ML20049H533
| ML20049H533 | |
| 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 55572 | |
| Download: ML20049H533 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
)
)
)
)
)
)
)
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 REVERSE THE NRC STAFFS SUNSI ACCESS DENIAL I.
INTRODUCTION Pursuant to 10 C.F.R. § 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) Appeal of Staff Denial of Petitioners Request for [Sensitive Unclassified Non-Safeguards Information or] SUNSI Information Related to ISPs Responses to
[Requests for Information or] RAIs (Motion).1 At the beginning of the adjudicatory proceeding for the above-captioned matter, the U.S. Nuclear Regulatory Commission (NRC) issued an order permitting potential parties to seek access to SUNSI related to the proceeding (SUNSI Order).2 After the adjudicatory proceeding had been terminated,3 Fasken belatedly
1 Letter from T. McLaughlin to Judges Ryerson, Trikouros, and Arnold, the Office of Appellate Adjudication, and the Office of the Secretary, 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 (Feb. 12, 2020) (ML20043F076) (Motion). As explained in Section III below, although styled as an appeal, the request is more appropriately viewed as a motion.
2 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg.
44,070, 44,073-075 (Aug. 29, 2018).
3 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), LBP-19-11, 90 NRC __ (Dec. 13, 2019) (slip op.).
2 requested SUNSI access (Access Request).4 Staff appropriately rejected that untimely request because the adjudicatory proceeding to which the SUNSI Order applied no longer exists, and because the opportunity to request SUNSI access for the previous adjudicatory proceeding expired long ago (Access Denial).5 In its Motion, Fasken now requests reversal of the Staffs Access Denial.
As explained below, Faskens Motion should be denied because Staffs reasoned conclusion that the SUNSI Order no longer applies is manifestly correct. Furthermore, regardless of whether the SUNSI Order applies here, the Motion must be rejected because it is untimely pursuant to the explicit timing requirements of both the SUNSI Order and 10 C.F.R. § 2.323. Accordingly, the Commission should summarily deny the Motion.
II.
BACKGROUND The above-captioned proceeding pertains to ISPs application for a license under 10 C.F.R. Part 72 to construct and operate a consolidated interim storage facility for spent nuclear fuel (Application).6 On August 29, 2018, the NRC Staff published a notice in the Federal Register providing an opportunity for the public to petition to intervene and request a hearing to challenge the Application by October 29, 2018 (the Hearing Opportunity Notice),7 along with the SUNSI Order permitting possible petitioners to request access to SUNSI and/or Safeguards
4 Letter from T. Laughlin et al. to NRC, Request for Sensitive Unclassified Non-Safeguards Information (SUNSI) regarding Interim Storage Partners Waste Control Specialist Consolidated Interim Storage Facility (Jan. 16, 2020) (ML20016A453).
5 Letter from S. Kirkwood, NRC, to T. Laughlin, Request for Sensitive Unclassified Non-Safeguards Information (SUNSI) Regarding Interim Storage partners Waste Control Specialists Consolidated Interim Storage Facility (Jan. 27, 2020) (ML20024D860).
6 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).
7 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg.
44,070, 44,070-072 (Aug. 29, 2018).
3 Information (SGI) related to the Application by September 10, 2018.8 Despite making repeated complaints about ISP seeking proprietary protection for portions of its Application, Fasken did not request access to SUNSI by the September 10, 2018 deadline imposed by the SUNSI Order. However, on October 29, 2018, Fasken filed a Petition for Intervention and Request for Hearing, proffering five contentions (Petition).9 Following oral argument in Midland, Texas, on July 10-11, 2019, the Atomic Safety and Licensing Board (Previous Board) denied the Petition because Fasken failed to proffer an admissible contention.10 Fasken appealed the Previous Boards rejection of its contentions on September 17, 2019.11 That appeal remains pending before the Commission. On December 13, 2019, the Previous Board terminated the adjudicatory proceeding because no pending contentions remained.12 Even before the Previous Board terminated the proceeding, Fasken failed to advance any request of the Staff or the Previous Board for SUNSI access.
On January 16, 2020, Fasken submitted its Access Request to the NRC Staffostensibly pursuant to the August 29, 2018 SUNSI Orderseeking access to SUNSI. On January 27, 2020, the Staff sent its Access Denial letter to Fasken denying the Access Request because the applicability of the SUNSI Order necessarily ceased with the Boards termination of the proceeding. Fasken filed its Motion on February 12, 2020, seeking a reversal of the NRC
8 Id. at 44,073-075.
9 Petition of [Fasken] for Intervention and Request for Hearing (Oct. 29, 2018) (ML18302A412) (Petition).
10 ISP, LBP-19-7, 90 NRC at __ (slip op. at 18-20, 105).
11 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).
12 ISP, LBP-19-11, 90 NRC at __ (slip op. at 14).
4 Staffs Access Denial.13 Accordingly, jurisdiction over the proceeding, and therefore over the Motion, properly rests with the Commission.14 III.
