ML19347E441

Sierra Clubs Brief in Support of Appeal from Atomic Safety and Licensing Board Rulings Denying Admissibility of Contentions in Licensing Proceeding (LBP-19-07 and LBP-19-09)

ML19347E441
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/13/2019
From:	Taylor W Law Offices of Wallace L. Taylor, Sierra Club
To:	NRC/OCM
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55476
Download: ML19347E441 (24)

Text

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

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) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC

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) December 13, 2019 (Consolidated Interim Storage Facility)

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SIERRA CLUBS BRIEF IN SUPPORT OF APPEAL FROM ATOMIC SAFETY AND LICENSING BOARD RULINGS DENYING ADMISSIBILITY OF CONTENTIONS IN LICENSING PROCEEDING

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

TABLE OF CONTENTS Page TABLE OF AUTHORITIES.........................................

3 I. INTRODUCTION AND

SUMMARY

OF GROUNDS FOR APPEAL....... 4 II. FACTUAL AND PROCEDURAL BACKGROUND....................

6 III. ARGUMENT.................................................. 7 A. CONTENTION 1 (VIOLATION OF NUCLEAR WASTE POLICY ACT).............................................. 7 B. CONTENTION 4 (TRANSPORTATION RISKS)................ 9 C. CONTENTION 6 (EARTHQUAKES)......................... 10 D. CONTENTION 9 (DECOMMISSIONING COSTS).............. 11 E. CONTENTION 10 (GROUNDWATER IMPACTS)............... 12 F. CONTENTION 11 (ALTERNATIVE SITES).................... 15 G. CONTENTION 13 (WILDLIFE IMPACTS).................... 18 H. CONTENTION 14 (IMPACTS BEYOND LICENSING PERIOD OF STORAGE CONTAINERS)........................ 20 I. CONTENTION 16 (RISKS OF HIGH BURNUP FUEL)........... 21 IV. CONCLUSION................................................ 22 2

TABLE OF AUTHORITIES Page I. CASES La. Energy Services (Natl. Enrichment Facility), 62 NRC 721, 726 (2005)..... 8 Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001)....................... 22 System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site),

61 NRC 10 (2005).................................................. 17 U.S. Dept. Of Energy (High Level Waste Respository), LBP-09-06 (May 11, 2009)..................................................... 14 II. STATUTES 42 U.S.C. § 10131(a)(5).............................................. 8 42 U.S.C. § 10222(a)(5)(A)........................................... 8 III. REGULATIONS 10 C.F.R. § 2.311(c)................................................. 4 10 C.F.R. § 51.45.................................................. 10, 15, 18 10 C.F.R. § 72.30................................................... 12 10 C.F.R. § 72.103(f)(1).............................................. 10, 11 10 C.F.R. § 72.108.................................................. 9, 21 40 C.F.R. § 1500.1(b)................................................ 19 40 C.F.R. § 1502.14................................................. 17 40 C.F.R. § 1502.24................................................. 19 IV. OTHER AUTHORITIES IAEA, Impact of High-Burnup Uranium Oxide and Mixed Uranium-Plutonium Oxide Water Reactor Fuel on Spent Fuel Management (2011)................ 14 3

NRC, Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)................................ 17, 18, 22 NRC, Rulemaking Issue, Notation Vote, Memorandum from R.W. Borchardt (2012).......................................................... 14 Resnikoff and Lamb, Worst Case Credible Nuclear Transportation Accidents:

Analysis for Urban and Rural Nevada (2001)........................... 9 Standard Review Plan for Spent Fuel Dry Storage Facilities, Final Report, NUREG-1567................................................... 13 I. INTRODUCTION AND

SUMMARY

OF GROUNDS FOR APPEAL Sierra Club, by and through counsel, pursuant to 10 C.F.R. § 2.311(c), hereby gives notice of its appeal to the U.S. Nuclear Regulatory Commission (NRC) from the Atomic Safety and Licensing Board (ASLB) rulings, Memorandum and Order LBP 7, (ML19235A165)(August 23, 2019), and Memorandum and Order LBP-19-9, (ML19322C599)(November 18, 2019) in the Interim Storage Partners Consolidated Interim Storage proceeding. Sierra Club specifically appeals the denial of admissibility of Sierra Club Contentions 1, 4, 6, 10, 11, 13, 14, and 16.

