ML20049A373

Interim Storage Partners LLCs Answer Opposing Faskens and Pblros Motion to Reopen the Record and Motion for Leave to Amend Contention Four

ML20049A373
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	02/18/2020
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, RAS 55568
Download: ML20049A373 (25)

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 February 18, 2020 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS MOTION TO REOPEN THE RECORD AND MOTION FOR LEAVE TO AMEND CONTENTION FOUR Timothy P. Matthews, Esq.

Paul M. Bessette, Esq.

Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Interim Storage Partners LLC

TABLE OF CONTENTS I.

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

BACKGROUND............................................................................................................... 3 A. Procedural History....................................................................................................... 3 B. Summary of Relevant Portions of ISPs Application Discussing Groundwater and Potential Radiological Contamination......................................................................... 4 C. ISPs November 21, 2019 RAI Response.................................................................... 7 III.

LEGAL STANDARDS..................................................................................................... 8 A. Late-Filed New or Amended Contentions................................................................... 8 B. Reopening.................................................................................................................... 9 C. Contention Admissibility........................................................................................... 10 IV.

THE COMMISSION SHOULD DENY FASKENS MOTIONS AND REJECT AMENDED CONTENTION 4 AS INADMISSIBLE................................. 11 A. Fasken Has Not Satisfied the Commissions Strict Standards for Late-Filed Contention Amendments............................................................................................ 11

1. The Motion for Leave Is Not Based on New and Materially Different Information. 12

2. The Motion for Leave Is Untimely............................................................................. 17 B. Fasken Has Not Satisfied the Commissions Strict Reopening Standards................ 18

1. The Motion to Reopen Was Not Timely Filed........................................................... 18

2. The Motion to Reopen Fails to Identify a Significant Environmental Matter........ 18

3. The Motion to Reopen Fails to Demonstrate That the Board Would Have Reached a Materially Different Result........................................................................................ 20 C. Faskens Amended Contention Four Is Inadmissible................................................ 20 V.

CONCLUSION............................................................................................................... 22

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 February 18, 2020 INTERIM STORAGE PARTNERS LLCS ANSWER OPPOSING FASKENS AND PBLROS MOTION TO REOPEN THE RECORD AND MOTION FOR LEAVE TO AMEND CONTENTION FOUR I.

INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(i)(1) and 2.323(c), Interim Storage Partners LLC (ISP) submits this Answer opposing Fasken Oil and Ranch, Ltds and Permian Basin Land and Royalty Owners (collectively Fasken) Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information1 (Motion to Reopen) and Motion for Leave to Amend Contention Four Regarding [ISPs] New Description of Groundwater Located Below the Site and the Potential Impact the Site Will Have on the Groundwater2 (Motion for Leave). The former Atomic Safety and Licensing Board (Board) terminated the above-captioned adjudicatory proceeding on December 13, 2019,

1 Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners in Response to NRC Requests for Additional Information (Jan. 21, 2020)

(ML20021A384) (Motion to Reopen).

2 Fasken Oil and Ranch, Ltd and Permian Basin Land and Royalty Owners Motion for Leave to Amend Contention Four (Jan. 21. 2020) (ML20021A385) (Motion for Leave).

2 because no admissible contentions were pending.3 Faskens instant motions request that the record of the proceeding be reopened, and that a late-filed amendment to their previously-rejected Contention 4 be admitted. More specifically, Fasken argues that its Motions should be granted so that it may challenge information in an RAI Response that ISP recently provided to the NRC.

Fasken asserts that the information in the RAI Response is new, and therefore its late-filed challenge should be allowed. However, as explained in further detail below, Fasken seriously misrepresents the content of the RAI Response, and has not identified any new and materially different information that would warrant the extreme action of reopening a closed adjudicatory proceeding. As explained below, the Commission4 should deny Faskens Motions because they fail to meet the applicable requirements of Section 2.326 for motions to reopen and 2.309(c)(1) for late-filed contention amendments, and should reject Amended Contention 4 as inadmissible under Section 2.309(f)(1).

3 Interim Storage Partners LLC (Consolidated Interim Storage Facility), LBP-19-11, 90 NRC __ (Dec. 13, 2019) (slip op.).

4 Fasken indicates that it does not know whether the Commission or the Board has jurisdiction over its Motions.

However, the precedent is clear that jurisdiction rests with the Commission. See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009) (Generally, once there has been an appeal or petition to review a Board order ruling on intervention petitions... jurisdiction passes to the Commission, including jurisdiction to consider any motion to reopen.) (citing Ne. Nuclear Energy Co., (Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 NRC 355, 357 (2000); Phila. Elec. Co.,

(Limerick Generating Station, Units 1 and 2), ALAB-823, 22 NRC 773 (1985)).

3 II.

BACKGROUND A.

