30 should be rejected out of hand for failing to even address the requirements of 10 C.F.R. § 2.326. The Commission has ruled that after a petition to intervene has been denied, a motion to file new or amended contentions must address the 45 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP 23, 64 N.R.C. 257, 358 (2006) (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16, 31 N.R.C. 509, 521 & n.12 (1990)).

46 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 N.R.C. 215, 225 (2017).

47 10 C.F.R. § 2.309(f)(2) (emphasis added).

10 4813-8745-0795.v3 motion to reopen standards.48 Sierra Club must also provide an affidavit substantively addressing the reopening criteria.49 Sierra Club made no attempt to address any of the factors in 10 C.F.R.

§ 2.326, nor did it include the required affidavit in support. Neither the Motion, the Contention, nor the Alvarez Declaration even mentions the factors in 10 C.F.R. § 2.326 nor provides any information that comes close to meeting those standards. Failing to address these standards by itself is sufficient grounds to deny a motion for new contentions after the record has closed.50 Sierra Clubs Motion should be denied for this reason alone.

Indeed, Sierra Clubs failure to address the reopening standards is particularly egregious because it has been on notice for months that such a showing is required at this procedural juncture, i.e., following the termination of the proceeding by the Licensing Board and pending Commission review of the appeals. Months ago, another petitioner sought to raise a new contention without addressing the reopening standards.51 Both Holtec52 and the NRC Staff53 opposed the new contention for multiple reasons, including the petitioners failure to address the reopening standards 48 Millstone, CLI-09-5, 69 N.R.C. at 120 (emphasis added) (quotations omitted).

49 10 C.F.R. § 2.326(b). See also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-3, 75 N.R.C. 132, 138 (2012).

50 See Millstone, CLI-09-5, 69 N.R.C. at 124 (Even had [petitioners] contentions passed muster under 10 C.F.R.

§ 2.309(f)(1), its motion would still fail for failing to address, let alone meet, our reopening standards.

(emphasis added)).

51 See Fasken Oil and Ranch and Permian Basin Land and Royalty Owners Motion for Leave to File a New Contention (Aug. 1, 2019).

52 Holtec Internationals Answer Opposing Faskens Late-Filed Motion for Leave to File a New Contention (Aug. 26, 2019) at 6 ([T]he record is closed. In order to submit a new or amended [contention] Fasken must file a motion to reopen the record and address the standards for such a motion under 10 C.F.R. § 2.326. This is true notwithstanding the appeals pending before the Commission.) (footnotes omitted).

53 NRC Staff Answer in Opposition to Fasken Oil and Ranch, Ltd. and Permian Basin Land and Royalty Owners Motion to File a New Contention (Aug. 26, 2019) at 9 (Under the Commissions longstanding practice, proceedings terminate, and the record is thereby closed, once all contentions have been decided. In Holtec, the Licensing Board decided that Fasken, as well as the other petitioners, failed to submit an admissible contention and denied their intervention petitions. Accordingly, that ruling served to close the record of the proceeding, notwithstanding the subsequent appeals by the petitioners.) (footnotes omitted).

11 4813-8745-0795.v3 while appeals were pending before the Commission. Sierra Club has no excuse for failing to address the reopening standards.

In addition, even if the Commission were to apply the reopening standards to Sierra Clubs Motion, Sierra Club has fallen far short of them.

1.

Sierra Clubs Motion is Not Timely.

Sierra Club would not be able to meet the reopening standards even if it had addressed them. First and foremost, the Motion is not timely under 10 C.F.R. § 2.326(a)(1). To determine if a filing is timely for the purposes of a motion to reopen, the Commission looks at whether the contention could have been raised earlierthat is, whether the information on which it is based was previously available or whether it is materially different from what was previously available, and whether it has been submitted in a timely fashion based on the informations availability.54 As the Commission has stressed, proceedings would be incapable of attaining finality if contentionsthat could have been raised at the outsetcould be added later at will, regardless of the stage of the proceeding.55 The information underpinning Contention 30 has been available since the inception of this proceeding and, in many cases, long before. Sierra Club claims that the NWTRB Report was the first authoritative discussion from any source of the technical issues discussed in the report.56 This claim is simply not true. Even a cursory review of the NWTRB Reportwhich apparently Sierra Club has not undertakenshows that all of the technical issues discussed in the Report were previously raised in earlier studies and reports. The NWTRB Report explains as much several times, as stated in the following quotations from the Report:

54 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-21, 76 N.R.C. 491, 498 (2012).

55 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 N.R.C. 479, 483 (2012).

56 Motion at 1.

12 4813-8745-0795.v3 As described in Section 2.2, the technical issues that need to be addressed before beginning a major transportation effort for SNF and [High Level Waste (HLW)]

in the U.S. have been identified by the [NWTRB] during past [NWTRB] public meetings, technical workshops, and [NWTRB] reports (NWTRB 2012, 2014, 2015, 2016, 2017f, 2018). Additional relevant technical issues have been identified and documented in reports and presentations by DOE (e.g., Stockman et al. 2014),

the U.S. nuclear industry (EPRI 2011), and researchers in other countries. 57 The [NWTRB] has identified many of these technical issues in correspondence to DOE following past [NWTRB] public meetings. For example, see the letter from the [NWTRB] to DOE dated December 8, 2016, with recommendations following the Summer 2016 [NWTRB] Meeting, including several recommendations to improve integration among offices within DOE.58 Other relevant review efforts are documented in [NWTRB] reports (e.g., see the [NWTRB] reports Evaluation of the Technical Basis for Extended Dry Storage and Transportation of Used Nuclear Fuel, December 2010; and Management and Disposal of U.S. Department of Energy Spent Nuclear Fuel, December 2017).

Similar technical issues have been identified and documented in reports and presentations by DOE, the U.S. nuclear industry, and researchers and transporters overseas.59 The [NWTRBs] review of transportation issues relied on past [NWTRB] public meetings; [NWTRB] reports and correspondence; and ongoing interactions with DOE, the U.S. Navy, the NRC, and representatives of the commercial nuclear industry. The [NWTRB] also referred to reports and journal articles related to transporting SNF and HLW published by DOE, the NRC, the GAO, national laboratories, and nuclear industry groups, including organizations that operate overseas.60 The NWTRB Reports own statements make clear that the Report collects and summarizes previously available information. In other words, the NWTRB has compiled a list of technical issues to be addressed in preparing for transporting SNF and HLW (see Table 2-1, also repeated as 57 NWTRB Report at 23 (emphasis added).

