ML20056E908
| ML20056E908 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 02/25/2020 |
| From: | Kanner A, Perales M Fasken Oil and Ranch, Ltd, Kanner & Whiteley, Permian Basin Land and Royalty Owners |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 55579 | |
| Download: ML20056E908 (9) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF INTERIM STORAGE PARTNERS (WCS Consolidated Interim Storage Facility)
Docket No. 72-1050 February 25, 2020 FASKEN OIL AND RANCH, LTD.S AND PERMIAN BASIN LAND AND ROYALTY OWNERS REPLY TO INTERIM STORAGE PARTNERS, LLCS ANSWER OPPOSING MOTION FOR LEAVE TO REOPEN THE RECORD AND ASSOCIATED MOTION FOR LEAVE TO AMEND CONTENTION FOUR Now comes Fasken Oil and Ranch Ltd. (Fasken) and Permian Basin Land and Royalty Owners (PBLRO) (collectively Petitioners), by and through undersigned counsel, and submits this reply in further support of their Motion to Reopen the Record for Purposes of Considering and Admitting an Amended Contention Based on New Information Provided by Interim Storage Partners LLC (ISP) in Response to the United States Nuclear Regulatory Commission (NRC)
Requests for Additional Information (Motion to Reopen)1 and Motion for Leave to Amend Contention Four (Motion for Leave)2 and in response to ISPs Answer Opposing Faskens and PBLROs Motion to Reopen and Motion for Leave.3 As discussed in Petitioners Motion to Reopen, Motion for Leave, the foregoing reply and Petitioners September 17, 2019 appeal of the Atomic Safety and Licensing Boards (ASLB) Order,4 Petitioners have demonstrated standing, 1 Fasken and PBLRO 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 and PBLRO Motion for Leave to Amend Contention Four (Jan. 21, 2020) (ML20021A385) (Motion for Leave).
3 ISPs Answer Opposing Faskens and PBLROs Motion to Reopen and Motion for Leave(Feb. 18, 2020) (ISPs Opposition).
4 Fasken and PBLROs Notice of Appeal of LBP-19-07 (September 17, 2019) (ML19260J386) (Petitioners Appeal). Nothing herein is intended to hinder or influence Petitioners Appeal as Petitioners maintain that Amended Contention Four is consistent with its original contention which disputes ISPs description of groundwater and subsurface features and the presence of aquifers below the proposed site. Petitioners Amended Contention Four was
2 good cause, materiality and credible support for amending Contention Four, which raises a genuine dispute of fact with ISPs license application regarding the presence of aquifers and description of groundwater and subsurface hydrology at and beneath the proposed ISP site that implicate potential pathways for radiological contamination and environmental impacts.
I.
Petitioners Motion to Reopen, Motion for Leave and Foregoing Reply are Timely and Based on New and Materially Different Information That Implicate Important Environmental Issues.
Pursuant to NRC regulations, Petitioners have demonstrated good cause and materiality, provided support for an admissible Amended Contention Four and timely filed their Motion to Reopen and Motion for Leave and this reply in further support of same.5 Petitioners timely submitted their Motion to Reopen and Motion for Leave concurrently on January 21, 2020, within thirty days of the NRCs publication of ISPs responses to NRC requests for additional information (ISP RAI Responses) on January 6, 2020.6 Petitioners reply is likewise timely as it is being filed within seven days of ISPs Opposition.7 ISP RAI Responses and corresponding revisions to Safety Analysis Report (SAR) and Environmental Report (ER) contain information not previously available and materially different than ISPs prior RAI responses, ER and SAR, that continue to mischaracterize the presence of aquifers and groundwater at and beneath the proposed consolidated interim storage facility (CISF) site.8 ISPs faulty descriptions distort the reality of potential pathways for updated merely to address additional vague and misleading supplemental information provided by ISP in response to the NRCs requests for additional information relating to groundwater and subsurface features and ISPs most recent revisions to its Safety Analysis Report (SAR) and Environmental Report (ER). See ISPs Submission of Responses for RAIs and Associated Document Markups from First RAIs, Part 3 (Nov. 21, 2019) (ML19337B502 (package)) (ISP RAI Responses); ISP, License Application, Docket No. 72-1050 (ML18206A595 (package))
(includes ISP SAR, Rev. 2 and ISP ER, Rev. 2).
5 See 10 C.F.R. §§ 2.309(c)(1) and (f)(1), 10 C.F.R. § 2.326, 10 C.F.R. § 51.45, and NUREG-1567.
6 10 C.F.R. §§ 2.309(c)(1) and (f)(1) and 10 C.F.R. § 2.326; see also ISP RAI Responses.
7 10 C.F.R. § 2.309(i)(2).
8 ISP, License Application, Docket No. 72-1050 (ML18206A595 (package)) (includes ISP SAR, Rev. 2 and ISP ER, Rev. 2).
3 radiological contamination and fail to adequately describe the impact the proposed CISF site would have on the environment pursuant to 10 C.F.R. § 51.45 and NUREG-1567.
