ML20007G369

Interim Storage Partners LLCs Answer Opposing Sierra Clubs Appeal of LBP-19-7 and LBP-19-9

ML20007G369
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	01/07/2020
From:	Bessette P, Lighty R, Matthews T Consolidated Interim Storage Facility, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, LBP-19-7, LBP-19-9, RAS 55521
Download: ML20007G369 (31)

Text

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050 ASLBP No. 19-959-01-ISFSI-BD01 January 7, 2020 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING SIERRA CLUBS APPEAL OF LBP-19-7 AND LBP-19-9 Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP Counsel for Interim Storage Partners LLC

ii TABLE OF CONTENTS I.

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

PROCEDURAL HISTORY & STANDARD OF REVIEW......................................... 2 III.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE SIERRA CLUB IDENTIFIES NO ERROR OF LAW OR ABUSE OF DISCRETION........... 3 A. The Board Correctly Denied SC-1 (NWPA)............................................................... 3 B. The Board Correctly Denied SC-4 (Transportation Risk)........................................... 5 C. The Board Correctly Denied SC-6 (Earthquake Potential).......................................... 8 D. The Board Correctly Denied SC-9 (Decommissioning Financial Assurance)........... 10 E. The Board Correctly Denied SC-10 (Groundwater Impacts).................................... 12 F. The Board Correctly Denied SC-11 (Site Selection Criteria).................................... 15 G. The Board Correctly Dismissed SC-13 and Denied SC-13A (Important Species).... 17 H. The Board Correctly Denied SC-14 (Container Licensing Period)........................... 21 I.

The Board Correctly Denied SC-16 (High Burnup Fuel).......................................... 23 IV.

CONCLUSION............................................................................................................... 25

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

CLI-07-8, 65 NRC 124 (2007).................................................................................................... 8 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004)......................................................................................... passim Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 & 2),

CLI-16-19, 84 NRC 180 (2016)................................................................................................ 15 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373 (2002).................................................................... 12, 18 Hydro Res., Inc. (Rio Rancho, NM),

CLI-01-4, 53 NRC 31 (2001)................................................................................................ 4, 17 Interim Storage Partners LLC (Consolidated Interim Storage Facility),

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

LBP-19-9, 90 NRC __ (Nov. 18, 2019) (slip op.).............................................................. passim La. Energy Servs. (Natl Enrichment Facility),

CLI-05-28, 62 NRC 721 (2005).................................................................................................. 4 La. Energy Servs. (Natl Enrichment Facility),

CLI-06-15, 63 NRC 687 (2006).................................................................................................. 8 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301 (2012).................................................................................................... 7 Private Fuel Storage LLC (Indep. Spent Fuel Storage Installation),

LBP-99-34, 50 NRC 168 (1999)............................................................................................... 25 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-01-22, 54 NRC 255 (2001)................................................................................................ 16 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002).................................................................................................. 7 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 125 (2004)......................................................................................... passim Shieldalloy Metallurgical Corp. (Newfield, NJ),

CLI-07-20, 65 NRC 499 (2007).................................................................................. 2, 9, 16, 17 State of N.J. (Dept of Law & Public Safetys Requests Dated October 8, 1993),

CLI-93-25, 38 NRC 289 (1993)................................................................................................ 25 System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site),

CLI-05-4, 61 NRC 10 (2005).................................................................................................... 17

iv Trustees of Columbia University in the City of New York, ALAB-50, 4 AEC 849 (1972)................................................................................................... 25 USEC, Inc. (Am. Centrifuge Plant),

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

CLI-06-9, 63 NRC 433 (2006).................................................................................................. 18 Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station),

ALAB-876, 26 NRC 277 (1987)............................................................................................... 16 Federal Court Cases Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004).................................................................................................... 4 Fuel Safe Washington v. FERC, 389 F.3d 1313 (10th Cir. 2004)................................................................................................... 8 Ind. Mich. Power Co. v. U.S. Dept of Energy, 88 F.3d 1272 (D.C. Cir. 1996).................................................................................................... 5 N. States Power Co. v. U.S. Dept of Energy, 128 F.3d 754 (D.C. Cir. 1997).................................................................................................... 5 N.J. Dept. of Envtl. Prot. v. NRC, 561 F.3d 132 (3d Cir. 2009)........................................................................................................ 8 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).................................................................................................................... 7 United States v. Armstrong, 517 U.S. 456 (1996).................................................................................................................... 5 United States v. Chem. Found., Inc.,

272 U.S. 1 (1926)........................................................................................................................ 5 Statutes 28 U.S.C. § 41................................................................................................................................. 8 NRC Regulations 10 C.F.R. § 2.309(f)(1).......................................................................................................... passim 10 C.F.R. § 2.311(b)....................................................................................................................... 1 10 C.F.R. § 2.335................................................................................................................... passim 10 C.F.R. § 71.47(b)(3)................................................................................................................. 23 10 C.F.R. § 72.103(f)(1)............................................................................................................... 10 10 C.F.R. § 72.2(a).......................................................................................................................... 5 10 C.F.R. § 72.212(a)(3)............................................................................................................... 22

v 10 C.F.R. § 72.214........................................................................................................................ 13 10 C.F.R. § 72.30.............................................................................................................. 10, 11, 12 Federal Register Documents

[ISP]s Waste Control Specialists Consolidated Interim Storage Facility Revised License Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 44,070 (Aug. 29, 2018)........................................................................................ 10 U.S. Dept of Energy, Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793 (May 3, 1995)............................................................................................ 5

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

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050 ASLBP No. 19-959-01-ISFSI-BD01 January 7, 2020 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING SIERRA CLUBS APPEAL OF LBP-19-7 AND LBP-19-9 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Interim Storage Partners LLC (ISP) submits this Answer opposing Sierra Clubs Appeal from Atomic Safety and Licensing Board Rulings Denying Admissibility of Contentions in Licensing Proceeding.1 Sierra Club seeks to appeal two decisions of the Atomic Safety and Licensing Board (Board): LBP-19-7,2 and LBP-19-9.3 In LBP-19-7, the Board granted Sierra Clubs Petition to Intervene and Request for Adjudicatory Hearing (Petition),4 finding Sierra Club demonstrated standing and submitted one admissible contention, Sierra Club contention (SC-) 13, but rejecting Sierra Clubs 16 other proposed contentions as inadmissible. Sierra Clubs Appeal seeks reversal of that portion of LBP-19-7 that rejected the admission of eight of those proposed contentions: SC-1, SC-4, SC-6, SC-9,

1 Sierra Clubs Notice of Appeal from Atomic Safety and Licensing Board Rulings Denying Intervention (Dec.

13, 2019) (ML19347E392); Sierra Clubs Brief in Support of Appeal from Atomic Safety and Licensing Board Rulings Denying Admissibility of Contentions in Licensing Proceeding (Dec. 13, 2019) (ML19347E441)

(Appeal).

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

(slip op.).

3 Interim Storage Partners LLC (Consolidated Interim Storage Facility), LBP-19-9, 90 NRC __ (Nov. 18, 2019)

(slip op.).

4 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Nov. 13, 2018) (ML18317A411)

(Petition).

2 SC-10, SC-11, SC-14, and SC-16.5 In LBP-19-9, the Board later dismissed SC-13 as moot and denied Sierra Clubs motion to admit an amended version of that contention, SC-13A.6 Sierra Club appeals that decision as well.