58 Id. at xxiv (emphasis added).

59 Id. at xxvi (emphasis added).

60 Id. at 3 (emphasis added).

13 4813-8745-0795.v3 Table A-1), including the technical issues Sierra Club seeks to raise in Contention 30, by

[d]rawing from the[] sources identified in the Report. This means that the NWTRB Report does not present new information or information that is materially different from previously available information for purposes of meeting the timeliness criteria in Section 2.326(a).61 Furthermore, all of the underlying sources of information identified in the portions of the Report quoted above predate Sierra Clubs September 2018 Petition to Intervene62 in this proceeding.

Thus, Sierra Club could have raised any of the technical issues discussed in the NWTRB Report at the outset of this proceeding.

The timeliness inquiry should end here. Sierra Club has failed to show that it could not have raised earlier any of the issues in Contention 30, and it is not incumbent on Holtec (or the Commission) to sift through Sierra Clubs papers to prove that each technical issue Sierra Club seeks to pursue is untimely raised.63 Nevertheless, it is clear that none of the individual technical issues identified in the NWTRB Report and specifically raised by Sierra Club in Contention 30 is timely. Each technical issue is rooted in an earlier report or study cited by the NWTRB Report, or otherwise could have been raised previously on its own. Indeed, in some cases (as will be noted below) the technical issue was raised previously as the subject of an earlier contention previously considered and ruled inadmissible by the Licensing Board.

High Burnup SNF. Sierra Club and Mr. Alvarez make essentially two claims with respect to high burnup SNF, both of which could have been raised at the outset of this proceeding based on existing information. In the first claim, Sierra Club alleges that much high burnup SNF will not be 61 Prairie Island, CLI-10-27, 72 N.R.C. at 496 (footnote omitted).

62 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018) (Petition to Intervene).

63 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 N.R.C. 451, 457 (2006) (finding that it is not the Boards responsibility to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves).

14 4813-8745-0795.v3 cool enough to transport until either the year 2070 (if the SNF is repackaged into smaller canisters) or the year 2100 (if it is not repackaged);64 time frames which are outside the initial license term of the proposed Holtec CISF. But the portions of the NWTRB Report (pages 77-79) relied on by Sierra Club in support of these assertions cite to studies that are many years old, including Williams 2013 (which is even identified by Sierra Club in the quotation on page 3 of Contention 30); the NRC Interim Staff Guidance document ISG-8 Rev. 3 from 2012; and Clarity et al.

2017.65 In the second claim, Sierra Club alleges that [c]oncerns surrounding the integrity of high-burnup spent nuclear fuel in dry storage are not resolved and may result in prolonged onsite storage for several decades,66 with the implication being that high burnup SNF will not be capable of transport within the licensing period contemplated for the proposed Holtec CISF. For support, Sierra Club references the Alvarez Declaration, which in turn references an NWTRB report from 2016: The [NWTRB] concluded in 2016 that the Nuclear Regulatory Commission and the Energy Department lack a technical basis in support of the safe transport of high burnup SNF. By virtue of its high radioactivity and decay heat, high burnup SNF could be trapped at reactor sites....67 In short, the information underpinning Sierra Clubs high burnup SNF claims is years old, and thus could have been raised at the outset of this proceeding.

Also demonstrating the untimeliness of Contention 30s high burnup SNF claims is that Sierra Club previously raised essentially identical issues in contentions that it submitted earlier in 64 Contention at 2-3 (quoting NWTRB Report at p. 77). See also id. at 4-5 (citing NWTRB Report at 77-79); Alvarez Decl. at 9.

65 See NWTRB Report at 77-79 (emphasis added).

66 Contention at 3.

67 Alvarez Decl. at 1 (emphasis added). See also id. at 4 and 6. The references on pages 1 and 4 of the Alvarez Declaration to the conclusions allegedly reached by the NWTRB in 2016 do not identify the source of those conclusions. It appears that these references may also be to the same document cited on page 6 of his Declaration at FN 27, which is a letter from the NWTRB to the then Acting Assistant Secretary for Nuclear Energy dated May 23, 2016.

15 4813-8745-0795.v3 the proceeding, all of which were considered and ruled inadmissible by the Licensing Board,68 and which rulings were not appealed by Sierra Club.69 In Contention 20, the Licensing Board considered and rejected claims from Sierra Club suggest[ing that] outstanding issues regarding cladding and high burnup fuel should be resolved before this fuel type can be safely loaded, transported, and stored,70 which are claims substantially similar to those that Sierra Club and Mr.

Alvarez also assert in Contention 30. In Contention 27, Sierra Club attempted to challenge the Holtec aging management plan for high burnup SNF, relying on a February 2019 Report from Mr.

Alvarez.71 The February 2019 Alvarez Report discussed high burnup SNF using language identical to that used in his October 2019 Declaration when claiming that fresher and thermally hotter fuel... may be trapped at sites to cool down further....72 Mr. Alvarezs February 2019 Report also includes Figure 3 (entitled spent nuclear fuel at closed and future closed reactors), which is nearly identical to Figure 1 (spent nuclear fuel at closed, soon-to-be-closed reactors and a storage site) from his October 2019 Declaration.73 Likewise, the three bullet points on page 6 of Mr. Alvarezs October 2019 Declaration are nearly identical to text on page 6 and continuing onto page 7 of his February 2019 Report.74 68 LBP-19-4, slip op. at 35-90 (ruling inadmissible all of Sierra Club Contentions, including Contentions 14, 20, 21, 22, 23, 24, and 27, which are those that raised issues related to high burnup SNF).

69 Sierra Clubs Petition for Review of Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in Licensing Proceeding (Jun. 3 2019) at 1 (appealing LBP-19-4 only with respect to the Licensing Boards ruling inadmissible Sierra Club Contentions 1, 4, 8, 9, 11, 15, 16, 17, 18, 19, and 26).

