ML20134H962
| ML20134H962 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 05/13/2020 |
| From: | Rebecca Susko NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 18-958-01-ISFSI-BD01, Holtec International, RAS 55675 | |
| Download: ML20134H962 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL Docket No. -
(HI-STORE Consolidated Interim Storage Facility)
NRC Staff Answer in Opposition to Sierra Clubs Motion to Reopen the Record Introduction Pursuant to 10 C.F.R. § 2.323, the U.S. Nuclear Regulatory Commission Staff (Staff) submits this answer opposing Sierra Clubs motion to reopen the record.1 For the reasons set forth below, the Board should deny the motion because it fails to meet the requirements of 10 C.F.R. § 2.326.
Background
On March , , Holtec submitted an application, including a Safety Analysis Report (SAR) and Environmental Report (ER), requesting that the NRC grant it a license for the construction and operation of a consolidated interim storage facility (CISF) for spent nuclear fuel (SNF).2 The proposed CISF would be located in Lea County, New Mexico. In its license application, Holtec requests authorization to store up to , metric tons of uranium in up to canisters for a license period of years.3 1
Sierra Clubs Motion to Reopen the Record (May 4, 2020) (ADAMS Accession No. ML20125A096)
(Sierra Club Motion to Reopen).
2 Holtecs application materials are available at: https://www.nrc.gov/waste/spent-fuel-storage/cis/holtec-international.html. Citations to the proposed license are to Revision (ML17310A223) (Proposed License).
3 Proposed License at .
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On March , , the NRC published a notice in the Federal Register regarding the acceptance and docketing of Holtecs CISF license application.4 The NRC subsequently published a Federal Register notice of opportunity to request a hearing and to petition for leave to intervene.5 Sierra Club then filed a hearing request and petition to intervene, as did multiple other petitioners.6 On May , , the Board denied all petitions and terminated the proceeding, thereby closing the record.7 Regarding Sierra Club, the Board held that it had demonstrated standing but had not submitted a proposed contention that met the requirements of C.F.R. § . (f)( ).8 On June , , Sierra Club appealed the Boards decision.9 In September , the U.S. Nuclear Waste Technical Review Board (NWTRB) issued a report entitled Preparing for Nuclear Waste Transportation (NWTRB Report).10 The NWTRB Report was served on the docket of this proceeding via the Electronic Information Exchange on October , , as an attachment to Sierra Clubs new proposed Contention .11 Thereafter, 4
Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, Fed. Reg. , (Mar. , ).
5 Holtec International HI-STORE Consolidated Interim Storage Facility for Interim Storage of Spent Nuclear Fuel, Fed. Reg. , (July , ).
6 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sept. 14, 2018)
(ML18257A228). The other petitioners are: Alliance for Environmental Strategies; Beyond Nuclear, Inc.; NAC International Inc.; Fasken Land and Minerals, Ltd. and Permian Basin Land and Royalty Owners; and a group of joint petitioners led by Dont Waste Michigan.
7 Holtec Intl (HI-STORE CISF), LBP- - , NRC , - ( ).
8 Id. at - .
9 Sierra Clubs Brief in Support of Appeal of LBP-19-4 (June 3, 2019) (ML19154A166).
10 U.S. Nuclear Waste Technical Review Board, Preparing for Nuclear Waste Transportation: Technical Issues that Need to Be Addressed in Preparing for a Nationwide Effort to Transport Spent Nuclear Fuel and High-Level Radioactive Waste (Sept. 2019) (ML19297D146) (NWTRB Report).
11 Sierra Clubs Motion to File a New Late-Filed Contention and Contention 30 (Oct. 23, 2019)
(ML19297D142) (Contention 30); see also NRC Staff Answer in Opposition to Sierra Club New Contention 30 (Nov. 18, 2019) (ML19322D107) (Staff Answer). At the time that the new contention was filed, the Board no longer had jurisdiction over the proceeding and the new contention was filed directly with the Commission. The Staff opposed the new contention on several grounds, including that Sierra Club failed to address (much less meet) the standards of 10 C.F.R. § 2.326(a) for reopening the closed record. Staff Answer at 8-9.