As explained more fully below, Sierra Clubs Appeal fails to establish any error of law or abuse of discretion in either LBP-19-7 or LBP-19-9. The Appeal largely consists of a recitation of each proposed contention and Sierra Clubs corresponding arguments in the proceedings below, without any specific allegations of legal error or abuse of discretion. Simply put, Sierra Club disagrees with the resultwhich is not an adequate basis for Commission review.7 The Appeal also disregards, and therefore concedes the correctness of, several of the Boards bases for rejecting the proposed contentions.8 Furthermore, the Appeal raises several unauthorized new arguments to dispute the Boards rulings.9 Accordingly, the Commission should summarily deny the Appeal.

II.

PROCEDURAL HISTORY & STANDARD OF REVIEW The detailed procedural history of this proceeding is set forth in LBP-19-7 and LBP-19-9.10 The appellate standard of review is set forth in ISPs Answer to Beyond Nuclear, Inc.s appeal of LBP-19-7.11

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

6 ISP, LBP-19-9, 90 NRC at __ (slip op. at 5-14).

7 Shieldalloy Metallurgical Corp. (Newfield, NJ), CLI-07-20, 65 NRC 499, 503-05 (2007).

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

9 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006); Private Fuel Storage, LLC (Indep.

Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 140 (2004).

10 ISP, LBP-19-7, 90 NRC at __ (slip op. at 6-12); ISP, LBP-19-9, 90 NRC at __ (slip op. at 2-4).

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[ISP]s Answer Opposing Beyond Nuclears Appeal of LBP-19-7 at 5-6 (Oct. 15, 2019) (ML19288A287).

3 III.

THE COMMISSION SHOULD DENY THE APPEAL BECAUSE SIERRA CLUB IDENTIFIES NO ERROR OF LAW OR ABUSE OF DISCRETION A.

The Board Correctly Denied SC-1 (NWPA)

SC-1 stated:

The [U.S. Nuclear Regulatory Commission (NRC)] has no authority to license the ISP [consolidated interim storage facility (CISF)] under the [Nuclear Waste Policy Act of 1982 (NWPA)] nor the [Atomic Energy Act of 1954 (AEA)].

ISP has said [the U.S. Department of Energy (DOE)] must take title to the waste, but the NWPA does not authorize DOE to take title to spent fuel in an interim storage facility. The AEA has no provision for licensing a CIS[F].12 SC-1 contained three sub-arguments. First, Sierra Club claimed that, under the NWPA statute as currently written, DOE cannot take title to private licensees spent nuclear fuel for storage at a CISF.13 But ISP did not dispute this assertion.14 In fact, ISP acknowledged on the record that, absent new legislation, the DOE could not lawfully assume ownership of the spent nuclear fuel in the proposed interim storage facility.15 Thus, the Board correctly found that this aspect of SC-1 failed to raise a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi).16 The Appeal does not challenge this conclusion.

Second, Sierra Club argued that ISPs application assumes that DOE will (illegally) take title to the spent fuel that will be stored at the proposed WCS CISF.17 As a preliminary matter, ISPs application clearly and consistently states that either [t]he [DOE] or other holders of the title to [Spent Nuclear Fuel (SNF)] at commercial nuclear power facilities (SNF Title

12 Petition at 14.

13 Id. at 16.

14 ISPs Response to the [ASLBs] Questions Regarding the U.S. Department of Energys Authority under the Nuclear Waste Policy Act at 1 (June 28, 2019) (ML19179A311) (ISP Response to Board); Transcript of Oral Arguments in the Matter of [ISP] at 44 (July 10, 2019) (ML19198A218) (Tr.).

15 ISP Response to Board at 1. See also Tr. at 44 (we agreed that DOE may not, absent statutory change, make use of our facility).

16 ISP, LBP-19-7, 90 NRC at __ (slip op. at 30) (also referring to its ruling on Beyond Nuclears NWPA contention); id. at 26 (as to Beyond Nuclears contention, holding that there is no dispute on this point).

17 Petition at 14.

4 Holder(s)) will be the customer(s) for the proposed CISF.18 But Sierra Club argued (without support or explanation) that it has doubts as to whether reactor owners would even consider contracting with ISP.19 In LBP-19-7, the Board held that the question of commercial viability (i.e., whether reactor owners would contract with ISP) is beyond the scope of (and therefore immaterial to) this proceeding and fails to raise a genuine dispute with ISPs Application.20 This holding is fully consistent with binding Commission precedent explaining that the NRC is not in the business of regulating the market strategies of licensees or determining whether market strategies warrant commencing operations.21 The Appeal does not challenge this conclusion.

Sierra Clubs third argument was that the NRCs act of licensing an away-from-reactor interim spent fuel storage facility would be per se unlawful.22 The Board correctly held that this unsupported claim is directly contrary to: (1) the plain text of NRC regulations, which expressly allow for the licensing of such facilities,23 and (2) a ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which explicitly considered this issue and ruled that the NRC has such authority under the AEA, and that the NWPA did not repeal or supersede that authority.24 Accordingly, the Board properly concluded that SC-1 is inadmissible as unsupported and as an impermissible challenge to NRC regulations, contrary to 10 C.F.R. § 2.335. The Appeal is silent on this discussion in LBP-19-7 as well.

18 ISP, WCS CISF License Application, Rev. 2 (including the Environmental Report (ER) and Safety Analysis Report (SAR)) at 1-1 to 1-2 (July 19, 2018) (ML18206A595) (Application) (emphasis added). See also, e.g., id. at 1-6 to 1-7, Attach. A (Proposed Condition 23), Attach. A, App. D at 2-1.

19 Appeal at 9.

20 ISP, LBP-19-7, 90 NRC at __ (slip op. at 30) (also referring to its ruling on Beyond Nuclears NWPA contention); id. at 26 (rejecting Beyond Nuclears essentially identical argument).

21 Id. at __ (slip op. at 27) (quoting La. Energy Servs. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005) (in turn quoting Hydro Res., Inc. (Rio Rancho, NM), CLI-01-4, 53 NRC 31, 48-49 (2001))).

22 Petition at 20.

23 ISP, LBP-19-7, 90 NRC at __ (slip op. at 30-31 & n.177) (citing 10 C.F.R. Part 72).

24 Id. at __ (slip op. at 31 & n.178) (citing Bullcreek v. NRC, 359 F.3d 536, 543 (D.C. Cir. 2004)).

5 On Appeal, Sierra Club appears to combine its second and third arguments into a broad assertion of Board error on the grounds that [a]n agency cannot license an action that would be illegal.25 But the action that all parties agree would be unlawful under current law is the action of DOE contracting with a private party for interim storage of SNF.26 Sierra Club cites no support for its implied assertion that DOE would engage in this unlawful action. And as a matter of law, DOE is entitled to a presumption that it will not act unlawfully.27 Thus, as the Board correctly held, [t]here is no credible possibility that such contracts will be made in violation of the law.28 Furthermore, to the extent Sierra Clubs theory is that issuing a Part 72 license to ISP somehow would authorize (i.e., license) DOE to contract with ISP despite the NWPA prohibition (i.e., an action that would be illegal), its argument is nonsensical and entirely unsupported. Part 72 licenses can only authorize the receipt, transfer, packaging, and possession of certain radioactive materials.29 The NRC has no authority under Part 72 (or otherwise) to authorize DOE contracting activities. Ultimately, Sierra Club has failed to identify any error of law or abuse of discretion in the Boards decision rejecting SC-1.