Interim Storage Partners (ISP) submitted to the Commission an application for a license to construct a storage facility for high-level radioactive waste and spent nuclear fuel from nuclear reactors across the country. The facility would be constructed in Andrews County, Texas.

Sierra Club submitted a total of 29 contentions. The Atomic Safety and Licensing Board found that Sierra Club had standing, and admitted Contention 13, but ruled that the remaining Sierra Club contentions were not admissible. Contention 13 was subsequently dismissed and amended Contention 13 was ruled not admissible.

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Sierra Club appeals the ASLB rulings with respect to the following contentions, summarized as follows:

Contention 1 - ISPs application documents state that the viability of the project depends on financial responsibility from either the Department of Energy (DOE) or the nuclear plant owners. DOEs possible financial involvement violates the Nuclear Waste Policy Act (NWPA), and Sierra Club contends that the ISP project cannot be licensed if there is a possibility that the financial arrangements would be illegal.

Contention 4 - The radioactive waste must be transported, primarily by rail, from various reactor sites to the ISP facility. ISPs environmental report must adequately discuss the risks inherent in the transportation of the waste.

Contention 6 - There is a potential for earthquakes in the area of ISPs proposed facility. ISPs documentation did not adequately address the impacts of earthquakes on the project.

Contention 9 - A license application must contain information providing assurance for decommissioning funds for the useful life of the project. ISP has not provided that assurance.

Contention 10 - This contention addressed the inadequacy of the discussion of groundwater impacts in the ISP documentation. ISPs documentation was inadequate to determine the presence of groundwater and the danger of impacts to the groundwater and impacts to the ISP facility from groundwater contamination.

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Contention 11 - ISP purported to evaluate alternative sites for the project.

However, the evaluation of alternative sites considered criteria that were evaluated on the basis of irrelevant criteria or criteria that were not adequately addressed.

Contention 13 - ISPs environmental report (ER) purported to address the impacts of the project on wildlife, but the discussion of the expected impacts on two lizard species in the ER was inadequate. Initially, the ASLB admitted this contention as a contention of omission because the alleged sources relied on by ISP were not available to the public. When these sources were later made available, the original Contention 13 was dismissed, and an amended Contention 13, based on the newly available sources, was held to be not admissible.

Contention 14 - ISP anticipates that the facility will be in operation for 100 years. However, the containers in which the radioactive waste will be stored are only licensed for 20 years. ISPs ER does not adequately examine the environmental impact of the containers beyond their 20-year licensing period.

Contention 16 - Since the 1990s almost all nuclear reactor fuel has been high burnup fuel. Therefore, most of the fuel planned to be stored at the ISP facility will be high burnup fuel. High burnup fuel creates a higher risk of release of radioactive material.

ISPs documentation does not adequately evaluate this risk.

II. FACTUAL AND PROCEDURAL BACKGROUND ISP proposes to construct a storage facility for high level radioactive waste and spent nuclear fuel in Andrews County, Texas. The waste would be transported across the country, primarily by rail, from nuclear reactors all around the United States. The ISP 6

facility is proposed to store 40,000 MTU of radioactive waste. That would be over half as much waste as was proposed to be stored at a permanent repository at Yucca Mountain.

The ISP facility would not be a geologic repository, however. The containers in which the waste would be stored would be above ground, with no protection.

On April 28, 2016, ISPs predecessor, Waste Control Specialists (WCS), submitted an application for a license to construct and operate a nuclear waste storage facility in Andrews County, Texas. However, on April 18, 2017, WCS requested that action on the application be suspended. Then, in July of 2018, ISP, as successor to WCS, submitted an updated application for the project.

On November 13, 2018, Sierra Club filed a petition to intervene, supported by 17 contentions. A hearing was held on July 10 and 11, 2019, before the ASLB regarding standing of the parties and admissibility of contentions. On August 23, 2019, the ASLB issued a ruling finding that Sierra Club had standing and that Sierra Club Contention 13 was admitted as a contention of omission because ISP had not provided any way for the public to access the sources on which it relied in assessing the impact to two lizard species. ISP then provided the sources. Based on those sources, Sierra Club moved to amend Contention 13 and filed an amended Contention 13. On November 18, 2019, the ASLB dismissed Contention 13 as moot and held that the amended Contention 13 was not admissible.

Sierra Club now appeals from those rulings.

