ML20198R050

Applicant Supplemental Answer to State of UT Contentions Z to Dd.* Applicant Respectfully Submits That Contentions Be Denied.W/Certificate of Svc

ML20198R050
Person / Time
Site:	07200022
Issue date:	01/06/1998
From:	Silberg J AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#198-18726 97-732-02-ISFSI, 97-732-2-ISFSI, ISFSI, NUDOCS 9801230206
Download: ML20198R050 (74)

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'Janw 6 1997 118 JAN -9 h :14 UNITED STATES OF AMERICAJFFE CE SECRIgr;y RUUR'i- :t%;;, YD NUCLEAR REGULATORY COMMISg C/ V c>i/4F Before the Atomic Safety and Licensing Board in the Matter of

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22

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(Private Fuel Storage Facility)

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ASLBP No. 97-732-02-ISFSI APPLICANT'S SUPPLEMENTAL ANSWER TO THE STATE OF UTAH'S CONTENTIONS Z TO DD Jay E. Silberg Ernest L. Blake Paul A.Gaukler SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 Counsel for Private Fuel Storage L.L.C.

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TABLE OF CONTENTS ;

1. INTRO D U CTI ON..............................................................................................

II. APPLICANT'S RESPONSE TO UTAH CONTENTIONS Z TO DD............. 2 A. Utah Contention Z: No Action Altemative................................................... 2 B. Utah Contention AA:- Range of Altematives..............................................13 C. Utah Contention BB. Site Selection and Discriminatory Effects................ 20 D. Utah Contention CC: One Sided Cost-Benefit Analysis............................ 32 E. Utah Contention DD: Ecology and Species............................................. 43 111. C O N C LU S I ON.................................................................................

i UNITED STATES OF AhERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22

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(Private Fuel Storage Facility)

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ASLBP No. 97-732-02-ISFSI APPLICANT'S SUPPLEMENTAL ANSWER TO THE STATE OF UTAH'S CONTENTIONS Z TO DD I.

INTRODUCTION In its December 31,1997 Order (Granting Leave to File Response to Contentions and Schedule for Responses to Late-Filed Contentions), the Atomic Safety and Licensing Board (" Licensing Board" or " Board") granted Applicant Private Fuel Storage L.L.C.'s 2

(" Applicant" or "PFS") motion for leave to file a response to contentions Z through DD filed by the State of Utah (" State"). In accordance with the Board's Order, Applicant submits the following answers to the State's contentions Z through DD. For the reasons set forth with respect to each of the contentions, Applicant respectfully submits that the contentions be denied.

l II.

APPLICANT'S RESPONSE TO UTAH CONTENTIONS Z TO DD A.

Utah Contention Z: No Action Alternative 1.

The Contention The State alleges in Contention Z that:

The Environmental Report does not comply with NEPA because it does not adequately discuss the "no action" attemative.

State Petition at 169. The asserted bases for the contention are set forth on pages 169-170. In order to focus the analysis on whether the contention should be admitted, the Applicant proposes that the contention be restated as follows incorporating the specific allegations in its bases:

The Environmental Report does not comply with NEPA because it does not adequately discuss the "no action" altemative in that:

a) Applicant's consideration of the no build alternative fails to provide a balanced comparison of emironmental consequences among altematives because the Applicant focuses solely on the perceived disadvamages of the no build attemative, b) The analysis of the no build altemative improperly fails to consider the advantages of:

(i) not transporting so many casks from various locations across the country to a centralized location; (ii) not enhancing the potential for sabotage at a centralized storage facility; (iii) not increasing the risk of accidents from additional 2

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(iv) consid rable safety advantages of stdring spent fuel -

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near the reactors, wimel spent fbel pools will be

?available for transfers or inspections of degraded fuel; -

and' kv) 9r xpansion of onsite storage capability crimpared

_ to the environmental impacts at the'reriote desert site chosen by Applicant..

c) Reliance on Applicant's inadeque.te discussion of the no

_ build attemative will cause the NRC to violate NEPA's

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requirement to cddress all sides of the no action -

alternative.

2.

Annlicant's Reenan=* to the Cantar' tion The State raises a number ofissues in Contention Z, which Applicant addresses in L

- turn below, a)

' Inadaana*. Can=Idaratian of No Build Altemative The State alleges that the Applicant's discussion of the no action altemative fails to provide the balanced comparison of environmental consequences among attematives required by NEPA because "the Applicant focuses solely on the perceived dicadvantmoen

- of the no build attemative." State Petition at 169. -(emphasis in original). The State, however, ignores relevant information in the Environmental Report, which considers the "no action" attemative (acc ER at 8.1-2 ' o 8.1-4) and evaluates the environmental impacts t

'of building and operating the PFSF (acc ER Chapters 4 5 & 7) which necessarily

. identifies the dis dvantages of the build scenario and the advantraes of the no-build -

a attemative.

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l As Applicant has previously set forth in its response to Castle Rock Contention 13,3 the "no-action" alternative means that the project will not take place. In the context of a licensing decision, there are two alternatives: to grant the license or to deny the license. The costs and benefits of granting the license will be reversed if the license is denied.2 Since the Applicant has comprehensively identified and evaluated the envhonmental impacts of proceeding with the proposed action' it has ipso facto identified the benefits or advantages of the no build alternative.

Additionally,10 C.F.R. Part 51 requires "the discussion of alternatives" in an Environmental Impact Statement (EIS) to "take into account [ ], without duplicating, the environmental information and analyses included" in other sections of the EIS. 10 C.F.R.

Pr.rt 51, Subpt. A, App. A, { 5 (emphasis added). This same analysis would necessarily apply to the Applicant's Environmental Report. The State's assertion is, however, contrary to 10 C.F.R. Part 51. If the State's assertion were implemented, Applicant's analysis of the "no-action" alternative would duplicate the analysis of the emironmental impacts or costs associated with building the facility already addressed in Chapters 4,5

' Su Applicant's Answer to Petitioners' Contentions at 411 12 (hereinafter" Applicant's Answer").

• In addition to the authority cited at Applicant's Answer at 411-12, su also Citizens Acainst Burlincton.

Inc v. husev. 938 F.2d 190,198 n.7 (1990), urL de nied,502 U.S. 994 (1991)("the discussion of the socioeconomic and environmental impacts ofinactwn is the flipside of the discussion of the impacts of action")(emphasis in original).

' Su Chapter 4 of the Environmental Report. Also, Chapter 5 of that report addresses the environmental effects of accidents and Chapter 7 discusses economic and social effects ofinstallation, construction and operation.

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i and 7 of the Environmental Report, since the absence of those environmental costs are the environmental benefits of the no-action attemativc, In short, the State has i;mored relevant information in the Environmental Report and has merely advocated additional discussion ofissues. Accordingly, the contention must be dismissed. Scc Applicant's Answer,Section II.C at 15-16.

b)

Ignnring Advantmoes in No Build Alternative The State alleges that "[t]he Environmental Report does not comply with NEPA because it does not adequately discuss the 'no action' altemative," in that the " inadequate -

and one-sided" analysis of the no build altemative fails to consider "the advantages of not transporting 4,000 casks of spent fuel rods thousands of miles across the country, not enhancing the potential for sabotage at a centralized storage facility, not increasing the risk of accidents from additional cask handling, etc.," and " fails to discuss the considerable safety advantages of storing spent fuel near the reactors, whose spent fuel pools will be available for transfers or inspections of degraded fuel." State Petition at 169-170. The State also claims that the Applicant fails to compare the emironmental advantages of the expansion of on-site storage capacity to that caused by building the PFSF at a remote desett site. Id. This part of the contention must be rejected for the reasons set forth below.

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(i)

- Moving the Casks Across Country Here, the State assens that the Environmental Repon is inadequate in that the -

4 analysis of the no build altemative fails to consider "the advantages of not transponing

' 4,000 casks of spent fuel rods thousands of miles across the country..." State Petition at i

169.

This contention must be dismissed as an impermissible collateral attack on the 4

Commission's regulations in 10 C.F.R. Pan 72 which expressly limit (as discussed in Applicant's Response to Utah Contention V, subpart a) the evaluation of the

- environmental effects of transporting spent fuel to the region of the ISFSI. 10 C.F.R. f f 72.34,72.108. Sac Applicant's Answer at 295-97. The Commission has expressly considered in promulgating those regulations the extent to which the environmental impacts of transporting spent fuel to and from an ISFSI are to be considered, and it has determined that the transportation environmental impacts to be assessed are those "within the region" where the ISFSI will be located. li(emphasis added); see also,45 Fed. Reg, 74,693,74,695 (1980). As a result, the State's contention and its related bases, which argue that "the application does not consider the advantages of not transporting 4,000 casks of spent fuel rods thousands of miles across the country..." (State Petition at 169),

are barred as a matter oflaw from being litigated in this licensing proceeding.- Scc 10 C.F.R. f 2.758.

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Additionally, the environmental effects of such shipments have been evaluated using the NRC's generic determination of the environmental impact of shipping spent fuel and this contention must be rejected on that basis as well. Sec Table S-4 and the discussion of Radioactive Material Movement at { 4.7 of the Environmental Report as well as { 5.2 which discussed Transportation Accidents. To the extent that the State challenges Applicant's analysis of the environmental impact of transporting spent fuel, Applicant addresses the allegations in Applicant's Response to Utah Contention V. See Applicant's Answer at 292 310.

(ii)

Sabotage at Centralized Facility The State asserts that the Emironmental Report is inadequate in that the analysis of the no build alternative faily to " consider the advantages of... not enhancing the potential for sabotage at a centralized storage facility." State Petition at 169. However, as set forth in Applicant's response to Utah Contention U (Applicant's Answer at 291-92) and Utah Contention V (11 at 309), the "emironmental report for a facility need not include the emironmental effects from the risk of sabotage," Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819,22 NRC 681,697, 701 (1985). Thus, this contention must be dismissed as having no basis and beyond the scope of NEPA.

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(iii)

Risk of Cad Handling Accidents The State asserts that the Environmental Report is inadequate in th t the analysis of the no build alternative fails to " consider the advantages of... not increasing the risk of accidents from additional cask handling." State Petition at 169. This contention must be rejected for ignoring relevant information in the License Application, for lack of an adequate factual basis and as a collateral attack on Commission regulation.

Eitsi, the State ignores infonnation in the License Application that not building the PFSF is likely to increase the number ofISFSIs built at individual reactor sites. Sec ER { l.2 and { 8.1.2. The storage of spent fuel in on site ISFSIs will have the potential for cask handling accidents in similar respects (other than off-site transportation discussed below) as storage of spent fuel at the PFSF.

Further, depending on the type of cask storage technology used for such on-site ISFSIs, the risk of accidents in the handling of spent fuel and spent fuel casks could be lower at the PFSF than at an on-site ISFSI. The Emironmental Report @8.2, " Facility Design Alternatives," describes the "five types of system technologies available or under development for the dry storage of spent nuclear fuel." ER at 8.2-1. As discussed there, the multi-purpose canister technology chosen for use at the PFSF minimizes risk in handling spent fuel since there is "[n]o opening of canisters and exposing or handling of individual spent fuel assemblies" (ER at 8.2-16), as compared to the single purpose canister or cask systems that are currently in use at most ISFSIs located at reactor sites.

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4 Further, as discussed in Applicant's response to Utah Contention D, the use of a multi-purpose canister, such as' that chosen by PFSF, provides for one-time packaging of spent fuel for all phases of transportation, storage and disposal and allows for shipment to the ultimate disposal site without the need to repackage that fuel in different casks. Sac l Applicant's Answer at 61; act also ER at 1.2-2. Again this approach used at the PFSF reduces the risk of handling accidents compared to other technologies which would require repackaging of the spent fuel for off-site shipment.

In addition to ignoring this relevant information in the License Application, the State fails to provide any factual basis in the Contention or the referenced Affidavit to support its claim ofincreased risk of cask handling accidents involved with the storage of spent fuel at the PFSF. It simply makes the bald assertion ofincreased risk which cannot support an admissible contention. En Ar-licant's Answer,Section II.C'at 12-13.