B.

The Board Correctly Denied SC-4 (Transportation Risk)

SC-4 stated:

Operation of the CIS site as proposed by ISP would necessitate the transportation

25 Appeal at 8.

26 See also ISP, LBP-19-7, 90 NRC at __ (slip op. at 27 & n.159) (citing, e.g., [DOE] Final Interpretation of Nuclear Waste Acceptance Issues, 60 Fed. Reg. 21,793, 21,793-94, 21,797 (May 3, 1995); N. States Power Co. v. U.S. Dept of Energy, 128 F.3d 754, 756 (D.C. Cir. 1997) (The Department also took the position that it lacks statutory authority under the [Nuclear Waste Policy] Act to provide interim storage.) (quoting 60 Fed. Reg. at 21,794); Ind. Mich. Power Co. v. U.S. Dept of Energy, 88 F.3d 1272, 1274 (D.C. Cir. 1996)

(The [DOE] also determined that it had no authority under the NWPA to provide interim storage in the absence of a facility that has been authorized, constructed and licensed in accordance with the NWPA.)).

27 ISP, LBP-19-7, 90 NRC at __ (slip op. at 27 & n.158) (A presumption of regularity applies to federal agencies, which should be assumed to act properly in the absence of evidence to the contrary, citing e.g.,

United States v. Armstrong, 517 U.S. 456, 464 (1996); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).

28 Id. at __ (slip op. at 29).

29 10 C.F.R. § 72.2(a).

6 of the radioactive waste from reactor sites to the CIS facility. Transportation from the reactors to the CIS site carries substantial risks. These risks must be evaluated in the ER.30 In support of SC-4, Sierra Club relied on an August 2001 report (developed for intervenors in the Yucca Mountain licensing proceeding) by Matthew Lamb and Marvin Resnikoff titled Worst Case Credible Nuclear Transportation Accidents: Analysis for Urban and Rural Nevada (RWMA Report).31 Specifically, Sierra Club purported to challenge ISPs estimates of potential radiation doses from a transportation accident by pointing out that the estimated doses in ISPs ER are smaller than those in the RWMA Report.32 Sierra Club also claimed that the ER is deficient because it cited three NRC transportation studies (NUREG-1714, NUREG-2125, and NUREG-2157) that evaluated cask systems that purportedly will not be used at the WCS CISF.33 Likewise, it cited a declaration from Dr. Gordon Thompson that purportedly described events and impacts of transportation accidents that allegedly were not adequately addressed in the ER.34 But Sierra Club offered no explanation as to how this information demonstrated an alleged defect in ISPs ER. The Petition was silent as to: how the different values in the RWMA Report somehow demonstrated an inadequacy in ISPs ER; how specific cask types (all of which are subject to stringent NRC certification requirements) somehow are material to the analysis of transportation impacts; or which alleged events and impacts referenced by Dr. Thompson were not adequately addressed in the ER (much less, how they allegedly were inadequate). Sierra

30 Petition at 31.

31 Id. at 33.

32 Id. at 38-39.

33 See id. at 41-43. ER Section 4.2.6.2 (ER at 4-14 to 4-16) discusses each of those NRC studies. It notes that

[t]he NRCs assessments have concluded that the risk from radiation emitted from a transportation cask of is a small fraction of the radiation dose received from the natural background; moreover, the risk from accidental release of radioactive material is several orders of magnitude less than previously assessed.

34 Id. at 43.

7 Club made no attempt to dispute the relevant portions of the ER that contained ISPs corresponding analysis of those issues. As the Board correctly held, more is required for an admissible contention.35 Binding Commission precedent is clear: the mere presentation of an alternative analysis, without a specific explanation of how it demonstrates a defect in the application, is insufficient to satisfy 10 C.F.R. §§ 2.309(f)(1)(v)-(vi).36 On Appeal, Sierra Club offers nothing more than a recitation of its earlier arguments in this regard.

Moreover, Sierra Clubs Petition offered no explanation as to how the RWMA Report (by its own terms, a Worst Case analysis) somehow would be material to ISPs analysis under the National Environmental Policy Act (NEPA). As a matter of law, NEPA entails a rule of reason; analyses are not required to analyze worst case scenarios because they create[] a distorted picture of a projects impacts and waste[] agency resources.37 Thus, SC-4 also fails to satisfy 10 C.F.R. §§ 2.309(f)(1)(iv).38 Sierra Clubs Appeal is silent on this conclusion.39 Sierra Club also argued that the ERs evaluation of the likelihood of transportation accidents is deficient. For example, Sierra Club provided a list (without source attribution) of train derailments and oil train fires for the proposition that train wrecks involving fires are not hypothetical or speculative.40 But as the Board correctly observed, Sierra Club utterly failed to explain how this information could somehow contradict the relevant ISP analysis (which was provided in Section 4.2.8 of the ER) because Sierra Club did not even acknowledge,

35 ISP, LBP-19-7, 90 NRC at __ (slip op. at 35-36).

36 Id. at __ (slip op. at 35-36) (citing NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323-24 (2012).

37 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 352 (2002)

(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354-55 (1989)).

38 ISP, LBP-19-7, 90 NRC at __ (slip op. at 35-36) (citing Seabrook, CLI-12-5, 75 NRC at 323-24).

39 Millstone, CLI-04-36, 60 NRC at 638.

40 Petition at 39-40.

8 much less dispute, that analysis.41 Thus, it fails to demonstrate any reversible error.

Finally, Sierra Club argued in SC-4 that the ER is inadequate because it does not discuss (1) potential sabotage events, or (2) the costs of decontamination following a transportation accident.42 But as the Board correctly held, neither of these issues falls within the scope of this proceeding or is material to the NRC Staffs NEPA review.43 First, the Commission has held NEPA does not require analysis of hypothetical terrorist attacks outside the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit,44 as is the case for the WCS CISF.45 Second, the Board properly found that Sierra Club (1) failed to identify any legal requirement in Part 51 that an ER include an estimate of the cleanup costs of a hypothetical SNF transportation accident for purposes of licensing a proposed CISF, and (2) failed to explain why such an analysis is reasonably necessary to evaluate the projects environmental consequences under NEPA.46 The Appeal is silent as to, and thereby concedes, both conclusions.47 In summary, Sierra Club identifies no error of law or abuse of discretion in the Boards rejection of SC-4.

C.

The Board Correctly Denied SC-6 (Earthquake Potential)

SC-6 stated:

The ER and the subsequent [Environmental Impact Statement (EIS)] must evaluate the potential for earthquakes at the ISP site and the environmental impact of earthquakes. Likewise, the Safety Analysis Report (SAR) must adequately evaluate the earthquake potential of the proposed site. Both the ER and SAR are

41 ISP, LBP-19-7, 90 NRC at __ (slip op. at 37). On appeal, Sierra Club actually affirms the Boards finding in this regard. Appeal at 10 (acknowledging the Boards observation that Sierra Club failed to dispute ER § 4.2.8 and confirming that SC-4 only disputes the adequacy of ER § 4.2.6).

42 See Petition at 31, 38, 42.

43 ISP, LBP-19-7, 90 NRC at __ (slip op. at 37).

44 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-29 (2007), affd by N.J. Dept. of Envtl. Prot. v. NRC, 561 F.3d 132, 139-40 (3d Cir. 2009).