Procedural History5 On October 29, 2018, Fasken, filed a Petition for Intervention and Request for Hearing, proffering five contentions.6 As relevant here, Contention 4 claimed that ISP has failed to adequately discuss and evaluate the impact the proposed site will have on the environment and has also failed to include adverse information specifically relating to [the] potential of waste-contaminated groundwater traveling to aquifers and other groundwater formations located below and around the proposed site.7 Following oral argument in Midland, Texas, on July 10-11, 2019, the Board ruled that while Fasken demonstrated standing, it failed to proffer an admissible contention.8 As to Contention 4, the Board found that it was inadmissible because Fasken provided no factual basis for the contention and raised no genuine dispute with the application.9 The Board found that Fasken failed to establish a factual basis for the contention because it did not challenge ISPs assertion that both the dry cask storage method and the canisters preclude any credible pathway for groundwater contamination or otherwise challenge the portions of ISPs Environmental Report (specifically, Revision 2) (ER) where ISP asserted that a leak of contaminants is not credible.10 And because Fasken failed to challenge ISPs determination that the facilitys design precludes a pathway to groundwater contamination, the Board found that

5 A detailed procedural history of the full proceeding is set forth in LBP-19-7 and LBP-19-9. Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-7, 90 NRC __, __ (Aug. 23, 2019) (slip op. at 6-12); Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-9, 90 NRC

__, __ (Nov. 18, 2019) (slip op. at 2-4).

6 Petition of Permian Basin Land and Royalty Organization and Fasken Land and Minerals for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412) (Petition).

7 Petition at 26.

8 ISP, LBP-19-7, 90 NRC at __ (slip op. at 18-20, 105).

9 Id. at __ (slip op. at 102-03).

10 Id.

4 Fasken did not raise a genuine dispute with the application.11 The Board also noted that Contention 4 addressed only ISPs Safety Analysis Report (SAR), but did not mention any portion of ISPs ER, including sections evaluating groundwater impacts.12 The Board ultimately terminated its proceeding.13 Fasken appealed the Boards rejection of its contentionsincluding Contention 4on September 17, 2019.14 ISP answered Faskens appeal on October 15, 2019.15 That appeal remains pending before the Commission. Fasken now seeks to reopen the terminated adjudicatory proceeding16 and leave to amend Contention 4.17 B.

Summary of Relevant Portions of ISPs Application Discussing Groundwater and Potential Radiological Contamination ISPs SAR describes the design of the CISF and how the design limits the possibility of a radiological release.18 ISP will use storage overpacks to store canisters containing SNF and greater-than-Class C (GTCC) waste, and only containerized SNF and GTCC are authorized for storage at the CISF.19 ISP will not open canisters, nor will it remove SNF assemblies or GTCC

11 Id. at __ (slip op. at 103).

12 Id.

13 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-11, 90 NRC __, __ (Dec.

13, 2019) (slip op. at 14).

14 Fasken and PBLROs Notice of Appeal of LBP-19-07 (Sept. 17, 2019) (ML19260J387) and Fasken and PBLROs Brief on Appeal of LBP-19-07 (Sept. 17, 2019) (ML19260J386) (Appeal).

15 Interim Storage Partners LLCs Answer Opposing Faskens and PBLROs Appeal of LBP-19-7 (Oct. 15, 2019) (ML19288A283).

16 See Motion to Reopen. As a procedural matter, the Motion to Reopen must be rejected because Fasken failed to comply with the consultation requirement of 10 C.F.R. § 2.323(b). Fasken states that communications were made but [n]either ISP nor NRC Staff responded. Motion to Reopen at 11. What Fasken fails to mention is that it filed its pleading the same day it sent its consultation email. It did not even wait 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> for a response. The regulation requires movants to make a sincere effort to consult, not merely a communication of its planned filing. Faskens drive-by consultation can hardly be considered sincere by any reasonable measure.

17 See Motion for Leave.

18 ISP, License Application, Rev. 2, Docket No. 72-1050 ((ML18206A595) (package)) (includes Safety Analysis Report (SAR), Rev. 2 and Environmental Report (ER), Rev. 2).

19 SAR at 2-35 and 9-13.

5 waste from the canisters at the CISF, and the canisters will be drained of all liquid, dried, and backfilled with inert atmosphere before they are shipped to the CISF.20 This means that the SNF and GTCC will be stored dry inside the canisters so that no radioactive liquid is available for release.21 ISP will store no liquid or process GTCC waste at the CISF,22 and ISP will not generate radioactive liquid wastes during the receipt, transfer, and storage of containerized SNF of GTCC at the CISF.23 ISPs ER describes the location of the proposed CISF and how the natural barriers limit the impact of any release. The site region has a semi-arid climate, with low precipitation rates and minimal surface water occurrence. As a result, the potential for negative impacts on surface water resources is very low due to a lack of water presence and formidable natural barriers to any surface or subsurface water occurrences. ISPs initial analysis of maximum potential levels of radioactivity in rainwater due to surface contamination of the dry casks show that any potential levels of radioactive discharges would be well below (two orders of magnitude or more) the effluent discharge limits of 10 C.F.R. Part 20, Appendix B.24 ISPs ER also describes the subsurface formations and aquifers around the site.25 From a groundwater protection perspective, the ER notes that the proposed CISF benefits from a thick