70 LBP-19-4, slip op. at 72 (citing Petition to Intervene at 68-69).

71 See Sierra Clubs Additional Contentions in Support of Petition to Intervene and Requests for Adjudicatory Hearing (Feb. 25, 2019) (Additional Contentions); Expert Report and Curriculum Vitae of Robert Alvarez (Feb. 23, 2019)

(Alvarez Report).

72 Alvarez Report at 7 (emphasis added).

73 Compare Alvarez Report at 10 with Alvarez Declaration at 5. The only difference between the two Figures is that Figure 1 from the October 2019 Alvarez Declaration includes spent fuel from TMI 1 and Morris.

74 Compare Alvarez Report at 6-7 with Alvarez Declaration at 6.

16 4813-8745-0795.v3 The Commissions timeliness requirements do not permit Sierra Club multiple attempts to raise the same (untimely) claims.75 For all of the foregoing reasons, Sierra Clubs high burnup SNF claims are untimely and should not be considered.

Damage to SNF During Shipment. Sierra Club and Mr. Alvarez make claims regarding potential damage to SNF during transport, which claims could have been raised at the start of this proceeding. Sierra Club asserts that [t]here is a substantial lack of data regarding potential damage of SNF during transport,76 parroting one of the conclusions allegedly reached by Mr.

Alvarez.77 Mr. Alvarezs purported conclusion is based in part on the following statement from the NWTRB Report:

No comprehensive examinations of U.S. commercial SNF have been conducted following transportation to determine if the SNF was damaged in transit. However, SNF handling, loading and shipping operations can subject the SNF assemblies to vibration loads, small impulse loads (e.g. bumps in the road), and severe conditions such as an accident, strong shock loads. How these vibrations and impulse loads may affect the SNF and its ability to meet transportation requirements are not fully understood78 If it is true now that [n]o comprehensive examinations of U.S. commercial SNF have been conducted following transportation... and that it is not fully understood how transportation may have impacted the SNF, then these claims were also true over a year ago when Sierra Club petitioned to intervene in this proceeding, and such claims could have been raised at that time.

Indeed, the Licensing Board already considered and ruled inadmissible a similar contention put 75 Contention 30 is also an impermissible attempt by Sierra Club to skirt around its failure to appeal the prior Licensing Board ruling on its high burnup SNF claims.

76 Contention at 3.

77 Alvarez Declaration at 1-2.

78 Alvarez Declaration at 2 (quoting NWTRB Report at 38). See also id. at 4, 7.

17 4813-8745-0795.v3 forward by unrelated petitioner who sought to raise the issue of SNF damage during transport.79 Sierra Club thus could have raised this same issue at the outset of this proceeding.

Transportation Infrastructure. Sierra Club claims that the ER is deficient because it does not describe the time and expense of upgrading the infrastructure needed for SNF transportation.80 Sierra Club and Mr. Alvarez both point to the same discussion at page 44-45 of the NWTRB Report to support this claim.81 But that discussion references no less than seven earlier studies that address the same issue:

To support the removal of SNF or HLW from waste storage sites, DOE will have to work with the site operator to ensure that the necessary transportation routes are available and capable of supporting the preferred mode of transportation. For shutdown commercial nuclear power plant sites, DOE has completed general assessments of the condition of transportation infrastructure at the sites (Maheras et al. 2017). DOE also completed more detailed assessments at six shutdown sites (Areva 2017a, 2017b, 2017c, 2017d, 2017e, 2017f). The results of these assessments show that, at some sites, significant work will have to be done to bring the transportation infrastructure back into good working order.82 Because the underlying studies date from 2017, Sierra Clubs concerns with upgrading transportation infrastructure are all untimely raised.

Unprecedented Nature of SNF Transportation Campaign. Sierra Club and Mr. Alvarez claim that the magnitude of long-distance transport of spent nuclear fuel and high-level radioactive waste in the United States is unprecedented, will require significant planning and coordination, and there is no assurance at this point that transportation of that quantity of waste could be done safely in the time period that would allow the waste to be transported on the 79 LBP-19-4, slip op. at 112-113. The Licensing Board ruled the contention inadmissible because the petitioners fail[ed] to submit facts or expert opinion that show (1) how the spent fuel, when packaged at the reactor site, would leave the site leaking or damaged notwithstanding NRC-approved quality assurance programs; and (2) how the spent fuel canister, within its transport overpack cask, would become credibly damaged in an accident scenario that results in an exceedance of dose rates while in transit. Id.

80 Contention at 2. See also id. at 6; Motion at 1.

81 Contention at 6; Alvarez Declaration at 4.

82 NWTRB Report at 44 (emphasis added).

18 4813-8745-0795.v3 schedule proposed by Holtec.83 If this claim is true now, it was also true at the outset of this proceeding, and Sierra Club should have raised it then. In fact, Sierra Club did claim in its intervention petition that Holtecs ultimate plan to store 100,000 tons of radioactive waste at the proposed CISF in New Mexico is unprecedented.84 Furthermore, the portions of the NWTRB Report on which Sierra Club relies for this claim make clear that this is not a new issue. The NWTRB Report explicitly states that the implications of launching a major radioactive waste transportation campaign were evaluated in the mid-2000s by the Committee on Transportation of Radioactive Waste appointed by the National Academy of Sciences.85 The Committee issued its report in 2006, which highlighted social and institutional challenges that would be associated with a large-scale transportation campaign.86 Sierra Club raises no new issue here.

Time Needed to Design and Develop New SNF Transportation Containers. Contention 30 claims that the time needed to design and develop a new container to transport SNF will allegedly make SNF transportation to the proposed CISF within the license term infeasible.87 According to Sierra Club and Mr. Alvarez, it could take up to 10 years to develop and design a new container.88 Even assuming that this issue is relevant to the environmental impact analyses in the ER (which it is not), this is not a new issue. The NWTRB Report summarizes earlier experiences with developing a transportation cask, including the U.S. Navys efforts in developing the M-290 83 Contention at 3-4 (citing NWTRB Report at pp. xxii and 37). See Alvarez Declaration at 1, 3 (citing NWTRB Report at pp. xxii and 37).