45 Texas, the proposed site of the WCS CISF, Application at 1-1, is in the Fifth Circuit. See 28 U.S.C. § 41.

46 La. Energy Servs. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 706 (2006) (quoting Fuel Safe Washington v. FERC, 389 F.3d 1313, 1329 (10th Cir. 2004)) (An FEIS need only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of a proposed action.).

47 Millstone, CLI-04-36, 60 NRC at 638.

9 inadequate in this respect.48 More specifically, Sierra Club asserted that the ER dismisses the likelihood of earthquakes in the area; does not even discuss the impact of earthquakes; and makes no mention of potential earthquakes induced by oil and gas drilling activity in the region.49 As the Board correctly held, these assertions lack adequate support, and are factually incorrect, because they entirely ignore the extensive seismic discussion (including consideration of induced seismicity from hydrocarbon extraction) presented in the ER50which Sierra Club failed to dispute.51 For example, the Board correctly explained that ER Section 3.3.2 provides required seismic information, Section 3.3.4 discusses regional faulting, and Section 3.3.3 discusses the seismic effects of drilling in the area and concludes that the low to moderate rate of background seismicity, even that associated with petroleum recovery activities, results in relatively low seismic hazard at the CISF site.52 The Appeal merely repeats Sierra Clubs baseless arguments from the Petition, claiming the ER does not even discuss the impact of earthquakes, and makes no mention of induced earthquakes.53 Thus, the Boards decision is manifestly correct, and the Appeal identifies no error of law or abuse of discretion in the Boards analysis.54 As to the second half of SC-6, Sierra Club argued that the SAR is inadequate because certain details of ISPs seismic analysis are presented in a proprietary attachment to the SAR,55

48 Petition at 49.

49 Id. at 49, 50, 52.

50 ISP, LBP-19-7, 90 NRC at __ (slip op. at 41-42) (citing ER at 3-3 to 3-16, 4-28 to 4-29, 4-64, and 4-70).

51 See also id. at __ (slip op. at 42) (correctly noting that Sierra Clubs Reply also failed to identify specific portions of the ER it purported to challenge, and in any event proffered inadequate support for the new and untimely arguments regarding the adequacy of the ER, first presented therein, because the cited documents merely contained facts already addressed in the ER). The Appeal also does not challenge this conclusion.

52 Id. at __ (slip op. at 41-42) (quoting ER at 3-12).

53 Appeal at 10-11.

54 See Shieldalloy, CLI-07-20, 65 NRC at 503-05.

55 See SAR at 2-28 (referring the reader to Attach. D).

10 rather than the publicly-available body of the SAR.56 But the regulation cited by Sierra Club (10 C.F.R. § 72.103(f)(1)) does not support its claim of inadequacy. That regulation merely requires a seismic analysis. It does not require the full analysis to be presented in any particular part of the SAR; and it does not require the analysis to be non-proprietary. Thus, Sierra Clubs argument lacks the support required by 10 C.F.R. § 2.309(f)(1)(v). And as the Board correctly noted, Sierra Club (and other members of the public) were afforded the opportunity to access the proprietary attachment, but chose not to.57 In other words, Sierra Club failed to dispute the relevant portion of the ER, contrary to 10 C.F.R. § 2.309(f)(1)(vi). And to the extent Sierra Club sought to challenge the NRCs process for accessing proprietary information,58 the Board appropriately held that such arguments are beyond the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).59 The Appeal includes no discussion of the Boards analysis on this point, and therefore identifies no error of law or abuse of discretion.60 D.

The Board Correctly Denied SC-9 (Decommissioning Financial Assurance)

SC-9 stated:

10 C.F.R. § 72.30 establishes requirements for decommissioning interim storage facilities. An application for licensing a CIS facility must contain a decommissioning plan explaining how the plan will satisfy the requirements in the regulation. The application for the ISP CIS facility does not comply with these requirements. 61 By way of background, the Application as originally submitted explained that ISP planned to satisfy the requirements in 10 C.F.R. § 72.30 via the use of an authorized

56 Petition at 52-53.

57 ISP, LBP-19-7, 90 NRC at __ (slip op. at 42) (citing NRC, [ISP]s Waste Control Specialists Consolidated Interim Storage Facility Revised License Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 44,070, 44,073-75 (Aug. 29, 2018)).

58 Tr. at 58-59.

59 ISP, LBP-19-7, 90 NRC at __ (slip op. at 42).

60 Millstone, CLI-04-36, 60 NRC at 638.

61 Petition at 60.

11 decommissioning funding mechanism specified in Section 72.30(e) (e.g., a sinking fund combined with a surety bond), regardless of whether ISPs customer was DOE or a private entity.62 For the scenario in which DOE would be ISPs customer, the original Application included an additional alternative in the form of an exemption request under 10 C.F.R. § 72.7 for approval of an equivalent method of assurance (provided via contract with DOE).63 Sierra Clubs primary focus in SC-9 was its challenge to ISPs exemption request.64 As the Board accurately noted in LBP-19-7, ISP subsequently withdrew that exemption request and amended the Application accordingly.65 Thus, the Board correctly found that Sierra Clubs challenge to the exemption requesti.e., the core of SC-9was moot.66 On appeal, Sierra Club does not challenge, and therefore concedes, this conclusion.67 Sierra Club also initially argued that the Application fails to meet the requirements of 10 C.F.R. § 72.30 because it does not give a detailed cost estimate of the total cost of decommissioning.68 But this statement is entirely unsupported, contrary to 10 C.F.R. § 2.309(f)(1)(v), because the Site Specific Decommissioning Cost Estimate is explicitly provided in ISPs Decommissioning Funding Plan,69 which Sierra Club neither acknowledged nor disputed with specificity. Accordingly, the Board correctly rejected this argument for failing to raise a genuine dispute with the Application, as required by 10 C.F.R. § 2.309(f)(1)(vi).70 By

62 See, e.g., Application, Appx D at 2-1.

63 Id.

64 Petition at 61-62.

65 ISP, LBP-19-7, 90 NRC at __ (slip op. at 46) (citing Letter from T. Matthews to ASLB, Licensing Board Notification Regarding ISP Letter E-54257 at 1 (June 3, 2019) (ML19154A586) (ISP June 3, 2019 Letter)).

66 Id. at __ (slip op. at 46).

67 Millstone, CLI-04-36, 60 NRC at 638.

68 Petition at 60.

69 Application, Appx D, ch. 3.

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

12 not addressing this conclusion either, the Appeal concedes its correctness.71 On appeal, Sierra Club presents an entirely new argument for the first time. More specifically, it appears to challenge the as-revised Application (following ISPs withdrawal of the exemption request) because it allegedly still contemplates that DOE would provide the decommissioning funding, and otherwise fails to include any plan for decommissioning funding.72 Notably, Sierra Club never sought to amend SC-9 (or to submit new contentions) to challenge the as-revised Application.73 And because this argument is presented for the first time on appeal, it does not identify any error of law or abuse of discretion in LBP-19-7.74 Ultimately, nothing in the Appeal presents a basis to overturn the Boards decision.

E.