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on April , , the Commission issued a decision in which it ruled on Sierra Clubs June 3, 2019, appeal.12 The Commission remanded Sierra Clubs Contention 30 to the Board for consideration under the standards for reopening the closed record and the admissibility standards for contentions filed after the initial intervention deadline.13 On May , , Sierra Club filed the instant motion to reopen the record.14 Discussion I. Applicable Legal Standards for Reopening a Closed Record Commission rules of practice make clear that when an entirely new issue is sought to be introduced after the proceeding has been terminated, the standards for reopening a closed record and the admissibility standards for contentions filed after the initial intervention deadline must be met.15 The Commission explicitly stated in CLI-20-4 that Contention 30 must meet the standards for reopening a closed record.16 Pursuant to 10 C.F.R. § 2.326(a), a petitioner seeking to open a closed record must show that its motion (1) is timely, however, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) addresses a significant safety or environmental issue; and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.17 Reopening will only be allowed where the proponent presents material, probative evidence which either could not have been discovered before or could have been discovered but is so grave that, in the judgement of the presiding 12 Holtec Intl (HI-STORE Consolidates Interim Storage Facility), CLI- - , NRC __ (Apr. , ).
13 Id. at __ (slip op. at - ).
14 Sierra Club Motion to Reopen at 1-3.
15 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 124 (2009).
16 Holtec, CLI- - , NRC at __ (slip op. at ).
17 10 C.F.R. § 2.326(a)(1)-(3).
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officer, it must be considered anyway.18 Additionally, 10 C.F.R. § 2.326(b) requires supporting affidavits from experts or otherwise competent individuals accompany the motion that set forth the factual and/or technical bases for the movants claim that the criteria of [10 C.F.R. § 2.326(a)] have been satisfied.19 The affidavits must address each criterion of 10 C.F.R. § 2.326(a) separately . . . with a specific explanation of why it has been met.20 Affidavits containing bare assertions or speculation and lacking technical details or analysis are insufficient to meet the reopening standards.21 II. Sierra Club Fails to Meet the Reopening Standards Sierra Clubs motion to reopen should be denied because it (1) is inexcusably late and does not otherwise raise an exceptionally grave issue; (2) fails to address a significant safety or environmental issue; and (3) does not demonstrate that a materially different result would have been likely had the new contention been considered initially.
Sierra Club states that its motion was submitted to cure any alleged procedural defect raised by the Staff or Holtec and asserts that the Commission in CLI-20-4 implicitly rejected those allegations [of a procedural defect].22 However, Sierra Club misinterprets the Commissions ruling. In CLI-20-4, the Commission acknowledged that Sierra Clubs motion for a new contention is required to meet the standards for reopening a closed record, but the Commission explicitly did not determine whether those standards had in fact been met.23 18 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538 (May 30, 1986).
19 10 C.F.R. § 2.326(b).
20 Id.
21 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 670, 674 (2008).
22 Sierra Club Motion to Reopen at 3; see also Holtec, CLI- - , NRC at __ (slip op. at - ).
23 Holtec, CLI- - , NRC at __ (slip op. at ).
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Rather, the Commission remanded proposed Contention 30 to the Board for consideration in the first instance, specifically including the issue of whether the reopening standards are met.24 The Commission neither stated nor implied that the remand authorized Sierra Club to present new information to cure the procedural deficiencies in its original October 2019 filing.
Accordingly, the Boards inquiry on remand is whether Sierra Clubs Contention 30, as originally pled, met the standards for contention admissibility as well as the requirements for reopening.
For the reasons previously explained in the Staff Answer, it did not.
Accordingly, Sierra Clubs attempt to now cure its procedurally defective filing with a motion to reopen is also inexcusably late. Sierra Club does not explain how its motion to reopen is timely, but instead only reasserts that Contention 30 was timely filed within 30 days of the issuance of the NWTRB Report.25 This assertion incorrectly conflates the timeliness requirement for late-filed contentions in 10 C.F.R. § 2.309(c) with the timeliness requirement for reopening the record in 10 C.F.R. § 2.326. It is well settled that a petitioner must satisfy both the late intervention and reopening criteria.26 The appropriate mechanism to raise a new issue where the record of the proceeding has been closed is to address the reopening standards contemporaneously with the late-filed intervention petition.27 Indeed, the Commission has held that a motion to reopen the record must be filed promptly after the relevant information needed to frame the contention becomes available.28 Here, Sierra Clubs motion to reopen was filed more than seven months after NWTRB Report became available and more than six months 24 Id. (emphasis added).
