ML20043F076
| ML20043F076 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 02/12/2020 |
| From: | Laughlin T Fasken Oil and Ranch, Ltd, Laughlin Law Office, Permian Basin Land and Royalty Owners |
| To: | Gary Arnold, Paul Ryerson, Nicholas Trikouros Atomic Safety and Licensing Board Panel, NRC/OCAA, NRC/SECY |
| SECY RAS | |
| References | |
| ASLBP 19-959-01-ISFSI-BD01, RAS 55562, WCS CISF 72-1050-ISFSI | |
| Download: ML20043F076 (6) | |
Text
February 12, 2020 Administrative Judge Paul S. Ryerson, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: 0-16B33 Mail Stop: T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 Email: ocaamail@nrc.gov Email: paul.ryerson@nrc.gov U.S. Nuclear Regulatory Commission Administrative Judge Office of the Secretary Nicholas G. Trikouros Mail Stop: 0-16B33 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Email: hearingdocket@nrc.gov Mail Stop: T-3F23 Washington, DC 20555-0001 Email: nicholas.trikouros@nrc.gov Administrative Judge Dr. Gary S. Arnold Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 Email: gary.arnold@nrc.gov RE: Interim Storage Partners Waste Control Specialist CISF, Docket No. 72-1050; Appeal of Staff Denial of Petitioners Request for SUNSI Information Related to ISPs Responses to RAIs.
Dear Judges Ryerson,
Trikouros, Arnold and the NRC Commission, On January 16, 2020, Fasken and PBLRO (Petitioners) in the above-referenced docket requested access to SUNSI-protected portions of Interim Storage Partners (ISPs) response to RAIs.1 On January 27, NRC Staff denied this request. Please consider this correspondence as our appeal of Staffs denial.
In its denial, Staff concluded that access procedures to SUNSI-related information no longer apply once an intervention petition is granted.2 In the South Texas Project decision, the 1 Specifically, Petitioners requested access to Figures 3.1-5, 3.1-6, 3.1-7, 3.1-8, Attachment LU-2-1 and a native (spreadsheet) file containing references to oil and gas well locations, types, depths, and other relevant information that could relate to Petitioners Second Contention regarding oil and gas wells.
2 Citing South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-10-24, 72 NRC 451, 461 (2010).
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Commission stated that the purpose of the access order is to provide an avenue for access to documents through which potential parties already would have been accorded access but for their containing SUNSI or Safeguards Information. Id. at 462. Given that the Commission has not addressed Petitioners appeal of the ASLBs order denying their petition, Petitioners are still potential parties to this proceeding3 and therefore should have been granted access to the requested SUNSI information upon their adequate showing of need.4 Even if Petitioners are not deemed potential parties, limiting access to SUNSI information solely to intervenors prevents petitioners, and intervenors whose admissible contentions are eventually dismissed, from meaningfully participating in the proceedings. In South Texas Project, the Commission stated that Staff has an obligation to make documents available to ensure[] that intervenors have enough information to support existing contentions and to frame fresh ones (if new information emerges).5 Therefore, the only way to support existing contentions based on newly submitted SUNSI information is for a party to be an intervenor.
Restricting access to SUNSI information in this fashion is grossly irrational. For instance, in this given proceeding, only one party had this opportunity to access new, SUNSI-related material. On August 23, 2019, after the ASLB granted its petition to intervene, Sierra Club became the only intervenor in the above-mentioned proceedings. On November 18, 2019, less than three months later, and after ISP provided the missing information that Sierra Clubs contention was premised upon, the ASLB ordered that Sierra Clubs contention was moot and dismissed their petition.
Had ISP submitted new SUNSI information between August 23 and November 18, Sierra Club would have been able to request access to that information had it shown good cause and a need for the given information. However, since the record was closed on December 13, 2019, no party, including Petitioners, has the ability to amend previously-filed contentions based on newly submitted SUNSI information unless they can successfully reopen the record and become an intervenor by proffering a new or amended contention based on non-SUNSI information.6 To 3 The NRC's interpretation that "potential party" access requires a filed admissible contention is contrary to its own definition of "potential party" found at 10 CFR 2.4 ("potential party" means any person who has requested, or who may intend to request, a hearing or petition to intervene in a hearing under 10 CFR part 2, other than hearings conducted under Subparts J and M of 10 CFR part 2) (emphasis added).
4 To show a need, a potential party must explain how the requested SUNSI is necessary for meaningful participation in the proceeding. In essence, this means that the request for SUNSI should include: (1) an explanation of the importance of the requested information to the proceeding, i.e., how the information relates to the license application or to NRC requirements or guidance, and how it will assist the requester in seeking intervention; and (2) an explanation of why existing publicly-available versions of the application would not be sufficient. South Texas Project, 72 NRC at 465 (emphasis added).
5 Id. at 462, n. 70.
6 To the extent that the Board would allow discovery [of SUNSI information] to enable a petitioner to support or otherwise augment the formulation of an intervention petition, the board would be in error. [The Commission] has long held that discovery is not permitted before a petition to intervene has been granted. Id; See also Metropolitan Edison Co. (Three Mile Island 2
place a restriction on access to relevant SUNSI information provided by an applicant after all contentions in a proceeding are dismissed and the record is closed by the ASLB allows new information to be covered up without fear that it will be challenged. This is a violation of Petitioners due process rights afforded by Fed. R. Civ. P. 26(b)(1).7 Without access to this information, Petitioners will never know whether their contention is moot or needs to be amended.