Finally, any claim by the State ofincreased risk of cask handling accidents with respect to the transportation of spent fuel in shipping casks to the PFSF must be rejected as an imperinissible collateral attack on Commission regulations. As set forth in Applicant's response to Utah Contention J and Utah Contention Q, the NRC has made the generic determination that spent fuel can be safely handled and transported in shipping

_ casks certified pursuant to 10 C.F.R. Part 71. Sac Applicant's Answer at 143-44 and 214-15.

In sum, this subcontention must be dismissed for the above reasons.

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(iv):

Rafatv of On-=ita Raae*ar R' ara?*

The State asserts that the Environmental Report is inadequate.n that the analysis of the no build alternative " falls to discuss the considerable safety advantages of storing '

' spent fuel near the reactors, whose spent fuelyools will be available for transfers or inspections of degraded fuel." State Petition at 170. The State ignores, however,' hat, as ?

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discussed in Applicant's responses to Utah Contention J and Utah Contention Q, the spent fuel at PFSF will be stored in welded stainless steel canisters which the NRC has determined provides sufficient confinement for degraded fuel such that neither inspection -

nor transfer of degraded fuel will be required at the PFSF. Sz Applicant's Answer at -

134 and 209-210. This contention must therefore be rejected for failing to establish a

. sufficient basis for an admissible contention.

(v)

Envirnnmental Advantages of On-Site Paartor Storage The State also charges the Applicant with " tunnel vision" for concluding in the Environmental Report that the " construction of additional onsite ISFSIs at plant sites will result in more sites disturbed and greater environmental impact than constructing one site in a remote, desert environment." State Petition at 169 70. According to the State,"[ijn.

contrast to expansion of onsite storage capacity within the reactor basin and any.

. environmental disturbance that may entail, the ' remote desert site' chosen by Applicant is an undisturbed site used primarily for grazing and an area of cultural and historical significance to a number of groups, including Native Americans." Id. at 170. This 10

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h claims are implicitly inherent in the " expansion of onsite storage capacity within the reactor basin" (id.) must be rejected for a host of reasom.-

Eirst, as discussed in subpan a above, the Applicant discusses in Chapters 4,5 and 7 of the Environmental Report the environmental impacts of building the proposed ISFSI I

in a " remote desert site." As discussed in subpan a, the absence of these impacts are the benefit of the no-action alternative and therefore are not ignored by the Applicant as -

claimed by the State.

I Second, the State ignores relevant information in the License Application concerning the environmental impacts of on site storage. For example, as set forth in p

Section 1.2 of the Emironmentra Report, some reactors "have reached their maximum 4

spent fuel pool capacity becaux of structural or other physical limitations" and for such L

reactors expansion of on site storage capacity within the reac;or basin is not an available I

option. ER at 1.2-1. Absent the PFSF, separate ISFSIs at each such reactor site with i

their related emironmental impacts would need to be construc xt. As further discussed in Section 1.2, construction of the PFSF will allow permanently shut down reactors to complete decommissioning and thus obtain the concomitant environmental benefits of such decommissioning.

e Third, other than mere rhetoric, the State provides no factual basis either in the contention or the referenced affidavit to support its claim'of the environmental r

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advantages of the expansion of on site storage capability in lieu of building the PFSF.

Such bald conclusory allegations are insufficient to support an admissible contention.

Srg Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 2),

L11P 9247,36 NRC 370,376 (1992).

Thus, this contention both ignores relevant information in the Environmental Report conceming the environmental advantages and disadvantages of on site reactor storage and falls to provide a sufficient factual basis for an admissible contention. Sec Applicant's Answer Section ll.C at Il 16. Furthermore, the essence of the State's complaint is not a failure to evaluate the environmental pros and cons of the PFSF in the Environmental Report, but the decision to proceed with the PFSF in lieu of expanding on site storage capability, it is well established, however, that NEPA "does not mandate particular results but simply prescribes the necessary process" for the evaluation of environmental efTects. Robertson v. Methow Valley Citizens Council. 490 U.S. 332,350 (1989). Thus, mere disagreement with the ultimate choice does not raise any issues under NEPA.

c)

Reliance on No Build Alternative The State alleges that the NRC cennot rely on Applicant's discussion of the no action altemative because of the asserted failure cf that discussion to " address all sides of the no action alt:mative." State Petition at 170. 'Ibe State cites four cases in support of its position.

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l The cases cited by the State do not provide any basis for its claim that the NRC cannot rely on the Applicant's discussion of the no build attemative. The rulings in three of these cases are premised on a party's total failure to consider the no action altemative.

Sec City of Tenakee Springs v. Clough: 915 F.2d 1308,1312 (9th Cir.1990); Dnb hiarshall Alliance v. Ilodel,852 F.2d 1223,1230 (9th Cir.1988); Getty Oil Co. v. Clark, 614 F. Supp. 904,920 (D. Wyo.1985). In the fourth case, the agency relied on inaccurate data, which was challenged, and made no attempt to resolve or investigate the inconsistencies in considering altematives, including the no action attemative. Sec Yan Abbema v Fornell,807 F.2d 633,642 (7th Cir.1986).

Here, Applicant's Emironmental Report does address the "no action alternative" in Section 8.1.2,"No Build Altemative"(ER at 8.12 to 8.1-4), and further the State doe 9 not claim that the Applicant has utilized any inaccurate data in its Emironmental Report.

Further, as discussed in greater detail in response to Contention AA infra, the NRC is entitled to rely upon the goals of the project as enunciated by an applicant and is not to second guess the business choices of an applicant, here the choice to build a centralized storage facility as opposed to relying on the expansion of onsite storage capability. See Citi7 ens Against Burlington Inc. v. Busey, S.upIa,938 F.2d at 196 99. Hence, this comention must be dismissed for lack of basis.

H.

Utah Contention AA: Range of Alternatives 1.

The Contention The State alleges in Contention AA that:

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The Environmental Report fails to comply with the National Environmental Policy Act because it does not l

adequately evaluate the range of reasonable alternatives to the proposed action, i

State Petition at 172. The assorted bases for the contention are set forth in three pages of l

discussion following the contention. In order to focus the analysis on whether the j

contention should be admitted, the Applicant proposes that the contention be restated as follows incorporating the specific allegations in its bases.

The Environmental Report falls to comply with the National Environmental Policy Act because it does not adequately evaluate the range of reasonable alternatives to the proposed action in that:

a) The Applicant's "overarching criteria"in its original list of sites (phase 1) was whether the site was a willing jurisdiction.

b) There is no disassion or tabulation of the results from phase 2 screening and no mention of whether the i

Applicant sent the subject questionnaire to all 38 site owners orjust to the Skull Valley Band of Goshutes, c) It is a mystery how the Applicant narrowed the seicctic: to two sites located almost next to each other on the Skull Valley Reservation from the 38 candidate sites because the factors in 10 C.F.R. Subpart E 6 72.90-108 are not discussed in the ER. Major omissions include failure to consider the adequacy of transportation corridors as well as accident and risk analysis.

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d) The Applicent's site selection criteria has not been applied at alllevels of screening, 2,

Annlicant's Reennnae to the Contention 14 f

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l-The State raises a number ofissues under Contention AA, which we address in i

l tum below.

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a)

Phase 1 Selection of Potential Sitas.

The State alleges that the "overarching criterion" used by the Applicant in f

t selecting the 38 candidate sites for evaluation and the choosing of Skull Valley 3

reservation as the ultimate site "seems to (have been) a willingjurisdiction." State t

Petition at 174. This subcontention must be dismissed because it ignores relevant j

material submitted by the Applicant and for lack of basis.

The criteria in the phase 1 selection of sites (national screening) was not limited to a willing jurisdiction but, as expressed in Environmental Report Section 8.1.3.1, included l

locating a site where natural phenomena would not create an unfavorable storage location and one which had favorable transportation access. Specifically, the Environmental Report states that "... [t]he key requirements of a candidate site in this phase included: a-l willing jurisdiction, public acceptability, reasonable distance to known capable seismic i

faults and reasonable known ground accelerations, reasonable site flooding conditions,

- and favorable proximity to transportation access." Also, anyjurisdictional restriction that would prohibit the facility was used as ar exclusion factor. ER at page 8.1-4 i

As evidenced by the State's own opposition, it should not be surprising that jurisdictions would oppose the location of such a facility in their area. A willing I

- Jurisdiction is, therefore, clearly a reasonable siting criterion but was not the only 15

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criterion considered by the Applicant. Further, in this regard, the potential host communities or entities evaluated by the Applicant included the original list of applicants to the Nuclear Waste Negotiator for the voluntary siting of a federal MRS as well as other entitles which directly contacted PFS. ER at 8.1-2. The State has provided no basis, legal or factual, to challenge the sufficiency of the 38 candidate sites identified by Applicant by this process for the siting of the PFSF. Moreover, even if a willing jurisdiction were the "overarching criterion," the State provides no reason why that should invalidate PFS's attematives analysis.

IIence, this subcontention must be dismissed for ignoring relevant material submitted by the Applicant and for failing to establish a sufficient basis for an admissible contention. Src Applicant's Answer,Section II.C at Il-16.

b)

Phase 2 Area / Site Overview Screening.

The State contends that there is no discussion or tabulation of the results from the phase 2 screening and no mention of whether the Applicant sent the site selection questionnaire to all 38 site owners orjust to the Skull Valley Band. State Petition at 173.

This subcontention must be dismissed because it ignores relevant material submitted by the Applicant. The Environmental Report states in Section 8.1.3.1 that the Applicant performed further screening using a process that included NRC rules and regulations for siting a spent fuel storage facility (Lc.,10 C.F.R. 72, Subpart E and 10 C.F.R.100, Appendix A) ER at 8.1 5. The Applicant also applied criteria developed specifically for 16 l

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the project to reflect cost, geological, seismic, demographic, hydraulic and environmental factors. These criteria are identified in ER Table 8.13. llence, this subcontention must be dismissed for ignoring relevant material submitted by the Applicant. Sig Applicant's Answer,Section II.C at 1516.

This subcontention must also be dismissed as being mistaken in that it states that there is no mention whether the Applicant sent the questionnaire to all 38 site owners.

The Application does state that the questionnaire was sent only to three candidate sites.

ER at 8.1 5. The State has cited to no NRC regulation or NEPA case law which would require that the questionnaire be sent to all 38 site owners.

Moreover, the Applicant's business decision not to send the questionnaire to all the potential host sites is acceptable based on the well tested principal that an agency "may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project," City of Grapevine v. DOT,17 F.3d 1502,1506 (D.C.

Cir.) (Ginsburg, J. ) cen, denied,115 S. Ct. 635 (1994) quoting Citizens Against Burlington. Inc. v. Bussey,938 F.2d 190 (D.C. Cir.), cen, denied,502 U.S. 994 (1991).

In Citizens Against Burlington. Inc. v. Bussey, the United States Court of Appeals for the District of Columbia Circuit found that while Congress expected agencies to consider an applicant's wants when formulating the goals of the proposed action, " Congress did not expect agencies to determine for the applicant what the goals of the applicant's proposal should be." 938 F.2d at 199 (citations omitted) "Wher, an agency is asked to sanction a 17

specific plan..., the agency should take into account the needs and goals of the parties involved in the application " Id. at 196 (citations omitted). In that case, the court emphasized that the FAA should not second guess the business choices made by an applicant when it decided to leave one city for another. The court stated that "the agency has neither the expertise nor the proper incentive structure" to make such an inquiry. Id.

at 197, n.6. The court further noted that "while Congress clearly wanted NEPA to extend federal agencies' range of vision to environmental concerns, it did not, so far as we can tell, aim at agencies' acquiring the skills of successful entrepreneurs. NEPA is supposed to make agencies more sensitive -- but only, by definition, to matters emironmental." Id.