84 Petition to Intervene at 6.

85 NWTRB Report at xxii.

86 Id.

87 Motion at 1; Contention at 2, 4.

88 Contention at 4; Alvarez Declaration at 3.

19 4813-8745-0795.v3 Transportation Cask, and an experience developing a SNF cask in Switzerland.89 The NWTRB then identifies studies and reports where the Navys and Swiss experiences were previously documented.90 Those sources all predate the Sierra Club intervention petition. This means that Sierra Club could have raised this issue at the outset of this proceeding.

With respect to the Navys experience, the NWTRB Report states In 2005, the U.S. Navy began to make plans for the new M-290 transportation cask that could hold longer naval SNF from decommissioned aircraft carriers (Schwab 2016). In May 2013, the Navy submitted safety documentation for the M-290 cask to the NRC and requested an NRC review leading to certification of the cask for transportation (Miles 2013). In parallel, the Navy began to fabricate and test the cask. In December 2014, the NRC approved the M-290 cask for transportation (NRC 2014c). The Navys experience shows that developing a new-design transportation cask takes approximately 10 years.91 With respect to the Swiss experience, the NWTRB Report states

[R]ecent experience by KKG offers a good example of the time needed to develop a new dual-purpose commercial SNF cask. During the Summer 2018 [NWTRB]

Meeting, the [NWTRB] asked a KKG representative to explain the process needed to develop a new SNF cask. The KKG representative provided a time breakdown of the entire process, from initial concept in 2013 to expected loading of the SNF in the new casks in 2027. The Swiss experience shows that developing and licensing a new commercial SNF cask can take as long as 15 years (Whitwill 2018).92 In short, the length of time that might be required to design and develop a SNF transportation cask (even if relevant) was self-evident from the summarized experiences and documented in records that long predate the September 2019 NWTRB Report. Thus, Sierra Club could have raised any such concerns long ago.

Repackaging SNF for Disposal. Another technical issue raised by Sierra Club is the alleged need to repackage SNF. Sierra Club alleges (based on a conclusion purportedly reached by 89 NWTRB Report at 27.

90 Id.

91 Id. (emphasis added).

92 Id. (emphasis added).

20 4813-8745-0795.v3 Mr. Alvarez) that repackaging SNF for transport and disposal is an important missing element that has a major impact on the timing and implementation of a national SNF transportation program.93 Mr. Alvarez further asserts that, because existing storage and transportation SNF canisters are not licensed for disposal, repackaging the SNF could be a lengthy process that impacts the operational schedule at an interim storage facility if performed there.94 Even if these allegations are true (and even if they were relevant), they are anything but new. As explicitly acknowledged by Mr. Alvarez in his October 2019 Declaration, these allegations are based on a Department of Energy Task Order from June 2013 and an NWTRB Staff Briefing from November 2013,95 which predate the Sierra Club intervention petition by roughly five years. Sierra Club could have raised these concerns at the start of this proceeding.

Indeed, the Licensing Board ruled inadmissible a contention proposed by other petitioners who sought to raise the topic of repackaging of spent fuel.96 Sierra Club raises no new or materially different issue here.

Completion of SNF Transportation Within Initial License Period. The gravamen of Contention 30 is that the ER does not adequately evaluate the environmental impact of the transportation of the nuclear waste from various reactor sites to the proposed CIS facility because the technical issues summarized above will make transportation of SNF to the proposed Holtec facility infeasible within the initial license period.97 The time frame of the initial license period has 93 Contention at 4; Alvarez Declaration at 2.

94 Alvarez Declaration at 8-9.

95 Alvarez Declaration at 8-9 & n.32 (citing the U.S. Department of Energy, Office of Nuclear Energy, Task Order 12:

Standardized Transportation, Aging, and Disposal Canister Feasibility Study, June 14, 2013) and n.33 (citing U.S.

Department of Energy, [NWTRB], Staff Briefing Document Framework for the Technical Workshop on the Impacts of Dry-Storage Canister Designs on the Future Handling, Storage, Transportation, and Geologic Disposal of Spent Nuclear Fuel in the United States Washington, DC, November 18-19, 2013).

96 LBP-19-4 at 102.

97 Contention at 1.

21 4813-8745-0795.v3 been known to Sierra Club since Holtec submitted its application to the NRC in March 2018.98 Because Sierra Club could have previously raised all of the above technical issues at the outset of this proceeding, it could also have previously raised at that time any purported nexus between those technical issues and the initial license period.

For all of the foregoing reasons, Contention 30 is untimely.

2.

Sierra Club Does Not Raise an Exceptionally Grave Issue.

To overcome the fact that all the issues raised in Contention 30 are untimely, Sierra Club must establish that the issues are exceptionally grave to justify reopening pursuant to 10 C.F.R.

§ 2.326(a)(1).99 When promulgating this requirement, the Commission explained that such exception will be granted rarely and only in truly extraordinary circumstances.100 The Commission further explained that, [r]eopening will only be allowed where the proponent presents material, probative evidence which either could not have been discovered before or could have been discovered but is so grave that, in the judgment of the presiding officer, it must be considered anyway.101 Although the Commission has not specifically defined exceptionally grave in the context of environmental issues such as those in Contention 30, it has provided examples of what would qualify. In the Pilgrim proceeding, the Commission ruled that potential harm to an endangered species might rise to the level of an exceptionally grave issue, provided that petitioner shows that such harm is likely to occur.102 This indicates that an untimely-raised environmental issue must allege, at a minimum, likely harm to a significant environmental resource 98 See Notice of Docketing, 83 Fed. Reg. 12034 (March 19, 2018).

99 10 C.F.R. § 2.326(a)(1) (A party seeking to reopen the record must include a motion that... is timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented).

100 Criteria for Reopening Records in Formal Licensing Proceedings, Final Rule, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986) (emphasis added).

101 Id. at 19,538 (emphasis added).

102 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 21, 76 N.R.C. 491, 501 (2012).