III. ARGUMENT A. CONTENTION 1 (VIOLATION OF NUCLEAR WASTE POLICY ACT) 7

The Nuclear Waste Policy Act (NWPA), 42 U.S.C. § 10131(a)(5), specifically states that the federal government will not take ownership of spent fuel until it is received at a permanent repository. Also, 42 U.S.C. § 10222(a)(5)(A) requires DOE to take title to spent fuel only following commencement of operation of a repository. It would therefore be illegal as a violation of the NWPA for ISP to contract with DOE for DOE to take title to the waste. ISP has admitted that, as the law now stands, it cannot contract with DOE to take title to the waste. LBP-19-7 at 30. ISP seeks to evade this problem by crafting its application with the phrase that the waste at the proposed storage site would be owned either by DOE or nuclear plant owners.

Since the alternative of ownership by DOE is currently illegal, the only other alternative suggested by ISP is for the nuclear plant owners to retain title to the waste.

Sierra Club contends that as long as DOE ownership is presented as a possible alternative, that violates the NWPA. A license cannot be issued for a project that might be illegal. The ASLB held that the possible illegality was of no relevance because the Board assumes neither ISP nor DOE will engage in unlawful activity (ASLB Ruling, p. 30). In support of that assumption the Board cited La. Energy Services (Natl. Enrichment Facility), 62 NRC 721, 726 (2005), which held the NRC is not in the business of regulating the market strategies of licensees or whether market strategies warrant commencing operations. But in this case we are not talking about market strategies. We are talking about an action that would be illegal. An agency cannot license an action that would be illegal.

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Furthermore, there is no reason ISP should get a license now. There is no reason ISP should not wait until, if ever, a contract with DOE would be legal. And as to possible contracts with reactor owners, ISP has provided no evidence that those reactor owners would even consider contracting with ISP. It is clear from the record that ISP is waiting for Congress to change the law to allow DOE to take title to the waste. It appears that ISP intends to use the license, if issued, as leverage to encourage Congress to change the law.

In other words, ISP would lobby members of Congress and tell them that the NRC has blessed this CIS project if DOE can legally take title to the waste. The NRC should not be a party to this kind of political maneuvering.

The ASLB was incorrect in denying admissibility of this contention.

B. CONTENTION 4 (TRANSPORTATION RISKS) 10 C.F.R. § 72.108 states that a nuclear waste storage facility must be evaluated with respect to the potential impact on the environment of the transportation of the radioactive waste. In its contention, Sierra Club referred to a report by Dr. Marvin Resnikoff and Matthew Lamb, Worst Case Credible Nuclear Transportation Accidents:

Analysis for Urban and Rural Nevada (2001), found at www.state.nv.us/nucwaste/trans/

rwma0108.pdf. That report determined the consequences of a transportation accident. Dr.

Resnikoff, as an expert for Sierra Club, also cited recent information about rail fires and expanded traffic of oil tanker cars. Dr. Resnikoff stated that the the ISP ER must take this new information into account.

Specifically addressing the inadequacy of the ER with respect to transportation risks, Contention 4 stated that Table 4.2-9, Estimated Dose and Dose-Risk for Loss of 9

Shielding Accidents), underestimated the doses of radiation from a rail accident involving radioactive waste.

Sierra Club also pointed out in its contention that the ER at 4.2.6 relies on several NRC documents. One document was the Final EIS for the PFS project in Tooele County, Utah. The document is irrelevant because it reviewed the impacts of rail accidents involving different containers than ISP proposes to use. In addition, the PFS EIS did not consider the impact of deteriorating railroad infrastructure on transportation risks.

Sierra Club also relied on a declaration by Dr. Gordon Thompson. Dr. Thompsons declaration describes the events and impacts that can occur during transport of the waste to the CIS facility. Dr. Thompson stated that rail accidents would result in radiation exposure to members of the public and radioactive contamination of the environment. The ER, 4.2.6, does not adequately discuss the issues raised by Dr, Thompson.

The ASLB claimed in its ruling that Sierra Club had not dispute section 4.2.8 of the ER. It was clear from the contention, however, that Sierra Club was disputing the adequacy of section 4.2.6 of the ER. Sierra Club was very specific in identifying the portion of the ER that was inadequate.