The NRC has explicitly recognized the trend of current NEPA case law which allows an agency to consider an applicant's wants 59 Fed. Reg. 37,724,37,726 (July 25, 1994)(Statement of Considerations for License Renewal Rule). Hence, this subcontention must also be dismissed for advocating stricter requirements than those imposed by the regulations. S.cc Applicant's Answer,Section II.B. at 5 6.

c)

Phase 3 Candidate Area Selection The State claims that it is a mystery how the Applicant narrowed the selection to two sites on the Skull Valley Reservation from the 38 initial candidate sites. State Petition at 174. This subcontention must be dismissed because it completely ignores the discussion and analysis in the Environmental Report that explains the process by which the Applicant selected among the candidate sites and narrowed that preliminary list of I8

choices. Sec ER Section 8.1.3," Siting Alternatives," ER Table 8.1 1," Potential Host Sites," ER Table 8.1 2, " Site Selection Questionnaire" and ER Table 8.1-3, " Evaluation Criteria." The list of candidate sites was narrowed to three in phases 1 and 2. Then, as Section 8.1.3.1 of the Environmental Report explains, a list of detailed questions (ER Table 8.1 2) intended to determine site suitability was sent to the owners / promoters of the remaining three candidate sites. Also, a major engineering film familiar with nuclear construction issues was engaged to conduct a field evaluation visit to each of the three sites. ER at 8.1 5. Based on these evaluations and application of other criteria (such as host conununity preferences, additional transportation infrastructure needs, cost factors and envirorunental concerns), the Applicant selected the Skull Valley Reservation as the host site. Id. In so doing, the Applicant complied with the requirements of 10 C.F.R.

Subpart E, { 72.90108. Ilence, this subcontention must be dismissed as mistaken and for failure to ignore relevant material submitted by the Applicant.

d)

Application of Site Selection Criteria to all Phases The State claims that the NRC cannot rely on the Applicant's screening criteria because it has not been used at all levels of screening. State Petition at 174. This subcontention must be dismissed because it is mistaken sad ignores relevant material submitted by the Applicant. Sec, c.g., Vogtle, LDP-9121,33 NRC at 424; Rancho Seco, LDP 93 23,38 NRC at 247 248. NUREG-1567, Appendix B, Section B.5.8 calls for an applicant to consider " appropriate siting factors... at national, regional and local 19

i screening levels." As demonstrated in the Environmental Report (ER 6 8.1.3; Tables 8.1 1,8.1 2 and 8.1 3), the Applicant has appropriately apjlied site selection factors on national, regional and local levels. Naturally, each site selection criteria would not be applied to all levels of screening because within each level, a number of potential sites are

" screened c,ut" and, therefore, will not be included in the next level of screening. The process included consideration, as appropriate at each phase of screening, of the relevant environmental effects, economic, technical, and other factors, including political concerns. Hence, this subcontention must be dismissed for being mistaken and failing to ignore relevant material submitted by the Applicant. Scr Applicants' Answer, Section ll.C.

C.

Utah Contention 1111. Site Selection and Discriminatory Effects 1.

He Contention ne State alleges in Contention BB that:

The Applicant's site selection process does not satisfy the demands of the President's Executive Order No.12898 or NEPA and the NRC staff must be directed to conduct a thorough and in-depth investigation of the Applicant's site selection process.

State Petition at 175. The asserted bases for the contention are sei forth in three pages of discussion following the contention. In order to focus the analysis on whether the contention should be admitted, the Applicant proposes that the contention be restated as follows incorporating the specific allegations in its bases:

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The Applicant's site selection process does not satisfy the demands of the President's Executive Order No.12898 or j

NEPA and the NRC staff must be directed to conduct a i

thorough and in-depth investigation of the Applicant's site selection process in that:

)

a) The NRC has agreed to implement Executive Order 12898.

b) Both the Executive Order and NEPA require the NRC to evaluate an applicant's siting process to ensure the site selection is free from discrimination.

c) The Applicant's site selection process, which started with 38 sites of which 20 were located on Indian reservations and ended up with two closely located sites on the Skull Valley Reservation, raises an inference of discrimination.

2.

Applicant's Remonse to the Contention None of the specific issues raised by the State in Contention BB provide sufficient basis for the admission of this contention. Eitsi, Executive Order 12898 is intended solely for the internal management of federal agencies and therefore it cannot be made applicable to NRC licensing proceedings, as discussed in subpart a below. Second, neither the Executive Order nor NEPA mandate an evaluation or investigation of an applicant's site selection process for discrimination, as discussed in subpart b below.

Ihird, the State ignores the extensive discussion in the License Application which reflects that the Skull Valley Band initiated contacts with PFS and has actively and voluntarily pursued locating -- and has voted in favor of building - a spent fuel storage facility on 21 i

i

l e-the reservation, as discussed in subpart c below. Thus, no legal or factual basis exists for j

this contention and it must be rejected.

a)

Reliance an Executive Order 12898 The State asserts that the Commission has agreed to implement Executive Order 1

12898 and seeks to rely on that Order to claim that the NRC must evaluate Applicant's l

site selection process for potential racial discrimination. The State's reliance is i

misplaced, however, for the same reasons as those set forth in Applicant's response to OOD Contention 0 at pages $94 97 of Applicant's Answer. As explained there,-

Executive Order 12898 is intended solely for the intemal management of federal agencies and by its terms expressly does not create new substantive rights or obligations that are subject to judicial review.1 Because it does not create new law, the provisions of Executive Order 12898 are not applicable to the licensing of facilities and actisities under

[

the Atomic Energy Act, for such application would result in the implementation of Executive Order becoming subject tojudicial review contrary to the express prosisions of I

the Order, (i)

Evaluatinn of the Elting Procaee for Racial Diacrimination The State claims that any discriminatory effects in the site selection process must :

be evaluated under both NEPA and Executive Order 12898. State Petition at 175-76.

. The State cites Section 2.2 of the Executive Order, general prosisions of NEPA, Calvert Cll#m Paaniinating Camm v. AEC. 449 F.2d 1109,1115 (D.C. Cir.1971), and l

22 v

j t

j

_-_..,_-..~_.2__

Louisiann Energy Services. L P.(Claibome Enrichment Center),2 BP-97 9,45 NRC 367 (1997)("LES") as the basis for this claim. Id. Ilowever, as discussed below, the State misinterprets both the Executive Order (even assuming it applies to licensing proceedings) and NEPA. Further, the LES decision (which is in no way binding on the Board)is wrongly decided.

(ii)

Section2.2 of the Executive Order The State cites to Section 2.2 of the Executive Order 12898 as the basis for its assertion that discriminatory effects in the site selection process must be evaluated under the Executive Order. State Petition at 175 76. Even assuming the Executive Order were applicable in the context of NRC licensing proceedings, the State both misinterprets and misapplies Section 2.2 of the Executive Order.

Section 2.2 provides as follows:

Each Federal agency shall conduct its programs, poli les, and activities that substantially affect human health or the environment, in a manner that ensures such programs, policies, and activities do not have the effect of excluding persons (including pogulations) fInm participation in, denving persons (including populations 1 the benefits of, or subjecting persons (including nopulationsi to discrimination under such programs, policies, and activities, because of their race, color, or national origin.

EO 6 2 2 (emphasis added).

Nothing in Section 2.2 suggests any intent (or pmvides any authority) to review the racial motivation of an applicant's site selection procedures. The scope of this section 23

l

-- federal programs, policies and activities -- cannot reasonably be construed to include the selection of a site for a fuel storage facility by a private party. Rather, this section of the Order is simply a recapitulation of Title VI of the 1964 Civil Rights Act, which prohibits discrimination in any program or activity receiving federal financial assistance.'

This intent of Section 2.2 is connrmed by the President's Memorandum accompanying the Executive Order, which expressly references Title VI of the Civil Rights Act in the context of federal agencies ensuring that "all programs or activities receiving Federal financial assistance that affect human health or the environment do nol... discriminate on the basis of rate der or national origin." Memorandum on Environmental Justice (emphasis added). 30 Weekly Comp. Pres. Doc. 279 (Feb. I1,1994). In contrast, in discussing the obligations of federal agencies under NEPA, the President's Memorandum does not address discrimination, but instead directs Federal agencies to analyze "the environmental effects... including effects on minority communities and low income communities when such analysis is required by [NEPA)." Id.

• Title Vi provides as follows:

No person in the United States shall on the ground of race, color, or national origin, t>e excluded fIDm particination in, he denied the hcntSta Qf.QI bg subiceted to discrimination undct Any program m attluty receiving Federal financial assistance.

42 U.S.C. I 2000d (1994)(emphasis added).

l l

24 L

i Thus, Section 2.2 of the Executive Order is a directive to Federal agencies to enforce Title VI of the Civil Rights Act with respect to programs or activities affecting the human health or the environment that receive Federal financial assistance. 'lhe courts have expressly found that Titi: /I's prohibition of" discrimination under any program or activity receiving Federal financial assistance" does not extend to federal licensing activities.'

Therefore, Section 2.2 of the Order can only be applicable to activities receiving Federal fmancial assistance, and does not establish any new standard for NRC licensing actions or NEPA reviews. It is well established that executive orders lacking a statutory basis or some other Congressional delegation of authority cannot create enforceable rights or obligations. Stc c.g. Chrysler coro. v. Brown,441 U.S. 281,303-08 (1979)

(Executive orders must be authorized by statute in order to have substantive, legal effect);

Chen v. INS,95 F.3d 801,805 (9th Cir.1996) ("the Executive Order lacked the force and effect oflaw because it was never grounded in a statutory mandate or congressional delegation of authority"). liere, Congress has clearly defined the scope of activities subject to protection under Title VI, and bas excluded federal licensing activities from 5 Set, e.g., Gottfried v. TCC. 655 F.2d 297,312 13 (D.C. Cir.1981), cert. denied. 454 U.S. I 144 (1982);

Jacobson v. Delta Airlinet Inc 742 F.2d 1202,1212 (9th Cir.1984), cert ditn issed. 471 U.S.1062 (1985); Parah zcd Veterans of Arnerica v. Civil Aeronautici n.d. 752 F.2d 694,707-08 (D.C. Cir.1985),

rev'd and remanded. 477 U.S. 597 (1986).

25

l*

I Title VI's prohibition. The President could not, even if that were the purpose, use the Executive Order to rewrite Title VI to now include licensing.

Further, the President has no authority to expand the NRC's substantive statutory authority. It has long been held that an intervenor in an NRC proceeding has standing to raise issues only within the zone ofinterests protected by the Atomic Energy Act or NEPA. Yankee Ato,1c Electric Company (Yankee Nuclear Power Station), CLI 961, 43 NRC 1,6 (1996). The prevention of discrimination has never been recognized as an interest protected by either of these statutes, and the Executive Order cannot be construed as authority to inject this new issue into NRC proceedings.

(iii)

NEPA No provision in NEPA requires or authorizes an agency to review siting criteria for racial motivation. Rather, as reflected by the President's Memorandum, NEPA is f

focused on analyzing the " environmental impact" of" major Federal actions significantly affecting the quality of the human environment," and is not directed at addressing potential racial bias. Sec 42 U.S.C. ( 4332(2)(C). As stated by the Supreme Court in Metronolitan Edison Co. v. People Against Nuclear Energy. 460 U.S. 766 (1983)

The theme of[NEPA) is sounded by the adjective

" environmental":.... NEPA was designed to promote human welfare by alerting govemmental actors to the effect of their proposed actions on the physical environment.

26

l 460 U.S. at 772. Accord, Glan Packaging Inst. v. Regan 737 F.2d 1083,1091 (D.C.

Cir.), crit denicd,469 U.S.1035 (1984) (the policies of NEPA "are too important to be diluted" by consideration of asserted environmental impacts "well beyond any reasonable i

interpretation of the ' natural and physical erwironment' encompassed under NEPA").

Thus, NEPA is concemed with impacts on the physical environment and related secondary socio economic effects, and not the motivations of any of the individuals involved, nere is no requirement in the NRC's regulatiots implementing NEPA (10 C.F.R. Part 51), or the CEQ Guidelines on which they are based (40 C.F.R. Pan 1500),

for any sort of discriminatory motivation review.

The general provisions of NEPA and the Calvert Cliffs decision cited by the State are not to the contrary. The provisions of NEPA cited by the State simply set forth the general policy goals of NEPA to provide all Americans a healthful environment and the general requirements, among others, to prepare environmental impact statements for major federal actions significantly affecting the quality of the human environment. They do not mandete - and have never been interpreted to e idate - the sort of discriminatory motivation review sought by the State here. Similarly, the issues in Calvert Cliffs involved the extent to which the NRC is obligated to evaluate in good faith without prejudgment environmental hnpacu under NEPA. In no way can that case be interpreted as involving any obligation by the NRC to investigate under NEPA claims cf racial bias or discrimination by an applicant.