The Board Correctly Denied SC-10 (Groundwater Impacts)

SC-10 stated:

The ISP CIS site sits atop the Ogallala Aquifer. The ER and SAR submitted by ISP appear to claim that the site does not sit atop the aquifer. Therefore, the ER and SAR do not accurately and adequately evaluate and consider the impacts to the aquifer from the CIS facility.75 Sierra Club also alleged ISPs discussion of the water beneath the proposed WCS CISF site is defective, alleging [i]t is important to know how susceptible the groundwater is to

71 Millstone, CLI-04-36, 60 NRC at 638.

72 Appeal at 12.

73 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 28, 56 NRC 373, 383 (2002) (where a contention is superseded by subsequent revision of the license application, the contention must be disposed of or modified).

74 USEC, CLI-06-10, 63 NRC at 458; PFS, CLI-04-22, 60 NRC at 140. In any event, Sierra Clubs new argument is unsupported and fails to raise a genuine dispute with the content of the as-revised Application because, contrary to Sierra Clubs assertion, it still presents ISPs plan to use a decommissioning financial assurance method authorized in 10 C.F.R. § 72.30(e) (e.g., a sinking fund combined with a surety bond) that will be funded directly or indirectly by ISPs customer (whether DOE or a private entity). Application § 1.6.3, Attach. A (License Conditions), & App. D at 2-1 (each as revised per ISP June 3, 2019 Letter, Encl. 2 at 1).

To the extent Sierra Club asserts the private entity option is not commercially viable, or that the mere mention in the Application of DOE as a potential future customer could somehow authorize DOE to violate the NWPA, these arguments were properly rejected by the Board, as noted in the discussion of SC-1, supra Part III.A.

75 Petition at 63.

13 contamination from a leak of radioactive material.76 As support for its contention, Sierra Club offered a report prepared by geologist Dr. Patricia Bobeck, who opined that the [ER] fails to provide the basic information necessary to adequately and thoroughly address the impact of cask rupture and discharge of radioactive material to ground and groundwater at the [ISP] site.77 As the Board explained, the crux of SC-10s argument relies on unsupported assumptions that (1) a cask at the WCS CISF somehow could become ruptured, and (2) that rupture would release radioactive material capable of getting into groundwater.78 As to the first assumption, Sierra Club speculated that the storage of high burnup fuel (HBF), or induced seismicity from petroleum recovery operations in the region, somehow could cause a cask rupture.79 But as the Board correctly observed, all casks at the WCS CISF must be approved by the NRC to safely store spent fuel (including HBF) and shown to withstand credible seismic events.80 Because the NRCs findings in this regard are codified in NRC regulations,81 the Board appropriately concluded that Sierra Clubs contrary assertions (i.e., that casks approved for HBF storage cannot safely store HBF, or that NRC-approved casks cannot withstand credible seismic events) amount to impermissible challenges to NRC regulations,

76 Petition at 64. Sierra Club did not challenge the Applications discussion of aquifer location or saturation point as pure factual matters; rather, it argued that these topics influence the groundwater impacts analysis. See Appeal at 14 (The contention is challenging the adequacy of the discussion in the ER regarding impacts to groundwater (emphasis added)). See also ISP, LBP-19-7, 90 NRC at __ (slip op. at 48) (explaining that Sierra Clubs claims regarding aquifer location and saturation point are only material (as required by 10 C.F.R.

§ 2.309(f)(1)(iv)) to the extent they affect the groundwater impacts analysis).

77 Petition, Attach. 1, Patricia Bobeck, Ph.D., P.G., Geologic Review of Interim Storage Partners LLC WCS Consolidated Storage Facility Environmental Report, at 10 (Oct. 25, 2018) (Bobeck Report).

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

79 Id. at __ (slip op. at 65-67). Sierra Club also asserts that cask rupture could occur as a result of a terrorist attack. Bobeck Report at 3. As discussed supra Part III.B, the NRC does not require ERs to address the impacts of terrorist attacks at facilities, such as the WCS CISF, that are outside the 9th Circuit.

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

81 See 10 C.F.R. § 72.214.

14 contrary to 10 C.F.R. § 2.335.82 On appeal, Sierra Club claims that the Board erred in this conclusion because Sierra Club did not intend SC-10 as a challenge to NRC regulations.83 But this argument is unpersuasive.

Intentional or not, the fact remains that SC-10s groundwater contamination theory necessarily relies on assumptions regarding the likelihood of cask ruptures that not only are unsupported, contrary to 10 C.F.R. § 2.309(f)(1)(v), but also are directly contrary to NRC-codified findings, contrary to 10 C.F.R. § 2.335. The Boards conclusion in this regard is fully supported, and the Appeal identifies no error of law or abuse of discretion.

As to the second assumption, the Board aptly cited controlling Commission precedent requiring that, [t]o show a genuine material dispute, [a petitioners] contention would have to give the Board reason to believe that contamination... could find its way outside of the cask.84 The Board correctly found that Sierra Club failed to support its assumption that SNF or GTCC wastesolid materials in dry storage with no transport mechanismsomehow could reach groundwater.85 On appeal, Sierra Club challenges this conclusion on the ground that its Petition cited documents that discuss the possibility of cladding failure in HBF.86 But this argument reveals no error of law or abuse of discretion in the Boards reasoning. The cited documents still offer no explanation as to how contamination from solid SNF (even SNF with failed cladding) somehow could find its way outside the cask, much less how it somehow could find its way to groundwater. And the Appeal does not argue otherwise. Moreover, this argument disregards the

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

83 Appeal at 14.

84 ISP, LBP-19-7, 90 NRC at __ (slip op. at 49) (citing PFS, CLI-04-22, 60 NRC 125, 138-39 (2004)).

85 Id. at __ (slip op. at 49).

86 Appeal at 13-14 (citations omitted).

15 fact that all HBF at the WCS CISF will be further isolated in an inner can, inside the welded canister, within the outer storage cask.87 This creates yet another barrier between groundwater and the materials in the cask that these documents (and Sierra Clubs unsupported theory) fail to acknowledge or address. Such a scenariolayering speculation upon guessworkis not a reasonably-foreseeable one requiring analysis under NEPA. Ultimately, Sierra Club identifies no error of law or abuse of discretion.

F.

The Board Correctly Denied SC-11 (Site Selection Criteria)

SC-11 stated:

Section 2.3.3 of the ER discusses 15 criteria ISP 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.88 As to Sierra Clubs first claimthat ISPs site selection criteria allegedly are unrelated to unspecified criteria in the statues or regulationsthe Board correctly observed that Sierra Club failed to identify any statutes or regulations that purportedly specify any mandatory site selection criteria.89 And in fact, no such criteria exist.90 On appeal, Sierra Club does not contest, and therefore concedes the correctness of, this conclusion.91 Thus, at the most basic level, SC-11 fails even to articulate a basis for the contention, as required by 10 C.F.R. § 2.309(f)(1)(i)-(ii),

much less does it demonstrate the requisite support, materiality, or existence of a genuine dispute with the Application, as required by 10 C.F.R. §§ 2.309(f)(1)(iv)-(vi).

In its Reply pleading, Sierra Club attempted to reframe its argument as a broader

87 ISP License Application, Attach. A, Proposed License Conditions at unnumbered A-3 (Proposed License No.

SNM-1050) at § 9.

88 Petition at 68.

89 ISP, LBP-19-7, 90 NRC at __ (slip op. at 51).

90 Id. at __ (slip op. at 51) (citing NRC Staff Answer at 110 (in turn, citing Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 & 2), CLI-16-19, 84 NRC 180, 210 (2016))).