20 Id.

21 Id.

22 Id. at 3-3.

23 Id. at 6-3. See also id. at 9-18 (There are no liquid or gaseous effluent releases from the WCS CISF.); 9-30 (As described in Section 6.1.2.1, there are no radioactive liquid radioactive wastes to monitor for the WCS CISF.); Application at 5-1 (Operation of the WCS CISF will not create any radioactive materials or result in any credible liquid or gaseous effluent release.).

24 ER at 4-31. That the Application does not consider credible a mechanism for transport of radionuclides should not be surprising at all. Indeed, the Commission reached the same conclusion in its consideration of whether to require an EPZ for away-from-reactor ISFSIs. See Final Rule, Emergency Planning Licensing Requirements for Independent Spent Fuel Storage Facilities (ISFSI) and Monitored Retrievable Storage Facilities (MRS), 60 Fed. Reg. 32,430, 32,431, 32,435 (June 22, 1995).

25 ER at 3-24 to 3-28.

6 confining layer of red bed claywhich has extremely low permeabilitythe top of which lies approximately 45-100 feet beneath the proposed site.26 The ER also includes data from several monitoring wells (extending approximately to the top of the red clay) located within and around the proposed CISF site.27 The data show that most of these wells are dry, but a few contain small amounts of saturated gravel (on the order of a few inches to a few feet) perched atop the red bed clay (due to its extremely low permeability).28 The ER further explains that the only regular water-bearing formations (i.e., aquifers) in the general area are the Trujillo Formation (approximately 600 feet below ground surface) and the Santa Rosa Formation (approximately 1,140 feet below ground surface).29 However, the ER also notes that a few isolated perched lenses of water exist in certain areas,30 and that the shallowest transmissive zone that contains confined groundwater is approximately 225 feet deep at the site.31 Based on the design of the CISF and the site characteristics, ISP concludes that the storage system design and construction, along with environmental monitoring of the storage pad, combine to make the potential for contaminant release through this system extremely low. And because of several subsurface geological factors, including the low permeability of the red bed clay underlying the site, groundwater at the site would not likely be impacted by any potential releases.32 In summary, the method of storage (dry cask), the canisters themselves, the extremely

26 ER at 3-16, 3-25, 4-28, 4-65.

27 ER at 3-92 (fig. 3.3-1), 3-101 (fig. 3.4-2).

28 Id.

29 ER at 3-27.

30 Id.

31 ER at 3-24. Geochemical data shows no communication with the shallow perched zones of water situated at the top of the red bed clay.

32 ER at 4-29 to 4-30.

7 low permeability of the red bed clay underlying the site, and the depth to groundwater beneath the site, preclude the possibility of groundwater contamination from the operation of the CISF.33 C.

ISPs November 21, 2019 RAI Response ISP submitted RAI responses on November 21, 2019, titled Interim Storage Partners Submission of Responses for RAIs and Associated Document Markups from First Request for Additional Information, Part 3 (RAI Response). The NRC uploaded ISPs submittal to ADAMS on January 6, 2020.34 In response to RAI WR-11, ISP provided a narrative summary of the previously-furnished data for the monitoring wells at and near the CISF site, noting that the shallowest groundwater directly below the CISF site was approximately 90 to 100 feet below the site and consisted of sediments with a few inches to a few feet of saturation.35 This was not new information because the actual well data was already present in the ER.36 Thus, no corresponding changes to the ER were necessary. On a related matter (as noted above), the ER stated that the shallowest water-bearing zone was 225 feet deep at the site.37 ISPs RAI Response revised that statement in the ER to clarify that it pertained, more specifically, to a siltstone/sandstone lense below the neighboring WCS low-level waste facility.38 In RAI WR-3, Staff requested, and ISP provided, certain clarifying information regarding water chemistry data related to surface water near the site known as Baker Spring.39 And in RAI WR-6, Staff requested that ISP provide a simplified description of the regional stratigraphic

33 ER at 3-25.

34 ISPs Submission of Responses for RAIs and Associated Document Markups from First Request for Additional Information, Part 3 (Nov. 21, 2019) (ML19337B502 (package)) (RAI Response).

35 RAI Response, Encl. 3 at 59.

36 ER at 3-92 (fig. 3.3-1).

37 Id. at 3-24.

38 RAI Response, Encl. 3 at 59.

39 Id. at 33.

8 column illustrated in SAR figure 2-13. As part of that response, ISP noted that an earlier investigation of the area lacked sufficient boring data to distinguish the contacts between certain sands and gravels in the interlaced subsurface formations (Ogallala, Antlers, and Gatuna).40 Fasken now asks the Commission to reopen the adjudicatory proceeding and for leave to file an amended Contention 4 based on its claim that the RAI Response contains new and material information identifying a significant environmental issue.41 III.