27

l Indeed, NEPA has never been interpreted in its 28 years ofits existence to require any such investigation by federal agencies, and for good reason. The purpose of NEPA is procedural, to make sure that the federal agency has identified the potential environmental impacts of a proposed action so that this information is available to the federal agency in rnaking thosejudgments. Sec c& Andrus v. Sierra Club,442 U.S.

347, 350 (1979) ("The thrust of (NEPA) is thus that environmental concerns be integrated into the very process of agency decision making"); Robertson v. Methow Vallev Citizens Council. 490 U.S. 332, 350 (1989) ("NEPA itself does not mandate particular results, but simply prescribes the necessary process"). The intent or motivation of a private applicant does not alter the potential environmental impacts that a federal agency must evaluate and consider in this decision-making process. Moreover, the evaluation of the intent and motivation of an applicant would introduce issues far afield from the evaluation of environmental impacts of a proposed course of action, the fundamental purpose of NEPA.

No agency interpreting and applying NEPA, nor the Council for Environmental Qality in its guidelines, nor federal courts in their review of the federal government's implementation of NEPA have ever concluded that NEPA requires the investigation of claims of racial bias or discrimination. Such a conclusion does not mean that racial discrimination is to be condoned. There are a host of statutes that strike at illegal discrimination. NEPA, however, is not one, and never has been one.

28

i e

(iv) h LES Dacinian The LES decision relied upon by the State is currently under resiew by the 4

- Commission and does not constitute final NRC action. The Applicant believes that LES -

is wrongly decided for the reasons set forth in the briefs to the Commission filed by the applicant for the Claibome Enrichment Center and the Nuclear Energy Institute.

J 4

b)

Annlle.mnt's Slie RelmetInn Prne===

l 1

l 1he State claims that the fact that the Applicant's site selection process "staned..

}

i

. with 38 sites, over 20 of which were located on Indian Reservations, and ended up with a

two closely located sites on the Skull Valley reservation.. raises an inference of '

f discrimination in the site selection process." State Petition at 177. The State, however, i

ignores relevant information in the License Application and, sran assuming alleged e

discrimination were properly an issue in this licensing proceeding -- which as set forth in subparts a and b above it is not - the State has failed to set forth a sufficient factual basis i

to litigate such issues here.

At the outset, the State's claim that the fact that 20 of 38 candidate sites were l

located on ladian Reservations raises an inference of discrimination ignores information in the License Application explaining that the 38 potential host communities or entities evaluated by the Applicant for the location of the PFSF included the original list of -

applicants to the Nuclear Waste Negotiator for the voluntary siting of a federal MRS as well as other entities who directly contacted PFS "with an expression ofinterest in g

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hosting the fuel storage facility." ER at 8.1.2. Two of the key requirements in the initial phases of the site selection process included "a willingjurisdiction" and "public acceptability," ER at 8.1-4, and, as discussed above, such requirements were clearly reaswable. Certainly, the fact that the Applicant focused its site selection process on thosejurisdictions and entities that had expressed an interest in hosting the facility cannot raise an inference of racial discrimination as suggested by the State. The State has ignored this information.

Further, as set forth in Section 2.7.3.3 of the Environmental Report, the Skull Valley Band -- not the Applicant - took the initiative in considering the reservation as a site for a spent fuel storage facility, all of which is caplained in the License Application.

ER at 2.710 to 12. Beginning in 1992, the Skull Valley Band closely examined the potential for hosting a federal MRS on the reservation to store spent nuclear fuel at the I

reserution, li at 2.710,11. This examination included visits by the Band to nuclear generating facilities, existing spent fuel storage facilities, including trips to Japan, France, Great Britain and Sweden to visit existing storage facilities, as well as attendance at conferences on the environment and nuclear waste,li at 2.711. An October 15,1993 DOE Preliminary Site Assessment of the Skull Valley Indian Reservation concluded that the proposed siting areas within the reservation met the DOE site requirements and were suitable for proceeding with the voluntary siting process. Id. And in February 1994, the 30

Skull Valley Band voted to approve the building of a storage facility for spent nuclear t

fuel on the reservation. E l

t Following the end of DOE's siting program, the Band initiated contact with the i

utilities who later fonned PFS as to whether they were interested in siths an ISFSI on the Skull Valley Reservation. E at 2.741 to 12.' Following negotiations, the Band and the i

Applicant reached an agreement for the location of the proposed ISFSI on the Skull i

4 Valley reservation. E at 2.712. Sag Lety Agreement between Applicant and Band (Exhibit 15 to the State's Petition),

i Thus, the Band has actively and voluntarily pursued locating a spent fuel storage on its Reservation and has dadded in favor of building a spent fuel storage facility on the i

l L

Reservation. The State has completely ignored these facu set forth in the License Application and accordingly its contention must be dismissed. Sec Applicant's Answer, Section !!.C at 15 16. Further,in light of these facts set forth in the License Application,~

i the State's contention must be dismissed for lack of factual basis. The State has set forth no facts -- as indeed it could not -- on which to challenge the Band's voluntary initiatives and subsequent contract with PFS for the location of the PFSF on the Resen ation as a product of racial discrimination on the part of the Applicant. Indeed,if the State could 1

successfully claim discrimination in such circumstances, it could effectively override a lawful determination made by the Skull Valley Band, a sovereign entity independent of e

f l

31 i

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+

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the State. Such a result could not be countenanced under well established principles of Indian sovereignty and this contention must therefore be rejected.

D.

Utah Contention CC: One-Sided Cost Benefit Analysis.

l.

De Contention l

The State alleges in Contention CC that:

Contrary to the requirements of 10 CFR. 6 S t.45(c), the Applicant fails to provide an adequate balancing of the costs and benefits of the proposed project, or to quandfy factors that are amenable to quantification.

State Petition at 178. 'lhe asserted bases for the contention are set forth on pages 178-179. In order to focus the analysis on whether the contention should be admitted, the Applicant proposes that the contention be restated as follows incorporating the specific al!egations in its bases:

Contrary to die requirements of 10 C.F.R. { 51.45(c), the Applicant fails to provide av 'dequate balancing of the costs and benefits of the proposed project, or to quantify factors that are amenable to quantification in that:

a) Applicant's Environmental Report makes no attempt to objectively discuss the costs of the project.

b) Applicant fails to weigh the numerous adverse envi onmental impacts discussed, for example, in Contentions H through p, against the alleged benefits of the facility, c) Applicant fails to compare the environmental costs of the proposal with the significantly lower environmental costs of the no-action alternative.

32

e-I i

i I

d) Applicant falls to weigh the beneAts to be achieved by altamatives that could reduos or mitigate accidents, _

environmental containination, and decommissioning costs, such as inclusion of a hot cell in the facility i

design.

=l i

e) Applicant mrkes no attempt to quantify the costs i

associated with the impacts of the facility, many of which are amenable to quantification in that:

l (i) costs related to accidents and contamination may be quantified its terms of health effects and dollar costs; 1

. (ii) &~amissioning impacts can be quantified; i

(iii) visual impacts can be quantified in terms oflost i

tourist dollars; and j

- (iv) emergency response costs can be quantified based on the cost of those services.

1 2.

Analle=at's R=== to the Cantaa'laa The State raises a number ofissues in Contention CC, which Applicant addresses J

in turn below.

I i

a)

No Attamat to Oblactively Discuan Protect Cnata The State alleges that the Applicant has violated NRC regulations, specifically 10 l

C.F.R. { 51 A5(c), because the " Environmental Report makes no attempt to objectively i

discuss the costs of the project." State Petition at 178. In particular, the State asserts 1

thati

"[o)ther than the financial costs incuned by the Applicant in constructing and operating the facility, the sum and -

33 o

l:

i t

e b :, -

substance of the Applicant's discussion of costs are as follows:

'Ihe indirect costs, which are derived from the socioeconomic and em ironmental impacts of the facility, are minimal due to the remote location and small size of the actual storage area.

ER at 7.3 1. This brief dircussion is completely inadequate to satisfy the requirements of 10 CFR. S t.45(c).

E Subsection (c) of 10 C.F.R. ( 51.45 states that The environmental report shall include an analysis that considers and balances the em>ironmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and attematives available for reducing or avoiding adverse environmental effects....

[T]he analysis in the environmental report should also include consideration of the economic, technical, and other benefits and costs of the proposed action and of alternatives.... The environmental report should contain suflicient data to aid the Commission in its development of an independent analysis.

10 C.F.R. ( 51.45(c). This contention must be dismissed for two reasons. First, the State mistakenly claims that Applicant's Environmental Report fails to address the required topics of discussion mandated by the above regulation. Second, the State fails to provide any basis for its generalized allegation that the Applicant has not complied with the requirements of {51.45(c). Specifically, the State falls to explain in what respects the information contained in the application is insufficient to " aid the Commission in its development of an independent analysis." E 34

The statement of the indirect seeioeconomic and emironmental costs in Section 7.3 of the Environmental Report, which the State claims is " completely inadequate" (State Petition at 178), is based on the evaluation of socioeconomic and environmental impacts in chapters 4 and 5 of the Emironmental Report. The State does not take issue or attempt to explain why the evaluation of socioeconomic and erwironmental impacts in chapters 4 and 5 are inadequate.11 The State merely states that "[t]his brief discussion

[in section 7.3) is completely inadequate to satisfy the requirements of 10 CFR. S t.45(c)"

(ii), without providing the " supporting reasons for the petitioner's belief" (as required by 10 C.F.R. j 2.714(b)(2)(iii)) that Section 7.3 is inadequate and ignoring its basis in chapters 4 and 5 of the Environmental Report. A petitioner alleging that part of an application is inadequate has the obligation to specify how the application is inadequate to demonstrate a litigable contention. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LDP 82 75,16 NRC 986,993 (1982). The State has not done so here, so this subcontention must be dismissed.

b)

Failure to Weigh the Numerous Adverse Emironmental Impacts Against the Alleged Benefits of the Facility The State alleges that "[t]he Applicant fails to weigh the numerous adverse environmental impacts discussed, for example, in Contentions H through P above, against the alleged benefits of the facility." State Petition at 178. This subcontention must be dismissed because it provides neither a concise statement of the alleged facts or expeit opinion in its support nor references to specific sources and documents to establish the 35

4 facts or expert opinion.10 C.F.R. I 2.714(b)(2)(li). The State refers to no facts, expert opinion, or documents to support a claim that the Applicant's analysis is inadequate or that any environmental effects would result from its alleged flaws even assuming its assertions in Contentions 11 through P were valid. Sec State Petition at 178.

Accordingly, this subcontention is devoid of a factual basis and must be dismissed. See Applicant's Answer,Section II.C at Il 13.'

This subcontention must also be dismissed for containing neither a specific statement of the issue oflaw or fact to be raised nor references to the soecific portions of the application that the petitioner disputes.10 C.F.R. (( 2.714(b)(2), (b)(2)(iii). The State fails to specify either the environmental impacts that the Applicant has allegedly failed to address or the parts of the analysis that are allegedly defective. Sec State Petition at 178. Thus, the subcontention is nonspecific and must be dismissed.

This subcontention must be also dismissed because it mistakenly claims that the Applicant failed to address a relevant issue in the Application. The Application contains a cost benefit analysis and eddresses the environmental impacts of accident factors such

• To the extent the State alleges issues previously identified in Utah Contentions 11 through P. Applicant responds to these allegation in its responses to Utah Contention 11 through P. See Applicant's Response to Utah Contention 11 through P. Although the Applicant did not challenge the admission of Contentions L and M, the State has failed, as set forth in the text above, to provide any factual basis in the present Contention to show any adverse environmental effects flowing from the deficciencies alleged in those contetions. Accordingly, this contention must be dismissed regardless of the admission of Contentions L and M.

36 T

t'

4 as those referred to in Utah Contentions 11 through P. Sec ER Chapter 5, " Environmental Effects of Accidents." The State ignores this information and provides no basis for challenginF any of this information. Accordingly, the subcontention must be dismissed.