22 4813-8745-0795.v3 in order to meet the Section 2.326(a)(1) reopening criterion. Sierra Club not only ignores this requirement, but nowhere offers any information even remotely suggesting that proposed Contention 30 addresses such an exceptionally grave issue. Sierra Club alleges no imminent, or even any particular, environmental harm, which hardly amounts to extraordinary circumstances warranting reopening of the record.

Even if Sierra Club had timely raised the issues in Contention 30 (which it has not), Sierra Club still has failed to raise a significant environmental issue under Section 2.326(a)(2). As discussed infra, Sierra Club has failed to raise even a material issue, let alone a significant issue warranting reopening the record.

3.

Sierra Club Makes No Effort to Show that a Different Result Would Occur.

Finally, Sierra Club has failed to meet the third reopening criterion under Section 2.326(a)(3), i.e. to demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. This means that Sierra Club was required to demonstrate that consideration of [its] evidence will materially affect the outcome of this proceeding103 or, in other words, to show a likelihood that consideration of [its] contention would result in the denial or conditioning of Holtecs license application for the consolidated interim storage facility.104 Sierra Club nowhere makes any such showing. Contention 30 merely asserts that the ER does not adequately evaluate the environmental impact of the transportation of the nuclear waste from various reactor sites to the proposed CIS facility.105 Mr. Alvarez merely asserts that the ER contains highly speculative information.106 Nowhere do Sierra Club or Mr.

103 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 N.R.C. 5, 23, affd CLI-08-28, 68 N.R.C. 658 (2008) (emphasis added).

104 Oyster Creek, CLI-08-28, 68 N.R.C. at 673.

105 Contention at 1.

106 Alvarez Declaration at 1.

23 4813-8745-0795.v3 Alvarez make any showing about the likelihood of success on the merits, or any other different outcome of this proceeding.

B.

Sierra Club Fails to Meet the Late-filed Standards of 10 C.F.R. § 2.309(c)(1).

Sierra Clubs proposed Contention 30 does not meet the late-filed contention standards under 10 C.F.R. § 2.309(c)(1) for the same reasons that it does not meet the timeliness requirements of 10 C.F.R. § 2.326. Sierra Club falsely claims that the NWTRB Report was the first authoritative discussion from any source of the technical issues discussed in the report and presents an analysis that has not been undertaken prior to the review upon which the report is based.107 But as summarized above, while the NWTRB Report was published in September 2019, it was based on existing studies, reports, and other information, some of which have been available for years. None of the information in the NWTRB Report is new information or materially different than information previously available, a conclusion reinforced by even a cursory review of the Reports references.108 Sierra Club nowhere provides any excuse, let alone good cause, for its failure to timely raise these issues. Thus, the Contention fails to meet the late-filed standards under 10 C.F.R. § 2.309(c)(1).

C.

Sierra Clubs Contention 30 Is Inadmissible.

Sierra Clubs proposed Contention 30 also fails to meet the basic contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Specifically, Sierra Club has failed to: address a matter that is material to the findings the NRC must make and within the scope of the proceeding in accordance with 10 C.F.R. § 2.309(f)(1)(iii-iv); raise a genuine dispute with the Application on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(vi); or provide sufficient factual or expert support for its claims in accordance with 10 C.F.R. § 2.309(f)(1)(v).

107 Motion at 2.

108 NWTRB Report at 107-117.

24 4813-8745-0795.v3 As discussed previously, an admissible contention must interject into the proceeding matters that are material to the findings that the agency must make on the application. Sierra Clubs entire basis for Contention 30 is limited to the claim that transportation of nuclear waste to the proposed Holtec CIS facility in the 20-year time frame [is] infeasible due to technical issues in the NWTRB Report.109 However, Holtec does not need to proveand the NRC Staff does not need to findthat the bounding ER assumption (storing 100,000 MTU of spent fuel in 20 years) is feasible. This assumption is not meant to be a precise accounting of what will be stored at the site.

Rather, it is the bounding capacity110 of what Holtec may store at the site. As the ER clearly states: the CISF may store up to 100,000 MTU of spent nuclear fuel.111 Moreover, there is no greater environmental impact to be analyzed in the ER if Holtec stores less than 100,000 MTU of spent fuel. If Holtec transports and stores less than 100,000 MTU of spent fuel at the proposed CISF within the initial license term, then the ER will remain a bounding analysis of the environmental impacts. Sierra Club has not asserted or made any showing that reducing the amount of spent fuel transported and stored at the site would result in any increase in environmental impacts analyzed in the ER. Thus, any alleged delays in the transportation of spent fuel to the Holtec facility are not material to the findings that the NRC must make, and therefore cannot support admitting proposed Contention 30.

The Commission should reject Contention 30 for failing to meet the materiality requirement alone. However, even ignoring this basic flaw, Contention 30 would still fail the contention admissibility standards for other reasons, including Sierra Clubs failure to raise a genuine dispute 109 Contention at 1.

110 HI-STORE CIS Facility Environmental Report, Rev. 6 at 4-49 (May 2019) (NRC ADAMS Accession No. ML19163A146) (hereinafter ER, Rev. 6).

111 ER, Rev. 6 at 1-7, 2-3. 4-31, 4-49.

25 4813-8745-0795.v3 with the Application on a material issue of fact or law. Sierra Club pays only lip service to the application by briefly claiming, without support, that Sections 3.9, 3.12, and 4.9 of the ER fail to meet the requirements of 10 C.F.R. § 72.108.112 Yet, none of these brief mentions even approaches the level of raising a genuine dispute.

Initially, Sierra Club claims that Section 3.9 of the ER should address the technical adequacy of the containers in which the waste would be transported and the time and expense of transportation infrastructure upgrades.113 The Licensing Board in this proceeding has already found that the technical adequacy of the transportation containers is beyond the scope of the proceeding: while section 72.108 requires the applicant to consider impacts from transportation in the Environmental Report, it does not require that the environmental report prove the safety of transportation packages.114 As the Licensing Board also found, the Commissions Part 71 regulations already address this issue.115 As explained in the ER,116 the adequacy of transportation containers is addressed by NRC before issuing a Certificate of Compliance (CoC) for transportation cask designs,117 and, as the SAR explains, the canisters arrive at the HI-STORE CIS facility in a NRC-certified transport cask.118 Because the CoC already addresses the 112 Contention at 2.