NRC RAIs, by their very nature, seek out new and additional information to further clarify information previously provided by an applicant and shed light on critical issues and risks relevant to the design, construction, operation and decommissioning of the proposed facility and thus NRCs review. In theory, an applicants supplemental responses to NRC RAIs will provide the NRC with the additional material information necessary to make decisions on such issues and risks that it must consider in reviewing a license application.
Indeed, the NRC issued RAIs to ISP relating to location of groundwater and subsurface hydrological features precisely because the NRC deemed this information pertinent to its review of ISPs license application and potential environmental impacts of the proposed CISF but notably lacking in ISPs prior SAR and ER. But, ISP RAI Responses and application continue to omit material information and mischaracterize the hydrostratigraphic units below and surrounding the proposed CISF site, leaving unresolved issues that must be noticed, appropriately analyzed and disclosed in ISPs ER, Environmental Impact Statement (EIS) and SAR.9 II.
ISPs Investigation and Characterization of Geology, Groundwater and Surface Water Remain Inaccurate, Unreliable and Incomplete Accurate, reliable and complete investigations are necessary to identify and plan for potential contamination pathways through the construction, operation and decommissioning of a proposed CISF.10 This is especially true when the CISF footprint lies in the center of a geologic basin with hundreds of millions of years of subsidence, generating billions of barrels of 9 ISPs continual updates and multiple rounds of supplemental RAI responses make for a perpetually evolving target.
As such, Petitioners reserve their right to further object to and file new or amended contentions based on any future supplemental ISP RAI responses.
10 See 10 C.F.R. § 51.45 and NUREG-1567.
4 hydrocarbons and millions of acre-feet of groundwater that ensure domestic energy and global security like the Permian Basin.
When a proposed site is located over an aquifer, NUREG-1567 Section 2.4.5 requires applicants to provide adequate information regarding such groundwater aquifers and hydrological units and recharge and discharge areas associated with those aquifers. ISP contends the subsurface below the proposed site is impermeable and water resources at the site are virtually nonexistent.11 While ISPs most recent RAI Responses provide new and additional information regarding such features, its license application remains deficient as it erroneously denies and mischaracterizes the presence of Ogallala, other aquifers and groundwater generally below the proposed CISF site and overstates the existence of a formidable natural barrier of red bed clay precluding the potential for negative impacts to surface or subsurface water at the proposed site.12 ISPs inaccurate conclusions regarding the presence of aquifers and location of groundwater are based on unreliable and incomplete data and investigations that gloss over the dynamic constituents of the underlying hydrostratigraphic units. By its own admission, ISPs prior descriptions relied on insufficient well boring data and incomplete samplings of groundwater in wells located on the proposed CISF site, which caused ISP to report a lack of groundwater.13 Using this unreliable data, ISP mistakenly concludes that the Ogallala, Antlers and Gatuna aquifers are largely unsaturated beneath the site.14 11 ISP ER, Sec. 4.4 at 4-29.
12 See Pachlhofer Affd. Sec. II(1)(A) (citing ISP ER Sec. 4.4).
13 See Petitioners Motion for Leave at 8, citing Pachlhofer Affd. at Sec. III(1)(4)(A) (ISP failed to collect groundwater samples from all wells containing groundwater located on the proposed CISF site.)
14 ISP SAR at 2-21; ISP ER, Sec. 3.4.14 at 3-26 (denying the presence of Ogallala formation below the proposed site, further claiming if present is not water bearing.).
5 This is simply not true. Geologic, environmental, and mechanical data show groundwater at and beneath the CISF footprint. ISP continues to misconstrue these facts, attempting to show this area as a geohydrologic dry site. There are three major aquifers at the proposed site that contain shallow, fresh groundwater, consisting of the Ogallala, Antlers and Gatuna formations, referred to as the OAG Unit.15 The formations are in similar stratigraphic position, are often interbedded, and cross-formational groundwater flow is known to exist between the Antler and Ogallala formations.16 These units also overlie the Dockum Group, an additional minor aquifer at the site.
Thirteen windmills and 174 water wells have been drilled within a 10-kilometer radius of the proposed site and fresh groundwater from these windmills and water wells are used for domestic potable water, stock irrigation, and other commercial purposes.17 Fresh groundwater also flows out of the Gatuna aquifer at Baker Spring near the proposed site.18 Additionally, the Antlers formation is exposed within the walls of a nearby excavation pit that displays ponded water (as seen from Google Earth images) that may be groundwater seepage from the Antler and Dockum aquifers.19 The Dockum aquifer present at the proposed site is an extremely widespread aquifer found in 46 Texas counties containing thousands of acre-feet of water.20 It is considered a minor aquifer by the Texas Water Development Board (TWDB) because of its elevated total dissolved solid (TDS) levels. At the proposed ISP site and throughout Andrews County, the TDS measurements 15 Granger, D., Grisak, G., Geology Report: Prepared for Waste Control Specialists, LLC, Appendix 2.6.1, (2006)
(Granger and Grisak, 2006).