Src Applicant's Answer,Section II.C at 1516.

c)

Failure to Compare the Environmental Costs of the Proposal with the Significant1v Lower Emironmental Costs of the No Action Alternative The State alleges that "[t]he Applicant fails to compare the environmental costs of the proposal with the significantly lower environmental costs of the no action alternative." State Petition at 178. As discussed in Applicant's Response to Utah Contention Z, the State ignores relevant information in the Environmental Report, which considers the "no action" alternative (scs ER at 8.1-2 to 8.1 4) and considers the environmental impacts of the facility (see ER Chapters 4,5, & 7). Thus, this contention must be dismissed. Sec Applicant's Answer,Section II.C at 15-16.

Additionally, the State does not specify either the en,'ironmental costs that the Applicant has allegedly not addressed nor the parts of the Application that are allegedly defective. Sec State Petition at 178. The State only makes a broad, general allegation that the " Applicant fails to compare the environmental costs of the proposal with the significantly lower environmental costs of the no-action alternative." Id. Thus, the subcontention is nenspecific and must be dismissed.

37

i NN

\\

i Finally, this subcontention must be dismissed because it does not include l

i

" sufficient information... to show that a genuine dispute exists with the applicant on a I

material issue oflaw or fact." 10 C.F.R. ) 2.714(b)(2)(iii). The State does not provide any facts or " supporting reasons for [its) be."ef"(ii) that the Applicant's cost comparison is inadequate. State Petition at 178. If a petitioner believes that an appilcation has i

omitted required material, it must "cxplain why the application is deficient." 54 Fed.

Reg. 33,168,33,170 (1989) (emphasis added). The State has not done so here.

1 Therefore, tids subcontention must be dismissed.

d)

Failure to Weigh Benefits Achievable by Alternatives that could ReAuce or Mitlante Accidentt Environmental Contamination. and Decommlecioning costs I

Tne State asserts that the " Applicant fails to weigh the benefits to be a:hieved by attematives that could reduce or mitigate accidents, environmental contamination, and i

decommissioning costs, such as inclusion of a hot cell in the facility design." State Petition at 178. This subcontention :nust be dismissed because the State ignores relevant information in the Envirotunental Report which weighs the advantages and disadvantages of five facility altematives, two of which include a hot cell facility design.

Section 8.2 in the Environmental Report prescats "five types of system technologies available or under development for the dry storage of spent nuclear fuel" that are possible PFS facility design attematives. ER at 8.21. The section presents a

. general description of each system, its operational concept, and the resulting advantages 38 o

h_

~ - - - - - -

and disadvantages of each system, including specifically the potential for radiological contamination arising from the use of each system. Sec ER 6 8.2. These advantages and disadvantages were weighed in selecting the preferred altemative - - the multi-purpo;e canister system. He reasons for selecting the multi-purpose canidAr system are discussed in Section 8.2 6.

i e Environmental Report. See ER st 8.2 21. The State provides no facts, expert opinion, or documents to dispute the Applicaut's analyse Since the State ignores relevant information in the Emironmental Report and provides no facv! basis to dispute the analysis in the Environmental Report, this contention must be lismissed. Src Applicant's Answer at 1516.

To the extent the State alleges that Applicant's facility requires a hot cell, Applicant responds to this allegation in its response to Utah Contention J. Src Applicant's Response to Utah Contention J, c)

Failure to Ouantify Costs Associated with Impsets of the Facility The State asserts that "the Applicant makes no attempt to quantify the cosa associated with the impacts of the facility," includir? " costs [that) are amenable to quantification...." State Petition at 179. The State identifies several factors, accident tosts in terms of health effects and dollar costs, decommissioning costs, visual impact costs - specifically lost tourist dollars, and emergency response costs, all of which it considers quantifiable 11 Subsection (c) of 10 C.F.R. $ 51.45 states that:

39

I>-

The analyses (Lr emironmental repons shall, to the fullest extent practicable, quantify the various factors considered.

To the extent that there are important qualitative considerations or factors that cannot be quantified, those considerations or factors shall be discussed in qualitative te Ins.

10 C.F.R. { 51.45(c). This subcontention me t be dirmissed due to lack of basis. The State refers to no facts, expert opinion, or documents to support a claim that the identified costs are quantifiable or that the Applicant's analysis is inadequate. Sec State Petition at 179. Accordingly, this subcontention is devoid of a factual basis and must be dismissed.

This subcontention must also be dismissed because it ignores the License Application. The Application contains a cost-benefit analysis, which quantifies cost to the extent practicable, and addresses the emironmental impacts of any factors that cannot be quantified in qualitative terms. Stc ER Chapters 4,5, and 7. This approach is in accordance with the NRC's regulation above as well with judicial precedent under NEPA. That precedent holds that, under the rule of reason employed in implementing a

" EPA, the objective is not the invariable monetary quantification ofimpacts and benefits, as sought by the State, but rather the furnishing of such "information as appears 2

to be reas mably necessary under the circumstances for the evaluation of the project."

Britt v. United States Army Corns of Eng'rs. 769 F.2d 84,91 (2d Cir.1985)(EIS not deficient because it failed "to quantify the dollar value of the impact on traffic problems"); see also Salmon River Concerned Citizens v. Robertson,32 F.3d 1346, 1360 (9th Cir.1994) (an EIS "need not quantify every risk, particularly lets likely risks").

40 I

l

Here, the State has provided no basis for challenging the appropriateness of the quantitative and qualitative discussion of costs and benefits as set forth in the Environmental Report, and thinusi. :ontention must be dismissed.

v The Applicant addres.r.s the Snie's more specific points below.

(i)

Q',antification of Costs Related to Accidents and f.ontamination The State asserts that "the Applicant makes nu attempt to quantify the costs associated with the impacts of the facility," including " costs [that] are amenable to quantification: for instance, costs related to accidents and contamination may be quantified in terms of health effects and dollar costs...." State Petition at 179. The Applicant has indeed addressed the costs related to accidents and contamination in terms of health effects and dollar costs to the extent practicable, and where not practical, has discussed them in qualitative terms. ER at 5.1-1 to 5.1-6,5.2-1 to 5.2-3 Because the State ignores this material and for the reasons specified in subpart (e), this subcontention must be dismissed.

(ii)

Ouantification of Decommissioning Impacts The State asserts that "the Applicant makes no attempt to quantify the costs associaini with the impacts of the facility," including " costs (that] are amenable to quantification: for instance... decommissioning impacts can be quantified...." State Petition at 179. Contrary to the State's bald assenion, the Applicant has both addressed 41

d and qusntified the costs related to decommissioning impacts. Sec LA Appendix B Chapter 4, " Decommissioning Cost Estimate," ER 6 4.6, " Cost of Decommissioning and Funding Method," and ER Tabk 7.3-1," Private Fuel Storage Facility Life Cycle Costs /

Benefits"(with footnote 2 stating " Operating expenses include decommirsioning costs.").

Because the State ignores this material and for the reasons specified in subpart (c), this subcontention must be dismissed.

(iii)

Quantification of visual Imnacts The State asserts that "the Applicant makes no attempt to quantify the cost.s associe ted with the impacts of the facility," including " costs [that] are amenable to quantification: for instance... visual impacts can be quantified in terms oflost tourist dollars...." State Petition at 179. The State does not provide the " supporting reasons for [its] belief"(10 C.F.R. Q 2.714(b)(2)(iii)) that the Applicant's facility would affect the tourist industry in the area causing lost tourist dollars. The statement of socioeconomic and environmental costs in Chapter 7 is based on the evaluation of the socioeconomic and environmental impacts in Chapter 4 of the Environmental Report. The Applicant evaluates the visual impact of the facility in the arer. and determines that facility would not present a significant impact on the area's scenic resources. Sec ER at 4.1-19,4.2-7 to 4.2-9,4.3-8 to 4.3-9,4.4-5 to 4.4-6.

Since the facility will have minimal visual impacts, there is no reason to believe that the visual aspects of the facility could cause tourist dollars to be lost. The State does 42

not take issue with the analysis in Chapter 4. The State merely states that " visual impacts can be quantified in terms oflost tourist dollars" without providing facts, expert opinion, or documents ofits own to show that tourist dollars would be lost due to the existence of the facility or that such possible impacts could be quantified. State Petition at 179.

Because the State has failed to provide any factual evidence or supporting reasons shat demonstrate that tourist dollars would be lost or to cast doubt on a specified portion of the Application, this subcontention must be dismissed.

(iv)

Quantification of Fmergency Resoonse Costs The State asserts that "the Applicant makes no attempt to quantify the costs associated with the impacts of the facility," including " costs (that] are amenable to quantification: for instance... emergency response costs can be quantified based on the cost of those services." State Petition at 179. The Applicant has indeed addressed the emergency response costs as part of the facility operating expenses costs, which are included in Environmental Report Table 7.3-1, " Private Fuel Storage Facility Life Cycle Costs / Benefits." ER at Table 7.3 1. Because the State ignores this material and for the reasons specified in subpart (e), this subcontention must be dismissed.

E.

Utah Contention DD: Ecology and Species 1.

The Contention The State alleges in Contention DD that:

The Applicant has failed to adequately asse ss the potential impacts and effects from the construction, operation and decommissioning of the ISFSI and the transportation of 43

q

-l 4

' spent fuel on the ecology and species in the region as i

required by.10 CFR 66 72.100(b) and 72.108 and NEPA.

i State Petition at 180. The asserted bases for the contention are set forth in eight pages of=

discussion following the contention. In order to focus the analysis on whether the l

contention should be admitted, the Applicant proposes that the contention be restated as a

4 3

follows incorporating the specific allegations in its bases:

The Applicant has failed to adequately assess the potential impacts and efTects from the construction, operation and decommissioning of the ISFSI and the transportation of spent fuel on the ecology and species in the region as required by 10 CFR (( 72.100(b) and 72.108 and NEPA in that:

a) The License Application does not discuss the long term impacts of construction activities on the overall ecological system in Skull Valley.

b) The License Application fails to address adverse impacts of contaminated ground or surface waters on various species, and fails to provide for sampling of the retention pond for contaminants.

c) The License Application fails to include both protective and mitigation plans in conjunction with appropriate authorities for Horseshee Springs, Salt Mountain.

Springs, Timpic Springs Waterfowl Management Area, and raptor nests.

- d) The License Application has not estimated potential impacts to ecosystems and "important species"in that:

(i) The License Application does not discuss the importance of the variety of species found in the Skull Valley ecological system, including aquatic organisms, and does not discuss the interdependence of various 44

species on one another or impact on the ecological system as a whole.

(ii) The License Application fails to assess the individual and collective impacts on various species, including wetland species, aquatic organisms, plants, fish, and birds from additional traffic, fugitive dust, radiation and other pollutants.

(iii) The Licen Application fails to address all possible impacts on federally endangered or threatened species, specifically the peregrine falcon nest in the Timpic Springs Waterfowl Management Area.

(iv) PFS failed to perform a survey of pocket gopher mounds prior to submitting the License Application.

(v) The License Application fails to determine whether

" culturally or medically (scientific) significant" plant species may be impacted by the PFSF.

(vi) The License Application fails to identify aquatic plant species which may be adversely impacted by the proposed action.

(vii) The License Application has not adequately identified plant species that are adversely impacted or adequately assessed the impact on those identified, specifically the impact on two "high interest" plants, Pohl's milkvetch and small spring pars!ey.

(viii) License Application does not identify, nor assess the adverse impacts on, the private domestic animal (livestock) or the domestic plant (farm produce) species in the area.

e) License Application fails to assess the potential impacts on Horseshoe Springs, Timpie Springs Waterfowl Management Area, the Great Salt Lake, and Salt Mountain Springs.

45

i i

- f): License Application fails to include the results of --

detailed site-specific surveys and analyses to determine -

species in the vicinity of the PFSF. 10 CFR ((

72.100(b) and 72.108 require that detailed surveys of -

species plus mitigation or prevention plans be prepared noW.

2.