LEGAL STANDARDS A.

Late-Filed New or Amended Contentions Given the need for finality in the hearing process,42 the Commission frown[s] on the filing of new contentions at the eleventh hour of an adjudication.43 Petitioners seeking to amend their original contentions must meet the good cause standard in 10 C.F.R. § 2.309(c)(1).

Section 2.309(c)(1) states that good cause exists only if the petitioner can show: (1) the information upon which the amended or new contention is based was not previously available; (2) the information upon which the filing is based is materially different from information previously available; and (3) the filing has been submitted in a timely fashion based on the availability of the subsequent information.44 The petitioner has the burden of demonstrating that any new contention meets the standards in 10 C.F.R. § 2.309(c)(1).45

40 Id. at 45.

41 See generally, Motion to Reopen; Motion for Leave.

42 See, e.g., Private Fuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 n.18 (2005) (Obviously, there would be little hope of completing administrative proceedings if each newly arising allegation required an agency to reopen its hearings); Vt. Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, Inc., 435 U.S. 519, 555 (1978); Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538 (May 30, 1986) (discussing [p]rinciples of finality and noting the purpose of the rule is to ensure that finality will attach to the hearing process because

[o]therwise it is doubtful whether a proceeding could ever be completed.).

43 Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station),

CLI-11-2, 73 NRC 333, 338 (2011) (citation omitted).

44 10 C.F.R. § 2.309(c)(1)(i)-(iii).

45 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260-61 (2009).

9 B.

Reopening The Commission considers reopening the record to be an extraordinary action.46 Accordingly, the Commission imposes a deliberately heavy burden upon a participant seeking to reopen a closed record.47 To meet this burden, 10 C.F.R. § 2.326(a) requires a party seeking to reopen the record to affirmatively show that its motion: (1) was timely filed, (2) concerns a significant safety issue or environmental matter, and (3) demonstrates that, had the newly proffered evidence been considered initially, the Atomic Safety and Licensing Board (ASLB) would have reached a materially different result.48 As to the second requirement, a movant must affirmatively demonstrate the existence of evidence that (a) is new, (b) is significant, and (c) will paint a seriously different picture of the environmental landscape.49 Finally, section 2.326(b) requires that:

The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movants claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.50

46 Vt. Yankee, CLI-11-2, 73 NRC at 338 (citation omitted).

47 Id. (quoting AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008)). See also Oyster Creek, CLI-09-7, 69 NRC at 287 (citing La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986)).

48 10 C.F.R. § 2.336(a); see Oyster Creek, CLI-08-28, 68 NRC at 674. See also Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-12-3, 75 NRC 132, 143 (2012) (All of the factors in [10 C.F.R. §] 2.326 must be met in order for a motion to reopen to be granted.).

49 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 29 (2006)

(finding that claimed additional environmental impacts were not so significant or central to the FEISs discussion of environmental impacts that an FEIS supplement (and the consequent reopening of our adjudicatory record) is reasonable or necessary).

50 10 C.F.R. § 2.326(b).

10 As the Commission recently noted, [t]he level of support required for a motion to reopen is greater than that required for a contention under the general admissibility requirements of 10 C.F.R. § 2.309(f)(1).51 Bare assertions and speculation, even those supplied by an expert in a sworn affidavit, do not supply the requisite support for a motion to reopen.52 The Commission has held that the burden of satisfying the reopening requirements is a heavy one, [and]

proponents of a reopening motion bear the burden of meeting all of [these] requirements.53 C.

Contention Admissibility 10 C.F.R. § 2.309(f)(1) establishes the basic criteria that all contentions must meet in order to be admissible.54 That section requires that each contention:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue... ; and (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.55

51 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-17-07, 85 NRC 111, 116 (2017).

52 Oyster Creek, CLI-08-28, 68 NRC at 674.

53 Oyster Creek, CLI-09-7, 69 NRC at 287 (internal quotations omitted).

54 Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 572 (2006). See also USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006) (stating that the Commission will reject any contention that does not satisfy the requirements).

55 10 C.F.R. § 2.309(f)(1)(i)-(vi).

11 The Commission has strictly applied these contention admissibility requirements in NRC adjudications.56 Failure to comply with any one of these criteria is grounds for the dismissal of a contention.57 The requirements are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.58 The hearing process is reserved for genuine, material controversies between knowledgeable litigants.59 Further, a petitioner must do more than assert generally that there are deficiencies in the application. A petitioner must identify all pertinent portions of the document it is challenging and state both the challenged position and the petitioners opposing view.60 To demonstrate a genuine, material dispute, the petitioner must address the specific analysis in the document and explain how it is incorrect.61 To show that a dispute is material, a petitioner must show that its resolution would make a difference in the outcome of the proceeding.62 IV.