113 Id.

114 LBP-19-4, slip op. at 76.

115 Id. (citing to 10 C.F.R. § 71.73 (analyses of required transport accident conditions)).

116 ER, Rev. 6 at 1-12.

117 See, e.g., HI-STAR 190 Certificate of Compliance (ADAMS Accession No. ML18332A027) (NRC docket # 71-9373); HI-STAR 180 (NRC docket # 71-9325); HI-STAR 100 (NRC docket # 71-9261); HI-STAR 60 (NRC docket

  1. 71-9336); HI-STAR 80 (NRC docket # 71-9374); HI-STAR ATB 1T (NRC docket # 71-9375).

118 HI-STORE CIS Facility Licensing Report, Rev. 0F at 4-1 (Apr. 2019) (hereinafter SAR, Rev. 0F).

26 4813-8745-0795.v3 adequacy of transportation casks, this challenge to the technical adequacy of containers is a direct challenge to a Commission rule and is beyond the scope of this proceeding.119 Sierra Clubs other claim, that ER Section 3.9 must address the time and expense of transportation infrastructure upgrades,120 is directly contrary to the Licensing Boards finding that NRC regulations and NEPA do not require a specific assessment of possible transportation routes.121 Holtec is not required to identify its specific transportation routes at this time, thus it cannot identify potential infrastructure upgrades. Moreover, Sierra Club does not explain how the time and expense of such potential infrastructure upgrades could in any way be considered an environmental impact, let alone an environmental impact of the proposed CISF. NEPA does not require an analysis of remote and speculative impacts, where the link between the agency action and the claimed impact is too attenuated to find the proposed federal action to be the proximate cause of that impact.122 Because transportation infrastructure upgrades may occur regardless of the licensing of the CISF, this claim does not raise a genuine dispute with the Application on a material issue of fact or law.

Sierra Club then claims that Section 3.12 of the ER should discuss public health and safety related to the transportation of waste, making another bare reference to 10 C.F.R. § 72.108.123 But as noted above, the Licensing Board in this proceeding has already found that 10 C.F.R. § 72.108 does not require that the environmental report prove the safety of transportation 119 LBP-19-4, slip op. at 73 (Commission regulation bars any admitted contention based on an NRC-approved storage cask design incorporated by reference in an ISFSI application.) (citing 10 C.F.R. § 72.46(e)); see also LBP-19-4, slip op. at 79.

120 Contention at 2.

121 LBP-19-4, slip op. at 115.

122 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 N.R.C. 340, 348-349 (2002).

123 Contention at 2.

27 4813-8745-0795.v3 packages.124 Sierra Clubs claim is directly contrary to the Licensing Boards decision in this proceeding. Yet, Sierra Club does not even address the Licensing Boards decision, let alone distinguish it from the present argument. As such, this claim should be rejected outright.

Finally, Sierra Club claims that the RADTRAN analysis in Section 4.9 of the ER does not address the technical issues discussed in the NWTRB Report (of which there are 18 stretched over a 150+ pages).125 Sierra Club never identifies the specific technical issues allegedly not addressed by the RADTRAN analysis. Regardless, none of the technical issues identified in the NWTRB Report would change the results of the analysis. As the Licensing Board previously determined, the RADTRAN analysis evaluated the incident-free radiological transportation impacts assuming the maximum dose rate allowed for exclusive use shipments under NRC regulation 10 C.F.R. § 71.47(b)(3).126 Given that the RADTRAN analysis is based on the maximum dose rate allowed under NRC regulations, there are no technical issues in the NWTRB report that could change the analysis and increase the calculated dose. The analysis results could only change if it is assumed that Holtec were to violate NRC regulations by conducting SNF shipments exceeding the maximum allowable dose rate. Such an assumption cannot provide the basis for an admissible contention, because the NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.127 These three bare references to Sections 3.9, 3.12, and 4.9 of the ER constitute the sum total of Sierra Clubs attempt to specifically address the Application. None of these raises a genuine dispute for the reasons stated above. The six remaining pages of the Contention128 and the Alvarez 124 LBP-19-4, slip op. at 76.

125 Contention at 2.

126 LBP-19-4, slip op. at 73.

127 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 N.R.C. 232, 235 (2001).

128 Contention at 2-8 (final paragraph of page 2 through the end of the contention).

28 4813-8745-0795.v3 Declaration randomly discuss a few of the 18 technical issues identified in the NWTRB report but fail to challenge any specific portion of the Application.129 Indeed, the Alvarez Declaration nowhere points to any specific portion of the Holtec license application. This is no surprise because the caption and title of the Alvarezs Declaration states that it was prepared not on behalf Sierra Club for the Holtec CISF proceeding, but on behalf of a different intervenor in a different proceeding altogether. This is a fundamental failure to raise a genuine dispute with the Holtec application.130 Even though the remainder of the Contention and the Alvarez Declaration should be rejected for failing to address the application, out of an abundance of caution, we address the remaining technical issues below, none of which supports admitting Contention 30.

Sierra Club first claims that a discussion of the transportation of SNF with higher burnups and larger dry-storage casks (with 37 PWR fuel assemblies and 89 BWR fuel assemblies) is omitted from the ER,131 and that before waste can be transported the ER must address loading curve and burnup credit, (using the HI-STAR 100 transportation cask as an example) and that the ER must address repackaging.132 It is first worth noting that the Contention must be limited to environmental issues and not safety ones.133 To the extent that Contention 30 purports to challenge any safety-related issues associated with the transport of high burnup SNF, this is an 129 LBP-19-4, slip op. at 119-120.

130 A contention is inadmissible where it does not include references to the specific portions of the application that petitioners may dispute. Texas Utilities Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 N.R.C.

370, 384 (1992); Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 N.R.C. 548, 576 (2004).

131 See Contention at 2-3, 4-5. To the extent that Sierra Club only intended for this discussion to support its claim that 100,000 MTU of spent fuel cannot be transported within 20 years, this part of the contention is immaterial for the reasons described supra.