Annlicant's Reennnae to the Cnntentinn The State raises a number ofissues under its Contention DD. We address in tum below each of the specific allegations raised by the State in Contention DD as set forth -

above.-

a)

- Lnno Term Imnacts of Cnnetruction Activities on the Overall Ecolooieml Syenem in Skull Valley The State alleges that the License Application "does not diacuss the long term impacts (of construction activities on] the overall ecological system in Skull Valley." See State Petition at 180 (emphasis added). The State asserts that the License Application only " indicates that construction activities will 't:mporarily disturb resident wildlife i

species,'" and fails to assess the impact of" ongoing constmetion for over twenty years." '

- Id. The State's contention ignores pertinent portions of the License Application that -

explicitly address the long-term ecological impacts of PFSF construction over 20 years.

Section 4.1.2, " Site Preparation and Facility Construction - Effects on Ecological 3

Resources," of the Applicant's Environmental Report explicitly essesses the impact of

- construction activities on the ecological system near the site both in the near term (first t

46 w

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construction phase,2000-2001), and in the long term (second and third construction phases,2002-2011 and 2012-2021) respectively. Scc ER at 4.1-4 to 6.

The analysis in the Applicant's Emironmental Report determines that "[t]he proposed construction activities that will be likely to cause the most disturbance to wildlife... will occur mostly in the first construction phase Qanuary 1,2000 to December 31,2001...)"(ER at 4.1-4), and that during "[s]ubsequent construction activities in the second and third construction phases (March 1,2002 to November 30, 2011, and March 1,2012 to November 30,2021...)... [t]he impacts on wildlife will lessen as the level of construction related activities is reduced and wildlife should repopulate the area shortly thereafter"(ER at 4.1-4 to 5). In addition, the Environmental Report discusses We reduced traffic effects during the latter two construction phases. ER at 4.1-5.

The State's contention neither addresses, nor challenges the validity of, these sections of the Emironmental Report assessing the ecological impacts from PFSF long-term construction activities over a period of 20 years. See generally, State Petition at 180. A contention, such as the contention here, which mistakenly claims that the epplicant did not address a relevant issue in the license application must be dismissed for d

lack of a material factual dispute that warrants further inquiry. See Section II.C of Applicant's Answer at 15-16. Further, because the State fails to provide any reason why 47

the discussion in the License Application is deficient, the contention must be dismissed for lack of factual basis. E at Il-16.

b)

Contaminated Ground oi Surface Water and Sampling of Retention Pond for Contaminants ne State alleges that the License Application fails to address adverse impacts "as a potential result of contaminated ground or surface waters, including contaminated puddles and ponds, on various species," specifically " water bom radioactive, chemical, or heavy metal contaminants that may be absorbed by wildlife, aquatic organisms, or vegetation." State Petition at 180-81. For support, the State references its Contention O on hydrology. E at 180. As set forth in Applicant's response to Contention O, the State provides no facts, expert opinion or documents to support its identical contention there that the proposed licensing action will result in contamination of ground or surface water by radioactive, chemical or heavy metal contaminants. See Applicant's Answer to Utah Contention 0, subpart a at 174-79. The State likewise provides no such factual support in this contention, and, like Utah Contention 0, this contention must be dismissed for lack ofbasis.

The State also asserts that "[t]he Applicant has not indicated an intent to sample the retention pond or prevent the utention pond 6om draining in the event contaminants are present" and that therefore "the Applicant cannot support [its) argument that

'[s]urface runoffis not contaminated and will not adversely affect vegetation or wildlife.'" State Petition at 180-81. This bald conclusory assertion, however, again 48

]

provides no facts, expert opinion or documents to controvert the conclusions set forth in ~

the numerous sections in the License Application that there is no potential to contaminate -

a

. " ground or surface waters" at the PFSF, and no need or requirement to sample or monitor water in the retention pond on the PFSF site. In addition to Applicant's Response to Utah Contention O, this issue has already been addressed in Applicant's Response to Castle Rock Contention 10 (" Retention Pond"), subparts a and b, Applicant's Answer at 387-89, Castle Rock Contention 11 (" Radiation and Environmental Monitoring"), subpart b, id, at i

393-% and Applicant's Response to Subpart (d) of Utah Contention P (" Failure to Indicate Whether Rain Wate snd Melted Snow from the Storage Pads will be Handled as Radioactive Waste"),id.L 195-90.

-In short, the State's contention concerning effects of" contaminated ground or surface waters, including contaminated puddles and ponds, on various species" must be rejected for failing to address pertinent portions of the Applicant's License Application i

+

. and for failing to establish a sufficient basis for an admissible contention. Sec Applicant's Answer,Section II.C at Il-16.-

c)

. Failure to Propose and Develon Protective and Mitiontion Plans The State all ges that the License Application fails to include protective and mitigation plans in conjunction with appropriate authorities for Horseshoe Springs, Salt Mountain Springs, Timpie Springs Waterfowl Management Area, and raptor nests. Sec State Petition at 181. The State's contention acknowledges that:

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Ihe Applicant's plans include a mitigation plah for Horseshoe Springs and protective plan for Salt Mountain -

- Springs developed with the U.S. Bureau ofland --

Management, mitigation plans for Timpic Springs ~

Waterfowl Management Area and protection ofraptor nests

- developed with the Utah Division of Wildlife Resources.

Sac State Petition at 181. The sole focus of the State's contention is that "[t]he protective and mitigative measures must be identihd now so they can be evaluated and the feasibility of the proposed ISFSI site determined." 11 The State's contention, however, does not provide any basis whatsoever, regulatory or otherwise, to indicate that these mitigation and protection plans must be developed and evaluated at thin time and submitted as part of the License Application. Nor does the State provide any factual basis L

to claim that appropriate protection and mitigation plans could not be developed for any adverse environmental impacts associated with the proposed licensing action.

- Accordingly, the State's contention must be rejected for failing to establish a sufficient basis for an admissible contention. 10 C.F.R. Q 2.714(b).

d) s Potentin11mnacts to Ecosyctamn and "Imnortant Snecies" The State alleges that the License Application "has not estimated potential-

- impacts to ecosystems' and !important species'" in various respects to which Applicant responds in tum below. Sen State Petition at 181-85.

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(i)

' Potantial Imnarte to Waevetame and "Imnastant Snacles" q

The State assens that the License Application "does not discuss and acknowledge the importance of the variety of species found in the Skull Valley ecological system,

{

including aquatic organisms," and "does not discuss the interdependence of various species on one another" or "the collective impact of the proposed action on the ecological l

system as a whole." State Petition at 182. The State's contention overlooks and fails to -

identify any specific deficiencies in the substantial pertinent portions of the License Application that discuss the variety, importance and interdependence of species found in the Skull Valley ecological system, including aquatic organisms.

Section 2.3, " Ecology," of the Environmental Report includes over 23 pages of text and two detailed tables which identify and discuss the types and imponance of the -

variety of species found in the Skull Valley ecological system. Ssc ER at 2.3 1 to 23, i

Tables 2.3-1 and 2.3-2. This evaluation analyzes species of vegetation (ER Section 2.3.1.1), wildlife (ER Section 2.3.1.2), and aquatic resources (ER Section 2.3.1.3) in the a

vicinity of the PFSF. The Environmental Report also includes specific evaluation of threatened, endangered, and sensitive species of both plants and animals. Ses ER Section i

2.3.1.4. The same analysis is done for ecological resources along the transportation corridor, including specific assessments of the ecological communities at Timpie Springs and Horseshoe Springs. San ER Section 2.3.2. The State's contention does not address, or challenge the validity of, this assessment of the types, variety, and importance of 4

51

i i

a species in the License Application, stating only that "the Applicant discusses, to a limited j

i extent, the anticipated short term impact on mammals, raptors,' snakes, fish, and a few plant species...." Sca State Petition at 182. The State, howewr, fails to specify what 3

species the Applicant has failed to discuss, and does not provide any factual basis on whleh to challenge the Applicant's discussion of the ecology, vegetation, wildlife, aquatic ;

resources, plans, and animals, contained in Section 2.3 of the ER, as being deficient, Similarly, the State's contention that the License Application fails to address the

" interdependence of various species on one another"(State Petition at 182) does not l=

acknowledge, address, or dispute the " Life History Information" in Appendix 2B of the Environmental Report which describes the habitat, diet (including predator / prey relationships), breeding, and range of certain species. Sac ER, Appendix 2B. Likewise, the State's contention that the License Application "does not discuss the collective impact t

of the proposed action on the ecological system as a whole" (State Petition at 182) does not acknowledge, address, or dispute the assessment of" Effects on Ecological i

Resources" in Sections 4.1.2,4.2.2,4.3.2, and 4.4.2 of the Applicant's Environmental Report. Sec ER QQ 4.1.2 (site preparation and facility construction),4.2.2 (facility operation),4.3.2 (construction and operation of road transport alternative),4.4.2 (construction and operation of railroad spur alternative).

In short, the State's contention neither addresses the sections of the Applicant's

~

Environmental Report that identify the types, variety, and importance of species in the 52

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4-vicinity of the PFSF and the impact of the proposed action on these species nor provides -

any factual basis on which to challenge the sufficiency of that discussion ~ Accordingly, this contention must be dismissed for failing to provide a sufficient basis for an admissible contention. Sac Applicant's Answer,Section II.C at Il-16.

i (ii).

Imaarts on Various Snacies inchviino Wetland Snecies.

Annatic Oronnieme Plante Fish and Birds from Additional Traffic Funitive Dnet RmAintion and Other Pollutants ~

The State contends that the License Application "does not discuss the impact of miditional traffic, fugitive dust, radiation, and other pollutants on various species" and fails to " assess the individual and collective impacts on auch enacies." Sac State Petition at 182 (emphasis added). The State's contention notes that "[i]mpact on wetland species, aquatic organisms, plants, fish, and birds are vastly different." Id. The State's contention, however, provides no further information and fails to identify what species the License Application "has failed to assess." Moreover, the State's contention neither

- addresses, nor challenges the validity of, the pertinent portions of the license application

' i t

which address the ecological effects of construction and operation of the PFSF and the regional transportation corridor. San ER f Q 4.1.2,4.2.2,4.3.2,4.4.2. The State's contention does not address any of this information in the License Application nor does it provide any factual basis on which to challenge the sufficiency of that discussion in any respect.

53 q..

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' First, the State provides no facts, expert opinion, or documents of any kind to support its allegations that " additional traffic, fugitive dust, radiation, and other.

pollutants" will have an impact on "various species" of" wetland species, aquatic

\\

organisms, plants, fish, and birds." Sna State Petition at 182. Further, the subcontention ncilhcr identifies what these "various species" of"wetlar.d species, aquatic organisms, plants, fish, and birds" are not discloses where they are located.11 It also provides no ~

basis or transport path for how this " fugitive dust, radiation, and other pollutants" could i

originate from the facility and be transported to reach the (undefined) location of the

" wetland species, aquatic organisms, plants, fish, and birds." 11 The State prosides no basis for believing that such a connection exists. Such a conclusory allegation of dispute is not sufficient to admit a contention; the petitioner must show that " facts are in dispute,"

thereby demonstrating that an " inquiry in depth"is appropriate. Terms Utilities Electric i

Comnanv (Comanche Peak Steam Electric Statiun, Unit 2), LBP-92-37,36 NRC 370, 376 (1992). Because its subcontention contains no more than conclusory, unsupported allegations, the contention must be rejected for failing to provide a sufficient basis for an admissible contention. -Sss. Applicant's Answer,Section II.C at Il-16.

-(iii)

Impacts on Federally Fndangered or Threatened Species.

Specinen11v the Peregrine Falcon Nest at Timpic Springc The State contends that the License Application fails to " address all possible

-impacts on federally endangered or threatened species," includmg specifically the

- peregrine falcon nest in the Timple Springs Wr.terfowl Management Area. San State -

54

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. 1 i

Petition at 183 (emphasis in original). The peregrine falcon is the only federally--

~

1 endangered or threatened species" identified in the State's contention. Id. The State's -

contention is therefore too vague, insufficient, and unsupponed with respect to any i

species other than the peregrine falcon.

With respect to the peregrine falcon, the State alleges that "[t]he Applicant argues that the proposed action is unlikely to have any impact on peregrine falcons,... [but]

[t]he Analicant ignares that the peregrine falcon nest on the Timpic Springs Waterfowl 4

Management Area is adjacent to the proposed intermodal transfer station at Rowley Junction." Sec State Petition at 183 (emphasis added). The State's contention is -

- mistaken and overlooks pertinent portions of the Applicant's license application. The.