THE COMMISSION SHOULD DENY FASKENS MOTIONS AND REJECT AMENDED CONTENTION 4 AS INADMISSIBLE A.

Fasken Has Not Satisfied the Commissions Strict Standards for Late-Filed Contention Amendments Fasken asserts their amended contention is based on new information arising from recently submitted ISP responses to requests for additional information (RAIs).63 Specifically,

56 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118 (2006) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsideration denied, CLI-02-1, 55 NRC 1 (2002)).

57 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999). See also Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

58 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

59 FirstEnergy Nuclear Op. Co. Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC393, 396 (2012)

(quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 219 (2003)).

60 Millstone, CLI-01-24, 54 NRC at 358.

61 10 C.F.R. § 2.309(f)(1)(vi).

62 See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3) CLI-99-11, 49 NRC 328, 333-34 (1999).

63 Motion for Leave at 1.

12 Fasken asserts that ISP has completely revised its description of the groundwater located below the CISF64 and that descriptions of groundwater location and depth are materially different than descriptions provided before.65 Further, Fasken asserts that ISP has admitted to having insufficient boring data66 and therefore [c]learly, the red bed clays [beneath the CISF] will not provide a natural barrier to the groundwater located inches below the site.67 As shown below, these assertions are factually incorrect and significantly mischaracterize the content of the RAI Response. Faskens geologist, Aaron Pachlhofer, apparently misunderstands ISPs RAI Response (and corresponding updates to the ER) and suggests, without reasoned explanation, that they constitute material changes to ISPs conclusion regarding the possibility of groundwater contamination. Moreover, because the information Fasken relies on is not new, the Motion for Leave is untimely. Accordingly, it should be denied.

1.

The Motion for Leave Is Not Based on New and Materially Different Information In support of its Motion for Leave, Fasken specifically points to allegedly new and materially different information in three specific discussions within the RAI Response. More specifically, Fasken relies on ISPs discussions regarding RAIs WR-11, WR-6, and WR-3.

However, as explained below, none of the information identified by Fasken in these discussions is new or materially different. Thus, its Motion for Leave should be denied.

64 Id. at 6.

65 Id. at 7.

66 Id.

67 Id. at 16.

13

a.

RAI WR-11 ISPs discussion of Subsurface Hydrology in the ER noted that the shallowest water-bearing zone is about 225 feet deep at the site.68 In response to Staffs RAI WR-11, ISP revised the ER to clarify that this statement pertained, more specifically, to a siltstone/sandstone lense below the neighboring WCS facility. ISPs RAI response also explained that:

The shallowest groundwater beneath the proposed CISF footprint is a few inches to a few feet of saturation in the undifferentiated Antlers/Ogallala sediments starting at the northern fence line of the Protected Area in the northeast corner. The sand and gravels containing the water at a 90- to 100- foot depth are part of the hydrostratigraphic unit termed the Antlers/Ogallala/Gatuna (OAG) by ISP join venture member Waste Control Specialists. The OAG comprises laterally contiguous sands and gravels of the Tertiary Ogallala, Cretaceous Antlers and Cenozoic Gatuna Formations and at the Waste Control Specialists facility this unit is discontinuous and largely dry or unsaturated beneath with Waste Control Specialists facilities. 69 In its Motion for Leave, Fasken and its geologist apparently misread this statement as a new assertion that groundwater lies a few inches to a few feet below the surface of the proposed CISF site. But that is not what this statement says. Even so, Fasken contends that the alleged change in reported groundwater depthfrom 225 feet in the ER to a few inches to a few feet in the RAI Responseis material to its argument that radiological contamination of groundwater is a credible scenario. As explained below, however, Fasken not only misunderstands the statement in the RAI response but entirely disregards the fact that this information (identifying the precise location, depth, and thickness of groundwater) has long been available in the ER; it has not changed.

First, Fasken repeatedly and selectively quotes the first sentence in the statement above without including the following sentence, which provides important context noting that these

68 ER § 3.4.14 (3-24 to 3-29).

69 RAI Response, Encl. 3 at 59.

14 pockets of saturated sediment (each containing a few inches to a few feet of water) are found at a 90- to 100- foot depth below the surface. Faskens selective quotation creates the misimpression that groundwater lies shovel-depth below the CISF site, which is simply not the case.

Second, this information has long been available in the ER. For example, figure 3.3-1 shows that the surface lies at ground elevation 3500.60 feet and the top of the red bed clay lies at elevation 3413.60 feet for monitoring well PZ-47.70 And figure 3.4-2 shows that the groundwater elevation for that same well is 3416.32 feet.71 Using simple math, an individual and especially a licensed geologist72can discern that a pocket of water 2.72 feet deep (3416.32

- 3413.60) begins at a depth of 87.0 feet below the surface (3500.60 - 3413.60). In other words, although ISPs RAI Response includes a generalized narrative summary of this information, the information itself is not new.