FASKENS MOTION SHOULD BE DENIED As explained below, the Staffs Access Denial reached the appropriate conclusion.
Furthermore, the Motion is untimely by any measure. Accordingly, the Commission should summarily deny the Motion.
A.
Staff Properly Denied the Access Request Because the SUNSI Order Has Expired As noted above, Fasken purported to submit its Access Request pursuant to the terms of the SUNSI Order. The SUNSI Order set forth instructions regarding how potential parties to the open adjudicatory proceeding described in the Hearing Opportunity Notice could request access to SUNSI documents. But, that opportunity did not continue in perpetuity, as Fasken suggests without authority, and nothing in the SUNSI Order suggests a different conclusion.
Indeed, the milestone schedule in the SUNSI Order contemplates that all SUNSI access requests will be filedand all challenges to Staffs decision thereon will be resolvedbefore the presiding officers Decision on contention admission.15 Furthermore, as noted by Staff in the Access Denial, the Commission has ruled that access procedures (such as those in the SUNSI Order) do not continue even in an ongoing adjudicatory proceeding [o]nce a petition to intervene has been granted.16 Thus, Commission precedent and the SUNSI Order itself support the conclusion that, once the Previous Board issued its decision on contention admission granting
13 See Motion.
14 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.).
15 SUNSI Order, 83 Fed. Reg. at 44,075.
16 S. Tex. Project Nuclear Operating Co. (S. Tex. Project, Units 3 & 4), CLI-10-24, 72 NRC 451, 462 (2010).
5 an intervention petition on December 13, 2019,17 the SUNSI Order necessarily expired on that date. The instant scenario is even further attenuated. The adjudicatory proceeding to which the SUNSI Order applied has been terminated. Simply putit no longer exists.
Fasken urges a different result, arguing that persons or entities who may seek to reopen the record should be considered potential parties (and by extension that SUNSI access procedures should be viewed as applying indefinitely). As a general matter, given the need for finality in the hearing process,18 the Commission frown[s] on the filing of new contentions at the eleventh hour of an adjudication and considers reopening an extraordinary action.19 Nevertheless, under Faskens interpretation, anyone, at any time, could demand access to SUNSI information accumulated over decades of facility operationeven long after a license has been issued20under the guise of potentially filing a motion to reopen. This absurd result certainly was not contemplated by the SUNSI Order. Accordingly, Staff properly denied the Access Request, and the Motion should be summarily denied.
B.
The Motion Is Untimely Regardless of Whether the SUNSI Order Remains Applicable As noted above, Fasken styled its pleading as an appeal, but identified no procedural basis for its filing. Notwithstanding, it is correctly viewed as a motion. The appeal provisions in
17 See ISP, LBP-19-7, 90 NRC __ (slip op.).
18 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, 554-55 (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.).
19 Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station),
CLI-11-2, 73 NRC 333, 338 (2011) (citation omitted).
20 Cf., e.g., DTE Elec. Co., et al. (Fermi Nuclear Plant, Unit 3, et al.), CLI-15-4, 81 NRC 221 (2015) (denying multiple motions to reopen adjudicatory proceedings for various power reactors that had been operating for many decades).
6 10 C.F.R. Part 2 (e.g., 10 C.F.R. § 2.311) pertain solely to orders of presiding officers, whereas the Access Denial is not an order of a presiding officer. Moreover, the SUNSI Order explicitly shows that a requestors recourse for challenging an adverse Staff determination with respect to SUNSI access is to file a motion seeking a ruling to reverse the NRC staffs denial of access.21 If (as Fasken argues) the SUNSI Order applies here, it specifies that motions challenging an adverse SUNSI access determination must be filed within 5 days.22 And, if (as the Staff correctly concluded) the SUNSI Order does not apply here, the procedural provisions for general motions in 10 C.F.R. § 2.323 govern the Motion. Section 2.323(a)(2) specifies that [a]ll motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises. Fasken filed its Motion sixteen days after the Access Denial.23 It is noteworthy that in a purported appeal of the timeliness of its SUNSI request, Fasken makes no representation whatsoever about the timeliness of its instant filingperhaps, because it recognized it could not. The Motion is untimely by any standard and must be denied.
IV.
CONCLUSION For either or both of the reasons set forth above, the Commission should summarily deny Faskens Motion.
21 SUNSI Order, 83 Fed. Reg. at 44,075 (emphasis added).
22 Id. at 44,074. See also id. at 44,075 (showing such motions due 5 days after the Staffs determination).
23 The Access Denial was served on Fasken Jan. 27, 2020. The Motion was filed Feb. 12, 2020.
7 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
DB1/ 111972577 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
INTERIM STORAGE PARTNERS LLC (Consolidated Interim Storage Facility)
)
)
)
)
)
)
)
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 REVERSE THE NRC STAFFS SUNSI ACCESS DENIAL 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