C. CONTENTION 6 (EARTHQUAKES)

The ER and SAR must adequately evaluate the earthquake potential of the proposed site. 10 C.F.R. § 51.45 and § 72.103(f)(1). The ER, 4.3, does not even discuss the impact of earthquakes. Sierra Club presented evidence documenting the presence of earthquakes in and around the ISP site.

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Sierra Club referred to a study by scientists at the University of Texas and Southern Methodist University showing the increased incidents of earthquakes induced by fossil fuel extraction in the area of the ISP facility. Contention 6 also included a map showing the intense oil drilling in the area of the ISP facility.

Sierra Club also cited a recent study by Stanford University researchers documented the existence of prior earthquakes in west Texas, and more importantly, the existence of numerous faults in the area in and around the proposed ISP site.

The ER, 3.3.3-3.3.4, contains a discussion of vibratory ground motion and faulting and concludes that there is essentially no chance of an earthquake in the area. But the ER makes no mention of induced earthquakes as documented in the above cited studies.

The SAR is also inadequate in assessing the risk of earthquakes. The SAR, 2.6.2, states that ISP conducted a Seismic Hazard Evaluation, which is found in Attachment D of the SAR. But Attachment D consists of several blank pages, claiming it is privileged information. There is no indication in the above-mentioned portions of the SAR that shows that ISP adequately evaluated the earthquake potential as required by 10 C.F.R. 72.103(f)(1).

The ASLB ruling claimed that the ER adequately discussed the potential for earthquakes in the area of the proposed ISP facility, but Contention 6 clearly pointed out how that discussion was inadequate. Merely mentioning an issue in an ER does not mean that the discussion is adequate.

D, CONTENTION 9 (DECOMMISSIONING COSTS) 11

10 C.F.R. § 72.30 establishes requirements for decommissioning interim storage facilities. The application for a license must contain sufficient information to provide reasonable assurance that the decommissioning will provide adequate protection to the health and safety of the public. The requirement includes a decommissioning funding plan showing reasonable assurance that funds will be available for decommissioning and a detailed cost estimate for decommissioning.

The ISP application, App. D, states that funding will be provided by DOE. ISP admits, however, that it would have to obtain an exemption from the requirements of 10 C.F.R. § 72.30(e). Prior to the hearing before the ASLB, ISP withdrew its request for an exemption. But App. D still contemplates that DOE would provide the decommissioning funding. In any event, if ISP now contends that DOE will not provide decommissioning funding, ISP has not presented any plan for decommissioning funding. This violates the requirements of § 72.30.

E. CONTENTION 10 (GROUNDWATER IMPACTS)

The ISP ER, 3.4.14.1, claims that the Ogallala Aquifer does not lie under the CIS site. However, maps of the aquifer clearly show uniform determination that the aquifer does, in fact, lie under the CIS site. Existence of the Ogallala Aquifer is also confirmed by the declaration of Dr. Patricia Bobeck, a professional geologist. In addition, a 2012 report from George Rice, a professional hydrologist, confirms that the aquifer extends at least to the northwest corner if the WCS LLRW site. That is exactly the footprint of the proposed CIS site. The false statement in the ER denying the existence of the aquifer renders the rest of the discussion of groundwater impacts meaningless. This portion of the ER must 12

be rejected for that reason. The SAR at page 2-17 makes the same incorrect claim and must also be rejected.

The ER and SAR make a further claim that is incorrect. The documents claim that the water saturation point beneath the CIS site is at least 225 feet (SAR, p. 2-17; ER, p. 3-23). An official map of the area, however, shows Andrews County to be in an area where the saturated thickness is 50-100 feet and perhaps less than 50 feet. It is important to know how susceptible the groundwater is to contamination from a leak of radioactive material from the CIS facility.

Dr. Bobeck concluded that the ER does not adequately define the geologic units present at the ISP site nor their properties or extents. Overall, Dr. Bobeck concluded that the ER does not provide the basic information necessary to adequately and thoroughly address the impact of container rupture and discharge of radioactive material to groundwater at the ISP site.

The ASLB rejected this contention on the claim that Sierra Club had not shown how the radioactive material would reach the groundwater. The ASLB further held that Sierra Club was challenging the certificate of compliance for the containers, which would be out of scope of this proceeding. The ASLB erred on both points.