25 Sierra Club Motion to Reopen at 2.
26 See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 161-62, 162 n.2 (1993) (recognizing that satisfying the late-filing criteria is clearly relevant to the issues pertinent to a motion to reopen the record, but nevertheless noting that a petitioner must satisfy both the late intervention and reopening criteria).
27 Millstone, CLI-09-5, 69 NRC at 124 (emphasis added).
28 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-6, 31 NRC 483, 487 (1990).
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after it filed Contention 30. Only after the Commission remanded Contention 30 to the Board for consideration under the reopening standards did Sierra Club make any attempt to cure its defective filing. Moreover, Sierra Club offers no justification for the delay in filing its motion to reopen; indeed, there are no factual assertions in the motion that could not have been raised when Contention 30 was first submitted. Because Sierra Club could have filed a motion to reopen with Contention 30 the instant motion is inexcusably late.
To be sure, the Board has discretion to consider an exceptionally grave issue even if untimely presented.29 However, the exception to timeliness for exceptionally grave circumstances is to be granted rarely and only in truly extraordinary circumstances.30 As such, the movant carries a heavy burden of demonstrating that a motion raises an exceptionally grave issue rather than just a significant issue.31 Sierra Clubs motion to reopen neither acknowledges nor even attempts to address this higher standard. Therefore, Sierra Clubs untimely motion to reopen does not raise an exceptionally grave issue and should be denied.
Even assuming arguendo that Sierra Clubs motion to reopen was timely, Sierra Club also fails to raise a significant safety or environmental issue and thus does not meet the requirements for reopening the record. Sierra Club asserts that transportation of nuclear waste is a significant safety and environmental issue that is an integral part of the licensing process for nuclear waste storage facilities like the Holtec CISF.32 To support this claim, Sierra Club relies on the NWTRB Report and asserts that this report concludes that the SNF to be stored at the Holtec facility could not be transported in the 20-year time frame proposed by Holtec, or even within the initial 40-year licensing period.33 Additionally, Sierra Clubs affiant describes the four 29 10 C.F.R. § 2.326(a)(1).
30 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. at 19,536.
31 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-886, 27 NRC 74, 78 (1988) (citing former 10 C.F.R. § 2.734(a)(1), now 10 C.F.R. § 2.326(a)(1)).
32 Sierra Club Motion to Reopen at 2, 12.
33 Id. at 2.
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conclusions reached by Robert Alvarez, who Sierra Club describes as an expert on nuclear waste, upon reviewing the NWTRB report. Specifically, Sierra Clubs affiant states that Mr.
Alvarez concluded that: long-distance transport of large quantities of SNF is unprecedented; unresolved concerns about the integrity of high-burnup SNF in dry storage may cause prolonged onsite storage; there is a lack of data regarding potential damage to SNF during transport; and repackaging SNF for transport and disposal is an important missing element impacting the timing and implementation of a national SNF transportation program.34 But Sierra Clubs filing is devoid of any explanation of the specific safety or environmental concern posed by these conclusions. Rather, the filing appears to be focused primarily on the potential costs and schedule implications associated with transporting SNF to the Holtec CISF, without identifying a factual basis that connects these issues to a safety or environmental concern. At bottom, Sierra Clubs motion simply claims that there is insufficient information regarding potential damage to SNF during transport and opines generally that transporting large quantities of SNF is unprecedented.35 An affidavit containing bare assertions and lacking a factual or technical basis is insufficient to demonstrate a significant safety or environmental issue.36 Here, Sierra Clubs motion merely speculates that there may be potential concerns regarding the transport of SNF largely related to cost and timing, but it does not provide factual support or an analysis demonstrating that these concerns represent a safety or environmental issue, let alone a significant one. As such, Sierra Club has not raised a significant safety or environmental concern sufficient to meet the reopening standards, and its motion to reopen should be denied.
34 Id. at 7.
35 See id. at 8-9.
36 Oyster Creek, CLI-08-28, 68 NRC at 670.
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Finally, a materially different result would not have been likely had Contention 30 been considered initially. Sierra Club states that had the NWTRB Report and the declaration of Mr.