ISP presented information on the presence of a few pockets of saturation (i.e., a few inches to a few feet thick) perched atop the red bed clay (at a depth below the site of approximately 90-100 feet) in ER figures 3.3-1 and 3.4-2,73 and this information has been available to Fasken since before the original deadline for hearing requests and petitions to intervene. Furthermore, ISP revised none of this information in the RAI Responseanother indication that nothing in the RAI Response in any way altered this previously-available data.

70 ER at 3-92 (fig. 3.3-1).

71 Id. at 3-101 (fig. 3.4-2).

72 Fasken submits an Affidavit from Aaron Pachlhofer in support of its Motion to Reopen and Motion for Leave.

See Affidavit of Aaron Pachlhofer (Jan. 21, 2020) (ML20021A386). Mr. Pachlhofer, who claims he is a licensed geologist, refers to ISPs data regarding monitoring wells PZ-47 and PZ-57 in his Affidavit. See id. at

4. Even so, he inexplicably asserts that ISPs response to RAI WR-11 presents new information about the presence of groundwater a few inches beneath the CISF footprint. Id. at 3, ¶ 2.D (emphasis added).

73 ISPs RAI Response did include revised versions of these tables, but only to make unrelated changes requested by NRC Staff, such as removing depiction of a cancelled rail line. There were no changes to the well data originally provided in the ER.

15 ISP made no changes to the well data in figure 3.3-1, which provides data on the depth from the surface to the top of the red bed ridge at each monitoring well location.74 ISP also made no changes to figure 3.4-2, which depicts the specific depths and locations of dry and saturated wells below the CISFand clearly depicts the presence of a dry line and the limited presence of water in certain wells in the northeast corner of the CISF site. In summary, Faskens repeated erroneous assertion that groundwater sits a few feet to a few inches below the surface of the proposed CISF site is not supported by the RAI response. And information regarding the presence of shallow water at a few wells approximately 90 feet below the CISF site is not new.

Moreover, even if it were new, Fasken makes no attempt to explain how this information would be material to its broader assertion that ISPs conclusion regarding groundwater impacts is somehow deficient. As the Board explained in rejecting the original Contention 4, Fasken failed to challenge the other independent bases for ISPs conclusion that groundwater contamination was not a credible scenario.75 The information relied on by Fasken in the Motion for Leave still fails to challenge these other independent basesand thus is not material to ISPs conclusion.

b.

RAI WR-6 Fasken also erroneously asserts that ISP admits that previous descriptions of groundwater were not based on sufficient boring data.76 Again, Fasken misreads the RAI Response. In fact, ISPs response to RAI WR-6 discusses the relevance and limitations of an earlier study (specifically, Lehman and Rainwater (2000)) to the Staffs question regarding the simplification of figures depicting the constituents of the hydrostratigraphic units underlying the

74 Compare ER Fig. 3.3-1 to ER Rev. 3 Interim fig. 3.3-1 (submitted as Enclosure 9 to the RAI Response).

75 ISP, LBP-19-7, 90 NRC at __ (slip op. at 103).

76 Motion for Leave at 14 (citing RAI Response at 45 (ISPs response to RAI WR-6)).

16 proposed CISF site.77 ISP notes that Lehman and Rainwater discussed their difficulty differentiating the similar sands and gravels of the Ogallala, Antlers, and Gatuna formations overlying the red bed clay of the Dockum, and that the wells used in that study were not specifically focused on the proposed CISF site.78 This in no way suggests that numerous drillings depicted in ER figures 3.3-1 and 3.4-2 are in any way insufficient to understand the presence or absence of groundwater beneath the CISF (or the complete lack of communication between layers of groundwater, if any, separated by the impermeable red bed clays).

Importantly, Fasken makes no assertion that distinguishing the names among the constituent members of the OAG makes any difference whatsoever (... a sand by any other name...) to consideration of risk of radionuclide contamination of aquifers below. Accordingly, this information is neither new nor material.

c.

RAI WR-3 Finally, in RAI WR-3, the Staff noted that ISP characterized a nearby surface water specifically Baker Springas a seasonally intermittent surface water feature sourced by rainfall, rather than a groundwater-sourced spring. Staff requested that ISP explain its conclusion. In response, ISP noted that water chemistry samples from Baker Spring significantly differed from groundwater samples retrieved from monitoring well TP-14.79 In its Motion for Leave, Fasken complains that ISP failed to identify the location and aquifer sources of well TP-14, and that the ERs discussions of groundwater samples from wells are generally insufficient.80 To begin with, Faskens opportunity to challenge ISPs characterization of Baker Spring and the sufficiency of

77 RAI Response at 45.

78 Id.

79 See id. at 33-36.

80 Motion for Leave at 8.

17 the ERs discussion of wells and groundwater samples, generally, has long since expired. The ER, available before the original deadline for contentions, contained this informationwhich Fasken failed to challenge in its original Petition.