As to the first point, Sierra Club referred to the NRCs own documents to demonstrate the likelihood of damaged containers due to high burnup fuel. In Standard Review Plan for Spent Fuel Dry Storage Facilities, Final Report, NUREG-1567 (ML003686776), the NRC said there is limited data to show that the cladding of spent 13

fuel with burnups greater than 45,000 Mwd/MTU will remain undamaged during the licensing period.

In NRC, Rulemaking Issue, Notation Vote, Memorandum from R.W. Borchardt (2012) and IAEA, Impact of High-Burnup Uranium Oxide and Mixed Uranium-Plutonium Oxide Water Reactor Fuel on Spent Fuel Management (2011), it is stated that high burnup fuel can cause the zirconium cladding of the fuel rods to become unreliable as a barrier to prevent the escape of radioactivity, especially during long periods of dry storage. High burnup fuel reduces the fuel cladding thickness and a hydrogen-based rust forms on the zirconium metal used for the cladding, which can cause the cladding to become brittle and fail. Also, high burnup fuel increases the pressure between the uranium pellets in a fuel assembly and the inner wall of the cladding that encloses them and causes the cladding to become thin and elongate.

The record, therefore, does show how the radioactive material in the containers would be released to the groundwater. The standards for admissibility do not require an intervenor to prove its case at the admissibility stage of the proceedings. An intervenor need only present some minimal factual and legal foundation in support of the contention. U.S. Dept. Of Energy (High Level Waste Respository), LBP-09-06 (May 11, 2009).

As to the second point, Sierra Club is not challenging the certificate of compliance for the container. The contention is challenging the adequacy of the discussion in the ER regarding impacts to groundwater. That is certainly within the scope of this licensing proceeding.

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F. CONTENTION 11 (ALTERNATIVE SITES)

The purpose of the ER is to discuss and analyze the environmental impacts of various alternatives. 10 C.F.R. § 51.45. Section 2.3.3 of the ER in this proceeding discusses 15 criteria ISP allegedly used to evaluate the suitability of the Andrews County site. These criteria were created by ISP and bear little or no relationship to any criteria in the statutes or regulations. Even the criteria that are relevant have not been adequately addressed.

The 15 criteria allegedly used to determine the suitability of the ISP site are:

1. Assess whether a county has adequate political support for a CISF, specifically whether the state and county governments had expressed an interest in siting a CISF.

2. Assess the seismology and geology of the area to ensure that potential sites within each of the four counties were located in areas that were tectonically stable with favorable geologic characteristics.

3. Assess the availability of rail access.

4. Assess whether land parcels of adequate size were available in the area.

5. Assess whether or not the land was owned or required purchase from the current landowners.

6. Assess the availability of utilities, specifically, electric power, cellular and data towers, and water supply.

7. Assess variables on construction labor force, specifically, sufficient labor force, competing projects, and large project experience.

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8. Assess variables on operational labor force, specifically, sufficient labor force, multi-task employees, technical school/training, mature nuclear safety culture, radiation worker staff, and health physicist and radiation protection organizations.

9. Assess variables on transportation routes, specifically, site railhead, highway access, traffic capacity, and efficient access.

10. Assess variables on amenities for the workforce, specifically, housing, schools, health services, and parks/recreation/culture.

11. Assess variables on environmental protection, specifically, existing site characterization data, documentation of presence/absence of contamination, neighboring plume, future migration, no radioactive contamination, not CERCLA or RCRA, no remediation needed, flood plain, ponding, protected species, archaeological and cultural resources, environmental permits, and environmental justice.

12. Assess variables on discharge routes, specifically, facility discharges and differentiation of discharges from other nuclear facilities.

13. Assess variables on the proximity of hazardous operations, specifically, hazardous chemical sites, gas pipelines, airports, emergency area, and air quality.

14. Assess variables on ease of decommissioning, specifically, ease of decommissioning, and adjacent sites medium/long-term plans.

15. Assess variables on disposal of low-level waste, specifically, availability of disposal options, and licenses and permits.

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ISP admitted in its Answer to Contention 11 that the siting criteria pertain to the review of alternatives. NRC Guidance on environmental reports, NUREG-1748, 6.2.1, requires a detailed description of alternatives. The alternatives analysis is the heart of the environmental impact statement. 40 C.F.R. § 1502.14. NEPA requires that an environmental review [r]igorously explore and objectively evaluate all reasonable alternatives and [d]evote substantial treatment to each alternative considered in detail..