91 Millstone, CLI-04-36, 60 NRC at 638.

16 challenge to the ERs satisfaction of requirements allegedly contained in an NRC guidance document and a regulation promulgated by the Council on Environmental Quality (CEQ).92 But the provisions cited by Sierra Club simply refer to generic expectations for a NEPA alternatives analysis; they do not contain any prescriptive site selection criteria. And in any event, Sierra Clubs Reply offered no specific explanation as to how ISPs ER somehow failed to satisfy these generic expectations. The Board was not persuaded by these new arguments in the Reply.93 On appeal, Sierra Club does nothing more than repeat these earlier arguments,94 and therefore fails to demonstrate an error of law or abuse of discretion.95 Sierra Clubs second claimthat ISPs analysis of the site selection criteria was inadequatefares no better. More specifically, the Petition presented six topical complaints regarding: site contamination, floodplain analysis, climate data, protected species, socioeconomic data, and archaeological resources.96 ISPs Answer pleading addressed each topic and explained, point-by-point, why each assertion was variously baseless, factually incorrect, or immaterial, and why none of them raised a litigable issue.97 The Board properly concluded that these claims amounted to nothing more than impermissible flyspecking of the

92 Sierra Clubs Reply to Answers Filed by [ISP] and NRC Staff at 35-36 (Dec. 17, 2018) (ML18351A531). As a general matter, contrary to Sierra Clubs assertion, neither NRC guidance nor CEQ regulations impose any requirements on NRC license applicants. As an independent regulatory agency, the Commission does not consider itself legally bound by substantive regulations of the CEQ. Vt. Yankee Nuclear Power Corp. (Vt.

Yankee Nuclear Power Station), ALAB-876, 26 NRC 277, 284 n.5 (1987). And guidance documents, such as NUREGs, do not have the force of legally binding regulations. Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001).

93 See ISP, LBP-19-7, 90 NRC at __ (slip op. at 52 n.300) (denying ISPs motion to strike these new and untimely arguments because the Board would reach the same decision with or without them).

94 Appeal at 17.

95 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

96 Petition at 71-75.

97 ISP Answer at 94-100. For the sake of brevity, ISP incorporates these arguments here by reference as if fully republished.

17 ER because they failed to identify any genuine material dispute with the Application.98 On appeal, Sierra Club disputes this conclusion, claiming that it did much more than flyspeck the ER.99 But the Appeal offers no further explanation or support for this claim; it merely repeats (in paraphrase form) the six topical complaints presented in the Petition.100 Merely repeating earlier arguments provides an insufficient basis for an appeal.101 Ultimately, the Board correctly concluded that ISPs site selection discussion [came] to grips with all important considerations, and that Sierra Club failed to demonstrate any legal requirement to do more.102 The Appeal still fails in this regard, and identifies no error of law or abuse of discretion in the Boards conclusion as to SC-11.

G.

The Board Correctly Dismissed SC-13 and Denied SC-13A (Important Species)

SC-13 stated:

The ER states that two species of concern, the Texas horned lizard and the dunes sagebrush lizard, have been seen at the ISP site or may be present. But there is no discussion of any studies or surveys to determine if the species are present and the impact of the project on those species. Therefore, the ER is inadequate in describing the affected environment.103 In the Petition, Sierra Clubs essential argument was that ISPs conclusion (allegedly, that the WCS CISF will have no impact104 on the Texas horned lizard or the dunes sagebrush lizard (Lizards)) was inadequately supported because the surveys cited in the ER are not described well enough to allow members of the public to access the sources.105 As a general matter, this

98 ISP, LBP-19-7, 90 NRC at __ (slip op. at 51-52) (citing System Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)).

99 Appeal at 17.

100 Id.

101 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

102 ISP, LBP-19-7, 90 NRC at __ (slip op. at 52) (citing Grand Gulf ESP, CLI-05-4, 61 NRC at 13 (quoting Hydro Res., Inc., CLI-01-4, 53 NRC at 71 (2001))).

103 Petition at 78.

104 Id.

105 Id. at 79.

18 claim mischaracterizes the ERs conclusion.106 It does not, as Sierra Club alleged, conclude that the WCS CISF would have no impact on the Lizards; rather it concludes for the various reasons discussed in the ER that any impact would be small.107 Notwithstanding, the Board admitted SC-13 as a contention of omission insofar as none of the five references in section 3.5.16 of [the ER] is either sufficiently described to judge its technical adequacy or made publicly available.108 ISP then supplemented its ER with copies of (or the applicable ADAMS accession numbers for) each of the studies referenced in section 3.5.16 (Source Documents),109 thereby curing the alleged omission. Accordingly, the Board properly dismissed SC-13 as moot.110 Sierra Clubs Appeal offers no challenge to this ruling.

Thereafter, Sierra Club moved to admit SC-13A, an amended version of SC-13.111 Sierra Clubs arguments in SC-13A were threefold, claiming that: (1) certain of the now-supplied Source Documents are outdated; (2) certain statements in the ER are factually inconsistent with the Source Documents; and (3) ISPs impact conclusion as to the Lizards is demonstrably false.112 The Board concluded that Sierra Clubs latter two arguments satisfied the procedural standard for submission of a late-filed amended contention.113 However, the Board rejected

106 See ISP, LBP-19-9, 90 NRC __ (slip op. at 12).

107 Id. (citing ER at 4-38); see also id. (observing that the ER candidly acknowledges potential adverse consequences, citing ER at 4-37).

108 ISP, LBP-19-7, 90 NRC at __ (slip op. at 56). ISP appealed the Boards admission of SC-13. See [ISP]s Notice of Appeal of LBP-19-7 and Brief in Support of [ISP]s Appeal of LBP-19-7 (Sept. 17, 2019)

(ML19260H452). As of the date of this filing, that appeal remains pending before the Commission.

109 Letter from Jack Boshoven, ISP, to NRC Document Control Desk, E-55041, Supplemental Information regarding References from the ISP Environmental Report (ER) Chapter 3, Description of the Affected Environment. Docket 72-1050 CAC/EPID 001028/L-2017-NEW-0002 (Sept. 4, 2019) (ML19248C915).

110 ISP, LBP-19-9, 90 NRC __ (slip op. at 4-5) (citing Duke Energy, CLI-02-28, 56 NRC at 383 & USEC, Inc.

(Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006) (contentions of omission are cured, and therefore moot, when an applicant supplies the missing information)).

111 Sierra Club Motion to Amend Contention 13 (Sept. 13, 2019) (ML19256C635); see also Amended Contention 13 (ML19256C638) (Proposed Amendment).

112 Proposed Amendment at 4.

113 ISP, LBP-19-9, 90 NRC at __ (slip op. at 6-7); but see id. at __ (Concurring Opinion of Judge Arnold)

(concluding that none of Sierra Clubs arguments satisfied the procedural standard late-filed contentions).

19 Sierra Clubs first argument as untimely because the dates of the [Source Documents] were disclosed in [ER] section 3.5.16 from the outset, and Sierra Club failed to challenge their age in its initial petition.114 On appeal, Sierra Club maintains that its first argument was based on new information, and should have been admitted.115 But the Appeal neither challenges the Boards factual observation that the age of the documents was available at the outset of the proceeding, nor explains why it could not have raised this challenge earlier. Accordingly, the Appeal identifies no error of law or abuse of discretion.