Applicant's License Application both recognizes that "the peregrine falcon nest on the Timpic Springs Waterfowl Management Area"is adjacent to the transportation corridor i

and the intermodal transfer location (scc ER 6 2.3.2), and assesses the impact on the

- peregrine falcons at Timpie Springs from the constmetion and operation of the " road

- transport alternative," which includes the intermodal transfer point (sac ER { 4.3).

Section 2.3.2.2 of the Environmental Repon states that "[p]eregrine falcons, nesting at Timpic Springs, hunt within 10-miles of their nest, including at Horseshoe Springs (BLM,1992)." ER at 2.3-19. Section 2.3.2.4," Threatened and Endangered i

' Species," of the Environmental Report explicitly addresses the peregrine falcon nest at Timpic Springs, stating:

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As mentioned previously, the federally endangered L

^

pereerine fatean a-e. at Timaia taria== Waterfowl '.

Management Area. Although the transportation corridor '

j begins at Timpie [at the intermodal transfer point, asc ER at

- 4.3-2), the hacking tower and nest are not located in the -

L vicinity of the nraaaaad la'armadal lan=+ian However, the

~

hunting area of the falcons includes the northern 10 miles

. of th: transportation corridor.

. ER at 2.3-20 (emphasis added). Section 4.3 of the Environmental Report then explicitly-I evahantes the impact of construction and operation of the " road transport altemative,"

a

' which includes the intermodal transfer point, on the peregrine falcons nesting at Timpie

' Springs. Scc ER at 4.3-4 to 5.

The State's contention neither addresses, nor challenges the validity of, these

- sections explicitly assessing the impact of transportation and the intermodal transfer point -

on the peregrine falcons nesting at Timpie Springs; it refers only to the section of the Environmental Report that discusses the impacts of the construction of the PFSF (Section 4.1 of the ER). Scr ' W-Petition at 182-83. The State's assertion that "[t]he Applicant ignores that the peregrine falcon nest on the Timpie Springs Waterfowl Management t

-- Area is adjacent to the proposed intermodal transfer station at Rowley Junction" is -

l therefore clearly mistaken. Id. at 183 (emphasis added). A contention that mistakenly claims that the applicant did not address a relevant issue in the license application must be dismissed for failing to provide a sufficient basis for an admissible contention.- Scc Applicant's Answer,Section II.C. at 15-16.

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(iv)

Survey of Pockat Gonher Mounde Prior to Submittino the.

Licener AnnlicAliDD The State asserts that the License Application is deficient because PFS has failed to perform e survey of pocket gopher mounds. Soc State Petition at 183. The State acknowledges that Applicant has committed to perfonn a survey of pocket gopher mounds prior to construction, bot the State contends that the Applicant "must conduct the survev now...." Id. (emphasis added). The State, however, cites to no regulation or any other basis that indicates such a survey must be performed now, prior to review of the License Application, or that such a survey is even required.

The License Application specifically addresses the survey ofpocket gopher mounds, stating,intcI alia:

Although the species is notprotected. UDWR [ Utah Division of Wildlife Resources] (1997) requests that a survey of gopher mounds be conducted and surface disturbance within 100 feet of any burrow be avoided to protect this specias. To accommodate the UDWR reguest, sur"eys will be conducted shortly before construction in consultation with UDWR ER at 4.1 7 (emphasis added). Nothing in the License Application or the State's petition indicates that such a survey is required, much less that this survey must be per.'ormed now. Further, the State provides no information to challenge the sufficiency of Applicant's discussion of the pocket gophers. Accordingly, this contention must be -

rejected for lack of basis.10 C.F.R. Q 2.714(b).

57

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(v)i _ Failure to identifv " culturally or Madienliv (Relantifici :

Klonificant" Plant Enacian finnectad by the PFSF

]

The State alleges that the License Application is deficient because it does not :

A "identif[y] any plant species that may be culturally or inadicinallv (aciantifici aionincaw '

l to various individuals." State Petition at 183 (emphasis added). The only "various 1

! ndividuals" identified by the State is the," Confederated Tribes of Goshute Reservation"-

!i i

which the State says " gather plants in the vicinity of the Sicull Valley Reservation." Idi r

- The State's contention does not identify any alleged " culturally or medically (scientific) significant" plant species that the License Application fails to discuss, nor does it even define what the term means. Nor does the State indicate why the discussion of plant species provided in the License Application is deficient. Sac ER f 2.3.1.1, Q 2.3.1.4.1, { 2.3.2.1 and Appendix D (various subsections of( 2.3," Ecology," which discuss vegetation and plant species in the vicinity of the PFSF site and the transportation corridor). Further, the State provides no regulatory basis, or any other basis, whatsoever 4

to support its assertion. An unsupported statement "that simply alleges that some matter ought to be considered" does not provide a sufficient basis for an admissible contention.

e

< Racrarnenen Muhicinal Utility District (Rancho Seco Nuclear Generating Station), LBP.

93-23,38 NRC 200,246 (1993). Accordingly, the State's unsupported assenion must be rejected for failing to provide a sufficient basis for an admissible contention. 10 C.F.R. {

2.714(b).

J 4

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- (vi) -

Fallare to Idantifv Annatic PInne Rnacian That May be -

Adverselv A&ctad,

1The State contends that the License Application "has not identified aquatic plant i

t species which may be adversely impacted by the proposed action and upset fragile -

4 ecological systems of wetlands." State Petition at 184. The State, however, identifies no

- aquatic plant species or wetlands area that the Applihation fails to address. The License r

- Application states that [t]here are no stream or wetland impacts associated with the

-)

- development of the facility site." ER at 9.1-4. The State provides no factual basis on which to challenge that conclusion.

The Emironmental Report does state that "[u]nlike the area within the 5-mile radius or the PFSF, there is some wetland / riparian habitat along the transportation corridor... at Timpic Springs, Horseshoe Springs, Muskrat Springs, and Salt Mountain."

ER at 2.3-17. The Application identifies the "[t]ypical riparian / wetland (plant] species" 3

4 located in these wetlands areas.11 The State fails to identify any additional species which it claims that the Enyb anmental Report fails to take into account. Funher, the c[

Environmental Report evaluates potential impacts on wetlands areas in the transponation corridor and provides that sediment and erosion control and other protective measures r

will be taken to ensure that no adverse impacts on aquatic resources will occur. ER f 4.3.2. Again the State provides no factual basis on which to challenge the sufficiency of the discussion in the Environmental Report. -

59

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= In sum, the State's bald one-sentence assertion that the " Applicant has not identified aquatic plants which may be adversely impacted by the proposed action and upset the fragile ecological system of wetlands" must be rejected for lack of basis. Sec

- Applicant's Answer,Section II.C.

J -

(vil)

Failure to Identify Plant Snecies Adverselv Affected and to Adeoiintely Aecess Imnact on Two "High Interest" Plants.

Pohl's Milkvetch and Small Spring Parsley The State quotes from the License Application that "'[n]o federal or state-listed threatened or endangered plant species are known te occur within the site or access road,'" but notes that the Application does acknowledge that two "high interest plants,"

Pohl's milkvetch and small spring parsley, may occur in the area. State Petition at 184 (emphasis in original). With no further support or analysis the State asserts that "[t]he Applicant has not adequately assessed plant species and impact on those identified." Id.

The State fails to identify any plant species, other than Pohl's milkvetch and small spring parsley, which may be endangered or of high interest that may be affected by the proposed action. Thus, the State's contention is far too vague, insufficient and l

unsupported with respect to any species other than Pohl's milkvetch and small spring parsley.

Although the State claims the License Application "has not adequately assessed" the impact on "Pohl's milkvetch and small spring parsley," the State identifies na respect in which the assessment in the Emironmental Report of these two species is in any way l

60

- deficient. The Environmental Report specifically identifies Pohl's milkvetch as a '"high interest' plant species which (could] potentially occur within a 5-mile radius of the PFSF." ER at 2.3 10. The Environmental Report indicates that "[t]he nearest known population of Pohl's milkvetch to the project area is... approximately 6 miles away from the PFSF." E The Environmental Report also specifically identifies small spring parsley as a "'high interest' plant species which [could) potentially occur within a 5-mile radius of the PFSF " ER at 2.3-10. The Environmental Report states that "[w]hile this species could occur within the 5-mile radius from the PFSF, it has not been documented."

E at 2.3-11. Both Pohl's milkvetch and small spring parsley are also included on the list of" Species of Concem that Occur in Skvil Valley, Utah as identified by the Agencies"in

- Table 2.3 2 of the Environmental Report. E, table 2.3 2 (sheet 1 of 4).

Regarding potential impacts on these two plant species, the Emironmental Report states:

No federal or state-listed threatened or endangered plant species are known to occur within the site or access road areas (letters from R.D. Williams, Assistant Field Director, Utah Field Office, USFWS to N.T. Georges, SWEC, February 10,1997, and February 27,1997, and UDWR, 1997).... Two state "high interest" plant species, Pohl's milkvetch and small spring parsley, potentially occur within the site and/or access road area. Althonoh they are not protected. UDWR (1997) requested a survey to identify the occurrence of these plant species within the project area. To accommodate UDWR's reauest and to prevent impacts on any sensitive plant species, surveys for these species will be conducted shortly before construction within the areas identified for earthwork.

61 L

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. ER at 4.1-3 to 4 (emphasis added).

LThe State completely fails to addsess the content of the Applicant's assessment or

. to explain how the assessment of Pohl's milkvetch and small spring parsley in the '

- License Application is deficient. San State Petition at 184. The State provides absolutely

~

-'no factual or legal support of any kind for its contention and it must be rejected. Sag 10 1

C.F.R. Q 2.714(b).

(viii) Aeeaeemant of Private Dnmentic Animal (Livaetacid or Dnmaetic Plant (Farm Prndned Snaciee in the Area The tate alleges that the License Application does not identify, nor assess the c

adverse impa:ts on,' the " private domestic animal (livestock) or the domestic plant (farm

- produce) species in the area.'.' Sac State Petition at 184. The State admits that the.

Environmental Report in fact "brnadiv deaeribes and **timataa the number of domenic livestock guzing on U.S. Bureau of Land Management property in the area. ER 2.2-2"

- and that "the Applicant nelmnwladoes, but does not identify the private domestic animal (livestock) or the domestic plant (farm produce) species in the area." 11 (emphasis added) The State's contention does not explain the materiality of this asserted difference.

The License Application specifically addresses the raising oflivestock (e.g., cattle J

and sheep) in the vicinity of the PFSF (see ER at 2.2-2) and addresses vegetation on which this livestock grazes (scs ER at 2.3-3 to 4).' The License Application then

'l discusses the effects that facility and transportation corridor construction and operation will have on the rangeland used for grazing vegetation and to raise livestock, and c

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determines that these activities will affect such a small portion of the total rangeland in Skull Valley that the PFS activities "will not have a significant effect on grazmg activity in the Skull Valley area." Sec ER at 4.1-2. See also ER at 4.2-1 (same); 4.3 2 (same);

4.4 2 (sarne). The State does not explain why the identification and assessment of livestock and supporting vegetation in the Emironmental Report are deficient.

The States also makes a one-sentence broad-brush assertion that adverse impacts of the PFSF "may include impacts on livestock and plants from the radiological.

chemical. heavy metal. noise. or visual pollution due to the proposed action." Sec State Petition at 184 85 (emphasis added). The State provides absolutely no facts, expert opinion, document or basis of any kind to support its allegation of the presence of

" radiological, chemical, heavy metal, noise, or visual pollution." Id. Nor does it proside any factual basis to show how such claimed pollution would reach areas with domestic livestock or farm produce, or the significance of the level or intensity of the pollution should it reach such areas, or what effect such pollution would have on domestic livestock or farm produce (for example, what is the effect of noise on plants or visual pollution on livestock). As stated by the Commission in Yankee Atomic Electric Company (Yankee Nuclear Power Station), CLI-96-7,43 NRC 235,262 (1996), the Commission's amended pleading requirement " places an initial burden on Petitioners to come forward with reasonably precise claims rooted in fact, documents or expert opinion I

63 1

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e in order to proceed past the initial stage and toward a hearing." The State has not' done so l

here and this contention must be rejected.