.. Id. The point of Contention 11 is that the ISP ER does not comply with these requirements. The ASLB accused Sierra Club of flyspecking the ER. System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site), 61 NRC 10 (2005). On the contrary, Contention 11 spent 5 pages detailing the deficiencies in the discussion of the environmental impacts of the various alternative sites. Although editing NEPA documents is not a function of [NRC] hearing process,petitioners can raise contentions seeking correction of significant inaccuracies and omissions in the ER. Systems Energy Res., Inc., 61 NRC at 13, 19.

In this case, Sierra Club did much more than flyspeck or edit the ER.

Contention 11 pointed out that the ER stated no contamination has been detected from the LLRW site, but that does not mean no radiation will be released from the CIS site; that the ER claims the site is not in the 500-year flood plain, but NRC regulations define the floodplain as the 100-year floodplain; that the discussion in the ER of climate data does not explain how that information is relevant to the environmental impacts of the CIS site and its operation; that almost all of the counties in the general area of the CIS site have majority minority populations, but the ER claims there will be no impact on minority 17

populations so it does not need to comply with Executive Order 12,898; and that the discussion of archaeological resources does not show that a proper archaeological survey was conducted.

The facts and argument in Contention 11 was more than sufficient to make it admissible.

G. CONTENTION 13 (WILDLIFE IMPACTS)

The ER states that two lizard species of concern, the Texas horned lizard and the dunes sagebrush lizard, have been seen at the ISP site or may be present. 10 C.F.R. § 51.45 requires that an environmental report must contain a discussion of the environment affected by the project. This includes a discussion of the various species present and their habitat. The NRCs Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)(Accession No. ML032450279), 5.3.5, also directs the the ER must discuss the affected environment and the impacts on the environment, including impacts to important species and their habitats.

The Texas horned lizard and the dunes sagebrush lizard are in the area within a 3.1 mile radius of the ISP site. ER, 3.5.2. More specifically, the ER, 3.5.4, states that the Texas horned lizard has been reported as being present at the CIS site and the dunes sagebrush lizard might occur there. With no factual support, the ER, 4.5.10, claims that the CIS project will have no impact on the species. That section simply says, Additionally, the two identified species of concern in the general area, the Texas horned lizard and the sand dune lizard [another name for the dunes sagebrush lizard] either do not occur on the CISF or are highly adaptable.

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The part of that statement alleging that the two species no not occur in the project area is in direct contradiction of the statement in the ER, 3.5.2. That section states, Two species of concern, the Texas horned lizard (Phyrnosoma cornutum) and sand dune lizard (Sceloporus arenicolus), occur within the area.

The second part of the statement in Section 4.5.10, that the species are highly adaptable, is contradicted by the statement in Section 3.5.2 of the ER that the horned lizard is considered threatened because of over-collecting, incidental loss, and habitat disturbance. The sand dune lizard has a specialized habitat that occurs throughout much of the region of the proposed CISF. These descriptions of the precarious status of the species do not support the assertion that they are highly adaptable.

The ER, 3.4.16, cites several sources in support of the statements in the ER, but the sources were internal reports not available to the public, the NRC Staff, or the ASLB.

NEPA regulations provide that [a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. 40 C.F.R. § 1500.1(b). NEPA regulations further require:

Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement.

40 C.F.R. § 1502.24. The unsupported statements regarding impacts to the protected species do not satisfy these standards.

The ASLBs initial ruling, LBP-19-7, admitted Sierra Club Contention 13 as a contention of omission, based on the omission of any sources that were available to the public in support of the statements in the ER. ISP subsequently provided those sources 19

and then filed a motion to dismiss, claiming the contention of omission was moot. Sierra Club, however, submitted an Amended Contention 13, based on new information in the newly revealed sources. Amended Contention 13 pointed out that the internal studies on which the ER relied were 11-22 years old, were focused on the existing LLRW site, and did not provide any documentation or basis for the conclusion that there would be little or no impact to the habitat or communities because the two lizard species are allegedly not present at the site or are highly adaptable.

In spite of the fact that Amended Contention 13 correctly alleged that the ER, and the belatedly submitted sources, documented the existence or likely existence of the two lizard species on the CIS site, the ASLB held that Amended Contention 13 was not admissible.