Ultimately, the Board unanimously rejected Sierra Clubs remaining arguments in SC-13A on contention admissibility grounds because they disregard, rather than dispute, the relevant information in the Source Documents, and otherwise identify no material discrepancies in the ER.116 For example, Sierra Club asserted that the 1997 Report only examined species within one mile of the WCS Low-Level Radioactive Waste (LLRW) site, whereas the proposed WCS CISF site is beyond that one mile radius.117 As the Board correctly observed, this claim is factually untrue.118 Sierra Club also opined that the 1997 Report is not a scientific survey and merely contains haphazard random observations.119 The Board correctly explained that this assertion is refuted by the 1997 Report itself,120 which describes formal

114 Id. at __ (slip op. at 7 n.39). The Board further noted that Sierra Club failed to cite any factual or legal requirement to necessarily use newer studies. Id. Thus, even if this argument satisfied the procedural standard for submission of a late-filed amended contention, it would still be inadmissible per 10 C.F.R. §§ 2.309(f)(1)(iv)-(vi).

115 Appeal at 20.

116 ISP, LBP-19-9, 90 NRC at __ (slip op. at 8-13).

117 Proposed Amendment at 2 (discussing Ecological Assessment of the Low Level Waste Depository, Andrews County, Texas at 3, 4, 7, 108-09 (May 1997) (ML19179A308) (1997 Report) (Encl. 1 to Letter from T.

Matthews to ASLB, Licensing Board Notification Regarding ISP Letter E-54423 (June 28, 2019)).

118 ISP, LBP-19-9, 90 NRC at __ (slip op. at 9) (citing ER at 3-87, clearly showing that the proposed WCS CISF would be within a mile of the LLRW site, and thus within the survey area of the 1997 Report).

119 Proposed Amendment at 2, 5.

120 ISP, LBP-19-9, 90 NRC at __ (slip op. at 9-10).

20 environmental and ecological surveys, exploring five sites in the region, conducted by a team of five doctoral-level research scientists.121 The Appeal does not challenge these conclusions.

More broadly, SC-13A argued that ISPs conclusion that the WCS CISF would have no adverse impact on the Lizards is demonstrably false because the Source Documents clearly show that the Lizards and their habitat are present at the WCS CISF site.122 As a factual matter, none of the Source Documents detail any observations of a Lizard specifically at the WCS CISF site.123 Nevertheless, Sierra Club again mischaracterizes the ERs conclusion.124 It does not conclude that the WCS CISF would have no impact on the Lizards; rather it concludes that any impact would be small because, even if some Lizards are present specifically at the WCS CISF site, they are highly adaptable.125 This conclusion is fully supported by the discussion in the ER and the underlying Source Documents, which collectively show that the WCS CISF footprint represents only a tiny fraction of the several thousand acres of adjacent Lizard habitat and, as the Board so aptly paraphrased, lizards have legs.126 On appeal, Sierra Club raises a new argument challenging the ERs conclusion that the Lizards are highly adaptable.127 But again, new arguments on appeal cannot identify errors of

121 1997 Report at 3, 4, 7, 108-09.

122 Proposed Amendment at 4-5.

123 ISP, LBP-19-9, 90 NRC at __ (slip op. at 12-13) (citing ER at 3-34 to 3-35). Sierra Club appears to conflate discussions of Lizard observations in the general area as being claims of observations at the site. Compare, e.g., Appeal at 18 (quoting the ERs assertion that Lizards may not be present on the CISF site) with id. at

19) (incorrectly claiming the prior assertion is contradicted by a different assertion that Lizards occur within the area.)

124 See ISP, LBP-19-9, 90 NRC at __ (slip op. at 12).

125 Id. (citing ER at 4-38); see also id. (observing that the ER candidly acknowledges potential adverse consequences, citing ER at 4-37).

126 Id. at __ (slip op. at 12-13).

127 Appeal at 19 (arguing that the presence of the sand dune lizards specialized habitat in the region of the WCS CISF, and the basis for the Texas horned lizards listing as threatenedi.e., over-collecting, incidental loss, and habitat disturbanceper se demonstrate the Lizards are not highly adaptable).

21 law or abuses of discretion because they were never presented to the presiding officer below.128 Thus, Sierra Club presents no valid basis to disturb the Boards rulings as to SC-13 and SC-13A.

H.

The Board Correctly Denied SC-14 (Container Licensing Period)

SC-14 stated:

The containers in which the waste will be transported to and stored at the ISP site are licensed for a period of 20 years. ISP hopes to renew the license for an additional 40 years, and then apparently hoping [sic] for additional relicensing to the projected 100-year life of the CIS facility. However, many of the containers will already have been in service for years prior to being shipped to the ISP CIS facility. Furthermore, the Continued Storage Rule assumes that the spent fuel will be transferred to new containers after 100 years. ISPs proposal may present an unacceptable danger of radioactive release. Therefore, the ER must examine the environmental impact of the containers beyond their 20-year licensing period.129 Sierra Clubs claims in SC-14 were essentially twofold. First, it argued that ISP lacks a plan for dealing with cracking or leaking containers received from its customers, or containers that become cracked or leak during storage at the WCS CISF. As a general matter, the Board appropriately cited the Commissions determination that cracked and leaking canisters in storage, transport, or otherwise is not a credible scenario.130 Furthermore, to the extent Sierra Club challenged the safety analysis or environmental review for the containers themselves, the Board correctly held that such challenges are beyond the scope of this proceeding because the NRCs safety and environmental approvals are codified in NRC regulations, whereas challenges to NRC regulations are impermissible in adjudicatory proceedings per 10 C.F.R. § 2.335.131 Sierra Club does not challenge any of these findings on appeal.132

128 USEC, CLI-06-10, 63 NRC at 458; PFS, CLI-04-22, 60 NRC at 140. Nevertheless, the information cited by Sierra Club for this new argument comes directly from the ER itself. Appeal at 19 (citing ER § 3.5.2). Thus, the new argument fails to raise a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(vi), because the ER unquestionably has presented this precise information.

129 Petition at 79.

130 ISP, LBP-19-7, 90 NRC at __ (slip op. at 57) (citing PFS, CLI-04-22, 60 NRC at 136-37).

131 Id. at __ (slip op. at 57-58).

132 Millstone, CLI-04-36, 60 NRC at 638.

22 Second, Sierra Clubs Petition claimed that the ER is insufficient because it fails to consider the potential impacts from the storage of containers beyond the initial licensed life of the WCS CISF and/or the initial licensed life of the containers.133 This argument is essentially identical to the one raised by Sierra Club in SC-5, which argued the Application was insufficient because ISP did not evaluate indefinite storage assuming the WCS CISF becomes a de facto repository.134 Sierra Club did not appeal, and therefore concedes,135 the Boards ruling on that contention (which found this argument inadmissible).136 More specifically, the Board rejected SC-5 as an impermissible challenge to the Continued Storage Rule and Continued Storage Generic EIS.137 The Board correctly rejected this aspect of SC-14 on the same grounds.138 Sierra Clubs Appeal likewise does not challenge, and therefore concedes, this conclusion.139 On appeal, Sierra Club appears to raise a new argument, challenging the SAR because it does not indicate what would happen if there is no license renewal for the containeri.e., if the container license (known as a Certificate of Compliance or CoC) expires and is not renewed.140 Sierra Club claims (without support, because there is none) that ISPs Application improperly assumes container CoC renewals will be automatic, and argues the Board erred because it did not address this fallacy.141 But this new argument fails to identify any error of law or abuse of discretion by the Board, to whom it was never even presented.142 Ultimately,

133 Petition at 80.

134 Id.

135 Millstone, CLI-04-36, 60 NRC at 638.

136 ISP, LBP-19-7, 90 NRC at __ (slip op. at 38-40).

137 Id. at __ (slip op. at 39-40).

138 Id. at __ (slip op. at 58).

139 Millstone, CLI-04-36, 60 NRC at 638.

140 Appeal at 20.

141 Id. at 20-21.

142 USEC, CLI-06-10, 63 NRC at 458; PFS, CLI-04-22, 60 NRC at 140. Moreover, the regulations, themselves, specify what would happen if the CoC expires and is not renewedthe cask must be removed from service. 10 C.F.R. § 72.212(a)(3). To the extent Sierra Club demands something more, it identifies no

23 nothing in the Appeal presents grounds to overturn the Boards rejection of SC-14.