132 Contention at 5.

133 Id. at 1.

29 4813-8745-0795.v3 impermissible attack on Commission regulations and thus outside the scope of this proceeding. As the Licensing Board previously ruled:

Holtec has applied for a license to construct and operate a Holtec HI-STORE UMAX spent fuel storage installationnot a license for it to transport canisters or casks. Nor is Holtec applying for permission to use or certify Holtec canisters or casks for transport, as those proposed for use at the HI-STORE facility have already been reviewed by the NRC and have been issued certificates of compliance. Thus, a contention challenging any aspect of an NRC-approved canister or cask is outside the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(iii), and would be an impermissible attack on the Commissions regulations absent a waiver under section 2.335.134 Additionally, as the Licensing Board found, the SAR clearly states that the multi-purpose canisters to be stored at [the facility] are limited to those included in the HI-STORM UMAX FSAR. 135 The HI-STORM UMAX FSAR throughout specifies that the MPC-37 and MPC-89 are allowable canisters.136 The MPC-37 and MPC-89 store 37 PWR fuel assemblies and 89 BWR fuel assemblies, respectively,137 and the HI-STORM UMAX FSAR analyzes maximum high burnups for these canisters in excess of 45 Gwd/MTU.138 In short, both higher burnups and larger storage canisters have already been analyzed in the HI-STORM UMAX FSAR and incorporated into the CISF SAR. Additionally, as the NWTRB Report clearly states, the loading curve is already addressed in the NRC-approved CoC for transportation casks139 and the transportation of spent fuel beyond what is approved in the CoC would require an amendment to the CoC for the transportation casks.140 As such, any safety-related challenges to high burnup SNF, approved 134 LBP-19-4, slip op. at 79.

135 Id. at 60.

136 See generally FSAR on the HI-STORM UMAX Canister Storage System, Rev. 3 (June 29, 2016) (ADAMS Accession No. ML16193A339) [hereinafter UMAX FSAR]. The MPC-37 and MPC-89 are fully approved for fuel transport (including high burnup) in the HI-STAR 190 CoC. See generally HI-STAR 190 Certificate of Compliance, Rev. 1 (Nov. 27, 2018) (ADAMS Accession No. ML18332A027).

137 UMAX FSAR at 1-29.

138 Id. at 2-25.

139 NWTRB Report at 78.

140 Id.

30 4813-8745-0795.v3 canisters, loading curves and burnup credits are impermissible and outside the scope of this proceeding.

To the extent that Sierra Club purports to challenge the ERs treatment of the environmental impacts associated with transporting high burnup SNF, its claims fail to raise a genuine dispute with the application because these claims ignore the application. Sierra Club asserts that [t]here does not appear to be any discussion of issues related to the transportation of high burnup fuel in the Holtec ER.141 But the Licensing Board previously rejected a similar claim in Sierra Club Contention 20 on essentially the same grounds. The Licensing Board ruled that, Environmental Report section 4.9 provides the results of a RADTRAN analysis that evaluated the incident-free radiological transportation impacts assuming the maximum dose rate allowed for exclusive use shipments under NRC regulation 10 C.F.R. § 71.47(b)(3). This would encompass spent fuel of any burnup, including high burnup fuel.142 Sierra Club nowhere challenges the RADTRAN analysis consideration of high burnup SNF, or otherwise provides any information disputing the ERs consideration of high burnup SNF. Nor could it, since the RADTRAN analysis is based on the maximum allowable dose under NRC regulations.

Finally, Sierra Clubs claim that Holtec must address the potential cost and delay of SNF repackaging is immaterial and is otherwise an improper challenge to NRC rules and duplicative of a previously rejected contention. Holtec is not seeking a license to repackage SNF either at reactor sites or at the proposed CISF. Therefore, any environmental impacts associated with repackaging SNF are outside the scope of this licensing proceeding. In addition, to the extent that Sierra Club seeks to claim that repackaging of SNF is necessary for disposal, such claims have already been ruled inadmissible by the Licensing Board. Dont Waste Michigan, et al., previously alleged that 141 Contention at 5.

142 LBP-19-4, slip op at 73 (emphasis added) (footnote omitted).

31 4813-8745-0795.v3 Holtecs application, relying on the continued storage GEIS, did not account for the large, and escalating cost item of repackaging spent fuel to be moved from reactor sites to a consolidated storage facility, and thence ultimately to a geological repository.143 As the Licensing Board determined, As to Joint Petitioners complaint regarding the Continued Storage GEIS, including the alleged omission of the topics of repackaging of spent fuel and disposal of the spent fuel casks after repackaging, Holtecs Environmental Report appropriately relies on the Continued Storage GEIS. We therefore agree with Holtec that Joint Petitioners complaint amounts to an impermissible attack on the NRCs regulations.144 Sierra Clubs repackaging claims are also immaterial, as any potential for delay associated with repackaging is irrelevant to the NRCs review.145 Nor is the potential for escalating costs relevant to the NRCs review, as the commercial viability of a facility is not subject to NRC review.146 Sierra Club next claims that the large scale, long distance transport of spent fuel is unprecedented.147 Sierra Club claims that due to the scale of the transportation there is no assurance... that transportation of that quantity of waste could be done safely in the time period contemplated by Holtec.148 This claim is immaterial. As the Licensing Board already decided, 10 C.F.R. § 72.108 does not require that the environmental report prove the safety of transportation packages,149 and, as described above, the NRC Staffs environmental review does not need to find whether it is feasible to store all 100,000 MTU in 20 years.

143 LBP-19-4, slip op. at 101 (citing Joint Petrs Pet. at 41).

144 Id. at 102.

145 See supra, at 24.

146 La. Energy Servs. (Natl Enrichment Facility), CLI-05-28, 62 N.R.C. 721, 726 (2005) (quoting Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, N.M. 87174), CLI-01-4, 53 N.R.C. 31, 48-49 (2001)).