Moreover, Faskens assertions about the lack of discussion regarding the location and aquifer sources of well TP-14 are patently false. The location of well TP-14 is specifically discussed in ISPs response to RAI WR-3, which states that TP-14 is located in a playa with occasionally ponded water about 1000 ft east of the proposed CISF facility.81 The RAI Response also explicitly notes that the TP-14 samples were from the undifferentiated Ogallala, Antlers and Gatuna Formations. Hence, the allegedly missing information was in fact provided.

And to the extent Faskens assertions could be interpreted as demanding more specific information (e.g., latitude and longitude), they offer no explanation as to how or why this information would make any material difference to their conclusions or undermine the conclusion of ISPs water chemistry analysis.

Ultimately, the Motion for Leave identifies no information that is new and materially different from previously-available information, and therefore should be denied.

2.

The Motion for Leave Is Untimely Fasken claims the Motion for Leave is timely because they filed the pleading within 30 days of ISPs RAI Response being posted on the NRCs ADAMS website. But Fasken confuses the date of publication of the RAI Response with the question of whether the information in that RAI Response was previously available. As noted above, Faskens Motion for Leave identifies no information that is genuinely new or materially different than previously-available information. Accordingly, the Motion for Leave is untimely. This logical result should not

81 RAI Response at 34.

18 surprise Fasken given the Boards ruling in LBP-19-11, in which the Board rejected another petitioners assertion that the republication by the Nuclear Waste Technical Review Board of previously-available information somehow met the timeliness element of good cause.82 Faskens Motion for Leave is untimely for the same reason and should be denied.

B.

Fasken Has Not Satisfied the Commissions Strict Reopening Standards For many of the same reasons discussed above, Faskens Motion to Reopen fails to satisfy the Commissions deliberately high standards for reopening a closed record. More specifically, it is untimely, fails to identify a significant environmental issue, and fails to demonstrate that the Board would have reached a different conclusion. Thus, it likewise should be denied.

1.

The Motion to Reopen Was Not Timely Filed As with its Motion for Leave, Fasken claims its Motion to Reopen is timely because it was filed within 30 days of ISPs RAI Response being posted on the NRCs ADAMS website.

But, as noted above, Fasken has identified no information that is genuinely new or materially different than previously-available information. Accordingly, the Motion to Reopen is untimely and should be denied for the same reason the Motion for Leave should be denied.

2.

The Motion to Reopen Fails to Identify a Significant Environmental Matter In determining whether an environmental matter is significant for purposes of reopening a closed record, the Commission applies the same standard it uses to determine whether an Environmental Impact Statement (EIS) must be updated: there must be new and significant information that will paint a seriously different picture of the environmental

82 See ISP, LBP-19-11, 90 NRC __ (slip op. at 4-9).

19 landscape.83 As explained above, the information cited by Fasken in its Motion for Leave is either not new or not materially different from information previously available in this proceeding. Notably, Faskens Motion to Reopen relies on the same information. Thus, for the same reasons articulated in Section IV.A above, Faskens Motion to Reopen also fails to identify any new and significant information generallymuch less does it identify new and significant information that paints a seriously different picture of the environmental landscape. Thus, it should be denied on the same grounds.

In addition to the arguments raised in its Motion for Leave, Fasken presses one additional claim in its Motion to Reopen. More specifically, Fasken argues that any calculations and any safety and environmental reports, data, and analysis that were based on the groundwater discussion in the ER cannot be relied on and should be considered faulty.84 However, despite the explicit requirement in 10 C.F.R. § 2.326 that the movant must identify with particularity each issue it seeks to litigate, Fasken fails to identify any specific calculations, reports, data, or analysis that allegedly are defective. And to the extent ISPs RAI Response provided clarifications to the information in the ER, Fasken offers no explanation as to how these (unspecified) calculations, reports, data, and analyses somehow remain insufficient, given that the clarifications in the RAI Response (and corresponding ER revisions) are now part of the docketed record. Ultimately, Fasken identifies no information that is both new and significant and fails to explain how such unidentified information paints a seriously different picture of the environmental landscape. Thus, the Motion to Reopen does not identify a significant environmental issue and must be rejected pursuant to 10 C.F.R. § 2.326.

83 PFS, CLI-06-3, 63 NRC at 29 (finding that claimed additional environmental impacts were not so significant or central to the FEISs discussion of environmental impacts that an FEIS supplement (and the consequent reopening of our adjudicatory record) is reasonable or necessary).

84 Motion to Reopen at 8.

20

3.