H. CONTENTION 14 (IMPACTS BEYOND LICENSING PERIOD OF STORAGE CONTAINERS)

The containers in which the radioactive waste will be transported to and stored at the ISP site are licensed for a period of 20 years. SAR, 1.1. The ER, 1.2, states that the life of the CIS facility will be 60-100 years, far longer than the 20-year license period.

Even if ISPs hope that the licenses for the containers will be renewed for an additional 40 years, SAR, 1.1, is accurate, that is only a total of 60 years, not the 60-100 years of the expected life of the CIS facility. The SAR does not indicate why it is confident that the licenses will be renewed. Nor does the SAR indicate what would happen if there is no license renewal.

ISP proposes to solve this problem by continuous relicensing based on an Aging Management Program. SAR, 1.1. The only discussion of an aging management program 20

in the SAR is in Section 11.5. And that section simply refers to the aging management program for the containers. Even at that, there is no indication that the containers will be relicensed. The fallacy of this whole scheme is that it is assumed that relicensing of the CIS and the containers will be automatic.

The ASLB did not address this fallacy.

I. CONTENTION 16 (RISKS OF HIGH BURNUP FUEL)

High burnup fuel causes the cladding around the fuel to become thinner and more brittle, inducing cracking. This makes the storage and transportation of containers loaded with high burnup fuel more likely to leak radioactive material into the environment. Since 1999 the amount of high burnup fuel being used in nuclear reactors has increased substantially. Since 2012 all of the fuel used in reactors has been high burnup fuel. High burnup fuel is dangerously unpredictable and unstable in storage, even for a short term.

High burnup fuel is twice as radioactive and over twice as hot as regular nuclear fuel.

The ER does not discuss the environmental issues surrounding the transportation of high burnup fuel. 10 C.F.R. § 72.108 requires that the environmental impacts of transporting the waste to a CIS facility must be addressed in the ER. More specifically, the ER should contain the following regarding the environmental impacts of transporting the radioactive waste:

Transportation mode (i.e., truck, rail, or barge) and routes from originating site to destinations; Estimated transportation distance from the originating site to the storage site; Treatment and packaging procedure for radioactive wastes; Radiological dose for incident-free scenarios to public and workers; and 21

Impacts of operating transportation on the environment (e.g., fire from equipment sparking).

Environmental Review Guidance for Licensing Actions Associated With NMSS Programs (NUREG-1748)(Accession No. ML032450279), 6.4.2. It is clear that the transportation of high burnup fuel would impact all of these points.

The ASLB claimed that the impacts of the transportation and storage of high burnup fuel were addressed in the ER indirectly by discussing generally the impacts of storing and transporting spent fuel. However, that discussion does not account for the specific issues surrounding high burnup fuel as described above.

Finally, with respect to the discussion of high burnup fuel in the SAR, the ASLB claimed that Sierra Club contention was improperly challenging the certification of the containers. On the contrary, Sierra Club is challenging the safety and environmental impacts of transportation and storage of the radioactive waste with respect to the design and operation of the CIS facility. That is not out of scope of this proceeding.

CONCLUSION The contentions discussed herein should have been admitted for an evidentiary hearing.

At the admissibility stage, a petitioner need not prove its case. It is enough that the petitioner com[e] forward with factual issues, not merely conclusory statements and vague allegations.

Northeast Nuclear Energy Company, 53 NRC 22, 27 (2001). The burden of persuasion is on the license applicant, not the petitioner.

Sierra Club respectfully states that the ASLB in this case required more of Sierra Club in supporting its contentions than is required by NRC standards. Sierra Club has presented facts in support of its contentions, has pointed to specific defects in ISPs documentation, and has cited to applicable statutes, regulations, and other authority to support the contentions.

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Based on the foregoing, Sierra Club requests that the Commission reverse the decision of the ASLB and admit the above contentions for an evidentiary hearing.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 23

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

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) Docket No. 72-1050 INTERIM STORAGE PARTNERS LLC

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) December 13, 2019 (Consolidated Interim Storage Facility)

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Sierra Clubs Brief in Supprot of Appeal from Atomic Safety and Licensing Board Rulings Denying Admissibility of Contentions in Licensing Proceeding were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned proceeding.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 4403 1st Ave. S.E., Suite 402 Cedar Rapids, Iowa 52402 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR SIERRA CLUB 24