147 Contention at 3, 4.

148 Id. at 4.

149 LBP-19-4, slip op. at 76.

32 4813-8745-0795.v3 Finally, Sierra Club claims that there is a lack of data related to the potential for damage to SNF during transport.150 Aside from the discussion of alleged increases in cost and schedule delays, neither of which is a material issue,151 this claim is the same as Sierra Clubs previously rejected Contention 22. The Licensing Boards analysis still applies:

Sierra Club Contention 22 is inadmissible for failure to raise a genuine dispute with the application on a material issue of law or fact. We agree with the NRC Staffs assessment that, while section 72.108 requires the applicant to consider impacts from transportation in the Environmental Report, it does not require that the environmental report prove the safety of transportation packages. Moreover, the Commissions Part 71 regulations already address and preempt the issues Sierra Club seeks to litigate in this contention.152 The Licensing Boards rejection also still applies to the Alvarez concerns raised near the end of the Contention.153 As described above, these concerns were previously raised in Alvarezs February 25, 2019 Report supporting Sierra Clubs Contention 27 and Joint Petitioners Amended Contention 2, both subsequently rejected by the Licensing Board.154 In addition to being untimely, the current Alvarez concerns suffer from the same flaws as the earlier Alvarez Report and should be rejected for the same reasons.

Finally, Sierra Club has also failed to support its allegations with any alleged facts or expert opinion. The Alvarez Declaration cannot be used as support, as it merely cuts and pastes statements from the NWTRB Report and makes no effort to tie those statements to the Holtec ER.

Indeed, as previously noted, the Alvarez Declaration appears to be identical to that submitted on 150 Contention at 6.

151 In accordance with Commission precedent, the NRC is not in the business of regulating the market strategies of licensees or determining whether market conditions warrant commencing operations. Natl Enrichment Facility, CLI-05-28, 62 N.R.C. 721, 726 (2005) (internal quotation marks omitted).

152 LBP-19-4, slip op. at 78 (citing Staff Consol. Answer; 10 C.F.R. § 71.71(c)(1)(5) (vibration incident to transport of spent fuel); id. § 71.73 (analyses of required transport accident conditions)).

153 Contention at 5.

154 See LBP-19-4, slip op. at 85-87,93-100.

33 4813-8745-0795.v3 the WCS docket, including the incorrect caption, and was drafted generically such that it could apply to any consolidated interim storage facility. Furthermore, the Licensing Boards rejection of Mr. Alvarezs February Declaration equally applies to the latest Declaration: Mr. Alvarezs declaration is devoid of a single specific reference to Holtecs application and fails to raise a genuine dispute.155 Nor has Sierra Club demonstrated Mr. Alvarezs expertise with respect to SNF transportation. Nowhere in the Alvarez Resume is there any mention of SNF transportation, neither in his description of his employment, his publications, nor his education.156 Thus, the Alvarez Declaration cannot form the basis for an admissible contention.

Sierra Club also cannot rely on areas of the NWTRB Report not specifically referenced in Contention 30 to form a basis for an admissible contention. It is Sierra Clubs responsibility to establish the admissibility of its contention by specifically referencing adequate factual and expert support. It is not the Commissions responsibility to search through pleadings or other materials to uncover arguments and support never advanced by Sierra Club itself.157 To the extent that Sierra Club relies on the Technical Issues identified in NWTRB Report Table 2-1, which is appended to the Alvarez Declaration but not otherwise discussed in the Contention, such reliance is insufficient to support an admissible contention. This mere reference to a list of issues is insufficient to provide the information necessary to establish the existence of a genuine dispute.158 In summary, Sierra Clubs Contention 30 is not material to the findings that the NRC must make or within the scope of this proceeding, fails to raise any dispute (let alone a genuine one) with 155 LBP-19-4, slip op. at 98.

156 Mr. Alvarez lists neither undergraduate nor graduate degrees, but only attendance at a school of music. Alvarez Resume at 4.

157 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 N.R.C. 451, 457 (2006) ([I]t is not up to the boards to search through pleadings or other materials to uncover arguments and support never advanced by the petitioners themselves; boards may not simply infer unarticulated bases of contentions.)

158 See Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-83-75A, 18 N.R.C.

1260, 1263 n.6 (1983) (rejecting a contention based on a list of omissions without any basis to believe that the omissions would have safety significance).

34 4813-8745-0795.v3 the Holtec ER, and is insufficiently supported. Thus, it fails to meet the requirements of 10 C.F.R.

§ 2.309(f)(1) and must be rejected.

V.

Sierra Club Lacks Standing.

While the Licensing Board found that Sierra Club had standing to participate in this proceeding, Holtec respectfully submits that its Opposition to Sierra Clubs Appeal shows that Sierra Club has failed to demonstrate standing.159 In summary, Holtec argued that Sierra Club was required to provide some showing as to how the CISF could potentially harm its members at their individual distances from the CISF. Sierra Club failed to present any such explanation and relied on only conclusory statements of harm.160 Sierra Clubs lack of standing is an independent reason for the Commission to deny Sierra Clubs present Motion in addition to the Motions numerous other failings.

VI.

Conclusion For the reasons set forth above, Holtec respectfully requests that the Commission deny Sierra Clubs Motion.

William F. Gill Kathryn L. Perkins HOLTEC INTERNATIONAL Krishna P. Singh Technology Campus 1 Holtec Boulevard Camden, NJ 08104 Telephone: (856) 797-0900 W.Gill@holtec.com K.Perkins@holtec.com Respectfully submitted,

/Signed electronically by Anne R. Leidich/

Jay E. Silberg Timothy J. V. Walsh Anne R. Leidich PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, NW Washington, DC 20036 Telephone: 202-663-8707 Facsimile: 202-663-8007 jay.silberg@pillsburylaw.com timothy.walsh@pillsburylaw.com anne.leidich@pillsburylaw.com November 18, 2019 Counsel for HOLTEC INTERNATIONAL 159 Holtec Opposition to Sierra Clubs Appeal at 27-30.

160 Id.

4813-8745-0795.v3 November 18, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

)

)

Docket No.

72-1051 Holtec International

)

)

(HI-STORE Consolidated Interim Storage

)

Facility)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Answer Opposing Sierra Clubs Motion to File Late-Filed Contention 30 has been served through the EFiling system on the participants in the above-captioned proceeding this 18th day of November, 2019.

/signed electronically by Anne R. Leidich/

Anne R. Leidich

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