The Motion to Reopen Fails to Demonstrate That the Board Would Have Reached a Materially Different Result Faskens original Contention 4 claimed that ISP failed to adequately discuss and evaluate the potential for the CISF site to contaminate aquifers and groundwater formations. However, ISPs SAR and ER explain that such a scenario is precluded on multiple independent grounds.

For example, the SAR cites [t]he method of storage (dry casks), the nature of the canisters, the extremely low permeability of the red clay and the depth to groundwater.85 To demonstrate a credible pathway to groundwater, all four of these impediments must be overcome. The Board found the original contention inadmissible, among other reasons, because Fasken failed to challenge ISPs conclusion that the method of storage and the nature of the canisters preclude any credible pathway for groundwater contamination.86 Faskens Motion to Reopen still fails to challenge these conclusionsboth of which provide independent bases on which to reject the amended contention for failing to demonstrate a genuine material dispute with ISPs application.

Thus, Faskens Motion to Reopen fails to affirmatively demonstrate that the Board somehow would have reached a materially different conclusion regarding the admissibility of a contention that still fails to address the Boards original reasons for rejecting it. Accordingly, the Commission should summarily deny the Motion to Reopen.

C.

Faskens Amended Contention Four Is Inadmissible Because Faskens proposed amendment fails to address any of the reasons for rejecting the original contention noted by the Board in LBP-19-7, Faskens amended Contention 4 remains inadmissible. In the proposed amendment, Fasken asserts, without elaboration, that the red bed clays will not provide a natural barrier to groundwater located inches below the site and that ISP

85 ISP, LBP-19-7, 90 NRC at __ (slip op. at 102) (citing SAR at 2-21).

86 Id. at __ (slip op. at 102).

21 must re-analyze the impact to the actual groundwater.87 As noted by the Board previously, the proposed contention failed to meet the factual basis requirement of 10 C.F.R. § 2.309(f)(1)(v) in that Fasken relies on an impact from large, fully-fueled aircrafts as a credible initiating event.

Nothing in the proposed amendment cures this deficiency.

Faskens amended contention also still fails to satisfy 10 C.F.R. § 2.309(f)(1)(vi).

Significantly, the Board previously noted:

Because Fasken has not challenged ISPs determination that the facilitys design precludes a pathway to groundwater contamination, Faskens claims about ISPs characterization and evaluation of groundwater formation do not raise a genuine dispute on a material issue, as required by 10 C.F.R. § 2.309(f)(1)(vi). Absent a pathway to groundwater contamination, Faskens claims are not material because their resolution would make no difference in the outcome of the licensing proceeding.88 In the proposed amendment at issue here, Fasken offers nothingwhatsoeverto address this deficiency. ISPs RAI Response did not change the SAR discussion referenced in the Boards conclusion: In its SAR [SAR at 2-21], ISP describes four independent reasons why

[contamination of groundwater] should not happen: [t]he method of storage (dry casks), the nature of the canisters, the extremely low permeability of the red clay and the depth to groundwater.89 Notwithstanding Faskens failure to identify any new or material information regarding the permeability of the red bed clay or the depth of groundwater, the amended contention also fails to address the Boards other independent bases (i.e., the method of dry storage and the nature of the canisters) for rejecting the original contention. Thus, the amended contention still fails to satisfy 10 C.F.R. § 2.309(f)(1)(vi). As the Board concluded Absent a pathway to groundwater contamination, Faskens claims are not material because their resolution

87 Motion for Leave at 16.

88 ISP, LBP-19-7, 90 NRC __ (slip op. at 103).

89 Id. at __ (slip op. at 102).

22 would make no difference in the outcome of the licensing proceeding. The proposed amendment does not alter this fundamental failure and is inadmissible for exactly the same reasons articulated by the Board in LBP-19-7.90 V.

CONCLUSION For the reasons set forth above, the Commission should deny Faskens Motions for failure to meet the requirements of 10 C.F.R. §§ 2.326 and 2.309(c)(1) and reject Contention 4 as inadmissible under 10 C.F.R. § 2.309(f)(1).

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 18th day of February 2020 Counsel for Interim Storage Partners LLC

90 In its Motion for Leave, Fasken includes a purported amendment to its Appeal of LBP-19-17 (specifically on the denial of the original contention 4). See Motion to Leave at 17-22. This section of the Motion makes no logical sense and contradicts the Commissions pleading rules. First, appeals must be based on the record underlying the challenged decision, not on any allegedly new information introduced into the record of the proceeding after the decision was issued. See 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). Moreover, Faskens purported amendment amounts to an untimely and unauthorized reply pleading.

Accordingly, the Commission should exercise its supervisory authority to strike this portion of the Motion from the record of this proceeding.

DB1/ 111647572 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 February 18, 2020 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Interim Storage Partners LLCs Answer Opposing Faskens and PBLROs Motion to Reopen the Record and Motion for Leave to Amend Contention Four 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