I.

The Board Correctly Denied SC-16 (High Burnup Fuel)

SC-16 stated:

Since the 1990s almost all spent nuclear fuel being generated is high burnup fuel (HBF). HBF causes the cladding to become thinner, creating a higher risk of release of radioactive material. The cladding also becomes more brittle, with additional cracks. This situation causes risks for short-term and long-term dry storage. The SAR, 1.2.4, claims that the cask system to be used for the transportation and storage for the ISP CIS facility will not contain HBF. But the prevalence of HBF requires that the cask systems will need to contain HBF at some point. The SAR and ER must evaluate the risks of HBF.143 In short, Sierra Club identifies statements from a few documents about HBF and cladding performance issues, and concludes that the SAR and ER are required to, but do not, evaluate the safety and environmental risks of HBF transportation to, and storage at, the WCS CISF.144 As the Board correctly concluded, SC-16 is inadmissible for multiple reasons.

As to the environmental portion of SC-16, Sierra Club proffered a contention of omission, claiming that the ER [does not] discuss at all the likelihood or the impacts of [high burnup fuel] being transported to and stored at the [proposed] facility.145 However, as the Board correctly observed, ISPs analysis in the ER does encompass the possibility of HBF being sent to and stored at the facility.146 On appeal, Sierra Club purports to find error in this conclusion by raising a new argument, asserting that the portions of the ER cited by the Board

corresponding requirement in Part 72. Nor is there one. Thus, Sierra Clubs new argument impermissibly challenges Part 72, contrary to 10 C.F.R. § 2.335, and is out-of-scope, unsupported, immaterial, and fails to demonstrate a genuine dispute with the Application, contrary to 10 C.F.R. §§ 2.309(f)(1)(iii)-(vi).

143 Petition at 91.

144 Id. at 91-95.

145 Id. at 95.

146 ER at 4-12 to 4-16 (providing results of a RADTRAN analysis evaluating transportation impacts using the maximum dose rate allowed under 10 C.F.R. § 71.47(b)(3)); ER at 4-55 to 4-59 (evaluating storage impacts using bounding design basis source terms taken directly from the reactor licensing basis documents for canisters to be sent to the WCS CISF, including those that authorize storage of HBF).

24 only indirectly account for HBF.147 But this new argument fails to identify any error of law or abuse of discretion in LBP-19-7 because it was never raised before the Board.148 From the safety perspective, the Board correctly held that SC-16s challenges as to HBF transportation and storage are both outside the scope of this proceeding.149 As to storage, the Board accurately explained that ISP will only store NRC-approved storage systems.150 Accordingly, because the safety of the casks has already been considered in a different proceeding, NRC regulations explicitly prohibit challenges in this proceeding regarding the safety of the casks.151 Sierra Clubs only remark on appeal is that it did not intend SC-16 as a challenge to the safety analysis for the containers.152 But this argument is unpersuasive. The fact remains that SC-10s storage safety argument inherently challenges NRC-codified findings that are incorporated by reference in the SAR. Thus, intentional or not, this argument is impermissible as a matter of law. Accordingly, the Appeal identifies no error of law or abuse of discretion by the Board in this regard.

Likewise, the Board properly held that Sierra Clubs generalized argument regarding transportation safety is outside the scope of this proceeding. More specifically, the Board found that this proceeding is limited to ISPs request for a storage facility license under 10 C.F.R. Part

147 Appeal at 22. Sierra Club also cites a new document as support for its new argument. See id. at 21-22 (citing NUREG-1748, Environmental Review Guidance for Licensing Actions Associated with NMSS Programs

§ 6.4.2 (2003) (ML032450279)).

148 USEC, CLI-06-10, 63 NRC at 458; PFS, CLI-04-22, 60 NRC at 140. Nevertheless, Sierra Club cites no authority for the proposition that bounding (i.e., indirect) analyses are impermissible in an ER, or that an ER must use specific language to directly identify HBF by name. Nor are there any such requirements.

Additionally, Sierra Club offers no explanation as to what ISP should have done differently in the analyses, given that they used the maximum dose values permitted by law (for transportation) and the design basis source term (for storage). Ultimately, Sierra Clubs new argument impermissibly challenges Part 72, contrary to 10 C.F.R. § 2.335, and is out-of-scope, unsupported, immaterial, and fails to demonstrate a genuine dispute with the Application, contrary to 10 C.F.R. §§ 2.309(f)(1)(iii)-(vi).

149 ISP, LBP-19-7, 90 NRC at __ (slip op. at 64-65).

150 SAR 1-6 to 1-10.

151 ISP, LBP-19-7, 90 NRC at __ (slip op. at 65) (citing 10 C.F.R. 72.47(e)).

152 Appeal at 22.

25 72,153 whereas the safety and security of SNF transportation is governed by the standards in 10 C.F.R. Parts 71 and 73 and through regulations issued by the U.S. Department of Transportation (DOT) and subject to separate approval proceedings.154 The Appeal does not dispute, and therefore concedes, this conclusion.155 Ultimately, Sierra Club has failed to identify any error of law or abuse of discretion in the Boards decision rejecting SC-16.

IV.

CONCLUSION For the reasons set forth above, the Commission should deny Sierra Clubs Appeal.

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

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

Washington, D.C. 20004 Phone: 202-739-5274 Email: ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

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

Washington, D.C. 20004 Phone: 202-739-5527 Phone: 202-739-5796 Email: timothy.matthews@morganlewis.com Email: paul.bessette@morganlewis.com Dated in Washington, D.C.

this 7th day of January 2020 Counsel for Interim Storage Partners LLC

153 ISP, LBP-19-7, 90 NRC at __ (slip op. at 64).

154 See Private Fuel Storage LLC (Indep. Spent Fuel Storage Installation), LBP-99-34, 50 NRC 168, 176-77 (1999) (stating that shipment of spent nuclear fuel [is] governed by Part 71 and do[es] not require a specific license under Part 72); State of N.J. (Dept of Law & Public Safetys Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 294 (1993); Trustees of Columbia University in the City of New York, ALAB-50, 4 AEC 849, 863 (1972) (stating that DOT regulations govern the safety of radioactive material transportation).

155 Millstone, CLI-04-36, 60 NRC at 638.

DB1/ 110589462 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:

INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)

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Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 January 7, 2020 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing Sierra Clubs Appeal of LBP-19-7 and LBP-19-9 was filed through the E-Filing system.

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

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

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