16 See Pachlhofer Dec. at 4; Granger and Grisak, 2006; Lehman and Rainwater, 2000.
17 Granger and Grisak, 2006.
18 Lehman, T.M., Rainwater, K., Geology of the WCS - Flying W Ranch, Andrews County, Texas (2000) (Lehman and Rainwater, 2000).
19 Granger and Grisak, 2006; Lehman and Rainwater, 2000.
20 George, P.G., Mace, R.E., Petrossian, R., Aquifers of Texas: Texas Water Development Board Report 380 (2011).
(Mace and Petrossian, 2011).
6 are near 1000 ppm, which is slightly brackish.21 The Santa Rosa sandstone within the Dockum Group is a significant aquifer in West Texas and is used extensively for agriculture and oil and gas operations. Groundwater from the Dockum is also being treated by reverse osmosis methods throughout the area and used as fresh water.
Given extensive fracturing in red bed clays,22 aquifers and formations present in the subsurface throughout the proposed site must be properly identified to mitigate and minimize any potential radionuclide contamination.
ISPs prior descriptions of groundwater were derived from inadequate well boring data to distinguish the contacts between Antlers and Ogallala and other formations and fails to accurately describe the location of groundwater and presence of aquifers at the proposed site.23 As ISPs most recent RAI Responses duly note [t]he shallowest groundwater beneath the proposed CISF footprint is a few inches to a few feet of saturation in the undifferentiated Antlers/Ogallala sediments.24 Likewise, ISPs RAI Response regarding Baker Spring conclusory claims it is not an aquifer-sourced spring...[but] an area where surface runoff is impounded in a shallow excavation of red bed clays.25 This new information was not previously included in ISPs SAR or ER and is materially different from ISPs prior characterization of groundwater below the proposed site. Further, this information presents a genuine dispute of a material fact and supports Petitioners Contention Four argument that contrary to NRC regulations, ISP fails to provide an appropriate analysis bounding the potential groundwater contamination.
21 Id.
22 See Motion for Leave at 15.
23 ISP RAI Responses, Enclosure 3 at 45.
24 Id.
25 ISP ER at 3-24.
7 III.
Potential Pathways for Radiological Contamination Exist.
Potential pathways for radiological contamination exist. ISPs assertion that the nature of the casks, method of storage, impermeability of red clay and location of groundwater will provide guarantees against any and all viable contamination pathway is ill-conceived.26 Pursuant to NRC regulations, accurate and reliable identification of aquifers, location of groundwater, and subsurface hydrological features below the proposed site are absolutely necessary when analyzing potential pathways for contamination.27 Unknowns and uncertainties regarding same simply cannot be ignored. NRC inquiries and RAIs relating to subsurface hydrological features and the presence of aquifers at the proposed ISP site further support this.
Although it is not Petitioners burden to prove, Petitioners have posited credible events and potential pathways for radiological contamination28 including but not limited to impact from large, fully-fueled aircrafts and chlorine-induced stress corrosion cracking (CISCC).29 IV.
Conclusion For the foregoing reasons, Petitioners respectfully submit this reply in further support of their Motion to Reopen and Motion for Leave, pursuant to 10 C.F.R. §§ 2.309(c)(1) and (f)(1) and 10 C.F.R. § 2.326 in the above-captioned matter, and request the ASLB or the Commission reopen the record of the proceeding and admit Petitioners amended Contention Four.
Dated: February 25, 2020 Respectfully submitted,
_/signed electronically by/_
Monica Perales 26 ISP SAR at 2-21.
27 See generally, 10 C.F.R. § 51.45(b)(1) and NUREG-1567.
28 10 C.F.R. § 51.45 and NUREG-1567 are not predicated on Petitioners ability to challenge an applicants determination that a facilitys design precludes a potential pathway to groundwater.
29 Petition of Fasken and PBLRO at 27 (ML18302A412) (Petition).
8 6101 Holiday Hill Road Midland, TX 79707 (432)687-1777 monicap@forl.com
/signed electronically by/
Allan Kanner KANNER & WHITELEY, LLC 701 Camp Street New Orleans, Louisiana 70130 (504)524-5777 a.kanner@kanner-law.com Counsel for Petitioners
9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF INTERIM STORAGE PARTNERS LLC (WCS Consolidated Interim Storage Facility)
Docket No. 72-1050 February 25, 2020 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I Monica Perales certify that, on this 25th day of February, 2020, true and correct copies of Faskens and PBLROs Reply to Interim Storage Partners LLCs Answer Opposing Motion for Leave to Reopen the Record and Associated Motion for Leave to Amend Contention Four were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding.
_/signed electronically by/_
Monica Perales 6101 Holiday Hill Road Midland, TX 79707 (432)687-1777 monicap@forl.com
/signed electronically by/
Allan Kanner KANNER & WHITELEY, LLC 701 Camp Street New Orleans, Louisiana 70130 (504)524-5777 a.kanner@kanner-law.com Counsel for Petitioners