Petitioners criticize the proprietary nature of the information withheld. Petitioners require access to ISPs alleged SUNSI information because it is directly relevant to Petitioners oil and gas contention currently on appeal. Access to this information will provide Petitioners the understanding whether their oil and gas contention needs to be amended and whether the information satisfies ISPs burden of complying with 10 C.F.R. § 72.103(a)(1).8 ISPs SUNSI information is also directly related to whether ISPs application complies with 10 C.F.R. § 51.54(b) and 10 C.F.R. § 51.45(b)(1).
It is Petitioners understanding that presently there are no publicly available versions of Figures 3.1-5, 3.1-6, 3.1-7, 3.1-8, Attachment LU-2-1 and the native (spreadsheet) file referenced in ISPs response to RAIs. Given that Petitioners have proven a need to access these files, we pray that the ASLB and/or the Commission will grant access to this information.
Given that Petitioners have appealed the ASLBs decision denying their original petition and that a final decision has not been issued by the Commission in the above-referenced proceeding, 10 C.F.R. § 2.318(a) appears to retract the Boards jurisdiction to consider amended contentions and access to SUNSI information and gives the Presiding Officer continuing jurisdiction with the authority to consider this issue up until the time a final decision has been made by the Commission. Given the uncertainty of jurisdiction, Petitioners file this appeal before both the Board and the Commission to ensure that it is properly considered.
Nuclear Station, Unit No. 1), CLI-85-7, 21 NRC 1104, 1106 (1985) (The movant is not entitled to engage in discovery in order to support a motion to reopen.).
7 See Fed. R. Civ. P. 26(b)(1) (Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense and proportional to the needs of the case); See also South Texas Project Nuclear Operating Co., (South Texas Project Units 3 and 4), LBP 02, 71 NRC 190, 203 (2010) (The ASLB view[s] the standard for obtaining access to SUNSI similar to that used in determining whether a discovery request is permissible under the Federal Rules of Civil Procedure.); Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2) LBP-10-23, 72 NRC 692, 706 (2010) (The NRCs mandatory disclosure regulations are based on FRCP 26.)
8 The Commission has stated that [i]n our view, a statement that Intervenors needed the report to assess whether their original contention had been rendered moot, or a statement that the report was an essential source of information to determine whether to amend their original contention, would suffice to establish the requisite need for the document. South Texas Project, 72 NRC at 465.
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Respectfully submitted,
/s/ Timothy J. Laughlin Laughlin Law Office, LLC PO Box 481582 Kansas City, MO 64148 (913) 662-1274 tijay1300@gmail.com Counsel for Petitioners 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board and The Commission In the Matter of
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Docket No. 72-1050
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Interim Storage Partners, LLC
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February 12, 2020
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(Waste Control Specialists Consolidated
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Interim Storage Facility)
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CERTIFICATE OF SERVICE I hereby certify that on February 12, 2020 a copy of Petitioners February 12, 2020 Letter Appealing NRC Staff Denial of Petitioners Request for SUNSI Information Related to ISPs Responses to RAIs was served by the Electronic Information Exchange on the following recipients:
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O16-B33 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Paul S. Ryerson, Chair Administrative Judge E-mail: paul.ryerson@nrc.gov Nicholas G. Trikouros Administrative Judge E-mail: nicholas.trikouros@nrc.gov Dr. Gary S. Arnold Administrative Judge E-mail: gary.arnold@nrc.gov Ian Curry, Law Clerk Stephanie Fishman, Law Clerk Molly Mattison, Law Clerk Taylor Mayhall, Law Clerk E-mail: ian.curry@nrc.gov stephanie.fishman@nrc.gov molly.mattison@nrc.gov taylor.mayhall@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O16-B33 Washington, DC 20555-0001 Hearing Docket E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Joe Gillespie, Esq.
Sara Kirkwood, Esq.
Mauri Lemoncelli, Esq.
Patrick Moulding, Esq.
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Kevin Roach, Esq.
Carrie Safford, Esq.
Thomas Steinfeldt Alana Wase, Esq.
Brian Newell, Senior Paralegal Nicholas Moran, Legal Intern E-mail: joe.gillespie@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov patrick.moulding@nrc.gov kevin.roach@nrc.gov carrie.safford@nrc.gov thomas.steinfeldt@nrc.gov alana.wase@nrc.gov brian.newell@nrc.gov nicholas.moran@nrc.gov Counsel for Beyond Nuclear Diane Curran, Esq.
Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Mindy Goldstein, Esq.
Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 E-mail: magolds@emory.edu Nuclear Information and Resource Service (NIRS)
Diane DArrigo 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 Email: dianed@nirs.org Sustainable Energy and Economic Development (SEED) Coalition Karen D. Hadden Executive Director, 605 Carismatic Lane Austin, TX 78748 E-mail: karendhadden@gmail.com Counsel for Interim Storage Partners LLC Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Grant Eskelsen, Esq.
Timothy Matthews, Esq.
Ryan Lighty, Esq.
Paul Bessette, Esq.
E-mail: grant.eskelsen@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com paul.bessette@morganlewis.com Chris Hebner, Esq.
City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283 E-mail: chris.hebner@sanantonio.gov Counsel for Sierra Club Wallace Taylor 4403 1st Avenue S.E.
Suite 402 Cedar Rapids, IA 52402 E-mail: wtaylorlaw@aol.com Counsel for Dont Waste Michigan, et al Terry Lodge, Esq.
316 N. Michigan Street Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com 6