\\q

?

In short, the State provides no factual or other basis for this contention, and does j

not explain why the portions of the License Application addressing the potential impact -

of the facility on livestock and plants is deficient. This contention must be rejected for 4

failing to provide a sufficient basis for an admissible contention. San Applicant's -

Answer,Section II.C at Il-16.

e).

Failure to Ae=*e= the Potentini Impacts on Horeechne Springs Timple Springe Waterfowl Management Area the Great Salt Lake and Salt Moimtnin Springs The State asserts that the License,ipplication fails to assess the potential impacts.

s t on four " specific habitats": Horseshoe Springs, Timpie Springs Waterfowl Management Area, the Great Salt Lake, and Salt Mountain Springs, and on the dependent species in these habitats. Scc State Petition at 185-86. With the exception of"the speckled dace, a state protected indigenous fish" (11 at I 86), the State's contention does not identify any plant or animal species at any of these habitats that it claims the Applicant has failed to

. assess.- Furthermore, the State acknowledges that the License Application does address the speckled dace,11 The Applicant's Environmental Report explicitly addresses the -

speckled dace, stating:

UDWR (1997a), identifies th. speckled dace (Rhinichthys -

- osculus), a state-protected indigenous fish species known to inhabit the wetlands ofcold desert and sub-montane 64

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ecological associations, as occurring within the Salti Mountain Springs (San Figure 2.3 12). De speckled dace.

is nat a high ine=st -14 is found in a variety of aquatic

~

L habitats, and it is more often found in waters less than three ftdeep.

ER at 2.3 19 (emphasis added); nee also ER at Figure 2.3-12; ER at 4.3-4 (discussing the opeckled dace at Salt Mountain Springs and ststire that "[a)ppropriate erosion and j

sediment control measures will be uken to ensure expansion of Skull Valley Road wodd -

I not affect any aquatic resources."). Although the State claims that the Applicant fails to

- discuss impacts on the speckled dace from " radiation or other pollution," State Petition at 186, as with its claims concerning domestic livestock and produce above, the State provides no factual basis on which to ast:rt that radiation or other pollution would impact

- the speckled dact or any other unidentified species.

- Further, the State does not explain why each of these habitats must be addressed separately beyond the discussion already found in the Environmental Report. The

' Applicant's Emironmental Report includes a description of the plant, wildlife, and aquatic species (including any threatened, endangered, and sensitive species) in the region around the PFSF site and transportation corridor. San ER f 2.3. Further, thn Environmental ' Report evaluates the impact on these ecological resources from the i

construction and operation of both the PFSF and the transportation corridor. San ER (( '

L 4.1.2, 4.2.2, 4.3.2, 4.4.2. These sections of the Envircnmental Report specifically address several " specific habitats" in the region of the PFSF and the transportation corridor, 65 4

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b including Horseshoe Springs Ne e e-. ER at 2.2 3,2.317,2.3 22 to 23,4.1-6 to 7,4.3 3), Timple Springs (see. e.g., ER at 2.3-17,2.3 20,2.3-21,4.3-3,4.3-4 to 5), and Seit Mountain Springs (nee e g., ER at 2.3 17,2.3-19,4.3-4). Except for the speckled 1 ace, j

discussed and refuted above, the State provides no specific basis for its contention and -

falls to explain why the pertinent portions of the Environmental Report, which addres's the impacts in tha region, are deficient.

[

The Grea Salt Lake is different from the other three habitats in the State's -

contention because it is not directly adjacent to PFSF-related construction projects. The State provides no facts, expert opinion, or documents of any kind to support its allegation that "the proposed ISFSI site" or the " proposed intermodal transfer station" or the

" eastern transportation routes" will have an impact on "the Great Salt Lake and its dependent species." Sec State Petition at 185-86. The State notes that the " Great Salt Lake is a unique body of water.., [that supports) [s]eventy-five percent of Utah's vital wetlands... [and) is a western hemisphere shorebird reserve," but utterly fails to show-any connection between these statements and "the proposed ISFSI site" or "propewd intermodal transfer station" or the " eastern transportation routes." Id. Such a conclusory allegation of dispute regarding this enormous body of water is not sufficient to admit a contention; the petitioner must show that " facts are in dispute," thereby demonstrating

^

that an " inquiry in depth" is appropriate. Texas Utilities Flectric Comnany (Comanche L Peak Steam Electric Station, Unit 2), LBP-92-37,36 NRC 370,376 (1992). 'Accordingly,

~

66-n i. - -

the State's contention must be rejected for failing to provide a sufficient basis for an admissible contention. - 10 C.F.R. 6 2.714(b).

Furthermore, the otate's claim that the "likely eastem transportation routes will follow closely the southern and eastern shorellnes of the Great ba't Lake" (State Petition at 185) addresses the environmental effects of transporting spent fuello the region of the ISFSI, and must be rejected as an impermissible challenge to the Commission's regulations. This subcontention is a direct challenge to the Commission's regulations in 10 C.F.R. Part 72 which expressly the evaluation of the environmental effects of transporting spent fuel to the region of the ISFSI. 10 C.F.R. QQ 72.34,72.108. See Applicant's Answer at 295-97. Here, the transportation within the region begins with the transfer from the national railroad network to the local or regional means of transport at Rowley Junction. As a result, the State's contention and its related bases, which argue that the Application " failed to assess the impact on the Great Salt Lake and its dependent species" from the "likely eastem transportation routes"(State Petition at 185), are barred as a matter oflaw from being litigated in this licensing proceeding. Sec 10 C.F.R. Q 2.758.

Additionally, the environmental effects of such shipments have been evaluated using the NRC's generic determination of the environmental impact of shipping spent fuel and this contention must be rejected on this basis as well. Sec Table S-4 and the discussion of Radioactive Material Movement at Q 4.7 of the Environmental Report as 67

well as ) 5.2 which discussed Transportation Accidents. To the ext.t Lat the State challenges Applicant's analysis of the emironmental impact of transporting spent fuel, Applicant has addressed this at Applicant's Answer at 292 310.

f)

Failure to Conduct Detailed Site Soecific Surveys and to Complete Mitigation or Prevention Plant The State contends that the License Application is deficient because it fails to include the results of detailed site specific surveys and analyses to determine species in the vicinity of the PFSF, and fails to include completed mitigation or prevention plans for any adverse impacts on such species. Sec State Petition at 186 87. The State asserts that these " surveys... and plans [must be] prepared now." 11 at 187. For support the State refers to 10 C.F.R. {f 72.100(b) and 72.108.11 Neither of these two provisions, however, supports the State's assertion that such surveys and plans must be completed and included as part of the License Application for an ISFSI.

The first provision cited by the State,10 C.F.R. ( 72.100(b), states:

Each site must be evaluated with respect to the effects on the regional environment resulting from construction, operation, and decommissioning for the ISFSI or MRS; in this evaluean both usual and unusual regional and site characteristics must be taken into account.

10 C.F.R. 0 72.100(b)(emphasis add xi). The other provision cited by the State,10 C.F.R. 0 72.108, states:

The proposed ISFSI or MRS must be evalu ted with respect to the poternial impact on the environment of the 68

O transportation of spent fuel or high level radi* active waste i

within the region.

10 C.F.R. 6 72.108 (emphasis added). Taken together, these two provisions require the License Applicatica to 'nclude an evaluation of the impact of the facility and related-transportation on the environment in the region of the facility. Neither of these provisions say anything about including the results of detailed site specific surveys or completed mitigation or preventiort. plans in the License Application, as the State asserts, ne State provides no other regulatory, or any other, basis to indicate that the results of such surveys and plans are required to be completed now and included in the License Application, Thus, the State in this contention " advocate [s] stricter requirements than those imposed by 10 C.F.R. {Q 72.100(b) and 72.108 and the contention must be rejected as "an impermissible collateral attack on the Commission's rules" and must be rejected. See Applicant's Answer, Section 11+D at 5-7.

Additionally, the State does not s) ifically state why more should be required than is already included in the License Application. He State, in its contentions, has identined no other plant or animal species of concern affected by the proposed ISFS that are not discussed in the Environmental Report, nor has it come forward with any basis to claim that the impacts c n those plant and animal species of concern cannot be protected or mitigated as the Applicant has committed to do in the Application. In these 69

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1 i

circumstances, the State's contention must also be dismissed for lack of basic. Ses i

Applicant's A wer,Section II.C at 11 13.

III.

CONCLUSION For the reasons set above with respect to each of the contentions, the Applicant i

respectfully submits that Utah Contention Z through DD should denied.

i Respectfully submitted,

(}L.

AAL Jay E. Siiberg ~ ~

Ernest L. Blake, Jr.

1 Paul A.Gaukler SHAW, PITTMAN, POTTS &

r TROWBRIDGE 2300 N Street, N.W.

Washington,DC 20037 (202) 663 8000 Counsel for Private Fuel Storage L.L.C.

Dated: January 6,1998 l

$35280-2 i

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00CKETED USNRC 18 JAN 4 P3:14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIUSFFlCL OF SE^ki i/aY RULB'/e3CE / ND ADJUDC/40N6 ! WF Before the Atomic Safety and Licensing Board in the Matter of

)

)

FRIVATE FUEL STORAGE L.L.C.

)

Docket No. 72 22

)

(Private Fuel Storage Facility)

)

ASLBP No. 97-732-02 ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Supplemental Answer to the State of Utah's Contentions Z to DD " dated January 61998 were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by US mail, first class, postage prepaid, this 6th day of January 1998.

G. Paul Bollwerk 111, Esq., Chairman Dr. Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission W3shington, D.C. 20555-0001 Washington, D.C. 20555 0001 e mail: GPB@.ntcsmtp.nre. gov e mail: JRK@nresmtp.nrc. gov Dr. Peter S. Lam

• Adjudicatory File Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 0001

-Washington, D.C. 20555-0001 e-mail: PSL@nresmtp.nrc. gov 1

- -..-~.- -.. -... -. -.. - -. - - - -

'j i

Catherine L. Marco, Esq.

• Charles J. I' day.

l Sherwin E. Turk, Esq.

Acting Director, Spent Fuel Project Omce Omce of the General Counsel Omce ofNuclear Material Safety and -

Mail Stop O 15 Bit -

Safeguards l

U.S. Nuclear Regulatory Coramission U.S. Nuclear Regulatory Commission i

Washington, D.C. 20555 Washington, D.C. 20555 l

e mail: SET @nrcamtp.nrc. gov Denise Chancellor, Esq.

Jean Belille, Esq. _

Assistant Attorney General Ohnso Gaudadeh Devia Jtah Attorney General's Office Land and Water Fund of the Rockies 160 East 300 South,5* Floor

- 2260 Baseline Road, Suite 200 P.O. Box 140873 Boulder, Colorado 80302 i

Salt Lake City, Utah 84114 0873-e mail: landwater@lawfund.org i

e mail: dchancel@ state.UT.US John Paul Kennedy, Sr., Esq.

Danny Quintana, Esq.

j

^

J Confederated Tribes of the Ooshute Skull Valley Band of Goshute Indians i

Reservation and David Pete Danny Quintana & Associates, P.C.

i 1385 Yale Avenue 50 West Broadway, Fourth Floor l

Salt Lake City, Utah 84105 Salt Lake City, Utah 84101 e mail: John @kennedys.org e mail: quintana @xmission.com Clayton J. Parr, Esq.

Omce of the Secretary Castle Rock, et al.

U.S. Nuclear Regulatory Commission i

Parr, Waddoups, Brown, Oee & Loveless Washington, D.C. 20555 0001 185 S. State Street, Suite 1300 Attention: Rulemakings and Adjudications P.O. Box 11019 Start i

. Salt Lake City, Utah 84147-0019 (original and two copies) e mail: CJR@pwlaw.com

[

Diane Curran, Esq.

2001 S Street, N.W.

Washington, D.C. 20009 e-mail: dicurran@aol.com By U.S. mail only

(

.M Paul A. Gaukler -

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