Alvarez been available when the record was open, Contention 30 would have been admitted for further consideration on the merits because Contention 30 meets the admissibility criteria in 10 C.F.R. § 2.309(f).37 To show that a materially different result would occur pursuant to 10 C.F.R.
§ 2.326(a)(3), the movant must provide information of sufficient caliber to avoid a summary disposition motion.38 However, contrary to Sierra Clubs assertion and as previously explained by the Staff, Contention 30 is inadmissible because Sierra Club raises concerns that are outside the scope of the proceeding, does not demonstrate that its claims are material to the Staffs review, and fails to raise a genuine dispute with the application on a material issue of law or fact in accordance with 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi), respectively.39 More specifically, to the extent that Contention 30 seeks to litigate concerns regarding offsite transportation of SNF, such generic safety concerns are outside the scope of this proceeding because the safety of SNF transportation is governed by the standards in 10 C.F.R. Part 71 and regulations issued by the U.S. Department of Transportation.40 In addition, the conclusions that Sierra Club relies upon do not provide information material to the findings the Staff must make in this proceeding or raise a genuine dispute with the application because Sierra Clubs concerns relate to the requirements of 10 C.F.R. Part 71,41 which Holtecs Part 72 license application need not 37 Sierra Club Motion to Reopen at 2-3, 12-13.
38 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI 8, 74 NRC 214, 226 (2011) (citations omitted).
39 Staff Answer at 11-17.
40 See 10 C.F.R. § 71.0, Purpose and scope; see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-34, 50 NRC 168, 176-77 (1999); State of New Jersey (Department of Law and Public Safetys Requests Dated Oct. 8, 1993), CLI-93-25, 38 NRC 289, 294 (1993); Trustees of Columbia University in the City of New York, ALAB-50, 4 AEC 849, 863 (1972)
(noting that DOT regulations govern the safety of radioactive material transportation).
41 See Contention 30 at 8-12.
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address.42 Further, Sierra Clubs assertion that transportation of SNF to the proposed CISF cannot occur in the timeframe proposed by Holtec is directly contradicted by statements in the NWTRB Report,43 and thus, does not raise a genuine dispute with the application. Because Contention 30 is inadmissible, a materially different result would not have been likely had it been considered initially. Therefore, Sierra Clubs motion to reopen should be denied.
Conclusion Because Sierra Clubs motion to reopen the record is untimely and fails to meet the standards for reopening set forth in C.F.R. § . , it should be denied.
Respectfully submitted,
/Signed (electronically) by/
Rebecca Susko Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: ( ) -
E-mail: Rebecca.Susko@nrc.gov Counsel for NRC Staff 42 See PFS, LBP-99-34, 50 NRC at 176-77 (noting that shipment of spent nuclear fuel [is] governed by Part 71 and do[es] not require a specific license under Part 72).
43 Based on statements in the NWTRB Report, Sierra Club claims that there is no likely scenario that SNF could be transported to the proposed CISF in the timeframe proposed. Contention 30 at 7.
However, the NWTRB Report also states [b]ecause many of the dry-storage casks and canisters holding commercial SNF meet the CoC [Certificate of Compliance] transportation requirements, this technical issue [Technical Issue #13: identifying and correcting individual dry-storage casks and canisters that do not meet the NRC CoC requirements], by itself, does not preclude DOE from beginning a transportation campaignDOE can begin to transport the casks and canisters that meet the CoC requirements while it works to address this technical issue. NWTRB Report at 76.
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Executed in Accord with 10 CFR 2.304(d)
Sara B. Kirkwood Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: ( ) -
E-mail: Sara.Kirkwood@nrc.gov Counsel for NRC Staff Dated this th day of May 10
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC INTERNATIONAL Docket No. -
(HI-STORE Consolidated Interim Storage Facility)
CERTIFICATE OF SERVICE Pursuant to C.F.R § . , I hereby certify that copies of the foregoing NRC Staff Answer in Opposition to Sierra Club's Motion to Reopen the Record, dated May , , have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this th day of May .
/Signed (electronically) by/
Rebecca Susko Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: ( ) -
E-mail: Rebecca.Susko@nrc.gov Counsel for NRC Staff Dated this th day of May